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

by Thomas Wemyss Fulton

“CHARLES R.

“We are gratiously pleased by these Presents to grant Lycense to ... to fish with the Men and Company belonging to a Ship or Vessel called the ... being of the Burthen of ... Tonnes, upon any of Our Coasts or Seas of Great Brittaine and Ireland, and the rest of our Islands adjacent, where usually heretofore any fishing hath been. And this Our Lycense to continue for one whole Year from ye Date hereof: Willing and requiring as well all Our subjects as others of what Nation, quality or condition soever that they give no Impeachment or molestation to ye said ... or his company in the said Vessell in the Execution of this Our Lycense, upon such Paines and Punishments, as are to be inflicted upon the Violators of Our Royall Protection, and the wilful Breakers of Our Peace, in Our aforesaid Dominions and Jurisdictions, further requiring and Commanding all Our Admiralls, Vice-Admiralls, Rere-Admiralls and Captaines of Our Ships, Castles, and Forts to protect and assist the said ... in ye quiet enjoying the benefit of this Our Lycense.”

Another form, dated in July, was as follows:—

“Charles by the Grace of God King of Great Brittaine, France and Ireland, Defender of the Faith, &c. To all his Admiralls, Vice-Admiralls, Rere-Admiralls, and Captaines of oure Shippes, Castles and fforts, and to all and every other our Officers, Ministers and subjects to whome it shall apperteyne, Greeting. Whereas Wee are gratiously pleased by these presents to grant License to ... Master of a Busse or Vessell called the ... beinge of the burthen of ... Tonnes, To fishe with the Men and Company belonging to the said Busse or Vessell upon anie of our Coastes and Seas of Great Brittaine, Ireland and the rest of our Islands adiacent where usually fishing hath bene, from the date hereof, to the last of December next. These are to will and require as well Yow our said Officers and Subjects, as others of what Nacion, quality, or condition soever That yow not onely give noe impeachment or molestacion to the said ... or his Company in the said Vessell in the Execucion of this Our License, upon such paynes and punishments, as are to be inflicted upon the Violaters of oure Royall Protecion and the wilfull Breakers of our Peace in oure aforesaid dominions and jurisdictions: But that yow protect and assist the said ... and his Company in the quiet enioying the benefitt of this oure License during the time before limitted: Given ...” Ibid., cccxxvi. 32; cccxxix. 77, 78, 79. It appears from copies without the names and particulars filled in, which are preserved at The Hague, that the first form was used in July, a certain Joost Bouwensz of Delfshaven having accepted one on the 24th (N.S.) of that month.

[537] State Papers, Dom., cccxix. 81; cccxxii. 40; cccxxvi. 32; cccxvii. 93; cccxxviii. 11, 41, 69.

[538] The herring-busses in ordinary course fished all night in fleets, with their drift-nets floating in the water; during the day the crews were employed in curing and packing the herrings caught.

[539] “Next day wee fetched in 4 more of them, and having caused their busses to be manned with English, and threatened the takeing away their nettes, they at last consented to take Licenses, and paying the acknowledgment I sent them all away very well satisfied.” These busses belonged to the Enkhuisen herring fleet, which was convoyed by a warship under Captain Gerrit Claesz. Ruyter, to whom Northumberland, after the licenses had been accepted, gave a written certificate and safe-conduct for bringing in the busses. Muller, Mare Clausum, 269, 377.

[540] These were the Delfshaven busses, the skipper of one being Joust Bouwensz, previously referred to. According to the Dutch accounts, money was scarce on the busses, but the English very willingly took herrings instead, a barrel of herrings being reckoned at from four to four and a-half florins.

[541] These were the Victory, Repulse, and Swallow. From a report of the Officers of the Navy to the Admiralty, on 20th August, we learn that the Repulse had a great many sick on board—“some three or four having died within these two days; some thirty sick were landed at Margate and eight are ill on board. The surgeon is dead, as is said of the spotted fever, full of spots, and it is much doubted that the pestilence is amongst them.” The plague in this and the following year made great ravages in London and at the naval ports, partly from the want of simple precautions—e.g., in this case the sick men were to be discharged “for fear of infection (of the ship) and to cease a needlesse charge.” State Papers, Dom., cccxxx. 61.

[542] The account of the movements of Northumberland’s fleet is extracted from his “Journall of oure Summer’s Voyage in the yeare 1636.” State Papers, Dom., cccxliii. 72.

[543] Northumberland to Windebank, 16th August 1636 (from Scarborough). State Papers, Dom., cccxxx. 41. About 400 licenses in all, each signed by the king, had been furnished to the Earl.

[544] 20th Dec. 1628. “Clachten van de insolentien van’t bootsvolk en de visschers deser landen in Schotlandt.” Muller, op. cit., 232.

[545] The English Company and the king’s relation to it were considered by the States in January 1631, 25th Oct. 1632, 19th Nov. 1633, and 15th Sept. 1634. (Bosgoed, Bib. Pisc., 357. Oprichting eener Engelsche compagnie voor de Haring-visscherij, Muller, op. cit., 235.)

[546] Verbaal van Beveren, 1636-37. Muller, op. cit., 246.

[547] Brit. Mus. Add. MSS., 17,677, P, fol. 67 et seq.

[548] Van Beveren to the States-General, 15/25 Aug. MSS. Add., 17,677, P, fol. 88. In his letter he says the tax on each ton was “twee sixpenningen,” or an English shilling. Others placed it at two shillings a last.

[549] Aitzema, Saken van Staet en Oorlogh, ii. 409. Muller, op. cit., 263.

[550] Joachimi to the States-General, (31 Aug.)/(10 Sept.), 9/19 Sept. 1636. Brit. Mus. Add. MSS., 17,677, P, fol. 99, 100. Verbael van Joachimi, 1636. Muller, op. cit., 264.

[551] Elizabeth to Sir Thomas Roe, 15/25 Aug. 1636. State Papers, Dom., cccxxx. 38.

[552] Roe to Elizabeth, 19th Aug., 20th Sept. Ibid., cccxxx. 50; cccxxxii. 1.

[553] Northumberland to the Admiralty and to Secretary Coke, Sept. 16. State Papers, Dom., cccxxxi. 55, 56.

[554] State Papers, Dom., cccxxxii. 39.

[555] Northumberland’s Journal, Ibid., cccxliii. 72; Northumberland to Nicholas, 6th October 1636. Ibid., cccxxxiii. 26. Dutch accounts vary somewhat from that given by the Earl of Northumberland. According to them, seven English men-of-war fell in with a hundred busses convoyed by five States’ warships, and the busses paid the tax and took the licenses. But when thirteen Dutch men-of-war, convoying a great herring fleet, arrived on the scene and put themselves in a position for battle, the English ships did not interfere any further and soon sheered off.

[556] An Accompt of the Convoy money, as it was delivered unto me by the Captaines emploied in that Service, vizt.: Captain Carteret, £657, Captaine Lindsey, £200, Captain Slingsby, £42, Captain Johnson, £20, Mr Skinner, £80.

[557] An Account of the Acknowledgment Money taken of the Holland Fishermen. The partiality for English gold is shown by the fact that £119, 13s. of the total was thus paid.

[558] The Dutch themselves appear to have acknowledged a payment of 20,000 florins (Muller, Mare Clausum, 274). Rapin (Hist. d’Angleterre, vii. 455) and Wagenaar (Vaderlandsche Historie, xi. 260) placed it at 30,000 florins; Larrey (Hist. d’Angleterre, d’Ecosse et d’Irlande, iv. 126) states that the Dutch concluded a treaty with Charles by which they agreed to pay him “dix mille ecus par an,” which is equivalent to the same thing; Hume (Hist. of England, ch. lii. an. 1636) says: “The Dutch were content to pay £30,000 for a license during this year.” The error is found in the earlier English historical writers. Rushworth (Collections, V. ii. 322) also states the sum as £30,000, and adds that the Dutch were willing to pay a yearly tribute for a like liberty in future. Frankland (Annals of King James and King Charles the First, 477 (1681)) says that Northumberland with his “sixty gallant ships” “commanded the Dutch busses to cease fishing until they had obtained permission from the King, which they seeming not willing and ready to do, he fired amongst them, sunk some and seized others, until they were forced to fly into his Majesty’s harbours, and desired the Lord Admiral to mediate to his Majesty for his leave for this summer, and they would pay unto his Majesty’s treasury therefor the sum of £30,000, which they did accordingly, and professed their readiness to become suppliants to his Majesty for a grant, under the condition of a yearly payment therefor for the future.” This writer seems to have confused Northumberland’s operations with those of Blake’s fleet in 1652 ([see p. 406]) or with the onslaught of the Dunkirkers in 1635. Kennet (A Complete Hist. of England, iii. 85 (1719)) repeats the mistake and puts the sum at £30,000, and so with almost all the historians, as well as the naval writers. Thus, Burchett (A Complete Hist. of the Most Remarkable Transactions at Sea, 379 (1720)) and Lediard (The Naval History of England, 526 (1735)) give the statement of Frankland; Entick (A New Naval History, 438 (1757)) drops one of the ciphers and makes the sum £3000, but otherwise retains the false account. Admiral Colomb, in his recent excellent work on Naval Warfare ([p. 33]), no doubt founding on these naval authors, also refers to the “non-payment of the £30,000 annually, which had been fixed by Charles as license dues.” The writers of minor books embellished the error. In a mendacious treatise published in 1664 (The Dutch drawn to the Life, 146) it is said that Northumberland “scoured the seas of the Dutch busses, seizing some, sinking others, and enforcing the rest to flee; so reducing all to the precarious condition of entreating the favour of fishing by the King’s commission, which he was the readier to indulge them, because he looked upon them as the most likely instruments for his nephew’s restauration to the Palatinate.” John Smith, writing in 1670 (England’s Improvement Reviv’d, 257), said that “the composition of the Hollanders (for liberty to fish) was an annual rent of £100,000, and £100,000 in hand; and never having been paid or brought into the Exchequer, as I could hear of, there is an arrearages of above £2,500,000; an acceptable sum,” he adds, “and which would come very happily for the present occasions of his Majesty”—Charles II. would have been very glad of much less; he quite failed to induce the Dutch to pay him £12,000 a-year for a like liberty. Evelyn in 1674 (Navigation and Commerce) put the “arrears” at over half a million sterling, and he said that in 1636 the Hollanders paid £1500, 15s. 2d. for licenses; but this was only, as he explained later, “the sophism of a mercenary pen,” since he slumped the convoy and the “acknowledgment” money together (having had access to Northumberland’s Journal), and eight years later he wrote to Pepys his remarkable letter of recantation, in which he stated, “Nor did I find that any rent (whereoff in my 108 page I calculate the arrears) for permission to fish was ever fixed by both parties” (Diary and Correspondence, iii.)

The writers on international law have copied the erroneous statements from the historians and from one another. Wharton (Hist. of the Law of Nations, 154) says, “The exclusive rights to the fisheries within these seas (the Four Seas) and near the coasts of the British Islands had been occasionally acknowledged by the Dutch in the form of annual payments and taking out licenses to fish; and was again suspended by treaties between the sovereigns of England and the Princes of the House of Burgundy.” This statement, which outrages chronology as well as fact, is repeated (without acknowledgment) by Phillimore (Commentaries upon International Law, I., Part ii., c. vi. s. clxxxiv.), and by Travers Twiss (The Law of Nations in Time of Peace, 254), Hall (Treatise on International Law, 145), and others. Hall quotes Hume’s statement that the Dutch had to pay £30,000 for leave to remain, and a more recent author supposes that the great fishing of the Dutch on our coasts originated in the reign of Elizabeth, and that, growing strong, they refused to pay the “duties levied without question for generations within the British Seas” (Walker, A History of the Law of Nations, i. 167). As has been shown in the text, the Dutch herring-boats resisted the payment of the “acknowledgment” money as far as they could; the States-General equipped a fleet to prevent by force their molestation by the English men-of-war, and they dismissed their Admiral because he failed in 1636 to protect them.

[559] Aitzema, op. cit., ii. 408. “Op de bewaringhe ende bescherminghe van de groote ende kleyne Visscherij deser Landen tegen de Spaansche ende allen anderen die hun souden willen beschadigen,” August 5/15, 1636.

[560] State Papers, Dom., cccxxxiii. 13.

[561] Muller, op. cit., 273.

[562] Res. Holl., 19th September; Res. St.-Gen., 8th November 1636; Bosgoed, Bib. Pisc., 360.

[563] Gardiner, Hist. England, viii. 160, 163, 202, 205.

[564] Roe to Ferentz, Oct. 15, 1636. State Papers, Dom., cccxxxiv. 15. Goring to his father, Lord Goring, Feb. 4/14, 1637. Ibid., cccxlvi. 33. Goffe to Archbishop Laud, Feb. 2. Ibid., cccxlvi. 23. The Queen of Bohemia to Archbishop Laud, Feb. 4/14. Ibid., cccxlvi. 34. Laud to the Queen, Feb. 28. Ibid., cccxlviii. 62. Roe to the Queen, Mar. 17. Ibid., cccl. 16. The Queen to Laud, (Mar. 25)/(April 4). Ibid., cccli. 1. Goffe’s letter to Laud was as follows: “Your Grace will receive intelligence from other hands that certain edicts which were ready to be published by the States against paying any acknowledgment for leave to fish are now suppressed upon the hopes of his Majesty’s relinquishing that business for the present. But the Prince of Orange, not willing to content himself with probabilities, hath been very pressing with the Queen of Bohemia to have some assurance given him that the king would not interrupt their fishing this year. And if no other way might be afforded, he is very urgent at least that the Elector (the son of Elizabeth) would write to him and assure him so much. How much such an assurance would be prejudicial to the honour of his sacred Majesty your Grace can best judge. But I thought it my duty to add that though their edicts are suppressed, yet their book in answer to Mr Selden’s Mare Clausum is ready to come forth: and the author is neither so modest nor discreet that the Elector should trust him [? the Prince of Orange] with any written assurance in that kind. The Prince of Orange hath been so much upon this that it hath given others cause to believe that the Elector will be moved in it.”

[565] Roe to Ferentz. State Papers, Dom., cccxxxiv. 15.

[566] The “confident vrundt” was probably Roe, who was the confidential adviser of Elizabeth, and at this time had interviews with the Dutch ambassador in the Prince’s interests, which he “feared would come to nothing.” Ibid.

[567] “Que durant le même temps les Pescheurs et preneurs d’hareng, subjects de leurs Seigneuries, pescheront librement et franchement, com̄e ils out tousiours faict du temps de la Royne Elysabeth et du grand Roy Jacques tous deux de très-glorieuse mémoire, s’approchants si près des bords de mer, et rivages des royaulmes, terres et ysles de sa Ma^té, que leur mestier, la course de poisson et hareng, et leur proffit portera, voire jusques à seicher leurs filets sur terre, sans que sa Ma^té directement ou indirectement leur fera ou fera faire aucun dommage, destourbier, ou empeschement en cela.” Verbaal van Beveren. Muller, op. cit., 279.

[568] Gardiner, op. cit., 218. State Papers, Holland, Jan., Feb. 1637.

[569] March 19, 1637. State Papers, Dom., cccl. 34.

[570] Gardiner, op. cit. State Papers, Holland, Flanders.

[571] Windebank to Northumberland, July 3. State Papers, Dom., ccclxiii. 21.

[572] State Papers, Dom., clvii. 151b.

[573] Windebank to the Earl of Northumberland, 3rd July 1637. State Papers, Dom., ccclxiii. 21.

[574] Northumberland to Windebank, 4th July, Ibid., ccclxiii. 28.

[575] Windebank to Northumberland, 6th July. Ibid., ccclxiii. 41.

[576] “Diamentenring van tamelijcke groote,” Verbaal van Beveren. Muller, op. cit., 297.

[577] State Papers, Dom., cccliv. 16; ccclv. 22.

[578] Report of Fielding, 24th July. Ibid., ccclxiv. 45.

[579] Pennington to Nicholas, 10th July, State Papers, Dom., ccclxiii. 99; Northumberland to Sir Thomas Roe, 6th August, ibid., ccclxv. 28; Pennington to Northumberland, 20th May, ibid., ccclvii. 15, ii.

[580] Windebank to Fogg, Aug. 10. Ibid., ccclxv. 51. With reference to this letter of Windebank’s, the following note by Secretary Williamson was made on the copy in the volume prepared for the ambassadors going to Cologne in 1673 (State Papers, Dom., Chas. II., 339, p. 519): “This mentioned report appears by other letters and passages of that time to have been really the truth, but of that disadvantage to his Ma^tys right and title, as it was thought fitt by all means to stiffle it, and give out Captain Fielding went to ye Holland Busses onely w^th notice of ye Dunquerq^rs preparations to intercept them in their return and to offer his Ma^ties protection.”

[581] Windebank to Northumberland, 1st Aug., State Papers, Dom., Chas. I., ccclxv. 5; Roe to Countess of Northumberland, 20th July, ibid., ccclxiv. 22; Northumberland to Windebank, 1st Sept., ibid., ccclxviii. 1; Same to Admiralty, 6th Sept., ibid., ccclxviii. 43.

[582] Aug. 10. Ibid., ccclxv. 53. The king’s real feelings were shown in the instructions given to the Earl when he was ordered to the west on 1st August. “If any of the fishers of Holland which have refused his Majesty’s licenses shall be assaulted by the Dunkirkers, his Majesty will in no wise that you protect them.” Ibid., ccclxv. 5.

[583] Aug. 6. State Papers, Dom., ccclxv. 28.

[584] An example of the feeling is to be found in an incident of this summer. One, Richard Rose, a justice of the peace, on hearing that the fleet was going forth to maintain the king’s title of being Lord of the Narrow Seas, exclaimed: “What a foolery is this; that the country in general shall be thus much taxed with great sums to maintain the king’s titles and honours! For my part, I am £10 the worse for it already.” When information of this remark was laid before the Council, the Lords “thought it not fit to question these words.” Ibid., ccclxx. 1.

[585] The king to the Twelve Judges, 2nd Feb. 1637. Ibid., ccclxvi. 11.

[586] The Sovereign of the Seas was the largest ship hitherto built for the navy; it was 127 feet long in the keel, 46½ feet in breadth (inside measurement), and 19 feet 4 inches in depth; the tonnage was by the “new rule” 1552 tons, by the “old rule” 1823 tons. She was also by far the most expensive. Her cost was £40,833, 8s. 1½d., besides her guns, which were estimated to cost, with engraving, £25,059, 8s. 8d. State Papers, Dom., ccclxi. 71; ccclxix. 44; ccclxxiv. 30; ccclxxxvii. 87. See also Oppenheim, Hist. Administration Royal Navy, 260. In 1637 a “description” of the ship was published by Thomas Heywood, dedicated to the king, and with a frontispiece representation of it: “A True description of his Majestie’s Royall Ship Built this yeare 1637 at Wool-witch in Kent. To the great glory of our English Nation and not paraleld in the whole Christian World. Published by Authoritie, London, 1637.” The description, apart from the verse, occupies a few pages at the end, the work dealing chiefly with the ships of the ancients. A second edition was published in 1638: “A True Discription of his Majestie’s royall and most stately ship called the Soveraign of the Seas, built at Wol-witch in Kent 1637 with the names of all the prime officers in her,” &c. Prynne (Brief Animadversions, &c., p. 123) says that Charles claimed and maintained the dominion of the seas by increasing the navy, &c., and “by giving the name of the Edgar (with this motto engraven on it, Ego ab Edgaro quatuor maria vendico) and of the Soveraign of the Sea to the Admiral of his fleet.”

[587] State Papers, Dom., ccclxxx. 61; ccclxxxix. 86; cccxc. 39.

[588] State Papers, Dom., cccxxv. 21; cccxxxviii. 15; cccxli. 6; ccclxi. 41; cccliii. fol. 34. Brit. Mus. Add. MSS., 17,677, O, fol. 364.

[589] State Papers, Dom., ccclxxxii. 44; ccclxxxiii. 29.

[590] Smith to Pennington, 8th June 1639. Ibid., ccccxxiii. 56.

[591] Windebank to Pennington, 10th, 15th, 16th July, State Papers, Dom., ccccxxv. 45, 72, 81; Northumberland to Pennington, ibid., ccccxxv. 76; Windebank to Hopton, 16th August, Clarendon State Papers, i. 1283.

[592] Pennington to Windebank, 13th July. State Papers, Dom., ccccxxv. 61, 68.

[593] Gardiner, Hist., ix. 69; State Papers, Dom., ccccxxviii. 52.

[594] Northumberland to Pennington, 12th September, State Papers, Dom., ccccxxviii. 92; Windebank to Hopton, 29th September, Clarendon State Papers, ii. 71; Hopton to Windebank, October 12/22, Cal. Clar. State Papers, i. 1311.

[595] Gardiner, op. cit., 61.

[596] Windebank to Colonel Gage and Count Leslie, (28 Sept.)/(8 Oct.). Cal. Clar. State Papers, i. 1296.

[597] Gardiner, op. cit., 63.

[598] Smith to Pennington, 30th Sept. State Papers, Dom., ccccxxix. 70.

[599] Northumberland to Pennington, 16th September. Ibid., ccccxxviii. 92.

[600] Pennington to the Master of the Luke, of London, 23rd Sept. Ibid., ccccxxix. 15.

[601] Smith to Pennington, 19th Sept. State Papers, Dom., ccccxxviii. 111.

[602] “De Spaansche Vloot te vernielen sonder eenige aanschouw of reguard te nemen op de Havenen, Reeden, of Baayen van de Coningryken, waar de zelve zoude zyn te bekomen.” Resol. Stat.-Gen., 11/21, 20/30 Sept. 1639. Aitzema, Saken van Staet en Oorlogh. Bynkershoek, Quæstiones Juris Publici, lib. i.

[603] Northumberland to Pennington, 8th Oct., State Papers, Dom., ccccxxx. 47; Same to Windebank. 9th Oct., ibid., ccccxxx. 55; Pennington to Northumberland, 11th Oct., ibid., 77; Suffolk to Windebank, 11th Oct., ibid., 66, 68; Pennington’s report, 11th Oct., ibid., 74; Hopton to Windebank, 20/30 Nov., Cal. Clar. State Papers, i. 1323; Tromp to Pennington, 11/21 Oct., State Papers, Dom., ibid., 80 (translation in Windebank’s writing); ibid., ccccxxxi. 4.

[604] Leslie to Windebank, 11th Oct.; Gage to Windebank, 19/29 Oct. Cal. Clar. State Papers, i. 1309, 1313.

[605] Northumberland to Pennington, 15th Oct. State Papers, Dom., ccccxxxi. 18, 30; Cal. Clar. State Papers, i. 1324.

[606] Windebank to Gerbier, 18th Oct. State Papers, Dom., ccccxxxi. 35. Gage to Windebank, 9/19 Nov. Paper delivered by Hopton to King of Spain, 24th Nov. Cal. Clar. State Papers, i. 1321, 1324.

[607] State Papers, Dom., dxxxviii. 106. The paper is endorsed “Soverainty of the Seas: the Dutch attempt on the Spaniards in the Downs.”

[608] Resol. St.-Gen., 16/26, 20/30 Oct., (26 Oct.)/(5 Nov.) 1639. Instructie van Sommelsdijck, Muller, Mare Clausum, 309; Aitzema, Saken van Staet, ii. 618.

[609] Secrete Resol. St.-Gen., 11/21 Oct., “Dat hunne meeninge gantsch niet was, het recht van Visscherie in de Noortzee van ijemant te stipuleren, versoecken ofte reveleren.” Muller, op. cit., 312. In the following year Vice-Admiral De With refused to lower his flag to an English ship-of-war off Hellevoetsluis.

[610] Maine, International Law, 13, 75. Phillimore, Commentaries upon International Law, I. xxi. Wheaton, History of the Law of Nations, 54.

[611] Meadows, Observations, p. 3. Raleigh, A Discourse on the Invention of Ships.

[612] Cunningham, The Growth of English Industry and Commerce during the Early and Middle Ages, p. 418.

[613] Le Droit International, i. 20.

[614] De Potestate Legis Pœnalis, lib. ii. c. 14. Quoted by Nys, Les Origines du Droit International, p. 382, and by Grotius, Mare Liberum, c. vii.

[615] D. Fernandus Vasquius, Controversiæ Illustres, Venice, 1564, lib. ii. c. lxxxix. s. 30 (p. 356, ed. Frankfurt, 1668).

[616] Mare Libervm sive de Jvre qvod Batavis competit ad Indicana Commercia Dissertatio. Lugdvni Batauorvm. Ex officinâ Ludovici Elzevirij Anno 1609. The name of Grotius did not appear on the title-page until the second edition in 1618 (Hvgonis Groti Mare Libervm sive ... vltima editio. Lvgdvni Batavorum, anno 1618), the year in which he was arrested; and that he was not generally known to be the author until this time is shown by Welwood referring to Mare Liberum in 1613 as written by “an unknown author,” and by an English State Paper, prepared for the negotiations with the Dutch ambassadors in 1618, which contains excerpts out of a book called Mare Liberum (Brit. Mus. MSS. Lansd., 142, fol. 383). Grotius was then one of the most prominent men in Holland. Another edition was published, also at Leyden, in 1633, together with Paul Merula’s Dissertatio de Maribus and Boxhorn’s Apologia pro Navigationibus Hollandorum adversus Pontem Hevtervm, under the title, Hugo Grotius, De Mare Libero. It was also included in Hagemeier’s De Imperio Maris, variorum Dissertationes, published in 1663. A translation in the vernacular appeared at Haarlem in 1636,—no doubt in consequence of the publication of Selden’s Mare Clausum,—H. Groti, Vrye Zeevaert, ofte Bewys van het Recht dat de Inghesetenen deser gheunieerde Landen toekomt over de Oost ende West-Indische Koophandel. Hugo de Groot was born at Delft in 1583; he was appointed Advocate-General before he was twenty-four years of age, and settled at Rotterdam in 1613, where he became Pensionary of that town; he was sent to England as one of the Dutch envoys in that year. In 1618 he was arrested in connection with the Barnevelt troubles, and in the following year condemned to perpetual imprisonment; but he escaped to Paris, where he lived for eleven years, and then entering the service of the Queen of Sweden, he was employed as her ambassador at the Court of France. He died at Rostock in 1645. Some of his works were translated into almost all European languages, and even into Persian, Greek, and Arabic.

[617] Tiele, Opkomst van het Nederlandsch Gezag in Oost-Indie; Fruin, Een onuitgegeven werk van Hugo de Groot, in De Gids, Derde ser. zesde Jaargang, 1868, vierde del; M’Pherson, Annals of Commerce, ii. 209, 226.

[618] “Ante annos aliquot, cum viderem ingentis esse momenti ad patriæ securitatem Indiæ quæ Orientalis dicitur commercium, id vero commercium satis appareret obsistentibus per vim atque insidias Lusitanis sine armis retineri non posse, operam dedi ut ad tuenda fortiter quæ tam feliciter cœpissent nostrorum animos inflammarem, proposita ob oculos causæ ipsius iustitia et æquitate, unde nasci το ἑυελπι recte a ueteribus traditum existimabam. Igitur et universa belli prædæque iura, et historiam eorum quæ Lusitani in nostros sæue atque crudeliter perpetrassent, multaque alia ad hoc argumentum pertinentia eram persecutus amplo satis commentario, quem edere hactenus supersedi.” Hugonis Grotii Defensio Capitis quinti Maris liberi oppugnati a Gulielmo Welwodo Iuris Civilis professore capite XXVII. eius libri scripti Anglico sermone cui titulum fecit Compendium legum Maritimaram. This manuscript of Grotius was discovered in 1864, along with the work De Jure Prædæ, to which he refers, in a collection of MSS. brought to auction, which belonged to the family of Cornets de Groot of Bergen-op-Zoom, who had descended in a direct line from the great publicist (Fruin, op. cit.) It was printed by Muller in 1872 (Mare Clausum, p. 331). The greater work, edited by Hamaker, was published in 1868, Hugo Grotius de Jure Prædæ Commentarius.

[619] “Hujus generis est Aër, duplici ratione, tum quia occupari non potest, tum quia usum promiscuum hominibus debet. Et eisdem de causis commune est omnium Maris Elementum, infinitum scilicet ita, ut possideri non queat, et omnium usibus accommodatum: sive navigationem respicimus, sive etiam piscaturum.” Cap. v.

[620] Cap. v. “Similiter reditus qui in piscationes maritimas constituti Regalium numero censenter, non rem, hoc est mare, aut piscationem, sed personas non obligant. Quare subditi, in quos legem ferendi potestas Reipublicæ aut Principi ex consensu competit, ad onera ista compelli forte poterunt: sed exteris jus piscandi ubique immune esse debet, ne servitus imponatur mari quod servire non potest.... Quod in aliis difficile videtur, in hac omnino fieri non potest: quod in aliis iniquum judicamus, in hac summe barbarum est, atque inhumanum.... In tanto mari si quis usu promiscuo solum sibi imperium et ditionem exciperet, tamen immodicæ dominationis affectator haberetur: si quis piscatu arceret alios, insanæ cupiditatis notam non effugeret.”

[621] Not improbably James had Mare Liberum in view in the following sentence in his Proclamation of 1609: “Finding that our connivance therein hath not only given occasion of over great encroachment upon our regalities, or rather questioning for our right.” That it was believed in England that Grotius had James in view is shown by the following précis contained in the volume of official records prepared for the ambassadors to the Congress at Cologne in 1673: “K. James coming in, the Dutch put out Mare Liberum, made as if aimed at mortifying the Spaniards’ usurpation in the W. and E. Indyes, but indeed at England. K. James resents it, bids his Amb^r S^r D. Carleton complaine of it.” State Papers, Dom., cccxxxix. p. 99. Chas. II., 1673-75.

[622] Cap. v. p. 29. “In hoc autem Oceano non de sinu aut fretu, nec de omni quidem eo quod e littore conspici potest controversia est. Vindicant sibi Lusitani quicquid duos Orbes interjacet.”

[623] Cap. vii.

[624] Hvgonis Grotii De Ivre Belli ac Pacis, Libri Tres.

[625] Lib. ii. cap. ii. s. iii. 1, 2.

[626] Lib. ii. cap. iii. s. viii. “Ad hoc exemplum videtur et mare occupari potuisse ab eo qui terras ad latus utrumque possideat, etiamsi aut supra pateat ut sinus, aut supra et infra ut fretum, dummodo non ita magna sit pars maris ut non cum terris comparata portio earum videri possit. Et quod uni populo aut Regi licet, idem licere videtur et duobus aut tribus, si pariter mare intersitum occupare voluerint, nam sic flumina quæ duos populos interluunt ab utroque occupata sunt, ac deinde divisa.”

[627] Lib. ii. cap. iii. ss. ix.-xii.

[628] Lib. ii. cap. iii. s. xiii. 2. “Videtur autem imperium in maris portionem eadem ratione acquiri qua imperia alia, id est, ut supra diximus, ratione personarum et ratione territorii. Ratione personarum, ut si classis, qui maritimus est exercitus, aliquo in loco maris se habeat: ratione territorii, quatenus ex terra cogi possunt qui in proxima maris parte versantur, nec minus quam si in ipsa terra reperirentur.”

[629] Calvo, Le Droit Internat., i. 348; Ortolan, Règles Internationales et Diplomatie de la Mer, i. c. v. [See p. 156] referring to a State Paper of 1610, which seems to be misdated “August 1609.”

[630] Dumont, Corps Diplomatique, vol. V. ii. p. 99. The treaty was signed on (30 March)/(9 April) 1609.

[631] Defensio, 332 (circa 1614); Letter to his brother, 1st April 1617. Epistolæ, 759.

[632] De Justo Imperio Lusitanorum Asiatico adversus Grotii Mare Liberum.

[633] Ivlii Pacii De Dominio Maris Hadriatici Disceptatio, Lvgdvni M.D.C.XIX. Other works were Angelus Mattheacius, De Jure Venetorum et Jurisdictione Maris Adriatici, Venezia, 1617; Cornelio Francipane, Alegazion in Jure, per il Dominio, della Republica Veneta, del suo Golfo, contra alcune Scritture di Napolitani, 1618; Franciscus de Ingenuis, Epistola de Jurisdictione Venetæ Reipublicæ in Mare Adriaticum, 1619; P. Zambono, Del Dominio del Mare Adriatico overo Golfo di Venezia, Venice, 1620.

[634] M’Crie, Life of Andrew Melville, 206, &c. Selden describes him as Jurisconsultus Scotus; and Prynne “A Scot, Professor of the Civil Law” (Animadversions, 113).

[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. 3b.

[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. 5b. 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. 228b. 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. 46b, 48b.

[886] Brit. Mus. Add. MSS., 30,221, fol. 47b. 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. 46b. 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^thin 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 Capⁿ 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. 62b.

[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.

[1047] 1st Aug. 1778. “E ne’ mari adjacenti agli altri porti, scali, torri, e spiagge del Gran Ducato non potrà usarsi atto veruno di ostilità nella distanza, che potrebbe circoscriversi da un tiro di cannone.” Op. cit., 24.

[1048] 4th March 1779. “Nè generalmente dentro la distanza di un tiro di cannone da terra.” Op. cit., i. 52.

[1049] 1st July 1779. “Nei porti, golfi, e spiagge del nostro dominio nella distanza, che potrebbe circonscriversi da un tiro di cannone.” Op. cit., 64.

[1050] 9th Sept. 1779, Arts. viii., ix. “Ed in tutti mari ad essi adjacenti, limitati, almeno allo spazio circoscritto dalla portata d’un grosso cannone di batteria.” Op. cit., i. 78.

[1051] Jenkinson (Lord Liverpool), A Discussion on the Conduct of the Government of Great Britain in respect to Neutral Nations (1758), ed. 1801, Pref. Phillimore, Commentaries, iii. 273. Wheaton’s Elements (ed. 1864), 1024. Martens, Recueil, iii. 158, seq.

[1052] Mutual protection was to be afforded “dans leurs ports ou rades, mers internes, passages, rivières, et aussi loin que leur jurisdiction s’etend en mer.” 8th Oct. 1782, Art. v. Martens, op. cit., 433.

[1053] “À la portée du canon des châteaux de l’autre.” Vide Martens and De Cussy, Rec., i. 381.

[1054] 26th Sept. 1786, Art. xli. “Leurs dites Majestés ne souffriront point que sur les côtes, à la portée du canon, et dans les ports et rivières de leur obéissance, des navires et des marchandises des sujets de l’autre soient pris par des vaisseaux de guerre, ou par d’autres qui seront pourvus de patentes de quelque prince, république, ou ville quelconque,” &c. Martens, Rec., iv. 178.

[1055] 11th Jan. 1787, Art. xxviii. “... Hors de la portée du canon des côtes de son allié ... dans les ports, havres, golfes et autres eaux comprises sous le nom d’eaux closes.” By Article xx. the salute was abolished. Ibid., 207, 210. The mention of closed waters no doubt referred to the Baltic, which was declared to be a closed sea (une mer fermée), into which the armed vessels of belligerents were to be refused entry, by a decree of the King of Denmark in 1780, and by conventions between Russia and Denmark and Sweden in the same year, and between Russia and the United Provinces and Prussia in the following year. Ibid., iii. 175, 195, 219, 250.

[1056] 17th Jan. 1787, Art. xix. Ibid., iv. 237.

[1057] 7th August 1803. Martens, Recueil, 2. viii. 105.

[1058] Martens, Recueil, iii. 763, 10th Sept. 1784, Art. vi.

[1059] [See p. 527].

[1060] Oct. 28, 1790, Art. iv. Martens, ibid. iv. 489, 497. Wheaton, Elements, 307 (ed. 1864).

[1061] Wheaton, Elements, 723 ; President’s Proclamation of Neutrality, April 22, 1793; Mr Jefferson, Secretary of State, to M. Genet, 8th Nov. 1793; Wharton’s Digest of the International Law of the United States, i. c. 2, s. 32.

[1062] Opinion of Attorney-General, 14th May 1793; Letter of Sec. of State to the French Minister, 15th May 1793; Kent’s Commentaries, i. 30. Delaware Bay, it may be said, has always been, and still is, claimed as territorial water by the United States. Vide reply of Government of United States to Observations of British Government on Draft Treaty, 1887. Correspondence relative to the Fisheries Question, 1887-1888. Parl. Papers (Canada), 1888, p. 70.

[1063] Act of Congress, 5th June 1794, c. 50. Kent’s Commentaries, 30.

[1064] Wheaton, Elements, 724.

[1065] Wharton’s Digest, i. c. 2.

[1066] Mr Madison to Messrs Monroe and Pinckney, 17th May 1806. Kent, Commentaries, i. 31.

[1067] Hall, A Treatise on International Law, Part II. c. ii. s. 2.

[1068] The High Court of Admiralty, for instance, decided in 1760 that a French vessel taken by an English privateer at Hayti was not good prize, as it had been attacked while in a port belonging to the King of Spain, “within reach of his cannon and under his protection” (Marsden, Report of Cases determined by the High Court of Admiralty, 175).

[1069] There were two cases of Twee Gebroeders—the first (Alberts, master) tried on 29th July 1800; the second (Northolt, master) tried on 27th November 1801.

[1070] Robinson, Reports of Cases Argued and Determined in the High Court of Admiralty, iii. 162. London, 1802.

[1071] Ibid., 339.

[1072] Ibid., v. 373.

[1073] Vide Chief Justice Cockburn, Law Reports, Excheq. Div., ii. 178. It is a curious circumstance that many English writers on municipal law, even after this time, adhering to a different line of inquiry, clung tenaciously to the husk of the old claims of England to the sovereignty of the sea. Hale, as we have seen, followed Selden, as did Hargrave and Blackstone, though with apparent diffidence. Chitty, in his Treatise on the Law of the Prerogative of the Crown, published in 1820, relying on Selden, Hale, and Molloy, declares that “the king possesses the sovereign dominion in all the narrow seas, that is, the seas which adjoin the coasts of England, and other seas within his dominions” ([p. 173]); and that he “has an undoubted sovereignty and jurisdiction, which he has immemorially exercised, through the medium of the admiralty courts, over the British seas, that is, the seas which encompass the four sides of the British islands; ... the law of nations and the constitution of the country have clothed the sovereign with this power, that he may defend his people and protect their commercial interests” ([p. 142]). He also assigns the soil under the sea to the king. Hall, in his Essay on the Rights of the Crown and the Privileges of the Subject in the Sea Shores of the Realm, published in 1830, states the doctrine even more nakedly. After defining the British seas according to Selden, he says, “Over the British Seas, the King of England claims an absolute dominion and ownership, as Lord Paramount, against all the world. Whatever opinions foreign nations may entertain in regard to the validity of such claim, yet the subjects of the King of England do, by the common law of the realm, acknowledge and declare it to be his ancient and indisputable right.” Hall also assigns the bottom or fundum of the British seas to the king, the authorities cited being Coke, Callis, Molloy, Hale, and Blackstone. Loveland, the editor of the second edition of Hall’s Essay, which was published in 1875, does not attempt to qualify the statements. It was not, indeed, till after the decision in the case of the Franconia in 1876, and the Territorial Waters Jurisdiction Act of 1878, that the doctrine was abandoned in theory by English lawyers. Even Moore, the editor of the third edition of Hall’s Essay, which appeared in 1888, while pointing out the alteration of the law by the decision in the Franconia case, and by the Territorial Waters Jurisdiction Act, thought it undesirable to vary Hall’s text, having regard to the diversity of the opinions expressed by the judges in the case referred to. Vide p. 590.

[1074] Convention, 1818, Art. i. “... And the United States hereby renounce for ever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish on or within three marine miles of any of the coasts, bays, creeks, or harbours of his Britannick Majesty’s dominions in America not included within the above-mentioned limits.” Wheaton, Elements, 324, 463 (ed. 1864). Parl. Papers, North America, No. 1 (1878). Henderson, American Diplomatic Questions, 497.

[1075] Martens, Nouv. Recueil, V. ii. 358; Behring Sea Arbitration, British Case, Parl. Papers, United States, No. 1 (1893), p. 38, App. I. No. 1.

[1076] The Duke of Wellington to Count Nesselrode, 17th Oct. 1822; G. Canning to the Duke of Wellington, 27th Sept. 1822; Count Nesselrode to Count Lieven, 26th June 1823; G. Canning to S. Canning, 8th Dec. 1824; S. Canning to G. Canning, 3rd April 1825. Parl. Papers, ibid., 41, 42, 44, 46, 56, App. II. pt. i. 14, 15, 29, 52, 57.

[1077] American State Papers, Foreign Relations, v. 452; Parl. Papers, ibid., App. II. pt. ii. No. 5; Wheaton, Elements, 308.

[1078] Treaty between Russia and the United States, April 17th, 1824, Art. i. iv.; treaty between Great Britain and Russia, 28th Feb. 1825, Art. i. vii. Martens, Nouv. Recueil, vi. 684. Parl. Papers, ibid., 52, 53.

[1079] In 1842. Parl. Papers, ibid., 83.

[1080] In 1846. Ibid., 84.

[1081] Ibid., 87.

[1082] E.g., the case of the Leda, in which Dr Lushington claimed that the term United Kingdom included the waters to a distance of three miles from the shore (Swa., Adm., 40); General Iron Screw Company, in which Lord Hatherly said that it was “beyond question that for certain purposes every country may, by the common law of nations, legitimately exercise jurisdiction over that portion of the high seas which lies within three miles from its shores,”—whether this limit was determined by the range of cannon was not material, since it was clear it extended at any rate to that distance (1 J. and H., 180); Whitstable Fishery Case, in which it was said that the soil of the seashore to the distance of three miles from the beach was vested in the crown, and in which Lord Chelmsford observed that “the three-mile limit depends upon a rule of international law, by which every independent state is considered to have territorial property and jurisdiction in the sea which washes their coast within an assumed distance of a cannon-shot from the shore” (11 C.B. (N.S.), 387; 2 H.L.C., 192); the Annapolis, in which Dr Lushington said. “Within British jurisdiction, namely, within British territory, and at sea within three miles from the coast” (1 Lush., Adm., 306); Rex v. Forty-nine Casks of Brandy, in which Sir John Nicholl said that “as between nation and nation, the territorial right may, by a sort of tacit understanding, be extended to three miles” (3 Haggard, 257); Gammell v. Commissioners Woods and Forests and Lord Advocate, in which Lord Wensleydale referred to the distance of three miles as belonging, by the acknowledged law of nations, to the coast of the country, and “under the dominion of the country by being within cannon range, and so capable of being kept in perpetual possession” (3 MacQueen, H.L., 419).

[1083] This subject is treated of by Mr A. H. Charteris, Lecturer in International Law, University of Glasgow, in a paper read before the International Law Association at Berlin in 1906 (Twenty-third Report, 103).

[1084] Two small islands in the Channel.

[1085] Bell, Crown Cases Reserved, 72. See Hall, Internat. Law, 5th edit., p. 156; Westlake, Internat. Law, i. 118.

[1086] The Direct United States Cable Company v. the Anglo-American Telegraph Company, Privy Council, 1877. Law Reports, Appeal Cases, ii. 394.

[1087] 33 & 34 Vict., c. 90.

[1088] See pp. 592, 632.

[1089] Regina v. Keyn, Law Reports, Excheq. Div., ii., 1876-7, p. 63.

[1090] E.g., p. 204: “There are several treaties by which nations have engaged, in the event of either of them being at war with a third, to treat the sea within three miles of each other’s coasts as neutral territory,” the treaties being those referred to on p. 572. “After the three-mile theory had been propounded by Bynkershoek,” p. 177. Mr Justice Amphlett went further, and attributed a similar doctrine to Grotius: “All the earlier writers, including Grotius, the vigorous advocate of the free navigation of the high seas, and many of the later writers, maintained that within the zone of three miles the state had, without qualification,” &c., p. 122.

[1091] 41 & 42 Vict., c. 73.

[1092] 58 & 59 Vict., c. 42.

[1093] Hansard, xxxiii. 504. The Lord Chancellor (Lord Herschell), who followed, said : “He was far from saying that three miles was to be the limit of territorial waters for all time. Originally the distance was fixed by gunshot, and it was always said that the distance a gun could fire to was three miles. How far this principle was to be extended, and whether it was to be extended indefinitely, was a question for consideration, and it was a question which would not be without its difficulty.” Lord Salisbury referred to a gun which was fired on Jubilee Day and carried twelve miles, and Lord Herschell to one which had a range of thirteen miles.

[1094] 9 Geo. II., c. 35; 24 Geo. III., c. 47; Twiss, The Law of Nations in Time of Peace, 261; Hall, A Treatise on the Foreign Powers and Jurisdiction of the British Crown, 244.

[1095] 16 & 17 Vict., c. 107, ss. 212, 218; 39 & 40 Vict., c. 36, s. 179.

[1096] Kent, Commentaries, i. 31; Wheaton, Elements, 267, 323.

[1097] Riquelme, op. cit. [See p. 569].

[1098] Fifteenth Ann. Rep. Assoc. for Reform and Codification of the Law of Nations,. 18, 22; Seventeenth, ibid., 302; Annuaire de l’Institut, xi. 151.

[1099] Fifteenth Rep., ibid., 84, 121; Ann. de l’Institut for 1894. Customs Act of Canada, 49 Vict., c. 32, s. 21.

[1100] 26 Geo. II.; 6 Geo. IV., c. 78.

[1101] Mer Territoriale, 222; and see pp. 551, 560, 564.

[1102] Twiss, op. cit., 261-264; Phillimore, Commentaries, i. 236; Kent, loc. cit.; Wheaton, loc. cit.; Hall, loc. cit. The latter author states that they “repose on an agreement which, though tacit, is universal,” and that “no civilised country encourages offences against the laws of a foreign state when it sees that the laws are just and necessary.”

[1103] De la Liberté des Mers, ou le Gouvernement Anglois devoilé, 1798.

[1104] La Mer Libre, La Mer Fermée, 1803.

[1105] Institutions du Droit de la Nature et des Gens.

[1106] De la Liberté des Mers.

[1107] A Practical Treatise on the Law of Nations relative to the Legal Effect of War on the Commerce of Belligerents and Neutrals. London, 1812.

[1108] Das Europäische Völkerrecht, Berlin, 1817, p. 141.

[1109] “So weit der Schuss des Geschütses vom Ufer es bestreichen möge; dies selbst nahm man mit noch ungebundenerer Will-Kühr auf 3 Lieues an.”

[1110] P. 564.

[1111] Europäisches Völkerrecht, Stuttgart, 1821, p. 204; Droit des Gens moderne de l’Europe, 1819, III. ii. 130 (ed. 1831).

[1112] A Digest of the Law of Maritime Captures or Prizes, New York, 1815, c. ii. p. 55.

[1113] Elements of International Law, c. iv. ss. 6-10. London, 1836.

[1114] The King’s Chambers were, however, confined to the coast of England. [See p. 122].

[1115] Commentaries on American Law, i. Part I. Lect. iii.

[1116] Commentaries on the Law of Nations, p. 119. 1839.

[1117] Das Europäisches Völkerrecht der Gegenwart, Berlin, 1844. Le Droit International de l’Europe, Paris, 1873, s. 75. “La ligne de la portée du canon elle-même, bien qu’elle soit regardée comme de droit commun, ne présente aucune base invariable et peut-être fixée par les lois de chaque État, du moins d’une manière provisoire.”

[1118] Researches in Maritime International Law, i. 16. 1844.

[1119] Règles Internationales et Diplomatie de la Mer, i. 177.

[1120] Histoire des Origines, des Progrès, et des Variations du Droit Maritime International, ed. 1858, p. 22.

[1121] Traité des Prises maritimes, i. 93. Paris, 1855.

[1122] “La portée du canon, placé à terre, est la seule limite réelle et vraie des mers territoriales.”

[1123] Le Droit commercial, dans ses rapports avec le Droit des Gens et le Droit Civil, Paris, 1844-47, tom. i. Liv. ii. tit. i. c. i. ss. 103-105.

[1124] Plans and Proposals transmitted to the Committee on the Fishery, No. 1, &c.

[1125] Reports by the Commissioners for the British Herring Fishery for 1819, 1821, 1822; Staatsblad, No. 28, 4th April 1824, for a copy of which I am indebted to Mr H. van Hall, of the Universiteits-Bibliotheek, Amsterdam. After a reference to the previous decrees prohibiting the taking of herrings “between the banks and rocks of Scotland,” as being injurious to the reputation of Dutch pickled herrings (see p. 201), it is stated that the Board for the Great Fishery is of opinion that, in the interest of this branch of national industry, the fishing should be carried on at a farther distance from the main coast of Scotland (Schotsche vaste kust), and it is determined and resolved as follows: “Art. I. Het zal aan geenen Nederlandschen visscher geoorloofd zijn, de groote of pekelharingvisscherij op eenen naderen afstand der vaste kust van Schotland uitteoefenen, dan dien van twee uren hemelsbreedte (20 zoodanige uren eenen graad uitmakende), noch onder eenig voorwendsel hoe ook genaamd (alleen met uitzondering van het geval van dringende noodzakelijkheid bij art. 22 der voormelde wet voorzien), gedurende den tijd dat hij de vangst van pekelharing bedrijft, de vermelde kust op eenen minderen afstand te naderen.” The second article excepted the fishing at Shetland (Hitland) and Fair Isle (Fair-hill), the autumn fishing on the English coast and off Yarmouth, and the fresh-herring fishery; but these exceptions were withdrawn by a royal decree of 5th June 1827 (Staatscourant, 1827, No. 278). It may be said that in 1818 the old prohibition of fishing between the sandbanks and rocks of Norway, Shetland, and Scotland had been renewed. Staatsblad, No. 15, 12th March 1818.

[1126] Rapport fait en Exécution des Ordres du Ministre de la Marine, par M. L. de Montaignac, Capitaine de frégate, Commandant la Station de la Mer du Nord.

[1127] Montaignac, op. cit.; Parl. Papers, Sess. 1837-38; Rep. Com. Brit. Herring Fishery, 1834.

[1128] Report from the Select Committee on British Channel Fisheries, Parl. Papers, Sess. 1833, No. 676.

[1129] An ordinance of the French Marine Department, of 15th January 1829, prohibited the use of certain nets, as drag and trawl nets, within three leagues of the shore from 15th April to 1st September, and within two leagues from 1st September to 15th April.

[1130] Some of the English fishery Acts then in force, at least nominally, extended jurisdiction beyond the distance of one league with regard to the use of certain nets, &c., and the Committee apparently desired that, besides a zone of exclusive fishery, foreigners should be bound to observe the municipal law for the protection of the spawn and brood of fish that might apply beyond such zone. The Acts referred to were 3 Jac. I., c. 12 (1605), for the better preservation of sea fish, which, inter alia, prohibited the use of certain nets within five miles of any harbour, haven, or creek; 14 Chas. II., c. 28 (1662), regulating the pilchard-fishing in Devon and Cornwall, which prohibited the use of any “drift, trammel, or stream net,” between 1st June and 30th November, within one and a half leagues of the coasts of these counties; 1 George I., stat. 2, c. 18 (1714), which prohibited the use “at sea upon the coast of England” of certain nets, and the landing or sale of undersized fish; the Act 33 Geo. III., c. 27 (1759), prohibited the taking or knowingly possessing “any spawn, fry, or brood of fish, or any unsizeable fish, or any fish out of season.”

[1131] Under the Act 6 Geo. IV., c. 108, 1825.

[1132] Mr Cornish, quoting from his MS. treatise on zoology, said: “It is generally supposed that all sea fish, the cetaceous (sic) and cartilaginous excepted, deposit their ova in sand-banks, in creeks, bays, and shallow water near the shores, because it is imagined that a certain, though a small, degree of the sun’s action on the water and atmosphere is necessary to bring such ova to maturity. This we know to be the case with the salmon species, which always ascend to the shallow parts of rivers for that purpose, and never lay their eggs in deep water, and therefore we infer that the same influence prevails over the sea fish: this cannot, however, be proved, and rests mainly on opinion and probable conjecture, founded on such facts as we are acquainted with.” It may be said that a Select Committee of the House of Commons, appointed in 1817 to inquire into the condition of the fisheries on the south coast of Devon, strongly recommended Parliamentary action for the protection of the fisheries, founding on the same erroneous assumption that the fishes spawned near the shore. A Bill was accordingly introduced in the session of 1819, and again in 1822, for the appointment of conservators or overseers of the bays, creeks, and arms of the sea, to supervise regulations for the preservation of the fish coming there to spawn, and of their brood and fry, and applying to a distance of one and a half leagues from the shore; but it did not pass the Lords. Rep. Select Com. on the State and Condition of the Fisheries on the South Coast of Devon, 1817; Parl. Bills, xxii. 587, 601. Eighth Ann. Rep. Fishery Board for Scotland, Part III., pp. 13, 258 (1890); Tenth, ibid., pp. 19, 235; Eleventh, ibid., p. 13.

[1133] Memorials, &c., received by Her Majesty’s Government since 1st January 1832, complaining of the Aggressions of French fishermen on the British Coasts, Parl. Papers, Sess. 1837-38; Supplementary Papers relative to the Complaints respecting the Aggressions of French fishermen on the British Coasts, 1838, ibid., 1839; Reports by the Commissioners for the Herring Fishery, for 1834, 1835, 1839.

[1134] Convention between Her Majesty and the King of the French, defining and regulating the Limits of the Exclusive Right of the Oyster and other Fishery on the Coasts of Great Britain and of France. Signed at Paris, August 2, 1839.

[1135] The line of closure, as will be seen from fig. 16, was not a single straight line, as usual, but a series of lines determined by landmarks. The area between this series and the three-mile limit, from which British fishermen were excluded, measures a little over 100 square (geographical) miles. On the other hand, all of the closing line north of 49° 3´ (and thus the greater part of it) is, curiously, within the three-mile zone; the area outside this line to the three-mile line is about 23 square miles.

[1136] 6 & 7 Vict., cap. 79. “An Act to carry into Effect the Convention between Her Majesty and the King of the French concerning the Fisheries in the Seas between the British Islands and France,” 22nd August 1843. The mesh of trawl-nets, the length of the trawl-beam, the weight of the trawl-irons and of the ground-rope, the mesh of herring, mackerel, “bratt,” and trammel nets, were in no case to be over or under a specified standard. A series of detailed regulations for oyster-fishing was also made, including a close-time and a minimum size. This Act was repealed by the Sea Fisheries Act, 1868 (the Convention Act), 31 & 32 Vict., c. 45, but it was revived by Parliament in 1877 (40 & 41 Vict., c. 42), the Convention of 1867 not having been ratified by France.

[1137] Reports of the Commissioners for the Herring Fishery, 1839, 1840, 1841.

[1138] It was denounced in the Boulogne Chamber of Commerce as the greatest blunder the French Government had ever made, and many complaints were received from French fishermen of their boats having been captured or pursued by British cruisers. Deseille, Histoire de la Pêche à Boulogne-sur-Mer, 229. The French cruisers were no less active in apprehending British transgressors. Parl. Papers, Sess. 1854-5, 459.

[1139] Mitchell, The Herring: Its Natural History and National Importance, 243.

[1140] The Board pointed out that the fishermen of other foreign countries were not disposed to observe the limits laid down in the Anglo-French convention, specifying Dutch as well as Belgians, and that the naval superintendents were perplexed from the want of fixed instructions on this point. The letter from the Board of Trade was as follows (Report of the Commissioners for the year ended 5th January 1849):—

“Office of Committee of Privy-Council for Trade,
“Whitehall, 14th September 1848.

“Sir,—With reference to your letter of 4th ultimo, requesting, on the part of the Commissioners of British Fisheries, to know whether Foreign Fishermen are permitted to fish within three miles of the Shore; I am directed by the Lords of the Committee of Privy-Council for Trade, to inform you, that it is the opinion of this Board, that no such permission is recognised by the British Government, and accordingly, that it is the duty of the Superintendents of British Fisheries, to warn Dutch, Belgian, or any other Foreigners, as well as French Fishermen, to keep outside of the limits above mentioned.—I am, sir, your obedient servant,

(Sd.) Denis le Marchant.

The Honourable B. F. Primrose, Secretary,
Board of Fisheries, Edinburgh.”

[1141] [See p. 461].

[1142] Convention between Her Majesty and the King of the Belgians relative to Fishery. Signed at London, March 22, 1852. “Art. I. Belgian subjects shall enjoy, in regard to fishery along the coast of the United Kingdom of Great Britain and Ireland, the treatment of the most favoured foreign nation. In like manner, British subjects shall enjoy, in regard to fishery along the coast of the Kingdom of Belgium, the treatment of the most favoured foreign nation.” The convention was to endure for seven years, and it was to remain in force thereafter until the expiry of twelve months after either party notified to the other its intention of terminating it.

[1143] Reports by the Commissioners for the British Fisheries, 1848-51. Parl. Papers, Sess. 1856.

[1144] Reports of the Commissioners for the British Fisheries, 1852, 1853, 1862.

[1145] Report of the Commissioners appointed to Enquire into the Sea Fisheries of the United Kingdom, I. lxix. (1866).

[1146] Convention between Her Majesty and the Emperor of the French, relative to the Fisheries in the seas between Great Britain and France. Signed at Paris, 11th November 1867. Art. I. “British fishermen shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of the British Islands; and French fishermen shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coast of France, the only exception to this rule being that part of the coast of France which lies between Cape Carteret and Point Meinga. The distance of three miles fixed as the general limit for the exclusive right of fishery upon the coasts of the two countries shall, with respect to bays, the mouths of which do not exceed ten miles in width, be measured from a straight line drawn from headland to headland. The miles mentioned in the present Convention are geographical miles, whereof sixty make a degree of latitude.” In neither of the conventions was it expressly said that the ten-mile closing-line for bays was to be measured from low-water mark of the headlands, but it was so declared in the Act of 1843, 6 & 7 Vict., c. 79.

[1147] 31 & 32 Vict., c. 45.

[1148] London Gazette, 9th Feb. 1869. C. E. Fryer, The Relation of the State with Fishermen and Fisheries. Parl. Papers, Commerc., 24 (1882), p. 1.

[1149] 46 & 47 Vict., c. 22, sec. 30.

[1150] 6 & 7 Vict., c. 79, s. vi.

[1151] 5 & 6 Vict., c. 106.

[1152] Parl. Papers, Sess. 1867-68, Fisheries (Ireland), 135.

[1153] 31 & 32 Vict., c. 45, s. 67.

[1154] Report from the Select Committee on Oyster Fisheries, 8, 166 (1876).

[1155] Had the coasts of the United States been visited by British fishermen, it is not unlikely that the Government of that country would have been more willing to admit the ordinary interpretation with regard to bays. British vessels do not, however, fish on the coasts of the United States, and the United States fishermen, having exhausted the once productive waters of their own coasts of the New England States, go to catch a large part of their fish to the waters on the coasts of British North America, and hence it is to their interest that the limit of exclusive fishing on the latter should be as small as they can get it made. The position is very similar to that of the English trawlers who, having impoverished the North Sea, now go to foreign coasts, as Iceland, to keep up the supplies. [See p. 707].

[1156] Treaty between Her Majesty and the United States of America, signed at Washington, 1st June 1854, Art. i., ii. I. “It is agreed by the high contracting parties that in addition to the liberty secured to the United States’ fishermen by the above-mentioned convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North American Colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of Her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward’s Island, and of the several islands thereunto adjacent, without being restricted to any distance from the shore, with permission to land upon the coasts and shores of those Colonies and the islands thereof, and also upon the Magdalen Islands, for the purpose of drying their nets and curing their fish; provided that, in so doing, they do not interfere with the rights of private property, or with British fishermen, in the peaceable use of any part of the said coast in their occupancy for the same purpose.” The second article accorded to Canadian fishermen similar privileges in the waters of the United States, north of 36 degrees N. latitude.

[1157] Before this arrangement was made, the British Government, on 12th April 1866, instructed the Admiralty “that American fishermen should not be interfered with, either by notice or otherwise, unless they are found within three miles of a line drawn across the mouth of a bay or creek, which is less than ten geographical miles in width, in conformity with the arrangement made with France in 1839.”

[1158] 27th June 1870. “The limits within which you will, if necessary, exercise the power to exclude United States’ fishermen, or to detain American fishing vessels or boats, are for the present to be exceptional.... Her Majesty’s Government are clearly of opinion that, by the Convention of 1818, the United States have renounced the right of fishing, not only within three miles of the Colonial shores, but within three miles of a line drawn across the mouth of any British bay or creek. It is, however, the wish of Her Majesty’s Government neither to concede, nor for the present to enforce, any rights in this respect which are in their nature open to any serious question. Until further instructed, therefore, you will not interfere with any American fishermen, unless found within three miles of the shore, or within three miles of a line drawn across the mouth of a bay or creek, which, though in parts more than six miles wide, is less than six geographical miles in width at its mouth. In the case of any other bay—as Bay des Chaleurs, for example—you will not interfere with any United States’ fishing vessel or boat, or any American fishermen, unless they are found within three miles of the shore.”

[1159] Treaty between Her Majesty and the United States of America, signed at Washington, 8th May 1871, Art. xviii., xix.

[1160] Parl. Papers, No. 1 (1888), (C.—5262).

[1161] The number of American fishing vessels which take the licenses for Canadian waters is usually about 100, the fees aggregating 10,000 or 12,000 dollars per annum. Ann. Reports, Marine and Fisheries, Ottawa.

[1162] The three-mile limit is measured from the ten-mile arc.

[1163] Mr Phelps to the Marquis of Salisbury, 3rd August 1887, enclosing ad interim arrangement proposed by the United States’ Government, with “Observations” by the British Government and Reply of the Government of the United States.

[1164] Gordon, 15th Ann. Rep. Assoc. for Reform of Law of Nations (8). 1893.

[1165] Report by the Commissioners for the Herring Fishery, Scotland, 1869, p. 4; Report by the Commissioners of the Fishery Board, Scotland, 1876, p. 7.

[1166] Report of W. H. Higgin, Esq., Q.C., on the Outrages committed by Foreign upon English Fishermen in the North Sea. Parl. Papers (C.—2878), 1881.

[1167] After all, however, the damage from the monetary point of view was not very great, amounting, according to the detailed information collected by Mr Higgin, to £4372, 3s. over the years 1870-1880, or at the rate of about £400 per annum.

[1168] Correspondence respecting the Conference at The Hague and the Convention of the 6th May 1882, relative to the Police of the Fisheries in the North Sea. Parl. Papers, Commercial, No. 24, 1882.

[1169] M. Barthélemy St Hilaire to Lord Lyons, 2nd July 1881; M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1170] “The fishermen of each country shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark along the whole extent of the coasts of their respective countries and of the dependent islands. As regards bays, the entrances of which do not exceed ten miles in width, the distance of three miles shall be measured from a straight line joining the two extreme points of the bay. The present article shall not in any way prejudice the right of free navigation and anchorage in territorial waters accorded to vessels of all sizes, provided they conform to the special police regulations enacted by the Powers to whom the shore belongs.”

[1171] Messrs Kennedy and Trevor to Mr Farrer, Oct. 31, 1881. In the Anglo-French convention of 1867 the British negotiators unsuccessfully pressed for the insertion of the words, “the islands ... and their dependencies.” M. de Freycinet to M. Challemel-Lacour, 2nd March 1882.

[1172] Vide Fiskeri-Beretning for Finansaaret, 1907-1908, p. 178. Kjobenhavn, 1908.

[1173] Report on the Sea Fisheries of England and Wales, 1879. The British delegate laid stress on one of the conclusions reached by Mr Buckland, to the effect that “nothing that man has done, and nothing that man can do, can affect the supply of herrings in the seas.” Even if this were proved for the herring in the absolute form in which it is expressed,—and it is clearly illogical and unwarrantable to pledge the future in this loose way,—it obviously might not, and in point of fact does not, apply to the great bulk of the fishes that would have been affected by the German suggestion.

[1174] International Convention for the Purpose of Regulating the Police of the Fisheries in the North Sea outside Territorial Waters. Signed at The Hague, 6th May 1882.

[1175] Sir H. Rumbold to Earl Granville, 16th March 1882; H.M. Plenipotentiaries to the same, 8th May 1882.

[1176] The boundaries specified are, on the north, the parallel of the 61st degree of latitude; on the east and south, the coast of Norway between the above parallel and Lindesnæs Lighthouse, a straight line thence across the Skagerrack to Hantsholm Lighthouse in Denmark, the coasts of Denmark, Germany, the Netherlands, Belgium, and France, as far as Cape Gris Nez Lighthouse; on the west, a straight line from Gris Nez Lighthouse to the easternmost lighthouse at the North Foreland in Kent, the eastern coasts of England and Scotland, a line from Duncansby Head in Caithness to the southern point of South Ronaldsha in the Orkneys, the eastern coasts of the Orkney Islands, a straight line from North Ronaldsha Lighthouse to Sumburgh Head Lighthouse in the Shetland Islands, the eastern coasts of these islands, and the meridian of the North Unst Lighthouse as far as the parallel of the 61st degree of latitude. The Dutch proposed the 60th degree of latitude as the northern limit, and the British the 62nd degree.

[1177] 46 & 47 Vict., c. 22. An Act to carry into effect an International Convention concerning the Fisheries in the North Sea, and to amend the laws relating to British Sea Fisheries.

[1178] Messrs Kennedy and Trevor to Mr Farrer, 31st Oct. 1881. Doc. cit.

[1179] Dispatch to Hon. E. Ashley, 17th Nov. 1881; Earl Granville to Her Majesty’s Representatives at Paris, Brussels, The Hague, Berlin, Copenhagen, and Stockholm, 6th December 1881.

[1180] A case occurred in 1908 in which the master of an English trawler, the Taurus, was convicted in a German court for trawling within the three-mile limit on the German coast, and the case was appealed on the ground that the place was outside the territorial waters, and was so shown on the English fishery charts. It was found, however, that the three-mile line on these charts did not take into account the dependent banks, whereas the German charts did take them into account, the limit running in some cases six or seven miles from the coast. It may be mentioned that as considerable parts of the Goodwin Sands are visible at low-water of neap tides, such parts are entitled to a three-mile limit in the same way as the dependent banks on the German coast. Recently, also, it has been found that the three-mile limit in the neighbourhood of the Scaw fluctuates considerably owing to the shifting of the shoals, and the Danish authorities, early in 1907, intimated that any case of alleged infraction of the limit by foreign fishing vessels would be judged of by the actual position of the line at the time, and not by what may be shown on any chart in use. The point in regard to banks was raised a century ago in connection with neutral rights in a case in which a British privateer captured a French corvette, the Africaine, on the coast of the United States, six miles from shore. It was argued that the capture was unlawful, because the place was within the neutral waters of the United States, the extent of which had been defined by Congress in 1794 as one marine league from the coast ([see p. 574]). It was contended that “coasts” included all the shoals or banks which, in Florida, extended to a distance of twenty miles from the land, and were therefore within territorial jurisdiction, and that the distance of protection should be reckoned from the outermost shoal. The American judge overruled the argument, because, although in a maritime sense this interpretation of “coasts” might be correct, it was too vague for juridical purposes, since the shoals vary, and there would be no fixed rule by which the boundary could be ascertained; and that the district courts would have to apply different rules at different places, instead of the one marine league everywhere. A somewhat similar question was argued in 1805 in the English Admiralty Court in the case of an American ship, the Anna, captured by a British privateer off the mouth of the Mississippi, at a point claimed to be within the neutral waters of the United States—viz., 1½ mile from an island, and “within view” of a fort, which was, however, five miles distant. A question raised was whether certain small mud-islands, formed of earth and drifted logs, and covered with reeds, where people occasionally went to shoot wild-fowl, was United States territory from which the marine league could be measured. It was argued that the islands had not sufficient consistency to support the purposes of life, and were sometimes scarcely distinguishable, and that since the distance of neutral protection “is reckoned according to the efficacy of protection, that is, within the range of firearms,” the land from which the extension is measured should be a place from which this protection could be in reality afforded. Lord Stowell, in deciding that they were United States territory, stated that the right of dominion did not depend upon the texture of the soil; and he quoted Bynkershoek’s formula as the rule of law, saying that the distance “has usually been recognised to be about three miles from the shore.” It may be said here that in the earlier writings and decisions about the limit of territorial waters, low-water mark is not specified, and in the case of the Twee Gebroeders ([see p. 577]) it is clear that sand-banks uncovered at low-water were not regarded as entitled to an independent zone, the distance being measured from terra firma.

[1181] Fish Trades Gazette, May 31st, 1902, p. 8; ibid., April 4th, 1903, p. 21.

[1182] “Les articles 2 et 3 de ce contrat stipulent que les pêcheurs nationaux jouiront du droit exclusif de pêche dans le rayon de trois milles géographiques de 60 au degré de latitude, à partir de la laisse de basse mer, le long de toute l’étendue des côtes de leurs pays respectifs, ainsi que des îles et des bancs qui en dépendent.” Loi relative à la pêche maritime dans les eaux territoriales. Exposé des motifs. Sess. 1890-91.

[1183] The Marquis of Lothian, Secretary for Scotland, in introducing the Bill which became the Herring Fishery (Scotland) Act, 1889, said: “With regard to the east coast there is no very great difficulty in fixing the limits of territorial waters, because between Her Majesty’s Government and what I may call the riparian powers of the North Sea there is a Fisheries Convention; but on the west coast there is no such convention, and therefore it has been thought desirable to attach a schedule to this Bill in order to show exactly what are the waters closed against trawlers apart altogether from the general international rule as to the three-mile limit.” June 28th, 1889. Hansard, vol. 337, p. 975.

[1184] 46 & 47 Vict., c. 22, s. 28.

[1185] 6 & 7 Vict., c. 79 (1843). The international regulations agreed upon in virtue of the eleventh article of the convention were to apply to “the seas lying between the coasts of Great Britain and of France”; and differences of interpretation arose in this country as to the extent of the seas coming under this denomination—e.g., whether those on the west coast of Scotland were included. The power given to the crown to suspend the operation of the Act on the Irish coasts, and the obvious intention of the Act and articles, seemed to the Royal Commissioners of 1863 to warrant the opinion that these extra-territorial regulations applied to all the seas around the British Isles (Report, Royal Commission on Sea Fisheries, i. p. lxiii). On the other hand, it was contended that the words quoted must be construed strictly, and included only those seas which were situated geographically between the two countries. This difference of opinion as to the interpretation of the phrase in question does not, however, affect the validity of Article ix. of the convention, one of the principal objects of which was to determine the limits of exclusive fishery.

[1186] Vide 46 & 47 Vict., c. 22, s. 24.

[1187] Report from the Select Committee on Oyster Fisheries, p. 1. 1876.

[1188] 19th, 22nd, and 23rd Reports Fishery Board for Scotland, Part I. Corresponding particulars are not given in the English or Irish fishery reports.

[1189] The preceding laws, however, left the territorial limits indefinite, under the law of nations, or subject to any special international agreement, as that of 12th February 1872, concerning foreign fishermen at Iceland. (“1. Drive fremmede Nationers Fiskere nogetsomhelst Fiskeri under Islands Kyster indenfor Søterritoriets Grænse, saaledes som denne er bestemt ved den almindelige Folkeret, eller ved særlige internationale Overenskomster for Islands Vedkommende maatte blive fastsat, straffes de med Bøder fra 10 til 200 Rd.” C. F. Drechsel, Samling af Islandske Love, Forordninger, m.m. gældende for Fiskeriet paa Søterritoriet ved Island, 1892.) Later laws, both for the Faröes and Iceland, merely referred to the “territorial sea.”

[1190] Convention between His Majesty the King of the United Kingdom of Great Britain and Ireland and His Majesty the King of Denmark for regulating the Fisheries of their respective Subjects outside Territorial Waters in the Ocean surrounding the Faröe Islands and Iceland. Art. ii. “The subjects of His Majesty the King of Denmark shall enjoy the exclusive right of fishery within the distance of three miles from low-water mark, along the whole extent of the coasts of the said islands, as well as of the dependent islets, rocks, and banks.

“As regards bays, the distance of three miles shall be measured from a straight line drawn across the bay, in the part nearest the entrance, at the first point where the width does not exceed ten miles.” The geographical limits for the application of the convention, which embodies practically the same regulations as in the North Sea Convention, are as follows: on the south, by a line commencing from where the meridian of North Unst Lighthouse (Shetland Islands) meets the parallel of 61st degree of north latitude to a point where the 9th meridian of west longitude meets the parallel of 60° north latitude, and from thence westward along that parallel to the meridian of 27° west longitude; on the west, by the meridian of 27° west longitude; on the north, by the parallel of 67° 30´ of north latitude; on the east, by the meridian of the North Unst Lighthouse (which is about 50´ west longitude). The area is thus very large, much larger than the North Sea. The convention continues in force until the expiration of two years from notice by either party for its termination, and a clause is inserted providing for the adhesion of any other Government whose subjects fish in the ocean surrounding the Faröe Islands and Iceland.

[1191] “Das positive deutsche Recht enthält keinerlei ausdrückliche Bestimmung über die Grenze der Küstengewässer landwärts.... Auch für die Grenze seewärts hat das deutsche Recht keine ausdrückliche Bestimmung, und adoptiert in dieser Richtung lediglich die Regeln des Völkerrechts.” Harburger, Fifteenth Ann. Rep. Internat. Law Assoc., 73. 1893.

[1192] Herstlet, Commercial Treaties, xiv. 1055. Perels, Das Internationale öffentlichs Seerecht der Gegenwart, 38.

[1193] Mittheilungen des deutschen Seefischerei-vereins, Bd. xiii. 61. 1897.

[1194] “Vi ville have fastsat som Regel i alle de Tilfælde hvor Spørgsmaal er om Bestemmelse af Vor Territorial-Hoiheds Græendse udi Søen, at denne skal regnes indtil den sædvanlige Sø-Miils Afstand fra den yderste øe eller Holme fra Landet, som ikke overskylles af Søen.” Rescripter Resolutioner, &c., i. 626, 22 (25), Feb. 1812. A circular of the Royal Danish Chancellory of 18th August 1810 made an exception for the territorial waters near the fortress of Kronberg, on the Sound, and of Glückstadt, on the Elbe, where the distance was to be computed only up to the range of the guns of the fortress. Auber, Annuaire de l’Institut de Droit International, xi. 146 (1894).

[1195] Svensk Fiskeri Tidskrift 9e Årg., 78. Stockholm, 1900. “Danmark räknar på grund af konvention samma [with Sweden] fyra mils gräns mot oss, men däremot på grund af Nordsjötraktaten blott tre mil gentemot de i denna deltagande makterna, t. ex. engelsmän och tyskar.” Instruks for det ved Fiskerikontrollen ansatte Personale, Landbrugsministeriet, den 20 Marts 1908, Fiskeri-Beretning for Aaret 1908-9.

[1196] Natzen, Den Danske Statsforfatningsret, i. 36. 1888.

[1197] Fiskerikonventionen mellem Danmark og Sverig, 14de July 1899. Fiskeri-Beretning for Finansaaret, 1898-1899, Copenhagen, 1900. “Art. I. I de til Kongerigerne Danmark og Sverig grænsende Farvande skal, med de i Art. II. nævnte Undtagelser, det Omraade, hvor Fiskeriet udelukkende er forbeholdt hvert Lands egne Undersaatter, udgøre en Strækning af en geografisk Mil (1/15 Breddegrad) fra Kysten eller yderste der udfor liggende Holme og Skær, som ikke til Stadighed overskylles af Vandet,” &c. The definition in the Swedish is “en geografisk mil (1/15 breddgrad) från kusten eller ytterst därutanför liggande holmar och skär, som icke ständigt af vattnet öfversköljas.” (Svensk Fiskeri Tidskrift, 16e Årg., Häft 6, p. 189.) Article II. makes the fishery in the Sound, including Kioge Bay, common to the subjects of each state, except that on either side, within a depth of seven metres (four fathoms), subjects of the other country shall be allowed to fish for herrings only, with nets; and mutual liberty of herring-fishing with drift-nets is conceded in like fashion at certain other specified places. Certain amendments were made to this agreement in 1907, the chief one being the prohibition of trawling in the Sound. Fiskeri-Beretning for Finansaaret, 1906-1907, p. 45. Svensk Författningssamling, No. 79, År., 1907.

[1198] Sixth Supplement to Section 44 of Customs Orders, vol. vi., 1886; Ordinance of Home Department for the Regulation of the Fishery Supervision on the Murman Coast, 4th May 1887. See footnote, p. 657.

[1199] Norsk Fiskeritidende, 466, 1893: Revue Général de Droit International Public, 1894, p. 440.

[1200] In July 1910, a British trawler, Onward Ho, while engaged in fishing off the Kanin Peninsula, at a distance, according to the skipper, of 40 miles from Russian Lapland, and admittedly much beyond the three-mile limit, was arrested by a Russian cruiser and taken to Archangel, on the charge of illegal fishing. The vessel was released after representations had been made by the British Government, the Russian authorities finding that it had been arrested outside the boundary under the protection of the cruiser. The action was doubtless taken in connection with a new law of 10th December 1909, establishing a limit of 12 miles from the coast for customs purposes,—all vessels, Russian or foreign, being held to be subject to the control of the Russian authorities when within that distance. Handelsberichten, 12th May 1910, p. 135.

[1201] “Art. 2. Sur la demande des prud’hommes des pêcheurs, de leurs délégués et, à défaut, des syndics des gens de mer, certaines pêches peuvent être temporairement interdités sur une étendue de mer au delà de 3 milles du littoral, si cette mesure est commandée par l’intérêt de la conservation des fonds ou de la pêche de poissons de passage. L’arrêté d’interdiction est pris par le Préfet Maritime.”

[1202] M. de Chasseloup Lubat, in Ann. di Agricoltura, 50. 1891.

[1203] Law of 7th June 1832. Heffter, Le Droit International de l’Europe, c. ii. s. 75.

[1204] “Loi relative à la pêche maritime dans les eaux territoriales,” 19th August 1891. A decree of 5th September 1892 regulated foreign fishing-boats when within territorial waters.

[1205] Wet van 15 Juni 1883, Staatsblad, No. 73; Koninklijk Besluit van 20 March 1884, Staatsblad, No. 40, putting in force the North Sea Convention: “Art. 1. De bepalingen dezer overeenkomst, welke ten doel heeft de politie der visscherij in de Noordzee buiten de territoriale wateren te regelen, zijn toepasselijk op allen, die tot de nationaliteit der Hooge contracteerende Partijen behooren. 2. De visschers van elken Staat zullen het uitsluitend recht van visscherij genieten binnen een kring van drie mijlen, gerekend van de laagwaterlijn, langs de geheele uitgestrektheid der kusten van elken Staat en evenzeer langs de eilanden en banken, die daarmede zijn verbonden,” &c. Wet van 7th December 1883, Staatsblad, No. 202; Wet van 26th October 1889, Staatsblad, No. 135, “Tot vaststelling van bepalingen tegen het visschen door opvarenden van vreemde vaartuigen in de territoriale wateren van het Rijk”; the limits, as laid down in the convention of 1882, are applied to all foreign fishing vessels. There are special agreements with Belgium as to the fishings in the Schelde. H. van der Hoeven, Wetgeving betreffende de Zee- en de Zalmvisscherijen. Leiden, 1897.

[1206] Strisower, Annuaire de l’Institut de Droit International. 1894.

[1207] Verordnung der Ministerien des Handels und des Ackerbaues, im Einvernehmen mit dem Ministerium des Innern, vom 5 December 1884, betreffend die Seefischerei, s. 3.

[1208] Handels- und Schiffahrtsvertrag vom 27 Dec. 1878, zwischen Oesterreich-Ungarn und Italien. Schlussprotokoll ad Art. xvii., xviii.; Marchesetti, La pesca lungo le coste orientali dell’ Adria. Trieste, 1882.

[1209] Vorschriften über die See-Fischerei giltig in Oesterreich-Ungarn seit 12 December 1884.

[1210] Legge sulla pesca del 4 marzo 1877, No. 3706 (Serie 2^a).

[1211] Annali di Agricoltura, 1891. Atti della commissione consultiva per la pesca, pp. 32, 86.

[1212] Definizione del mare territoriale e ordine di vigilare sugli armamenti alla pesca. Ann. del Ministero di Agricoltura, Industria e Commercio, i. parte i. 96. Genoa, 1871.

[1213] Corsi, in Fifteenth Ann. Rep. Assoc. for the Reform and Codification of the Law of Nations, 83.

[1214] No. 7, 409, 2nd Dec. 1869. Apostolidès, La Pêche en Grèce, 86. Athens, 1888.

[1215] Dr Kishinouye, in litt.

[1216] Civil Code, Articles 593, 611.

[1217] Reglamentendo la pesca y caza, Boletin official, 20th September 1907.

[1218] Reglamento para las concesiones de pesca en el litoral oceánico de la Provincia de Buenos Aires, 4th June 1909. “Art. 3^o. Los concesionarios solo podrán emplear redes arrastradas por vapores en una zona distante no menos de doce (12) millas, contadas desde las líneas de las más bajas mareas. Art. 4^o. Dentro de la zona de doce millas hasta la línea de las más bajas mareas, podrán usarse redes arrastradas por veleros. Se declara libre el uso de las líneas, palangres ó espineles, nasas y redes verticales de deriva. Art. 6^o. Las personas ó empresas que quisieran usar artes especiales de pesca distintos de los indicados, deberán solicitar permiso especial de la División de Ganadería y obtener la autorización correspondiente. Art. 7^o. Las embarcaciones llevarán bandera nacional y sus tripulaciones se compondrán de una parte de individuos de nacionalidad argentina, de acuerdo con las leyes y reglamentos de cabotaje nacional.” I am indebted to the courtesy of Mr R. M. Bartleman, the American Consul-General at Buenos Aires, for a copy of these regulations.

[1219] Reuter’s telegrams from Buenos Aires, 21st March, 30th June 1908. Scotsman, 23rd March, 2nd July 1908. La Prensa, one of the leading journals of Buenos Aires, is quoted as declaring it hard to believe that the British Government has decided to raise a question of such exceptional gravity, seeing the first effect of such action would be to bring about a conflict to which there could be no conciliatory or friendly solution, since the immediate reply, which would be final, would be absolute rejection of the claim put forward—that is, that the waters of the estuary outside the limits of three miles from the coasts are non-territorial.

[1220] Award of the Tribunal of Arbitration, p. 23, “outside the ordinary three-mile limit.” The President, Baron de Courcel, has since explained that the tribunal “s’est borné à constater que les parties étaient d’accord pour admettre que l’étendue de trois milles à partir de la côte comme formant dans l’espèce qui lui était soumise, la limite ordinaire des eaux territoriales.” M. de Courcel to M. Auber, App. Ann. de l’Institut de Droit Internat. for 1894, p. 282. Vide Hall, A Treatise on International Law, 4th ed., p. 161.

[1221] For example, Leoni Levi, “No territorial sovereignty exists or can be claimed beyond the three miles zone.” Internat. Law, 112.

[1222] Mr Seward, Secretary of State, to Mr Tassara, 6th December 1862. The same to Mr Burnley, 16th September 1864. Wharton, A Digest of the International Law of the United States, i. 105. American ships were charged with pursuing Confederate vessels into British waters, and the balls from the guns they fired had struck objects on shore. The facts were used to show that the hostile acts had occurred within our territorial jurisdiction. Hansard, vol. 173, p. 509; February 1864.

[1223] Secretary Fish to Sir E. Thornton, 22nd January 1875. “We have understood and asserted that, pursuant to public law, no nation can rightfully claim jurisdiction at sea beyond a marine league from the coast.” Loc. cit.

[1224] Torres-Campos, in Fifteenth Ann. Rep. Assoc. for Reform and Codification of the Law of Nations, 93. Negrin, Tratado de Derecho internacional maritimo, 1883.

[1225] Negocios Externos. Documentos apresentados ás Cortes na Sessão legislativa de 1879 pelo Ministro e Secretario d’Estado dos Negocios Estrangeiros. Questão das Pescarias, p. 258. Lisboa, 1879. The volume contains a full discussion of the questions between the two Governments.

[1226] Tratado de navegación y comercio entre España y Portugal, firmado en Madrid el dí 27 de Marzo de 1893. Apéndice Sexto. Reglamento de policía costera y de pesca. Sec. 1. Disposiciones aplicables á las aguas de cada país, “Art. 1^o. La policía costera y de pesca en las aguas jurisdiccionales de España y de Portugal, quedará sujeta á las disposiciones siguientes. Art. 2^o. Los límites dentro de los cuales el derecho general de pesca, queda reservado exclusivamente á los pescadores sujetos á las jurisdicciones respectivas de las dos naciones, se fijan en seis millas, contadas por fuera de la linea de bajamar de las mayores mareas. Para las bahías cuya abertura no exceda de diez millas, las seis millas se contáran á partir de una linea recta tirada de una punta á la otra. Las millas mencionadas son millas geográficas de 60 al grado de latitud. Art. 3°. Cada una de los Estados tendrá el derecho de reglamentar el ejercicio de la pesca en sus respectivas costas marítimas hasta una distancia de seis millas de las mismas, límite dentro del cual solamente será permitido á los Pescadores nacionales ejercer esta industria.” F. López y Medina, Colección de Tratados Internacionales, Ordenanzas y Reglamentos de Pesca, pp. 44, 49 (Madrid, 1906). I am indebted to Sir Reginald MacLeod, K.C.B., late Under-Secretary for Scotland, for this volume.

[1227] Revista de Pesca Marítima, ix. 97 (1893); x. 209 (1894). Various regulations have been lately made with respect to trawling beyond the six-mile limit at certain parts of the Spanish coast (vide López y Medina, Primer Apéndice a la Colección de Tratados, &c., pp. 34-45. Madrid, 1907), and also on the coast of Portugal (vide Collecção de Leis e Disposições diversas com relação á Pesca e Serviço maritimo dos Portos, pp. 28, 54, 276, 535. Lisboa, 1907). In no other countries, it may be added, have more regulations been made restricting all kinds of trawling than in Spain and Portugal.

[1228] Prof. A. F. Marion, in litt.

[1229] The National Sea Fisheries Protection Association: Twenty-fourth Ann. Rep. of the Committee of Management, 1905, p. 7. “Spanish and Portuguese Territorial Limits. Communications were made to the Foreign Office on the subject of Spanish and Portuguese Territorial Limits, and, in reply, the Association was informed that His Majesty’s Government did not recognise any claims of the Spanish or Portuguese Governments to exercise jurisdiction over British vessels beyond the three-mile limit.”

[1230] Fish Trades Gazette, 10th Dec. 1904, p. 23. London. Boletin Oficial de la Liga Marítima Española; Vida Marítima, Revista de Navegación y Comercio, Pesquerias, &c. Madrid. In 1905 no less than forty-five English trawlers, as well as four German trawlers and one Spanish, landed fish at Lisbon and Oporto, which had been caught in neighbouring waters and as far as Morocco, the value being 332,220 milreis, or about £74,750. Estatistica das Pescas Maritimas, Anno de 1905. Lisboa, 1907.

[1231] A summary of this new law, which received the sanction of the King of Portugal on 26th October 1909, is given in Mitteilungen des Deutschen Seefischerei-Vereins for February 1910 (Bd. xxvi. No. 2), from Diario do Governo, No. 247, viz.: Portugiesisches Gesetz betreffend das Verbot für fremde Fahrzeuge zum Fischen in den territorialen Gewässern. “Art. 1. In den portugiesischen Territorialgewässern innerhalb einer Zone von 3 Seemeilen, von der Linie des Niedrigstwasserstandes an gerechnet, ist fremden Fahrzeugen das Fischen verboten. In den Buchten ist die Zone von 3 Seemeilen gemäss den Grundsätsen des internationalen Rechts zu berechnen.”

[1232] Tratado de comercio con el emperador de Marruecos, 20th November 1861, Revista de Pesca Marítima, xiv. 149, 1898. López y Medina, op cit., 72.

[1233] This is also the interpretation made by Mr Arctander (Norsk Fiskeritidende, Tolvte Aargang, 1893, p. 464) of the wording of the ordinances, that the line must be drawn through points that lie above the water at high tide (flod), the rule thus differing from the usual one. On the other hand, the Norwegian Department of the Interior, in replying to certain queries from the International Law Association, stated, with reference to the royal ordinance of 1812 ([see p. 653]), that “it is not expressly said whether the distance is to be reckoned at half-tide, high-water, or low-water”; and they did not suggest which ought to be adopted. Rep., Seventeenth Conference, 1895, p. 301. The Danish terms agree with the Swedish. [See p. 655].

[1234] Professor Auber thus states the practice in Norway: “Nous avons regardé comme tout naturel que, l’île n’étant pas située plus qu’à, deux anciens milles marins (deux quinzièmes de degré) de la terre ferme, l’étendue de la mer territoriale doive être compter jusqu’à un mille au delà de l’île, et ainsi de suite d’île en île” (Annuaire de l’Institut de Droit International for 1889, p. 139). M. Kleen, on the other hand, speaks of the outermost isle being included “sous la condition que cette île ou ce brisant ne soit pas situé plus loin de la côte qu’une lieu géographique” (Fifteenth Ann. Rep., Internat. Law Association, p. 20). The Norwegian law refers to “the island or islet farthest from the mainland, and not covered by the sea,” while M. Kleen says: “Comme brisant à compter sera alors considéré chacun qui n’est pas continuellement submergé par la mer ... pourvu qu’il soit à découvert périodiquement et que la mer ne le couvre pas toujours.”

[1235] Kongelig Resolution af 16 Oktober 1869: “At en ret linie, trukket i en geografisk mils afstand fra og parallelt med en ret linie mellem Storholmen og Svinö, bliver at betragte som grændsen for den havstrækning udenfor den tilsvarende kyst af Söndmöres fogderi, paa hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt.” Kongelig Resolution af 9 September 1889: “En linie, trukket i en geografisk mils afstand fra og parallelt med en linie fra Storholmen over Skraapen (udenfor Harö), Gravskjær (udenfor Ona) og Kalven (det yderste af Orskjærene) til yderste Jevleholme udenfor Grip, bliver at betragte som grændsen for den havstækning udenfor den tilsvarende kyst af Romsdal amt, paa hvilken fiskeriet er landets egen befolkning udelukkende forbeholdt.”

[1236] From about 62° 20´ N. lat. and 5° 13´ E. long, to about 63° 13´ N. lat. and 7° 35´ E. long.

[1237] Provisorisk Anordnung angaaende vaartorskefiskeriet ved Söndmöres kyster, 3 Jan. 1870; Lov angaaende vaartorskefiskeriet ved Söndmöres kyster, 6 June 1878; Lov om vaartorskefiskeriet ved Romsdals amts kyst og fjorde, 1 July 1907.

[1238] It is referred to in A.D. 888. The fishery is prosecuted from about the middle of January to the end of April; in 1908 over 20,000 fishermen, drawn from all the neighbouring parts of the coast, took part in it. Aarsberetning vedkommende Norges Fiskerier for 1908: 4^de Hefte. Lofotfiskeriet, 1908.

[1239] “Le droit exclusif de la pêche dans le golfe du Vestfjord, consacré par un usage plusieurs fois seculaire, n’a jusqu’ici été l’objet d’aucune disposition legislative.” Letter of the Minister for Foreign Affairs, 6th August 1908. “The Vestfjord through centuries has been considered as Norwegian territorial waters, but no decree or decision as to the special frontier or limit between this fjord and the open sea has been issued up to the present.” Letter from his Excellency M. J. Irgens, the Norwegian Minister, 13th June 1908. Having some difficulty in getting authentic copies of the various Norwegian decrees, I applied to Dr Fridtjof Nansen, then Norwegian Minister in London, and later received full information from three sources—from Mons. J. Irgens, Dr Nansen’s successor, and now the Foreign Minister of Norway; by the courtesy of Sir Reginald MacLeod; and through Dr Baty, the Secretary to the International Law Association.

[1240] 5th January 1881; 19th June 1880; 14th June 1890; 17th December 1896; 7th January 1904. In the law of 17th December 1896 the limits are mentioned as follows: “Paa Havstrækningen ved Tromsø Amts og Finmarkens Amts Kyst i en Afstand af indtil én geografisk Mil fra Kysten, regnet fra den yderste Ø eller Holme, som ikke overskylles af Havet, skal det indtil videre være forbudt at jage, anskyde eller dræbe Hval i Tidsrummet fra 1ste Januar til Udgangen af Mai. For Varangerfjordens Vedkommende i Finmarkens Amt bliver Grændsen for den fredede Strækning udad mod Havet en ret Linie trukket fra Kibergnæs til Grændse, Jakobselv, dog saaledes, at det ogsaa udenfor denne Linie skal være forbudt i den ovenanførte Tid at jage, anskyde eller dræbe Hval i kortere Afstand fra Kysten ved Kibergnæs end én geografisk Mil.” See also Auber, Annuaire, xi. 136, 1892; Kleen, Fifteenth Ann. Rep. Internat. Law Assoc., 17; Aschehoug, Norges nuvarende Retsforfatning, 90; Kleen, Neutralitetens Lagar, 1889; Norsk Fiskeritidende, 1893, 461.

[1241] “Räknadt från kusten eller längst ut från denna liggande ö eller skär, som ej ständigt af hafvet öfversköljes.” Svensk Fiskeri Tidskrift, 9e Årg., p. 78.

[1242] Auber, loc. cit.

[1243] Kleen, op. cit.; Egerström, Sveriges Landtbruksförvaltning, 1896, p. 37. It is the same in Finland,—J. A. Sandman, Uebersicht ueber die Seefischerei Finnlands, p. 145, 1906.

[1244] Minister of the Interior to Minister of Foreign Affairs, 28th October 1868 ... “Cela s’explique: ces pêches, ayant lieu dans un golfe considéré comme faisant partie de la mer territoriale de la Norvège, out été regardées comme la propriété exclusive du pays. Cela ne peut certainement pas cadrer avec les principes du droit international, qu’on puisse tout à coup amener des changements dans une situation légale qui repose sur une reconnaissance tacite de plusieurs siècles.”

[1245] Letter of the Minister for Foreign Affairs, 7th November 1868. “Aussi il est défendu aux sujets étrangers de faire la pêche dans ce golfe, et cette défense s’applique également à la mer voisine et à l’embouchure jusqu’à une distance d’une lieue marine à partir du point le plus méridional du group d’îlots dit ‘Röst.’”

[1246] Minister of the Interior to Minister for Foreign Affairs, 28th January 1870.

[1247] 20th August 1886. “Art. 7 ... Les deux parties contractantes conviennent de considérer comme limites des mers territoriales de leur côtes respectives pour tout ce qui se rapporte à l’application des règlements de douane et aux mesures prises pour empêcher la contrebande, une distance de trois lieues marines comptées depuis de la ligne de marée basse.” A similar customs treaty, it may be mentioned, was concluded between Mexico and Great Britain on 27th November 1888, in which three marine leagues was stipulated by each country “as a limit of their territorial waters on their respective coasts,” strictly for customs purposes. “The two Contracting Parties agree to consider, as a limit of their territorial waters on their respective coasts, the distance of three marine leagues reckoned from the line of low-water mark. Nevertheless, this stipulation shall have no effect, excepting in what may relate to the observance and application of the Custom-house Regulations and the measures for preventing smuggling, and cannot be extended to other questions of civil and criminal jurisdiction or of international maritime law” (Hertslett, Treaties). It is of interest to note, however, that the ordinary limit adhered to by the British Government so rigorously in connection with fishery rights, may be legitimately extended by treaty in order to protect the revenue.

[1248] Auber, op. cit., 141.

[1249] Foreigners are forbidden to carry on fishing within the territorial waters, the most recent law relative to this subject being that of 2nd June 1906. Instructions to the commanders of the Norwegian cruisers, dated 22nd December 1906, with reference thereto, describe the limit as an “ordinary sea mile” (measured as described), the equivalent distance being stated at 7529 metres, which is equal to 4·065 mean nautical miles, or 4·68 English statute miles. A law of 1908 prohibits trawl-fishing within the territorial waters.

[1250] Le Droit International, i. 349; Dict. de Droit International, 501. Bluntschli endeavours to place the doctrine on a philosophical but absurd basis, by stating that the sovereignty over the sea extended originally only to a stone’s-throw from the coast, later to an arrow-shot, and then according to the range of firearms.

[1251] Das Moderne Völkerrecht, s. 307-9.

[1252] Commentaries upon International Law, I. viii. cxcviii.

[1253] International Law, 135.

[1254] Commentaries on Criminal Law, iv. c. 5, s. 74.

[1255] Introduction to the Study of International Law, s. 56.

[1256] Wheaton’s International Law, 8th ed., p. 359.

[1257] The Law of Nations in Time of Peace, s. 172.

[1258] Trattato di Diritto Internazionale Pubblico, ii. c. 3, pp. 65-67.

[1259] In Fiore, Nouveau Droit International Public, note, p. 372.

[1260] Das Internationale Öffentliche Seerecht der Gegenwart, p. 21 et seq.

[1261] International Law, 399.

[1262] Droit Commercial Maritime, 10.

[1263] La Mer Territoriale, 36.

[1264] Neutralitetens Lagar, i. s. 160; Annuaire de l’Institut de Droit International, xii. 140.

[1265] Norges Offentlige Ret, 79-81; Annuaire, xi. 141.

[1266] Revue générale de Droit International Public, No. 1.

[1267] A Treatise on International Law, 4th edition, 1895, p. 160.

[1268] International Law, i. 242 (1905).

[1269] The Committee of the Association was composed of ten members—viz., Sir Travers Twiss, President; Sir George Baden-Powell; Hon. D. Dudley Field, New York; Dr F. Sieveking, President of the Hanseatic High Court of Appeal, Hamburg; Mr E. H. Schweigaard, Christiania; Rear-Admiral P. H. Colomb; E. Edouard Clunet, Paris; Dr E. N. Rahusen, Amsterdam; Mr T. H. Haynes; and Mr (now Sir) Thomas Barclay, Paris, who was Secretary. The Committee of the Institut comprised twenty-four members, including Sir Travers Twiss; Professor Westlake; Professor Lorimer; M. Desjardins, Advocate-General of the Court of Cassation; Feraud-Giraud, Judge of the French Court of Cassation; Harburger, Judge of the Court of First Instance at Munich; Hartmann, Privy Councillor, Hanover; Perels, Director of the German Admiralty; Marquis d’Olivart, Ex-Professor of International Law, Madrid; Edouard Rolin, Editor of the Revue de Droit International; &c. M. Renault, the Paris Professor of International Law, was appointed “reporter” to the Committee, but this position was soon occupied by Sir Thomas Barclay.

[1270] Most of the English members who expressed their opinion, as Sir Travers Twiss, Professor Holland, and Mr Moore, preferred to retain the limit at three miles; Professor Westlake favoured five miles.

[1271] Report from the Select Committee on Sea Fisheries, 1893; Seventeenth Rep., International Law Assoc., p. 103, 1896; Annuaire de l’Institut de Droit International, xiii.

[1272] “Il en est ainsi pour les firths écossais.... Toutes ces baies sont considérées comme étant sous la domination exclusive de l’État riverain.” Annuaire, 23.

[1273] Annuaire de l’Institut de Droit International, x., xi., xii., xiii. Reports, International Law Association, xv., xvi., xvii.

[1274] 49 Vict., c. 95.

[1275] 38 Vict., c. 18; Order in Council, 28th November 1876.

[1276] Award of the Tribunal of Arbitration, p. 23. Declarations made by the Tribunal of Arbitration, 1893. As the Behring Sea case has been often referred to in recent controversies about the right of fishing, as having affirmed the three-mile limit as the true international boundary of the territorial sea, the facts may be briefly recalled. In 1867 the United States purchased from Russia the territory of Alaska with its dependent islands, &c., and an American company, very powerful financially and politically, was formed in 1870, which obtained a lease of the Pribilov Islands in order to engage in the fur-seal industry. Under the Act of Congress of 1870 which enabled this to be done, it was made unlawful to kill any seals upon the islands, “or in the waters adjacent thereto,” except during certain specified months. Sealing vessels, both from the United States and from British Columbia, began to frequent Behring Sea and the waters adjacent to the islands; their competition impaired the practical monopoly of the Company in the markets for seal-skins; and in 1886 three British vessels were seized by American revenue cruisers at distances of 70, 75, and 115 miles from the land, and the masters and mates were fined and imprisoned for illegal sealing. Up to 1890 other eleven British sealers were similarly seized and dealt with for fishing at distances between 15 and 96 miles from land, and five others were ordered out of Behring Sea. In the negotiations which followed, the American Government first pled a virtual mare clausum for the whole of Behring Sea; then that they had jurisdiction up to 100 miles from land; and lastly, that they had special property in and right of protection over the fur-seals in Behring Sea and frequenting the islands for breeding purposes. The Tribunal of Arbitration decided that they had not this right of protection or property “when such seals are found outside the ordinary three-mile limit.” Then the Tribunal, in terms of the treaty appointing them, prescribed the regulations above referred to, leaving to Great Britain the honours of the contest, and to the United States the advantage. The true lesson to be derived from this chapter of international diplomacy, is not that the high tribunal reaffirmed the three-mile limit as the legal boundary of the territorial sea, which they did not do (see letter from Baron de Courcel, the President, p. 664), but that that limit may be set aside and a much wider boundary fixed (in this instance 60 miles) if the protection and preservation of a marine fishery require it. It may be added that of late years pelagic sealing by Japanese has greatly increased in Behring Sea, and since the regulations apply only to British and American subjects, the Japanese carry on their operations up to the ordinary three-mile limit around the Pribilov Islands, and sometimes within it, there having been several encounters with the American patrol-boats involving loss of life, and heavy fines have been inflicted on offenders. In the summer of 1908 a fleet of thirty Japanese schooners, some with sixteen boats, were thus engaged, and according to the Government agent, they effectually blocked the escape of the seals from the islands. The agent says that in the last ten years the seal herds have diminished almost three-fourths, and if the slaughter by the Japanese is not put a stop to, complete destruction of the industry will follow. Thus, while the British are compelled to keep sixty miles off the islands, and can only kill the seals with spears, the Japanese operate up to three miles from shore, and can use firearms or any other method. It is stated that some of the British Columbia sealers are endeavouring to nationalise their vessels in Japan, so that they may be able to fish under the Japanese flag. In April 1910, when the lease of the Company expired, the United States Government did not renew it, but took the seals under their own protection, and an Act was passed prohibiting the killing of the fur-seal unless authorised by the Secretary of Commerce and Labour.

[1277] Parl. Papers, Russia, No. 1 (1895). Correspondence respecting the Agreement with Russia relative to the Seal Fishery in the North Pacific. Seal Fishery (North Pacific) Act, 1893, 56 Vict., c. 23; Order in Council, 4th July 1893.

[1278] The Western Australian Pearl and Bêche-de-mer Fishery (Extra-Territorial) Act, 1889.

[1279] An Act for the further Encouragement and better Regulation of the British White Herring Fishery, 48 Geo. III., c. 110, s. 60, 46. Section 60: “And whereas it may be useful to provide a jurisdiction for preserving order and settling disputes among persons carrying on the fishery for herrings on the coast and in the lakes of Scotland; be it therefore enacted, That the jurisdiction of the sheriffs and stewarts depute of Scotland, and their substitutes, shall be extended over all persons engaged in catching, curing, and dealing in fish in all the lochs, bays, and arms of the sea within their respective counties and stewartries, and also within ten miles of the coasts of their said counties and stewartries, and that in as full and ample a manner as the same is exercised over the inhabitants of these counties and stewartries; and if any loch, bay, or arm of the sea shall adjoin to two or more counties or stewartries, or any part of the sea shall be within ten miles of the coasts of two or more counties or stewartries, the sheriffs and stewarts of the said counties shall have and exercise a concurrent jurisdiction over such persons as aforesaid, in any such loch, bay, or arm of the sea which shall be in or opposite to their respective counties and stewartries, or any part of the sea within the aforesaid distance of the coast thereof.”

[1280] Report of Commission on Sea Fisheries, 1863, p. lxvi.

[1281] Trawling, and, in particular, steam-trawling, is practically unknown in America; but in recent years French steam-trawlers have begun to frequent the Newfoundland banks.

[1282] Annual Reports, Fishery Board for Scotland; Journal of the Marine Biological Association, &c.

[1283] For the earlier periods the statistics are incomplete. In 1863 the number of sailing trawlers was 955, of which 650 to 700 fished in the North Sea, 530 belonging to Ramsgate, Yarmouth, Grimsby, and Hull; in 1883 the aggregate was estimated at 3000, some being large vessels of ninety tons; in 1889 there were 230 steamers and 2323 smacks; in 1899 the steamers numbered 1186 and the smacks 1637.

[1284] Garstang, The Impoverishment of the Sea, Journal Marine Biol. Assoc., vol. vii. p. 47, 1900.

[1285] Return of the Number of Steam Trawlers registered at Ports in the States of Western Europe in the Year 1907, Parl. Papers, Cd. 4236, 1908.

[1286] Report of the Commissioners appointed to inquire into the Sea Fisheries of the United Kingdom, vol. i., 1866. The late Professor Huxley and Mr Shaw Lefevre (now Lord Eversley) were two of the commissioners.

[1287] Report on the Sea Fisheries of England and Wales, 1879 (C.—2449). The commissioners were Mr Frank Buckland and Mr (afterwards Sir) Spencer Walpole.

[1288] Report of the Commissioners on Trawl-Net and Beam-Trawl Fishing, 1885 (C.—4328).

[1289] “That taking into consideration that the question of the destruction of immature fish is one of international importance, it is, in the opinion of this meeting, imperative in the public interest that an International Conference be held to consider the desirability of recommending legislation upon the subject; and this meeting of practical fishermen further requests of Her Majesty’s Government to take immediate steps to bring about such Conference at the earliest possible date.” Fisheries Exhibition Literature, vol. iv. pp. 346, 355.

[1290] Conference of Representatives of the Trawl-Fishing Industry, held at the Inns of Court Hotel, London, 13th November, 1888. “1. That we find a large and distressing diminution in the North Sea of soles, turbot, plaice, and all flat fish, and view with alarm the future, unless some steps are immediately taken to prohibit the catching of immature fish.” 2. “That the Conference petition Her Majesty’s Government, urging them to enter into negotiations with all Continental Governments to establish an international law to prohibit the wilful catching of immature fish, and to make it unlawful to offer such immature fish for sale.” 3. “That copies of the resolutions be forwarded to the President of the Board of Trade asking for immediate action, and to the President of the National Sea Fisheries Protection Association, asking that Association to undertake the responsibility of a measure for legislation, and to do all they can for the protection of immature fish in and around the coasts of the North Sea and other coasts of the United Kingdom upon which breeding-grounds exist.”

[1291] Conference of the Trawl-Fishing Industry of the East Coast Ports, held at Hull, 30th April 1890. 1. “That this Conference of the Trawl-Fishing Industry of the East Coast, consisting of delegates from Hull, Grimsby, Yarmouth, Lowestoft, Scarboro’, and Boston, having realised the enormous loss which the trade has sustained year by year through the wholesale capture and destruction of immature and inedible fish, hereby resolves that the time has come when a strong and united effort should be made to put a stop to this growing evil; and as a preliminary step in this direction, it is agreed by the whole of the delegates here assembled, for themselves individually and the Companies, Corporations, Fleets, and Associations they represent, to abstain during the coming summer from fishing on the grounds where immature fish are generally caught in great abundance, such grounds being specified in the next Resolution.” 2. “That the Fishing Grounds or Nurseries where experience has found immature fish to be most prolific, and which are referred to in the foregoing Resolution, shall be defined as follows: That part of the North Sea the Eastern Boundary of which is the German and Danish Coasts; the Western Boundary, Longitude 7 deg. 30 min.; the Northern Boundary, Latitude 56 deg.; the Southern Boundary, 53 deg. 50 min.” The third resolution defined immature lemon soles, soles, turbot, brill, and plaice; and the fourth expressed the opinion that it was “highly necessary for the future wellbeing of the trade, and for the preservation of an important food-supply, that Parliament should be asked to impose restrictions upon the sale and purchase of immature fish”; and the delegates were instructed to press for legislative interference, national and international.

[1292] International Conference of Representatives of Maritime Powers convened under the auspices of the National Sea Fisheries Protection Association, to discuss the Question of Remedial Measures necessary to be taken for the Preservation and Development of the Fisheries in the Extra-territorial Waters of Europe, 1890. Minutes of Proceedings. The Conference passed a resolution that an official international conference of European maritime powers should be held with the view of concluding a convention for the preservation of undersized fish; and another, proposed by Dr P. P. C. Hoek, the delegate for the Netherlands, that before such a conference met, “the different nations interested in the sea fisheries of European waters should collect, with as little delay as possible, sufficient information, scientific as well as statistical, with regard to the damage done by the capture of undersized fish by their fishermen.” The author, who was present, conscious of the advantages of international co-operation, if the programme and conditions were appropriate, proposed that Dr Hoek’s resolution “should be modified in the way of recommending that a joint scheme of investigation might be drawn up by the countries concerned”; and on the motion of Captain C. F. Drechsel, the delegate for Denmark, who approved of it, the delegates adjourned to consider this proposal. The result, however, was merely the tabling of a resolution, which was adopted, “That the National Sea Fisheries Protection Association be requested to formulate a set of questions with a view to obtaining scientific and statistical information in relation to undersized fish, and forward it to each delegate, in order that he may submit it to his Government for adoption”—with what result does not appear. Ibid., pp. 21, 34, 36, 37.

[1293] “Your Committee are sensible of the difficulties of making international regulations, but are nevertheless of opinion that the best method for effectively governing the operations of the various classes of fishermen, and, at the same time, for securing, so far as it may be found possible, the proper protection of spawning and immature fish, would be to throw the responsibility of these duties, so far as the waters immediately adjacent to the various countries are concerned, on those various countries; that, for the effective realisation of this object, the present territorial limit of three miles is insufficient, and that, for fishery purposes alone, this limit should be extended, provided such extension can be effected upon an international basis, and with due regard to the rights and interests of all nations. Your Committee would earnestly recommend that a proposition on these lines should be submitted to an international conference of the Powers who border on the North Sea.” Report from the Select Committee on Sea Fisheries, 377, 1893. The Chairman of the Committee, which consisted of fourteen members, was Mr Marjoribanks (the late Lord Tweedmouth); among the others were Sir Albert Rollit, Mr Buchanan, and Mr (now Lord) Heneage. The report was presented to the House of Commons and ordered to be printed on 17th August 1893.

[1294] Special Report and Report from the Select Committee on the Sea Fisheries Bill, 1900 (287): “Your Committee think that it is proved beyond doubt that there is a very serious diminution of the supply of certain kinds of flat-fish, particularly in the North Sea. Of late years the total quantity of such fish caught has remained nearly stationary. This fact, when taken along with the enormously increased catching power and the vastly larger area of sea subjected to fishing operations, seems to show that the ancient fishing-grounds are much depleted. The whole of the local evidence, differing in many other respects, is practically unanimous as to this point. It seems clear that the evil is a growing one, and that in default of a remedy the consequences to the fishing industry in the diminished supply of flat-fish will at no very distant future be disastrous.” The late Mr (afterwards Lord) Ritchie, President of the Board of Trade, Mr Graham Murray (now Lord Dunedin), and Captain Sinclair, now Lord Pentland, Secretary for Scotland, were members of the Committee.

[1295] “Your Committee feel that the subject of the diminution of the fish supply is a very pressing one, and that the situation is going from bad to worse. In their view, no effort ought to be spared (1st) to arrange for international treatment of the subject generally, and especially for regulation of the North Sea area; and (2nd) to provide for the adequate equipment of the Government Departments in charge of the subject, so that they may effectively pursue scientific investigation and ascertain with sufficiency and precision what has been done, either in the way of scientific research or in the matter of practical legislation, by other inquirers and by other countries, with the view of determining whether any, and if so what, legislation may be desirable to effect the objects of the Bill.” Ibid., iv.

[1296] E.g., “That this conference regards as conclusive the evidence of a widespread diminution of the supply of food fishes in the North Sea and adjacent grounds, and is of opinion that the only practicable remedy is the prevention of landing and sale of immature and undersized fish.” Nat. Sea Fisheries Protection Ass., 1902.

[1297] Report from, the Select Committee of the House of Lords on the Sea Fisheries Bill (H.L.), 1904 (36). The Earl of Onslow, Lord Tweedmouth, and Lord Heneage were members of this Committee.

[1298] Op. cit.

[1299] Thus from the year 1903 (when these statistics begin) to 1906 the number of tons of bottom fishes landed on the East Coast of England by first-, second-, and third-class fishing vessels, from the North Sea and from beyond the North Sea, was as follows:—

	1903.	1904.	1905.	1906.
From North Sea	260,313	230,975	207,440	217,567
From beyond the North Sea	67,625	78,216	93,395	129,697

The particulars for all coasts are only given for 1906, and they show that almost half of the total supply of bottom fishes in England and Wales come from grounds outwith the North Sea. The figures are: from North Sea, 217,571 tons; from beyond the North Sea, 203,863 tons. Captain Walter S. Masterman, of the Board of Agriculture and Fisheries, in a valuable report on his research work in the North Sea, states that while the total quantity of bottom fishes taken within the North Sea by steam-trawlers and landed on the East Coast of England has decreased in the four years, 1903-1906, by 39,650 tons, or nearly 17 per cent, the decrease in flat fish has amounted to 23,590 tons, or nearly 42 per cent; and that “the decrease has been continuous from year to year, especially in the case of plaice.” Report on the Research Work of the Board of Agriculture and Fisheries in relation to the Plaice Fisheries of the North Sea, 1908 (Cd. 4227).

[1300] A leading representative of the trawling industry, Mr G. L. Alward, thus described the process to the Committee of the Lords in 1904. The diminution, he said, was from over-fishing, “first of all in our original old fishing-grounds. We denuded those, and found less year by year as time went on. We then discovered new grounds, with, in process of time, the same result. In going back originally, say to about 1830 to about 1890, we found, at ground after ground, after being fished for a few years, the same results; the fish became scarcer and scarcer.” Report, p. 78.

[1301] The quantity brought to England from Iceland and Faröe in 1907 was nearly 117,000 tons, or nearly 26 per cent of the total quantity of bottom fishes landed. Board of Agriculture and Fisheries Annual Report on Sea Fisheries for 1907. Schmidt, Fiskeriundersøgelser ved Island og Færøerne i Sommeren, 1903, p. 132.

[1302] A sidelight is thrown upon the risks as well as the enterprise of their labours by the fact that in 1908 a trawler’s crew, on the one hand, fishing on the coast of Africa, fell into the hands of the Moors; while another, whose vessel was wrecked near the White Sea, were saved from starvation by the kindness of Russian Laplanders, who killed reindeer for their sustenance.

[1303] Trawlers, on discovering new and productive grounds, invariably select out the fish that are most remunerative and throw the rest back into the sea. “Hundreds of thousands of tons” of immature fish are said to have been destroyed in this way in the North Sea, and what has happened at Iceland with regard to mature fish is thus described in a letter from one trawler to another, which was read by the recipient to the Parliamentary Committee in 1893: “Dear Manton, ... At present the trawlers who are running Iceland are throwing thousands of tons of good mature fish away, which, if some scheme of storage were got up, the fish sorted, and bought for food, would supply thousands in the year. I have been to Iceland, and we have to throw away hundreds of tons of good mature fish, such as haddock, supposed to be too large, and great quantities of cod, ling, and other fish. The fact is, the ground, which is valuable for fishing, is completely rotten with the refuse from the trawlers. We have to haul every two hours, and we have to carry extra hands to get rid of the fish and get the bit below we choose to save. The ground is fairly poisoned, and the plaice-fishing not so brisk, only in odd places; whereas before it was more general where there is any trawling ground” (Report cit., p. 248). The grounds had only been recently opened up when this was written. It is different to-day, when 85 per cent of the fish brought back from Iceland are round fish, chiefly haddocks and cod (Ann. Rep. Sea Fisheries for 1906, App., p. 15). It used to be the same in the North Sea, only prime fish being taken, and haddocks, &c., thrown away.

[1304] Vida Marítima, Órgano de la Liga Marítima Española, 1904, 1905; Boletin oficial.

[1305] Sea Fisheries Regulation Act, 1888, 51 & 52 Vict., cap. 54. Section 1 is as follows: “1.—(1) The Board of Trade may from time to time on the application of a county council or borough council, by order, (a) create a sea fisheries district comprising any part of the sea within which Her Majesty’s subjects have by international law the exclusive right of fishing, either with or without any part of the adjoining coast of England and Wales; and (b) define the limits of the district,” &c. Sea Fisheries (England and Wales), Annual Reports of the Inspectors; Board of Agriculture and Fisheries, Annual Reports of Proceedings under Acts relating to Sea Fisheries. An excellent chart, showing the regulations with respect to trawling around the English coast, is published in the Report from the Select Committee of the House of Lords on the Sea Fisheries Bill, 1904.

[1306] Department of Agriculture and Technical Instruction for Ireland: Report on the Sea and Inland Fisheries for 1907. Part I., General Report, pp. 56-62.

[1307] Report on the Sea and Inland Fisheries of Ireland for 1904, p. xxv. Manual of Fisheries (Ireland) Acts. Section 3 (subsection 1) of the Steam Trawling (Ireland) Act, 1889 (52 & 53 Vict., c. 74), gave powers to the Inspectors of Irish Fisheries to make, alter, and revoke byelaws for prohibiting steam-trawling “within three miles of low-water mark of any part of the coast of Ireland, or within the waters of any other defined areas specified in any such byelaw, and subject to any conditions or regulations contained in such byelaw.” Subsection 2 enacted that “each and every person who uses any trawl-net, or any method of fishing in contravention of any byelaw of the Inspectors of Irish Fisheries made in pursuance of this section,” shall be subject to a fine not exceeding five pounds for a first offence, or twenty pounds for a second or subsequent offence, with forfeiture of the gear employed. Section 4 made it unlawful for “any person” to land or sell in Ireland any fish caught in contravention of any such byelaw. Section 1 (subsection 1) of the Fisheries (Ireland) Act, 1901 (1 Ed. VII., c. 38), makes “every person who uses any trawl-net or any method of fishing in contravention of any byelaw” of the department made in pursuance of the third section of the Act of 1889, liable on conviction under the Summary Jurisdiction Acts to a fine not exceeding one hundred pounds, with forfeiture of the gear, for the seizure of which any duly authorised officer is empowered to “go on board any vessel propelled by steam employed in fishing.” The Irish byelaws must be approved by the Lord-Lieutenant and Privy Council of Ireland.

[1308] Sea Fisheries (Clam and Bait Beds) Act, 44 & 45 Vict., c. 11.

[1309] 48 & 49 Vict., c. 70; 50 & 51 Vict., c. 52.

[1310] 48 & 49 Vict., c. 70.

[1311] 1st Feb. 1886, 18th April 1887, 25th April 1887, &c. Manual of Sea Fisheries (Scotland) Acts and Statutory Bye-laws, pp. 253-257.

[1312] See pp. 592, 643.

[1313] Ibid., p. 255.

[1314] The Herring Fishery (Scotland) Act, 1889, 52 & 53 Vict., c. 23. Section 7.—(1) “The Fishery Board may, by byelaw or byelaws, direct that the methods of fishing known as beam trawling and otter trawling shall not be used within a line drawn from Duncansby Head, in Caithness, to Rattray Point, in Aberdeenshire, in any area or areas to be defined in such byelaw, and may from time to time make, alter, and revoke byelaws for the purposes of this section, but no such byelaw shall be of any validity until it has been confirmed by the Secretary for Scotland.” The next section prohibits the landing or sale in Scotland of any fish caught in contravention of the Act or byelaws.

[1315] “11.—(1) The Fishery Board may, by byelaw or byelaws, direct that the methods of fishing known as beam trawling and otter trawling shall not be used within a line drawn from Rattray Point, in Aberdeenshire, to the Farne Islands, in Northumberland, in any area or areas to be defined in such byelaw, and may from time to time make, alter, and revoke byelaws for the purposes of this section.”

[1316] A Bill [as amended in Committee] intituled An Act for the better Regulation of Scottish Sea Fisheries (52), s. 10, February 1895.

[1317] Sea Fisheries Regulation (Scotland) Act, 1895, 58 & 59 Vict., c. 42. Section 10.—(1) “The Fishery Board may, by byelaw or byelaws, direct that the methods of fishing known as beam trawling and otter trawling shall not be used in any area or areas under the jurisdiction of Her Majesty, within thirteen miles of the Scottish coast, to be defined in such byelaw, and may from time to time make, alter, and revoke byelaws for the purposes of this section. Provided that the powers conferred in this section shall not be exercised in respect to any areas under Her Majesty’s jurisdiction lying opposite to any part of the coasts of England, Ireland, or the Isle of Man, within thirteen miles thereof.” (2) provided for a local inquiry to be held. (3) “Provided that no area of sea within the said limit of thirteen miles shall be deemed to be under the jurisdiction of Her Majesty for the purposes of this section unless the powers conferred thereby shall have been accepted as binding upon their own subjects with respect to such area by all the States signatories of the North Sea Convention, 1882.”

[1318] Eighteenth Ann. Rep. Fishery Board for Scotland, Part I., p. xxxii. The information relating to this part of the subject is taken mostly either from the Annual Reports of the Scottish Fishery Board or from Hansard’s Parliamentary Debates.

[1319] See Norges Officielle Statistik; Norges Fiskerier, 1906, pp. 17, 18. Sixteen steam trawlers were on the list as registered in Norway in that year, but “they did not carry on fishing from Norwegian ports,” and were not included in the list of bona fide Norwegian fishing-vessels.

[1320] Peters v. Olsen, 7, Court of Session Reports, 5th Series (Justiciary Cases); 42 Scottish Law Reporter, p. 735.

[1321] “In fact, the Moray Firth, within the line from Duncansby Head to Rattray Point, is not the high seas, but is a bay or area between these headlands intra fauces terræ,—between the jaws of the land,—which has been called in England one of the King’s Chambers. In law, such an area must be dealt with by the Courts of this country as part of the territorial limits of Scotland, unless the Legislature chooses to enact, in fairness to other countries or for any other reason, that the extent of the space involved is too great to come within the reasonable definition of a bay.”

[1322] [See p. 545].

[1323] Court of Session Reports, 8 Fraser, p. 93.

[1324] “For the purpose of regulating the police of the fisheries in the North Sea outside territorial waters.” The use of the words “territorial waters” and “exclusive fishery limits” indifferently for the same thing is common, but improper.

[1325] “I, George Milne Cook, Vice-Consul for Norway for Aberdeenshire and the adjacent districts, by instructions of Herr Laveland, Minister for Foreign Affairs of Norway, hereby protest, on behalf of the Government of Norway, against any conviction of the masters of the Norwegian trawling vessels Stroma, Sando, and Catalonia, provided the trawling with which they were charged has taken place outside the territorial limits, and I further protest against any punishment or fines being inflicted in the Sheriff Court at Elgin on the said masters.”

(Sd.) George M. Cook.

Elgin, 31st January 1908.

[1326] Hansard, vol. 169, pp. 557, 558, 988; vol. 170, pp. 1202, 1206.

[1327] A letter appeared in the Fish Trades Gazette, on 14th October 1905, from Mr Hans Johnsen, the Fisheries Agent for Norway in Great Britain, stating that he had resigned his membership of the National Sea Fisheries Protection Association owing to the President (Lord Heneage) having prevented him from reading at the annual conference of the Association at Aberdeen, with reference to a resolution regarding the Moray Firth, a letter from the Norwegian fishery authorities. His object in endeavouring to speak on the resolution, he said, “was to clear the Norwegian flag from having anything to do with the piracy practised by Grimsby steam trawl-owners in the Moray Firth, and which the Government of Norway and the Norwegian Fishery Board is highly indignant at.”

[1328] Hansard, vol. 170, pp. 472, 1206, 1246, 1383.

[1329] In these Norwegian vessels there were a “flag-master” and a “fishing-master,” the former, nominally in charge of the vessel, being a Norwegian in order to comply with the registration laws, but often, or usually, occupying a humble position, such as cook. The “fishing-master” had the real control and occupied the master’s rooms on board. He, like all or most of the crew, was English, resident at Grimsby.

[1330] In April the penalties ranged from £10 to £2, 10s., or two to ten days’ imprisonment; in July they ranged from £1 or one day to £45 or fourteen days; three cases were dismissed, one was found not proven, and in five the verdict was not guilty; four cases were appealed to the High Court by the Procurator-Fiscal and the appeal sustained. Twenty-Sixth Ann. Rep. Fishery Board for Scot., Part I., App. L., II.

[1331] Hansard, vol. 170, p. 472.

[1332] [See p. 707] et seq.

[1333] Hansard, vol. 169, pp. 832, 991, 1037; vol. 170, pp. 786, 1246, 1247; vol. 192, p. 832. &c.

[1334] Ibid.

[1335] Thus, in the “Reply on behalf of Her Britannic Majesty’s Government to the Answer of the United States of America,” submitted to the International Fisheries Commission at Halifax in 1877, it was said: “It is not understood that the Answer either raises or invites the discussion of any rules or doctrines of international law, save such as bear upon the question of what are to be considered the territorial waters of a maritime State for the purposes of exclusive fishing. The contention of the Answer in relation to these doctrines which requires special attention, is that which asserts that Great Britain and other Powers have traditionally recognised a rule, by which foreigners were excluded from fishing in those bays only which are six miles, or less, in width at their mouths. It is distinctly asserted on the part of Her Majesty’s Government that this alleged rule is entirely unknown to, and unrecognised by, Her Majesty’s Government, and it is submitted that no instance of such recognition is to be found in the Answer or the Brief accompanying the same, and that none can be produced.” This was approved of by the Earl of Derby, Foreign Secretary (the Earl of Derby to Mr Ford, August 31, 1877; the same to the same, Oct. 6, 1877).

[1336] 11th Nov. 1908. Hansard, vol. 196, p. 236. Very important declarations as to the territorial character of bays will be found in the decision of the Permanent Court of Arbitration at The Hague, on the North Atlantic Fisheries (7th September 1910, Award No. V.), received as these sheets are passing through the press. The application of the three-mile limit to bays was rejected, the following rule being formulated: “In case of bays the three marine miles are to be measured from a straight line drawn across the body of water at the place where it ceases to have the configuration and characteristics of a bay. At all other places the three marine miles are to be measured following the sinuosities of the coast.” In its practical application to British North America, the Tribunal recommended a ten-mile limit generally, except for certain specified bays (including Chaleurs, Miramichi, Egmont) where special lines, enclosing much larger areas, are proposed.

[1337] Hansard, vol. 170, p. 1383. The miles referred to are English statute miles.

[1338] Hansard, vol. 191, p. 1769.

[1339] Reports of the British Delegates attending the International Conferences held at Stockholm, Christiania, and Copenhagen, with respect to Fishery and Hydrographical Investigations in the North Sea. Parl. Papers, Cd. 1313, 1903. Corresponding “Reports” to 1906 (Parl. Papers, Cd. 2966/06, 3033/06, 3165/06). Conseil Permanent International pour l’Exploration de la Mer, Rapports et Procès-Verbaux des Réunions, Copenhague. A summary on the subject, by Dr A. T. Masterman, will be found in the Minutes of Evidence, Committee on Fishery Investigations (Parl. Papers, Cd. 4304, p. 479, 1908).

[1340] “2. The delegates should propose that the scientific investigations shall be accompanied by a practical exposé of the steps to be taken in order to bring the exercise of sea-fishing more in accord with the natural conditions regulating the growth and increase of fish in our seas, and thus permanently increase the supply of fish in the markets of the countries adjoining the North Sea. 3. In making this proposal, which they should do at the outset, the delegates should make it clear that the principal object the British Government have in directing them to take part in the Conference, is to secure a careful inquiry into the effect of present methods of fishing in the North Sea; and the delegates should give every assistance in promoting a scheme for determining whether protection against overfishing is needed, and, if so, where, when, and how such protection should be given. 4. The delegates should propose that a thorough scheme for obtaining statistical information with regard to the quantity and quality of fish caught by the different methods of fishing shall be organised, with a view of determining whether protection against overfishing is needed, either by the prohibition of trawling in certain selected areas or the limitation of fishing during certain selected seasons.”—Instructions to the British Delegates for the Meeting at Stockholm, 15th June 1899; Reports of the British Delegates, &c., p. 13. Parl. Papers, Cd. 1313, 1903; Committee on Fishery Investigations, Minutes of Evidence, &c., p. 278, Parl. Papers, Cd. 4304, 1908. The instructions of the British Government to the Delegates for the Meeting in 1901, at Christiania, were of similar tenour:—“His Majesty’s Government fully share in the interest shown in the cause of scientific research, but having regard to the importance of the evidence which was laid before the Select Committee of the House of Commons [see p. 709], and which was adopted by them as showing that the supply of fish in the North Sea is decreasing, they are of opinion that the consideration of this subject will admit of no delay, and you should press on your foreign colleagues the importance of entering at once upon the pursuit of investigations calculated to lead to an international agreement. You should in no way discourage or check any desire which you may find to exist for scientific research into problems not so immediately pressing, but his Majesty’s Government place in the forefront of their reasons for taking part in the forthcoming Committee the desire that no delay should be incurred in the adoption, by international agreement, of measures for arresting the diminution of the supply of fish in the North Sea, and for restoring, as far as possible, that source of supply to its former abundance.” Ibid., p. 278.

[1341] Memorandum drawn up by the Expert Members of the Ichthyological Research Committee, Report of the Committee appointed to Inquire and Report as to the Best Means by which the State or Local Authorities can Assist Scientific Research as applied to Problems affecting the Fisheries of Great Britain and Ireland (Parl. Papers, Cd. 1312, p. xxii, x, 1902). Evidence of Mr Walter E. Archer, Assistant-Secretary, Board of Agriculture and Fisheries, Minutes of Evidence given before the Committee appointed to inquire into the Scientific and Statistical Investigations now being carried on in relation to the Fishing Industry of the United Kingdom, pp. 277, 288, 346, 359 (Parl. Papers, Cd. 4304, 1908).

[1342] Reports of the British Delegates, &c., Parl. Papers, Cd. 1313, p. 72, 1903. The countries represented were Great Britain, Germany, Denmark, Belgium, the Netherlands, Norway, Sweden, and Russia.

[1343] Hansard, vol. 169, pp. 992, 996; vol. 170, p. 786; and 11th Nov. 1908.

[1344] Mr Frank Barrett, of Grimsby, thus referred to the condition of the North Sea at the conference of the National Sea Fisheries Protection Association in 1905: “Unless they did something as a counterpoise to the continual trawling which was going on, they would find themselves powerless as regarded that splendid fishing-ground, the North Sea. He did not believe the North Sea, if left to itself, could last for ever. He was one of those who thought it could not last very long; and he thought they should apply the lessons of science in order to rehabilitate the North Sea.” Fish Trades Gazette, Oct. 14, 1905.

[1345] Mr G. L. Alward, one of the leading and most experienced trawl-owners of Grimsby, who was invited to take part in a discussion on sea fisheries in the Zoological Section of the British Association in 1906, thus referred to the subject. He said: “There was no doubt that the North Sea was deteriorated as a fishing-ground, and in order to maintain an adequate supply they had had to explore fresh fields. They had shifted the trawling-grounds to the coasts of Faröe, Iceland, and Norway, while others had had to go out into the Atlantic, to the Bay of Biscay, and to the coast of Morocco. But if they had exhausted the 147,000 square miles of the North Sea,—every mile of which had been fished,—and they fished out the area between Norway and Faröe and Iceland, not more than forty or fifty thousand square miles, with the same rapidity, they had to look forward to nothing short of a dearth of fish and a rise in value to famine prices.” Aberdeen Free Press, 9th August 1906.

[1346] According to an interesting table on a chart appended to the Annual Report of the Board of Agriculture and Fisheries for 1906 ([see fig. 28]), the areas, in square miles, between the three-mile limit and the 200-metre line, are as follows: North Sea, 152,473; North of Scotland (Orkney and Shetland), 18,096; West of Scotland, 32,099; West of Ireland, 9066; Irish Sea, 15,743; Southwards of Ireland, 50,416; Bristol Channel, 8613; English Channel, 25,238. The area at Iceland is 36,608, and at the Faröes, 4949 square miles.

[1347] Hansard, vol. 169, p. 996; vol. 196, p. 217. I have been courteously informed by Mr Bjarni Sæmundsson, of Reykjavik, a well-known authority on the fisheries of Iceland, that no laws proposing to extend the territorial waters were passed, or proposed, by the Althing.

[1348] Hansard, vol. 170, p. 786.

[1349] On Mem. 1 the words “le dit Roi Dengleterre et” follow “Procurors.”

[1350] Mem. 1 and 8, “de touz autres de son Roialme.”

[1351] Mems. 1, 14, and 15, “il ny ad.” Mem. 8, “du temps qil ny ad.”

[1352] Mem. 8, “aueroient este.”

[1353] Mem. 1, “oue touz les Isles et les apportenaunces.”

[1354] Mem. 1, the words are “estatuitz et defenses comunes et priuees” and the rest is omitted to “sur toute manere des gentz taunt,” &c. Mem. 8, “communes et priuees a garder pays et droiture entre tote manere des gentz tant,” &c. Mem. 15, “estatuitz et defences pur gouerner en toute manere,” &c.

[1355] Mems. 1, 8, 14, 15, “come de lour propre.”

[1356] Mem. 1, “oue.”

[1357] Mems. 1, 8, and 15, “oue.”

[1358] Mem. 1, instead of gouernement, “a la generalte”; Mem. 8, “a la garde.”

[1359] Mems. 1, 8, and 15, “le dit Roi.”

[1360] Mem. 1 omits “Dengleterre.”

[1361] Mems. 1 and 8, “Rois Dengleterre deputez eient este.”

[1362] Mem. 8, “de la dite seignurie et garde.”

[1363] Mems. 1, 8, 14, and 15, “forspris.”

[1364] Mems. 1, 8, and 15 insert “et.”

[1365] Mem. 15, “a.”

[1366] Mem. 1, “ou mesfaitz”; Mem. 8, “ou de mesfaitz.”

[1367] The sentence from “Et come” to “Coustumes” is omitted on Mems. 1, 8, and 15.

[1368] Mems. 1 and 8 omit “en vne cedule anexe ayceste,” and Mems. 1, 14, and 15 omit the whole of the next paragraph, recommencing “Monsieur Reymer Grimbaus.” Mem. 8d, paragraph commencing “Primerement.”

[1369] Mem. 8, “et a maintener.”

[1370] Mem. 8, “excepte pur le dit Roy.”

[1371] Mem. 8, “le dit Roy.”

[1372] Mem. 14 omits “et.”

[1373] Mems. 1 and 8 omit “Dengleterre.”

[1374] Mems. 1, 14, and 15, “du dit Roi.”

[1375] Mems. 8 and 15 insert “les.”

[1376] Mems. 1, 8, and 15 insert “et marchandises.”

[1377] Mem. 1 omits “et.”

[1378] Mem. 1 omits “de Fraunce.”

[1379] Mems. 1, 14, and 15 read (here and elsewhere) “ceo.”

[1380] Mem. 8 omits “et la prise,” &c., recommencing, “sur la forfaiture,” &c.

[1381] Mem. 14, “ou.”

[1382] Mem. 8 inserts “et.”

[1383] Mems. 1, 14, and 15, “sa.”

[1384] Mems. 1 and 8, “de par le dit Roi.”

[1385] Mem. 1, “de la”; Mems. 8, 14, and 15, “de le.”

[1386] Mems. 1, 8, 14, and 15 insert “a vous Seigneurs.”

[1387] Mems. 8 and 14, “qil.”

[1388] Mem. 8 inserts “il.”

[1389] Mems. 1, 14d, and 15 complete the passage as follows: “Come il purra suffire et en sa deffaute son dit seignur le Roi de Fraunce par qi il estoit deputeez al dit office et qe apres dewe satisfactioun faite as ditz damagez le dit Monsieur Reiner soit si duement punitz pur le blemissement de la dite alliance qe la punicioun de lui soit as autres example [Mem. 8, ‘ensample’] pur temps auenir.” Mem. 15 ends here. Mem. 8 transposes the next paragraph and the last.

[1390] Mem. 1, “aunciens”; Mem. 14, “auncienes.”

[1391] Mems. 1, 8, and 14, “ne.”

[1392] Mems. 1, 8, and 14 omit “nefs.”

[1393] Mem. 8, “leurs.”

[1394] Mem. 8, “doiuent.”

[1395] Mem. 8. “deuantdiz.”

[1396] Mems. 1 and 8, “les.”

[1397] Mems. 1 and 8, “ses.”

[1398] Mem. 8, “soy.”

[1399] [Sic]: not previously mentioned; probably Johan Paderogh.

[1400] See below.

[1401] Side-note says: “The said goods have been delivered to Will. Bush.”

[1402] 24th Aug. 1303, Saturday.

[1403] St Lawrence, Aug. 10.

[1404] 29th Sept. 1303, Sunday.

[1405] Differences found in copy, State Papers, Dom., Chas. II., Vol. 339, p. 589, are shown in brackets.