Another complaint made also at the same time against the burgesses of Yarmouth was one from the town of Lowestoft; for the town of Yarmouth pretended that the seven leuks or miles which bounded their liberties was not to be measured from the key or port of Yarmouth but from the haven’s mouth; whereas the Lowestoft men affirmed that the said admeasurement ought to be made from the key or port of that town; otherwise the fishermen of Lowestoft would be excluded the indisputable privilege of buying herrings in the open road before their own town, which hitherto they had always enjoyed.
In consequence of these complaints, their lordships after hearing what each party had to alledge in its own defence; referred the further consideration thereof to three judges of the realm, viz., the right honourable Sir John Fortescue, knight, one of Her Majesty’s privy council; Mr. Justice Clench, and Mr. Justice Gawdye, in order that they might certify to their lordships in what manner the dispute between the said towns might be fairly and equitably adjusted to the reasonable satisfaction and advantages of both parties.
A LETTER of Reference to Sir John Fortescue, Knight, Mr. Justice Clench, and Mr. Justice Gawdie.
After our hearty commendations.—The inhabitants of the town of Lowestoft, in the county of Suffolk, have exhibited a complaint unto us against the towne of Great Yarmouth, in the county of Norfolk, shewing, that by some unlawful courses held by the townsmen of Yarmouth, they are deprived of their antient trade of buying of herrings of fishermen in an open road before the town of Lowestoft; whereupon we have called before us of each town some two or three, with intention to make order in the controversie between them. And because the affair do consist of many points and proofs by charters, and by special statutes we have thought good to be assisted therein with the opinions of some learned in the laws, and therefore have thought good to join with you Mr. Chancellor of the Exchequer, you Mr. Justice Gawdie [74]—and you Mr. Justice Clench. And do hereby heartily pray and request you, at some convenient time this term, to call the parties before you, and effectually to appease the griefs of the plaintiff, and the answers to the other, and to hear and consider their allegations and proofs, to be delivered either by the parties themselves, or by their learned council thereupon; we pray you to certify unto us what you shall find, and with your opinions prove their differences may in equity be duly and orderly ended and compromised to the reasonable benefit of either; which we earnestly recommend unto you, and so bid you each heartily well to fare. From the Star-Chamber the second of July, 1595.
Your very loving friends,
L. Archbishop, L. Admiral,
L. Keeper, L. Cobham,
L. Treasurer, L. Buckhust,
Mr. Vice Chamberlain.Con cordat cum origine,
Thos. Wilkes.
Accordingly, soon after it was certified to their lordships by the judges, that after due consideration of the premises, and hearing the several allegations advanced by both the said towns, and their learned council, they were of opinion, that by a statute of 31st of Edward III, no persons were legally authorised to hang herrings within seven miles of the haven of Yarmouth, viz., South Town; East Town; and West Town, unless the said herrings were of their own catching.
A CERTIFICATE from Sir John Fortescue, Justice Clench, and Justice Gawdie, concerning the CONTROVERSY betwixt the Town of YARMOUTH and the Town of LOWESTOFT.
Whereas your lordships did direct unto us your letter dated the second of July last past, to examine and understand the griefs and controversies between the inhabitants of the town of Great Yarmouth, in the county of Norfolk, touching the trade of buying herrings: and to certify unto you our opinions how their differences might in equity be duly and orderly ended and compounded; we have accordingly called before us divers of the inhabitants of either of the said towns, and heard their allegations alleged by themselves, and their council learned on both sides. And it doth appear into us, that this condition between the said towns hath depended of very long time; and divers statutes hath been made in this case by parliament for the town of Yarmouth, and repealed again for the town of Lowestoft. And divers ordinances and inquisitions have been made by the king’s commission, directed to men of great authority, and afterwards revoked, and altered again by the same authority. But there was one statute made in the 31st year of Edward III, whereby, amongst other things, it is provided, that none shall hang herrings about the haven of Yarmouth by seven miles, but in the three towns of Yarmouth, except the said herrings be of their own fishing. And another Act, made in the 10th of Richard II. for revising of divers former repealed charters made to Yarmouth, in which, amongst other things, a certain place in the main sea, then by the mouth of the haven of the said town of Yarmouth, called Kirkley road, was united to the said town of Yarmouth, and by which it is provided, that none shall buy or sell herrings by way of merchandize in time of their fair, within seven miles of the said town, but only in the said haven and road. Which said two statutes we do think by the law stand still in force at this day, not repealed, nor avoided touching these points. But for unity to be made between the said towns, and for the good and common wealth of her majesty’s subjects in the counties of Norfolk, Suffolk, Essex, and the city of London, We do think in our opinions, it were good and convenient (if it may so seem good to your lordships), that orders might be given to have the said seven miles measured, to begin at some such place in Yarmouth town as your lordships shall think meet; which we think, for our parts, to be the key, where the fair of herrings is kept, and so to go towards Lowestoft; and where the said seven miles do end, to set up some apparent thing to make it known. And this being done we think it would make some quietness, because there is great contention now in this point. Also we do think it fit, that all pikers and ketches, being English, might buy upon the main sea, or coasts thereof, and also in Kirkley road, of the fishermen, fresh herrings at their pleasure, to be by them carried to what place of the realm they think good, without any let or disturbance of Yarmouth men, according to the true meaning of the statute of the 31st of Edward III, which we think would be very profitable for the fishermen, and very beneficial for her majesty’s subjects. Also we think it would make great quietness in this contention, if, by some commission or other, (as it shall seem to your honourable lordships), it might be certainly set down where Kirkley road is, and how far it doth extend. November 28th, 1595.
Concordat cum Registro Exor.
JOHN WOLLEY,
Keeper of the Records of the Councell Chamber.
The OPINION of the LOWESTOFT COUNSEL touching the CONTROVERSY between YARMOUTH and the said TOWN.
A brief being made upon the allegations of the Yarmouth men, and delivered to the judges in writing (which such allegations, in truth, were not under the hands of their councel, though they proceeded from their councel), shewing that the judges should have delivered a certificate of their opinions to the Council-Table before the Yarmouth men were gone out of London, although the judges had not sufficient time for that purpose, the Yarmouth men not presenting their allegations till the last day of term, and then deferred it till the judges were going to supper; therefore the Lowestoft men have retained Mr. Sergeant Drewe and Mr. Bargrave, her majesty’s attorney, together with Mr. Councellor Bacon, to consider the whole state of the matter, and that their opinion might be shewed as occasion should require, they have subscribed to the same, as followeth: “That by the statutes and charters aforesaid, any man may sell and buy herrings in the road called Kirkley road, or elsewhere, without the lawful let or hindrance of the town of Yarmouth; and if any proclamation be made by the said men of Yarmouth, or any other of the subjects of this realm, to the contrary, the same, in our opinion, is unlawful, whether it be within or without the time of the fair.”
Char Drew, Ja. Bargrave, Fr. Bacon.
In order to form the better judgment of this intricate and much disputed affair, it may be necessary to observe, that by the statute of the 9th of Edward III it was enacted, “That every subject of the realm might buy and sell herrings without disturbance in city, burgh, sea-port, or elsewhere throughout the kingdom; and if any charters and patents were granted to the contrary they should be holden null; which statute was confirmed in a subsequent parliament.” Probably from some abuse of this privilege, it might become necessary afterwards to lay it under some restrictions, in view of preventing those infringements which interested persons, from lucrative motives, had made on the rights and privilege of others; and therefore to redress this grievance, the following statute of the 31st of Edward III was granted, on which the Yarmouth men grounded part of their claim, and is the statute referred to in the certificate of the judges.
STATUTE of the 31st of EDWARD III.
Edward, by the grace of God, king of England and France, and lord of Ireland—To our bailiffs of the cinque ports, and the burgesses of our town of Yarmouth, keepers of the said town, greeting, etc.
A certain concord by us and our council, made within the time of the present fair of the said town, we will have kept, etc.
That none shall go by boat nor bridge into the sea, nor unto the road of Kirkley, for to meet the fishers, to compel them, or to capture them to sell them herrings in the road of Kirkley, to the disturbance of the said fair, upon the same pain, etc.
But if the said fishers be disposed and willing to sell their herrings in the said road after that they be anchored there, it shall be lawful to the merchants of Lowestoft and Winterton, to buy any herrings in Kirkley road and Winterton, of ships so anchored there, as freely as the pycards do load their carts and horses there, which come thither from divers counties, and to hang there, provided that they sell no herrings therefore towards the sea, upon pain aforesaid, etc.
And in case that any fishers ships charged with one last and a half of herrings, or less, come into the road of St. Nicholas, and will not come into the haven for the charge thereof, and will sell the same herrings in the road that it shall be lawful for him to set up his sign, and sell the said herrings there to the merchants that will buy them.