When the judges delivered their opinions, that by this statute none should hang herrings about the haven of Yarmouth, by seven miles, etc., they meant that port of the haven near the key where the fair was kept, and not the mouth of the haven. The Yarmouth men on the contrary, insisted that the words in this statute, “and to hang there,” implied, not to hang anywhere else but near the said haven, thereby endeavouring to exclude the town of Lowestoft from the privilege of curing herrings. But the opinion delivered by the judges being found just and reasonable it was confirmed by an order of council as will be afterwards more clearly shewn. Nevertheless, it may be observed that the disputes which these statutes principally refer to, and are alluded to by the judges are those which relate to the extent of the liberties of Yarmouth. For the charter which united Kirkley road to Yarmouth haven was not granted until the 46th of Edward III. which was fifteen years after the passing of the preceding statutes.

And by an Act passed in the tenth year of the reign of Richard II (which confirmed the Act of the 46th of Edward III) it was enacted, that a certain place in the main sea, called Kirkley Road, should be united with the said town of Yarmouth; and by which Act it was provided, that none should buy or sell herrings, by way of merchandise, in time of their fair, within seven miles of the said town, but only in the said haven or road. Which two statutes they thought were still in force, and unrepealed; but yet for the sake of restoring peace and harmony between the said town, and promoting the common benefit of the kingdom in general, they recommended it to their lordships, that the said seven miles which circumscribed the liberties of Yarmouth, should be measured from the key of the said town where the herring fair is always held, towards Lowestoft; and at the termination thereof some apparent mark should be placed, in order to ascertain the exact boundaries of their liberties, and to prevent any farther disputes. And also, that they were of opinion, that by virtue of the statutes of the 31st of Edward III all English vessels were entitled to the privilege of buying fresh herrings in the middle of the sea, or coasts thereof, and also in Kirkley road, without any let or hinderance from the men of Yarmouth. And lastly, that they thought it very advisable, that a commission might be appointed to consider the premises, and to ascertain with precision the true situation of Kirkley road, in order to adjust the present differences, and to prevent any future contentions between the said towns.

This opinion of the judges was no sooner delivered, than it was opposed by the burgesses of Yarmouth with the utmost vehemence, and every method was made use of to conceal its reasonableness, and to divert its consequences, the Yarmouth men still persisting that the seven miles which terminated the boundaries of their privileges, were to be measured upon the sea, and not to be contracted by the numerous windings that would necessarily attend an admeasurement taken upon land.

Upon the starting of these objections by the burgesses of Yarmouth, their lordships were pleased to issue orders for a re-hearing of the case, which was appointed to be held before Sir John Forteseue and the other judges; who after hearing and examining what the learned counsel employed by each party had to advance in support of the demands of their respective clients, and duly considering how far their several pretensions were just and reasonable, they certified to their lordships, that they were unable to discover any legal or equitable reason why they should depart from their former opinion.

A SECOND CERTIFICATE from Sir John Fortescue, Justice Clench, and Justice Gawdy, concerning the CONTROVERSY between the town of YARMOUTH and the town of LOWESTOFT.

Whereas, upon the return of our first certificate, the men of Yarmouth opposed it, as discontented with some things therein specified: whereupon it pleased your lordships to re-commit to us the hearing of both parties; and having accordingly heard both they themselves and their learned council, at Serjeants Inn, in Chancery Lane, we do further certify, that we find no cause to alter the said certificate.

Concordat cum Resistro
exor
JOHN WHOLLEY,
Keeper of the Records of the Council Chamber, April 30th, 1596.

In consequence of this second certificate of the judges, their lordships, on the 16th day of May, 1596, issued an order that an actual admeasurement of the said seven miles should be immediately carried into execution, and at the termination thereof towards Lowestoft, some apparent mark should be affixed, to point out the boundaries of the liberties of Yarmouth; and that the same admeasurement should commence at Yarmouth key, the place where the herring fair is usually held; and also further to ascertain the true situation of the place called Kirkley road; and accordingly a commission was granted to Sir Arthur Heneningham, Sir Henry Woodhouse, Knight, and Henry Gawdy, Esq., [78] on the part of Yarmouth; and to Sir Robert Jermyn, Sir John Higham, Knight, and Anthony Wingfield, Esq., on the part of Lowestoft, or any five or four of them, to superintend the said admeasurement, to affix the said mark, and to point out the precise situation of Kirkley road, where it beginneth, and how far it extendeth.

At the Court at Greenwich, the 16th of May, 1596.

Present,
Lord Archbishop, Lord Chamberlain, Lord Buckhurst,
Lord Keeper, Lord Cobham, Sir John Fortescue.

This day John Felton and Thomas Dannett, burgesses of the town of Yarmouth, and William Wild and Thomas Ward, inhabitants of the town of Lowestoft, having been before the lords of the council, and presented to them the certificate sent down by Sir John Fortescue, Justice Clench, and Justice Gawdy, signed with their own hands, concerning the controversy before referred to them by their lordships, between the towns of Yarmouth and Lowestoft, concerning the trade of buying herrings. Their lordships having perused the said certificate, and deliberately considered of it, have approved of it in these two points: first, for the privilege of seven miles; and secondly, for a commission to be granted for finding of the right place of Kirkley road (leaving the other matter of the pikers and catchers, mentioned in the said certificate, by consent of both parties themselves). And because the question between them is concerning the measuring of seven miles where the same ought to begin (the one part saying that it should begin at the haven’s mouth, the other at the key, where and about which place, the fair is usually kept), their lordships do approve of the judgment and certificate of the said judges, that it ought to be taken from the said key, or place of their fair, in Yarmouth town; and have therefore ordered, that letters should be written and directed from their lordships unto Sir Arthur Heneningham, Knt., Sir Henry Woodhouse, Knt., and Henry Gawdy, Esq., for the town of Yarmouth; and for the town of Lowestoft Sir Robert Jermyn, Knt., Sir John Higham, Knt., and Anthony Wingfield, Esq., or any five or four of them, to undertake the measuring of the seven miles from the town of Yarmouth, according to the intention of the privilege claimed by the town of Yarmouth by their charter; and at the end of the said seven miles so measured, to affix and set down an apparent mark; and upon good examination and enquiry, to set down and define the place where Kirkley road is, which the charters of Yarmouth mentioneth; where it beginneth, and how far it extendeth.

Ex. Sipe. THO. SMITH.

From the Court at Greenwich, the 16th day of May. 1596.

Present,
John Canterbury, Wm. Ceicell, Tho. Buckhurst.
Tho. Egerton, Wm. Cobham, J. Fortescue.

To our very loving friends, Sir Arthur Heneningham, Sir Henry Woodhouse, Sir Robert Jermyn, Sir John Higham, Knts., Henry Gawdy and Anthony Wingfield, Esqs., or to any five or four of them.

After our hearty commendations.—Whereas, upon some controversy between the towns of Yarmouth and Lowestoft, concerning the trade of buying herrings, we have referred the consideration thereof to our very loving friends Sir John Fortescue, Knt., Justice Clench, and Justice Gawdy, who have accordingly returned certificates of their opinions of the matter, which herewith we send unto you; we have now, by the consent of both parties, made choice of you, as fit persons to execute the determination of the said certificates and do therefore pray and request you, or any five or four of you, with all convenient expedition to undertake the pains of measuring the seven miles from the town of Yarmouth sideway [79] according to the intention of the privilege claimed by the town of Yarmouth, by their charters; and at the end of the said seven miles so measured, to fix and set down apparent marks; and also upon good examination and inquiry to set down and define certainly where Kirkley road is which the charter of Yarmouth mentioneth; where it beginneth, and how far it doth extend. And of these two material points, and to certify your opinion and proceedings there upon such further orders shall be given therein as we shall think requisite. And so we bid you heartily farewell.

From your loving friends, etc.

But the burgesses of Yarmouth being conscious that they were prosecuting a claim for which they had neither a legal nor equitable pretension; and being also apprehensive, that if the affair was carried before the said commissioners, and submitted to a strict and impartial investigation, it would terminate greatly to their disadvantage; therefore they resolved as there was but little prospect of being successful in the enquiry, they would exert every effort in their power to retard and embarrass it; and that the most effectual mode for accomplishing their designs would be to counteract the commission; and accordingly, in a subsequent application to the Privy Council for redress of grievances, they transmitted such a partial representation of the case, as to obtain from their Lordships an order for a new commission. In this second commission we find, that an alteration was made in the appointment of commissioners; for in the place of Anthony Wingfield, Esq., one of the commissioners nominated in the first commission on the part of Lowestoft, William Rowse, Esq., was appointed in this second commission, a person partially attached to the interest of Yarmouth. And whereas, by the first commission, any four or five of the commissioners had a power of deciding any point relative to the dispute; but by the second commission it was ordered, that they should be unanimous; and also it was further directed by the first commission, that the inquiry should determine the two principal points in dispute, viz., the admeasurement of the seven miles and the true situation of Kirkley road; whereas the burgesses of Yarmouth, by this second commission so ordered the business, that when the parties appeared before the commissioners, they confined the inquiry solely to the situation of Kirkley road, and withheld from them every information that related to the admeasurement of the seven miles; and also had given previous directions for Mr. Rowse to be absent from the meeting, which consequently rendered every resolution of the Commissioners void, as by the commission they were directed to be unanimous.

To Sir Arthur Heneningham and Sir Henry Woodhouse, Knts., and Henry Gawdy, Esq., and to Sir Robert Jermyn, and Sir John Higham, Knts., and William Rowse, Esq.

Whereas, we gave orders and directions unto you, for the appeasing of the controversy between the town of Yarmouth and Lowestoft, concerning their liberties, to measure the seven miles claimed by them of Yarmouth for their jurisdiction, from the key of Yarmouth; whereby they pretend the same will be very prejudicial to their charter, antient liberties, and other rights. And they also alledge, that by a statute of the 31st of Edward III, the said seven miles ought to be accounted from the uttermost bounds of the haven (i.e. from the mouth), which hath been extended, in memory of man, a mile further towards the south than it is now. These, therefore, shall be to require you, that according to your former directions you will cause seven miles to be measured from the key at Yarmouth, and likewise seven miles to be measured from the uppermost bounds of their haven; and to be unanimous in your opinion, and to certify unto us how far each admeasurement doth extend; and in the mean season to forbear setting up any marks or bounds until we shall consider of the same, and give such further orders therein as shall be agreeable to reason and equity, and satisfaction of both parties.

Lord Keeper, Lord Treasurer, Lord Cobbham, Lord Buckhurst, Mr. Secretary, Mr. Chancellor of the Exchequer.

Concordat cum Registro Exor.

JOHN WOOLEY.
Keeper of the Records of the Councell Chamber. 8th July, 1596.