'Conventum, concordatum et conclusum est quod Piscatores utriusque Partis Partium praedictarum (cujuscunque conditionis existant) poterunt ubique Ire, Navigare per Mare, secure Piscari absque aliquo Impedimento, Licentia, seu Salvo Conductu.'
Nothing could be more explicit or complete, and it was to this clause of the Magnus Intercursus and the rights it had so long recognized that Oldenbarneveldt referred when he spoke to Winwood of the Dutch fishermen's 'accustomed Liberty and antient Privelidges.'
The rights of the Netherlanders to trade and navigate in Scottish waters, 'sine aliquo salvo conductu aut licentia generali aut speciali', were guaranteed by the Treaty of Binche, dated December 15, 1550, which had been confirmed by James himself, as King of Scotland, in 1594. But neither in this treaty of 1550, nor in an earlier treaty of 1541 to which it expressly refers, 'circa Piscationem et liberum usum Maris, ea quae per Tractatum anno 1541 ... inita, conclusa ac conventa fuerint debite ac sincere observari debebunt', is there any definite statement that the free use of the sea carried with it the right to fish without payment, though undoubtedly that right seems to be implied, and was certainly exercised without let or hindrance before 1609.
The question at issue was of vital consequence to the Dutch. It may be asserted without any exaggeration that the commerce and prosperity of Holland and Zeeland had been built upon the herring fishery, and rested upon it. The discovering of the art of curing the herring by Willem Beukelsz at the close of the fourteenth century had transformed a perishable article of local consumption into a commodity for traffic and exchange. Soon the 'great fishery', as it was called, afforded, directly or indirectly, occupation and a means of livelihood to a large part of the entire population of the Province of Holland.[7] Not only did many thousands of Hollanders put out to sea to follow the track of the herring shoals along the British coasts, but thousands more found employment on shore in building the busses, pinks, and other boats engaged in the lucrative industry, and in providing them with ropes, nets, and other necessaries. The profit from the fishery alone before the outbreak of the revolt was estimated by Guicciardini at 500,000 Flemish pounds. But such an estimate was far from representing the real value of what was styled by the States-General in an official document 'one of the chiefest mines of the United Netherlands'.[8] Salt was required for the curing. It was brought in Dutch bottoms in its rough state from French and Spanish ports, or direct from Punta del Rey on the coast of Venezuela, and salt-refineries quickly sprang up at Enkhuysen, Hoorn, and other fishing centres. In a land which had no natural products, the cured herrings and the refined salt which were not required for home use served as articles of commerce, and freights were dispatched to the neighbouring lands but specially to the Baltic to be exchanged for corn, timber, hemp, and other 'Eastland' commodities. The enterprising Hollanders and Zeelanders, at first competed with the Hanse towns in the Baltic ports, but long before the opening of the seventeenth century had practically driven their rivals from the field, and at the time with which we are dealing it has been computed that no less than 3,000 Dutch vessels were engaged in the 'Eastland' traffic through the Sound. The corn in its turn brought by so vast a fleet far more than sufficed even for the needs of a country where no corn was grown. Some thousands of other ships laden with grain voyaged along the coast of France, the Peninsula and the Western Mediterranean, discharging their cargoes and returning with freights of wine, silk, olive oil, and other staple products of the South. The Spaniards and Portuguese were in fact largely dependent upon the Hollanders for their necessary food supplies, and these keen traders had no scruples in enriching themselves at the cost of their foes. An abundance of timber and hemp also came from the Baltic and furnished the raw material for flourishing shipbuilding and ropemaking industries. Sawmills sprang up on the banks of the Zaan, and before long Zaandam became the chief centre of the timber trade of Europe. It will thus be seen at once how many Dutch interests were involved in the full maintenance of the rights to free fishing on the British coasts guaranteed by treaty, and why it was that the States-General under pressure from the States of Holland should have determined to send a special embassy to protest strongly and firmly against the edict of King James, and should have meantime promised the fishermen their protection in case of any attempt being made to compel them by armed force to pay the licences.
The step taken by King James had, however, from the English point of view much to recommend it. The English people saw the growing maritime strength and rapidly increasing commercial prosperity of the Dutch with jealous eyes. Their practical monopoly of the British fisheries was deeply resented. Pamphlets were written lamenting the decadence of English shipping and trade.[9] It was felt that the ancient claim of England to the sovereignty and dominion of the narrow seas was being challenged, and that its maintenance depended upon the numbers and the experience of the sea-faring population, for whom the fisheries were the best and most practical school. A petition is extant from the fishermen of the Cinque Ports to the King, showing that the Netherlanders drive them from their fishing, and sell fresh fish contrary to the laws, and beseeching His Majesty to impose on them a tax of fifteen shillings upon every last of fish, the same as they imposed on the English.[10] James was far from indisposed to listen to their complaints. Early in his reign, in 1604, an attempt had been made to enforce the eating of fish in England on fast-days, and the motive of it was plainly stated. It had little to do with religious observances. It was 'for the better increase of Seamen, to be readie at all times to serve in the Kings Majesties Navie, of which the fishermen of England have euer been the chiefest Seminarie and Nurserie.'[11] The suggestion that licences should be required for which a tax or toll should be paid naturally presented itself to the King, at this time in sore straits for money and at his wit's end how to obtain it, as a welcome expedient. It also afforded a means by which the sovereignty and jurisdiction of the British King in the British seas could be asserted and his regalities safeguarded.[12] The large revenue derived by Christian IV of Denmark from the tolls in the Sound had no doubt often made the impecunious James envious of his brother-in-law, whose right to levy such an import in Danish waters differed in no way from the right, which as King of Great Britain and Ireland he was now asserting, to demand a licence from all foreigners who desired to fish on the British coasts. His decision to issue the proclamation was confirmed by the appearance in March, 1609, of the famous treatise of Hugo Grotius, entitled Mare Liberum. The argument in this work seemed to be directed against the principle of a dominium maris such as the English Kings had claimed for centuries in the 'narrow seas', and its publication at this time aroused the resentment of James, always tenaciously jealous of any infringement of his sovereign prerogatives. As a matter of fact, as has been shown by the late Professor Robert Fruin[13], the Mare Liberum was originally a chapter of a larger unpublished work of Grotius, written to prove that the Portuguese had no exclusive rights in the Indian Ocean but that the Eastern seas and all others were open to the traders of every nation. The most burning question in the negotiations for the twelve years' truce, then just drawing to a close, had been that of the liberty to trade in the Indies, demanded with insistence by the Dutch, refused up to the very last peremptorily by the Spanish King, and conceded by him finally not directly but by a kind of subterfuge. The Mare Liberum of Grotius saw the light at a time when it was hoped that his learned arguments might tend to allay the acuteness of the dispute by showing the reasonableness and legality of the position taken up by the Dutch. It is clear now that these arguments, though their application was general, had their special reference to Portuguese and not to British pretensions. Curiously enough, as will be seen later, it was in the long succession of Anglo-Dutch negotiations over the fisheries in the seas over which the Crown of England claimed paramount sovereignty and jurisdiction that the thesis put forward by the author of the Mare Liberum was destined to be the source of embittered controversy. The acute mind of King James was quick in grasping its importance.
Delayed by various causes, it was not till April 16, 1610, that the embassy from the States set sail from Brill for England. The object of the mission was ostensibly a complimentary one—to thank the King for the active part he had taken, as a mediator, in bringing the truce negotiations to a favourable issue. The two matters which called for serious discussion were: (1) the critical situation which had arisen in the Jülich-Cleves Duchies owing to a disputed succession; (2) the proclamation about the fisheries. The importance of the last question was revealed by the fact that all the five envoys originally selected were representatives of the two maritime provinces. One of the five died at Brill just before starting. The four who actually sailed (April 16) were: Johan Berck, pensionary of Dort; Albert de Veer, pensionary of Amsterdam; Elias van Oldenbarneveldt, pensionary of Rotterdam; and a Zeelander, Albert Joachimi, who was later to show himself a skilful diplomatist during the twenty-five years that he was resident Dutch ambassador in London. Elias van Oldenbarneveldt was the brother of the Advocate of Holland. According to a letter from Sir Ralph Winwood[14] to Lord Salisbury he had special charge of the fishery question, a proof of the peculiar interest felt by the Advocate in the issue raised. With them was joined the resident ambassador, Noel Caron. Their instructions required them to seek from His Majesty an explanation of his intentions in the proclamation, 'since their High Mightinesses the States-General could not believe that he meant to include the inhabitants of the United Netherlands among those who were bidden to pay for a licence to fish, since this was contrary to the ancient treaties subsisting between them and the Crowns of England and Scotland. After audiences with the King (April 27) and with the Privy Council (May 8), it was arranged that a Conference on the fisheries question should be held, with a Committee of the Council, two of whose members were Sir Julius Caesar, Chancellor of the Exchequer, and Sir Thomas Parry, Chancellor of the Duchy of Lancaster. The Conference opened on May 16, and the points in dispute were argued at length. The Dutch case was presented in a memorandum drawn up with much skill, probably by the hand of Hugo Grotius himself. The freedom of fishing was claimed on two grounds: (1) that of the privileges granted by ancient treaties still in force; (2) that of abstract right, because the sea, like the air, is for the common use of all and cannot be private property. The weak point of the case lay in the fact that these two grounds, that of treaty right and that of the Mare Liberum, seemed to be in a certain sense contradictory. The English, however, would not admit that the question of the immemorial claim of the Kings of England to sovereignty and jurisdiction in the seas adjoining the British coasts was open to discussion, and seizing upon the argument placed in their hands by the Dutch memorandum itself, pleaded with great force that the granting of privileges implied the power to take them away or modify them, should the King deem such a step necessary to protect the interests of his own subjects. The Conference therefore effected nothing more than the bringing out in relief of the differences of view of the two parties. But reflection brought wisdom. There was no wish on either side to press matters to extremities. Already on May 10 the States-General, unwilling to run the risk of making James an enemy, at a time when they were very anxious to secure his help in the settlement of the Jülich-Cleves succession question[15], had sent instructions to their ambassadors not to make difficulties or unpleasantness about the fisheries, but rather to propose that the execution of the proclamation should be postponed for two years, in order that the question might be thoroughly investigated. There were several claimants to the Jülich-Cleves inheritance, Protestant and Catholic, and it was of vital importance to the States, and also to a lesser extent to all Protestant princes in Germany and to James, that this frontier territory on the Rhine should not fall under the rule of a Catholic sovereign. But the Archduke Leopold had seized the fortress of Jülich, and Henry IV of France, jealous of the power of the House of Habsburg in Europe, had put himself at the head of a coalition to secure the succession to the Elector of Brandenburg, and William, Count Palatine of Neuburg, as joint possessors. There was a general desire to avoid hostilities, but Henry IV had pushed forward his preparations for a great campaign, and war seemed inevitable. At this moment the assassination of the French king at the very time the Conference was being held in London changed the whole aspect of affairs. The new French Government was favourably disposed to Spain. The Dutch therefore were left face to face with the task of expelling the Archduke from Jülich, and they felt that all other matters were for the moment of secondary importance to that of having the friendly co-operation of James in case of the outbreak of war. Their attitude to the fisheries question was therefore considerably modified. It became much more conciliatory, and for precisely similar reasons a like change took place in the attitude of the English King. He too felt that the friendship of the Dutch was essential to him at such a critical juncture, and at a meeting with the Earls of Salisbury and Northampton, May 24, the Dutch envoys were agreeably surprised to find that the King, while not formally abating one jot of his sovereign rights in the matter of issuing licences for fishing, was willing to postpone the execution of his edict for two years. The ambassadors took leave of the King the same day and started on their return journey. Of this audience the Lords of the Council, in a letter to Winwood, dated May 18, 1610 (o.s.), write:
'For the States Ambassadors, His Majesty is now dismissing them with sufficient assurance of his inward affections towards them and the preservation of their State, which next to his own he holdeth most dear above all other respects in the world. And as for the matter of fishing and Reglement of commerce, His Majesty thinketh not fit now to spend any more time in it, but to refer the one and the other to some better season; and in the meanwhile that things may remain in the same state as now they are. So as we conceive these Deputies will return with good contentment, having no other cause either for the public or for the private; and His Majesty having also been careful to give them the rights that appertain to their title, and all other external courtesy and honour in their reception.'
This good understanding was to bear good fruit. The army, which Maurice of Nassau led into the duchy in June, contained a fine body of English troops under the command of Sir Edward Cecil. Jülich was besieged and surrendered to the Dutch on September 1, and the Archduke Leopold was compelled to leave the territory. Of this achievement Sir Ralph Winwood, writing to Lord Salisbury from Dusseldorf, August 22 (o.s.), says: 'The honor of the conduct of this seige no man will detract from the Count Maurice, who is the Maistre-ouvrier in that Mestier. But that this Seige hath had so happy an end, himself will and doth attribute it to the Diligence and Judgement of Sir Edward Cecil.' The capture of Jülich did not indeed end this thorny little dispute. Anglo-Dutch and Spanish-Imperial armies, under Maurice and Spinola respectively, manœuvred within a short distance of one another. But the quarrel was localized, no further hostilities took place, and finally by the Treaty of Xanten, November 12, 1614, an arrangement was arrived at. During all this time the relations between James and the States were friendly. The King, however, had quarrelled with his Parliament, and even had he wished to take a stronger line in foreign politics, lack of funds compelled him to temporize. The English contingent in Maurice's army was recruited indeed in England, but the troops were in the pay of the States. Moreover, James was all the time hankering after a Spanish marriage for the Prince of Wales, from mixed motives doubtless, but chiefly from a misguided notion that such an alliance between the leading Catholic and the leading Protestant State would enable him to play the part of arbiter in the religious differences which were dividing Europe into two hostile camps, and by his influence to prevent an actual breach of the peace. This was the underlying motive which prompted all the apparent fluctuations of his policy. Hence the persistence with which for so many years he pursued the chimaera of a Spanish match, while at the same time he allowed his only daughter to marry the Elector Palatine, the head of the Protestant Union in Germany, and endeavoured to maintain good relations with the United Provinces, notwithstanding the continual friction between his subjects and the Dutch regarding the increasing monopoly by the latter of the fisheries and of sea-borne trade. The situation in 1611 is thus described by the Venetian, Marcantonio Correr[16]:—
'With the lords of the United Provinces of the Low Countries, there exists at present perfect friendship and union; formerly he [James] used to despise them, as rebels, but now he loves and esteems them, as princes of valour and quality, an effect of the truce made with the Catholic king.... Now H.M. desires and procures the preservation of the Dutch, but not a further increase of their greatness, since their forces on sea are not inferior to those of any potentate whatsoever, because that in time of war necessity has been their best mistress. Of these forces the English are not without some jealousy, seeing their own diminished, and the dominion of the sea, that they have been accustomed to hold in that part of the ocean transferred to others.... In the herring fishery alone they [the Dutch] send out every year to the east coast of the Kingdom of England 1,700 vessels, in which perhaps 30,000 men are employed.[17] After the truce the King made a proclamation, that no one was allowed to fish in those parts without licence, perhaps incited by the great sums of money, that formerly the Spaniards offered Queen Elizabeth to have the user of it; but just as at that time that scheming did not succeed in despoiling the Dutch, so now these with two special ambassadors have not obtained any promise of an alteration, as he [the King] is always intent upon the conservation of his jurisdiction and the increase of the royal incomings. The King at present regards the possession of such great sea power as being in itself of great moment for the needs of England, and united with his own it could with difficulty be resisted. He holds further that these same provinces are a barrier rampart of his kingdoms, and he is interested in them through the debt of a million and a half of gold that remains to him of the sum of more than two millions already lent by Queen Elizabeth, the repayment of which is at present spread over a number of years, a portion every year. Meanwhile three principal places are pledges in the hands of his Majesty....'
The possession of these fortresses was indeed at this time placing King James in a position of no small advantage in his dealings with the States, and he was well aware of it. On the other hand, it was galling to the Dutch, now that they had compelled the Spaniard to treat with the United Provinces as if it were an independent State, to feel that two chief doors of entrance into their land were in the hands of foreign garrisons. James professed to be their good friend, and it appeared to be his interest to cultivate their alliance, but it was inevitable that his assiduous advances to gain the goodwill of Spain and to obtain the hand of an Infanta for his son should render him suspect.