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

Fig. 2.—Hitchcock’s representation of the English and Flemish fisheries.

The scheme of Dr John Dee was very different from that of Hitchcock. A mathematician, an astrologer, a reputed magician, and, above all, an accomplished scholar, he looked at the subject from another point of view. Well acquainted with the writings of the Italian jurists and the practice of the Italian states, he expounded the view that the fisheries and the sovereignty in the British seas pertained to the crown of England, and that foreigners should be compelled to pay tribute for the liberty of fishing within them. It is the philosopher of Mortlake, indeed, who must be recognised as the literary pioneer of the claims to the sovereignty of the sea which were put forward by England in the seventeenth century. In 1577 he published a book entitled General and Rare Memorials pertayning to the Perfect Arte of Navigation,[183] in which he dealt with the fisheries and the boundaries of the British seas, and recommended that the tribute to be exacted from foreign fishermen should be expended in maintaining a navy to be called “The Petty Navy Royall,” for keeping the seas and supervising the fisheries. “Should not forreyne fishermen,” he asks, “(overboldly now and to to injuriously abusing oure riche fishings about England, Wales and Ireland), by the presence, oversight, power and industry of this Petty Navy Royal be made content; and judge themselves well apaid to enjoy, by our leave, some great portion of revenue to enrich themselves and their countries by, with fishing within the seas appertayning to oure ancient bounds and limits? Where now, to oure great shame and reproache, some of them do come in a manner home to our doors; and among them all, deprive us yearly of many hundred thousand pounds, whiche by our fishermen using the said fishings as chief, we might enjoy; and at length, by little and little, bring them (if we would deal so rigorously with them) to have as little portion of our peculiar commodity (to our Islandish Monarchy, by God and Nature assigned) as now they force our fishermen to be contented with; and yearly notwithstanding, doo at their fishing openly and ragingly use suche words of reproche toward our Prince and realm, as no true subject’s hart can quietly digest; and besides that, offer such shamefull wrongs to the good laboursom people of this land, as is not (by any reason) to be born withall, or endured any longer: destroying their nets, cutting their cables to the los of their anchors; yea, and often-tymes of Barkes, men and all.”[184] Here is the first note of a plaint which will become very common. He also accused the foreign fishermen, under colour of fishing, of making secret soundings of the channels and banks along our coast, to the great danger of the realm.

As for their fishing on the English coast, he says, erroneously, that the men from the Low Countries had frequented the herring fishing off Yarmouth for only thirty years (since 1540), since when their numbers had greatly increased. They had now become “very rich, strong, proud, and violent,” so that the ships of Norfolk and Suffolk, next to the fishing places, were reduced in numbers by 140 sail, besides crayers and other craft. The number of Flemish herring-busses that came to our coast he placed at over 500, while there were about 100 French; and 300 or 400 “Flemings” fished for cod in the north seas, “within the English limits.” Other foreigners, moreover, caught herrings on the Lancashire and Welsh coasts, and about 300 sail of Spaniards, besides Frenchmen, fished off Cape Clear and Blackrock in Ireland. All these fishings, said Dee, were “enjoyed as securely and freely from us by strangers, as if they were within their own King’s peculiar sea limits; nay, rather as if those coasts, seas and bays were of their private and several purchases: to our unspeakable loss, discredit and discomfort, and to no small further danger in these peculiar times of most subtle treacheries and fickle fidelity.” While admitting that the British seas were free for navigation, Dee held that the fisheries pertained to the crown of England, and that no foreigner had a right to cast a net in our sea without first obtaining leave from the Queen. To her belonged “the tenth” of all foreign fishings “within the royal limits and jurisdiction” in the British and Irish seas, and it was “a most reasonable and friendly request” that foreigners should pay that tenth in acknowledgment of the liberty to fish,—a tribute which he calculated would amount to £100,000 a-year, and which he urged should be devoted to the maintenance of the “Petty Navy Royal.”

Dee was not only the first English writer who claimed the sovereignty of the sea and the fisheries for England; he was also the first who attempted to define their boundaries in detail. At the time when he wrote, it appears indeed to have been held in theory by some lawyers that the limit of the English seas extended to the mid-line between England and foreign coasts, except in the case of the Channel, where the water right up to the opposite shore was believed to be under the sovereignty of England. The doctrine, no doubt, was evolved from the opinions of the Italian jurists, whose authority was then very high ([see p. 539]), and from the political relations with France then and in former times. Two years before Dee published his book, Plowden, an eminent lawyer, acting as counsel in a case concerning the rights on a manor to wreck of the sea, argued for the defendant that “the bounds of England” extended to the middle of the adjoining sea which surrounded the realm, but that the Queen had the exclusive jurisdiction on the sea between England and France by reason of her title to France, and so also with Ireland; whereas in other places, as towards Spain, she had only the moiety. It was the same, said Plowden, with the sea as with great rivers. But while Plowden allowed the “jurisdiction and governance of all things” to the Queen on the sea within the limits stated, he denied to her the right of property in it or in the land under it; it was common to all men, and she could not prohibit any one from fishing in it; the water and the land under it were things of no value, and “the fish are always removable from one place to another.”[185]

Dee adopted the same opinion as to the limits, but held, as we have seen, that the fisheries were appropriated. The boundaries of the Queen’s “peculiar seas,” he said, were “in all places to be accounted directly to the myddle seas over betweene the sea-shores of her own kingdom (and of all petty Isles to the same kingdom appertayning) and the opposite sea-shores of all forrein princes: and in all seas lying immediately betweene any two of her own coasts or sea-shores, the whole breadth of the seas over (in such places) is, by all reason of justice, appropriate to her peculiar jurisdiction and sea royalty,” even if the distance in such cases were 1000 miles or more.[186] On the other hand, according to Dee, neighbouring countries were to be allowed the same rights and interests in the moiety of the sea appropriate to their coasts.

The limits of the British seas, and the sovereignty pertaining to them, were more fully described by Dr Dee some years later in a long unpublished letter or treatise addressed to Sir Edward Dyer,[187] who had apparently asked him for a fuller statement of his views on the subject. In his book Dee said little about the boundaries in the Channel, where the principle of the mid-line was complicated by two circumstances—the claim of Elizabeth to the French crown, and the possession by England of the Channel Islands. In his later treatise he says that presupposing “for doctrine’s sake” that Calais was in the hands of Spain, and the northern coasts of Picardy and Normandy were appropriated by France (which was the case), then the boundary must be drawn in the very middle of the Channel between Dover and Calais, and then westwards in the middle line between the opposite coasts of England and of Picardy and Normandy, until it touched the middle of a straight line drawn between Portland and the island of Alderney. In this region, west of the line, inasmuch as the coasts of the Channel Islands and the opposite coast of England belonged to the Queen, her Majesty had “absolute, peculiar, and appropriate Sea Sovereignty and Jurisdiction Royall.” The western boundary of this area of absolute sovereignty in the narrow seas coincided with a line drawn from Start Point to an “island” that Dee calls “Rocktow,” which is unrepresented on charts, but which is probably a phonetic synonym for “Roches Douvres,” a group of islets off the north coast of Brittany.[188] From the middle of this line the boundary passed westwards, again midway between the coasts of England and Brittany, until it touched the middle of a third straight line drawn from the north-west part of Ushant to about the Lizard. These were the limits on the supposition above referred to; but, “speaking more boldly in her Majesty’s right,” Dee declared that the whole sea between the south coast of England and the north coast of France—Picardy, Normandy, and Brittany—was under the Queen’s “sea-jurisdiction and sovereignty absolute,” inasmuch as she was a real monarch of France by direct inheritance and prior conquest, and therefore had right to the French coasts; and this “absolute sovereignty” served to “enlarge and warrant” the Queen’s “Jurisdiction Respective” in the ocean to the west of France. So also the jurisdiction of the crown of England extended into the main ocean to the west of England and Ireland by reason of the possession of the shores; while the ocean around Scotland, inasmuch as that country was (he said) in olden times tributary to the English kings, yielded to her Majesty “a mightie portion of Sea Sovereignty,” as it stretched away westwards to “that famous and very ancient Platonicall or Solonicall Atlantis.” For the same reasons Dee claimed prerogative and jurisdiction for the Queen in the northern ocean, and between Scotland and the opposite coasts of Norway and Denmark, “at least to the mid-sea,” and so to the southwards “half seas over” between the east coast of England and the coasts of Denmark, Friesland, and Holland, to the Straits of Dover.

Within the British seas as thus defined, Dee claimed that the crown of England had first of all sovereign jurisdiction, over foreigners as well as over subjects,[189] and part of the duty of the Petty Navy Royal—which, as stated, was to be maintained by taxing foreign fishermen—was to guard and protect foreign ships passing through our seas. This doctrine he based upon the law as laid down by the Italian jurists. Nor did he forget the purely naval side. Quoting the old proverb, “A sword keepeth peace,” he argued that the presence of a fleet such as he suggested would cause other nations to respect us more than they did, and enable us to enjoy the royalty and sovereignty of the narrow seas and of our other seas better than the possession of Calais and Boulogne could do.

Dee’s work was premature. His proposals that Elizabeth should tax foreigners for fishing in the British seas and exercise jurisdiction over foreign vessels passing through them remained as much a dream as the scheme of Hitchcock.[190] It need not be supposed that such measures as Dee proposed were intrinsically distasteful either to the Queen or to Cecil. If a navy could have been acquired so easily, or a much less sum than £100,000 gathered from foreign fishermen in a “friendly” way, as Dee supposed, neither the sovereign nor the statesman was likely to let the chance go by. But they knew better than the philosopher, or than the Stuarts in the next century, that a policy of the kind would involve them in difficulties with other Powers,—with France and Spain as well as with the Protestant Netherlands.

So far from adopting any policy of this nature or making any claim to a special sovereignty in the surrounding seas, Elizabeth steadily opposed all claims which other nations put forward to mare clausum. Long before Grotius, she was the champion of the free sea, although it must be admitted that the action of the English Queen was no more based on considerations of the general good of mankind than were the efforts of the Dutch publicist: both had in view the interests of their native land. Elizabeth’s motive was to secure liberty of trade and fishery for her subjects, which was threatened by the pretensions of Spain and Portugal on the one hand and by Denmark on the other. The Portuguese pretension was of long standing. When that nation in the latter half of the fifteenth century had pushed her way down the west coast of Africa and ultimately round the Cape of Good Hope to the East Indies, she obtained from the Pope various bulls securing her in her possessions, and granting sovereign authority to the crown of Portugal in all the lands it might discover in the Atlantic from Cape Bojador to the Indies. By an inhuman doctrine established during the Crusades, Christian princes were supposed to have the right to invade, ravage, and acquire the territories of infidel nations on the plea of extending the sway of the Christian Church; and the Pope, from his supreme authority over all temporal things, disposed of these heathen lands to such princes as might bring them under the dominion of the Church and propagate the true faith among the inhabitants. Immediately on the return of Columbus from his first voyage in 1493, the Spanish monarchs accordingly obtained a bull from Pope Alexander VI. confirming them in the newly-discovered regions; and in order to prevent disputes with Portugal as to the extent of their respective claims, another bull was issued, on 4th May 1493, containing the famous line of demarcation between their territories. This was an ideal straight line drawn from the North Pole to the South Pole, passing 100 leagues to the west of the Azores and Cape Verde Islands. All islands or lands discovered to the west of this line by the Spaniards, and which had not been in the possession of any Christian Power before the preceding Christmas, were to belong to the Spanish crown; and all territory discovered to the east of it was to belong to Portugal. The Pope, moreover, granted a monopoly of commerce within those immense regions to the respective crowns, so that other nations could not trade thither without license from the Spanish or Portuguese sovereigns.[191] Spaniards even were not allowed to go to the New World either to trade or form establishments without royal license and authority. Disputes arose between Spain and Portugal as to the equity of the Pope’s line of demarcation, and by the Treaty of Tordesillas, 7th June 1494, they agreed that the inter-polar line should pass 370 leagues to the west of Cape Verde Islands.[192] The exclusive rights conferred by the Pope were rigorously enforced by Spain and Portugal. Navigation to their new possessions, or the carrying on of any trade or commerce with them, without royal license was made punishable by death and confiscation of goods.[193]

Early in her reign Elizabeth had occasion to protest against the claims of Portugal, and had a heated dispute with King Sebastian about them.[194] Later, the daring exploits of Drake on the Spanish seas were more than a flagrant violation of Philip’s pretension to mare clausum in the western Atlantic and the Pacific Oceans—a claim which Elizabeth refused to recognise. When Mendoza, the Spanish ambassador, complained to her in 1580 of Drake’s depredations, and that English ships presumed to trade in the “Indian” seas, he was told in effect that the Spaniards, contrary to the Law of Nations, had prohibited the English from carrying on commerce in those regions, and had consequently drawn the mischief upon themselves. She was unable to understand, she said, why her subjects and those of other princes should be barred from the “Indies.” She could not recognise the prerogative of the Bishop of Rome “that he should bind princes who owe him no obedience,” and her subjects would continue to navigate “that vast ocean,” since “the use of the sea and air is common to all; neither can any title to the ocean belong to any people or private man, forasmuch as neither nature nor regard of the public use permitteth any possession thereof.”[195]