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

About the time when Drake left England, the question of the right of Spain to forbid the English to trade to the Indies had been considered. It was argued that the Pope’s bull was void, for several reasons. The consent of the Pope had been conditional for the conversion of the natives, while the “usage of the Spaniards hath been otherwise.” The bull could have no force in tending to the prejudice of a third party, because all princes by the Law of Nations had the right of navigation in the sea and the right of traffic, and the Pope could not deprive them of these rights. Besides, there had been agreements between Spain and England since the date of the bull that the subjects of each state might freely traffic in the dominions of the other; and the Spanish lawyers had come to the conclusion that the Venetians could not legally inhibit others from trading in the Adriatic, and therefore, by the same reasoning, neither could the Spaniards or Portuguese prohibit orderly and lawful traffic to their Indies.[196] Elizabeth has been charged with inconsistency on the ground that at the time when she was asserting the freedom of the seas against the claims of Spain she was claiming for herself, “with very great energy,” a similar dominion in the British seas.[197] The charge is quite unfounded. No claim was put forward by her to the sovereignty of the British seas. On the contrary, they were declared to be free for the navigation and fishery of all nations.

The policy of Elizabeth as to the freedom of the sea is revealed still more clearly in the negotiations with the King of Denmark as to the right of fishery at Iceland and in the northern seas. Denmark claimed not only the Sound and the Belts and the maritime dominion of the Baltic, with the right of controlling the navigation through them, but also the seas intervening between the coasts of Norway on the one hand and Iceland and Greenland on the other. A similar claim was made to the sea between Norway and the Orkney and Shetland Isles, at all events prior to 1468, when they were acquired by Scotland. Putting aside altogether the differences that arose with regard to the dues exacted at the Sound and in connection with the Baltic, a great many disputes had occurred between England and Norway and Denmark as to the right of Englishmen to trade and fish at Iceland and along the Norwegian coast, and many treaties were made between the two Powers regulating that right. From an early period numerous barks from Lynn, Yarmouth, Hull, Scarborough, and other east coast ports, and from Bristol, frequented the northern seas for fishing and buying fish, and for traffic, visiting not only Iceland, but Helgeland, Nordland, and Finmark, and going at least as far east as Wardhouse or Vardö. In 1415 Henry V., at the request of King Eric, and notwithstanding an earnest petition of the Commons to the contrary,[198] prohibited his subjects from going to Iceland or other islands belonging to Norway or Denmark;[199] in 1429 the King of Denmark prohibited English merchants from purchasing fish at Finmark, or elsewhere in his dominions than at Bergen, against which the English petitioned Henry VI.;[200] and in 1490 an important treaty was concluded between Henry VII. and King John II. of Denmark and Norway, by which English subjects were granted liberty to sail freely to Iceland for fishing or trading on paying the usual customs, provided that they obtained a renewal of their license to do so every seven years.[201] This treaty was renewed in 1523 between Henry VIII. and Christian II.,[202] but disputes frequently arose later, and several embassies were charged with composing the differences.

Apparently the English fishermen did not always conduct themselves with propriety. They were accused of committing various wrongs and injuries on the inhabitants, and in 1585, on the complaint of the King of Denmark, Queen Elizabeth issued an Order in Council reproving them for their excesses, and intimating that if they were continued the King of Denmark would interdict their fishing, and “punish such as shall without his license repair thither, and confiscate their ships and goods.” The king, she said, had promised that if the English fishermen abstained from committing outrages and behaved themselves, and paid the customary duties, he would allow them to enjoy the liberties they had formerly possessed; and she commanded the principal officers at her ports to take bonds from all those going to Iceland or Wardhouse for their good behaviour.[203] But the disputes and difficulties continued. The English fishermen omitted to renew their licenses septenially,—in 1592 it was said they had not been obtained for twelve years, and the stipulation had been forgotten by those in authority,[204]—and the Danes began about 1593 to interrupt them in their fishing at Westmoney and in the sea off Iceland, and to seize their vessels. On complaint being made to the King of Denmark, he declared his willingness to allow the Englishmen to fish at Iceland under license, except at Westmoney (small islands on the south coast), where the fishing was reserved for his court.[205] At the close of the century the Danes used stronger measures. In 1599 several English vessels were seized or molested. Five ships of Kingston-upon-Hull, while at Wardhouse for fish, as had been their custom for years, were met there by a small Danish fleet with the King of Denmark himself on board, who caused them to be seized as prize, took all the goods and effects of the Englishmen, beat some of the crew and put them in irons, and finally carried off four of the ships.[206] Other English vessels were driven away from their fishing on the high seas around Iceland, although far from the coast.

Elizabeth complained strongly of these acts of injustice as being contrary to the Law of Nations.[207] A Danish ambassador who came to England at this time tried to justify the prohibitions by reference to the treaty of 1583, by which permission had been given to English vessels to navigate the northern seas to Russia, but which did not grant any authority for fishing; and he requested the Queen to publish an edict inhibiting her subjects from fishing at Iceland or Wardhouse without the license of the King of Denmark, declaring that many English vessels persisted in carrying on the fishery without any license, contrary to the treaties. Reliance was also placed on an old treaty made in 1468 between Edward IV. and Christian I., in which it was stipulated that English vessels should not go farther north on the coast of Norway than Hagaland.[208] In the following year ambassadors were dispatched from England to negotiate an arrangement concerning the tolls levied at the Sound and the freedom of the northern seas for English fishermen,[209] and in a paper of 1602 conveying instructions to the ambassadors at Bremen we find an admirable exposition of the principles of the freedom of the seas.

After claiming that the treaties of 1490 and 1523 had given liberty of fishing to the English, the ambassadors were to declare that the Law of Nations allowed fishing in the sea everywhere, as well as the use of the ports and coasts of princes in amity for traffic and the avoiding of the dangers from tempests; so that if the English were debarred from the enjoyment of those common rights, it could only be in virtue of an agreement. But there was no such contract or agreement. On the contrary, by denying English subjects the right of fishing in the sea and despoiling them for so doing, the King of Denmark had injured them against the Law of Nations and the terms of the treaty. Moreover, with respect to the licenses the Queen declared that if her predecessors had “yielded” to take them, “it was more than by the Law of Nations was due”; they might have yielded for some special consideration; and in any case it could not be concluded that the right of fishing, “due by the Law of Nations,” failed because licenses were omitted. As to the claim to the sea between Iceland and Norway on the ground that the King of Denmark possessed both coasts—the argument used by Dee and Plowden for the dominion of the English crown in the Channel—Elizabeth was emphatic. If it was supposed thereby “that for the property of a whole sea it is sufficient to have the banks on both sides, as in rivers,” the ambassadors were to declare “that though property of sea, in some small distance from the coast, may yield some oversight and jurisdiction, yet use not princes to forbid passage or fishing, as is well seen in our Seas of England and Ireland, and in the Adriatic Sea of the Venetians, where we in ours and they in theirs, have property of command; and yet neither we in ours nor they in theirs, offer to forbid fishing, much less passage to ships of merchandise; the which by Law of Nations cannot be forbidden ordinarily; neither is it to be allowed that property of sea in whatsoever distance is consequent to the banks, as it happeneth in small rivers. For then, by like reason, the half of every sea should be appropriated to the next bank, as it happeneth in small rivers, where the banks are proper to divers men; whereby it would follow that no sea were common, the banks on every side being in the property of one or other; wherefore there remaineth no colour that Denmark may claim any property in those seas, to forbid passage or fishing therein.”

The ambassadors were to declare that the Queen could not agree that her subjects should be absolutely forbidden the seas, ports, or coasts in question for the use of fishing, “negotiation,” and safety; she had never yielded any such right to Spain and Portugal for the Indian seas and havens. Nevertheless, if the King of Denmark for special reasons desired that she should “yield to some renewing of license,” or that “some special place upon some special occasion” should be reserved for his own use, they were in their discretion and for the sake of amity to agree; but the manner of obtaining the license was to be defined in such a way that it would not be prejudicial to her subjects, nor “to the effect of some sufficient fishing,” and the licenses were to be issued in the subject’s name rather than in hers or the king’s.[210] Denmark continued to insist upon her right to the trade with Iceland, and to the fisheries in the northern seas,[211] which became of greater importance early in the next century when the whale-fishing was established at Spitzbergen. The Danish claim to a very wide zone of territorial sea around Iceland was enforced until quite recent times.

The dispute between Elizabeth and the King of Denmark as to the rights of fishing in the North Atlantic bears a strong resemblance to that between James I. and the Dutch, which began a few years later, when the positions, however, were reversed, James insisting on his right to the fishery on the British coasts, while the Dutch used the arguments of Elizabeth in favour of the complete freedom of the seas. One difference in the two cases may be pointed out. England by agreeing to take licenses from the King of Denmark, in the treaties of 1490 and 1523, acknowledged the sovereignty of Denmark in northern waters, whereas the Netherlands never acknowledged the sovereignty of England in the British seas, within which the liberty of fishing had been expressly granted to them by the Burgundy treaties.

Meantime the condition of the English fisheries had not much improved, either under the restrictive legislation respecting imports and exports of fish or by the measures taken to enforce the political lent. The liberty given by the Act of 1571 for the importation of cod-fish was opposed to the interests of the Iceland trade, and gave rise to abuses. Great quantities of inferior fish were “engrossed” by English merchants abroad and brought into the realm, which was thus “furnished with foreign fish and herrings,” while the Iceland fishery declined and the number of mariners available for the navy diminished. The importation of foreign salted fish or salted herrings by Englishmen or denizens was therefore prohibited; such fish were allowed to be brought by aliens alone, who were to pay additional customs, but fish from Iceland, Shetland, Newfoundland, and from the Scottish seas were still to be admitted.[212] But the attempt to keep out foreign fish failed in its object, the restrictions were found to be otherwise injurious, and they were repealed in 1597. “It had been hoped and expected,” it was said in the preamble of the repealing Act,[213] “that the fishermen of this realm would in such sort have employed themselves to fishing, and to the building and preparing of such store of boats and shipping for that purpose, as that they should long ere this time have been able sufficiently to have victualled this realm with salted fish and herrings of their own taking, without any supply of aliens and strangers, to the great increase of mariners and maintenance of the navigation within this realm. Notwithstanding it is since found by experience that the navigation of this land is no whit bettered by means of that Act, nor any mariners increased, nor like to be increased by it; but contrary wise, the natural subjects of this realm being not able to furnish the tenth part of the same with salted fish of their own taking, the chief provision and victualling thereof with fish and herrings hath ever since the making of the same Statute been in the power and disposition of aliens and strangers, who thereby have much enriched themselves, greatly increased their navigation, and (taking advantage of the time) have extremely enhanced the prices of that victual[214] to the great hurt and impoverishing of the native subjects of this realm, and yet do serve the markets here in very evil sort,” housing their fish till the price was raised to their liking. Thus the merchants in England were hindered in their trade, the navigation of the realm “which was intended to be augmented, hath been rather impaired than increased,” and the price of fish had been greatly raised, to the general prejudice of the people. After this very thorough condemnation of its previous Act,[215] Parliament declared that as strangers and subjects were at liberty to export English-caught fish and herrings, it was only right to allow subjects as well as foreigners to bring in fish to provision their own country, and the previous Act was wholly repealed. Thus the condition reverted to what it had been before this course of legislation began.

It is equally doubtful whether the compulsory fish-days or political lent had much influence in fostering the fisheries. At first, if a return from the Trinity House can be trusted, the number of fishing-boats increased. They reported in January 1581 that since the previous Parliament there had been an increase along the coast from Newcastle to Portsmouth of 114 sail of fishing-boats, of between fifteen and forty tons, which was equal to the maintenance of a thousand additional seamen for the navy.[216] It is not improbable that an increase of the herring-boats occurred on the east coast at this time, but it was temporary, and more likely due to other provisions of the Act of 1563. Cecil’s Wednesday, for which he had fought so hard, was abolished in 1584, while certain penalties for eating flesh in Lent, on Fridays, Saturdays, or other fish-days, were at the same time augmented;[217] but in 1593 all the penalties were greatly reduced.[218]

The policy of the political lent did not fail from want of efforts to enforce it. In London especially precautions were taken to have the law carried out, and the fishmongers were naturally active in their own interests. Taverns and inns were often raided; those who had flesh in their houses during Lent were often put in the pillory, and those who partook of it in the stocks; and butchers were frequently prosecuted for selling flesh on forbidden days. Those who were licensed to provide flesh in Lent for the sick were put under bond, and had to keep an account of every joint they sold; watchmen guarded the city gates lest any beef should be smuggled in. Similar measures were taken throughout the country. The sheriffs and justices of the peace were ordered by the Council to see that the Act was duly enforced, and innkeepers had to enter into recognisance to observe it.