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

The complaints against the Hollanders gave James his opportunity. The policy of issuing a proclamation to forbid unlicensed fishing by foreigners on the British coasts was discussed by the Privy Council early in the year. Doubts, however, were expressed whether such action would be in conformity with the provisions of the “Burgundy” treaties, which granted liberty of fishing to the Low Countries. In the “qualification” of Rainsford’s fishery scheme the question as to how the king’s title and rights could be proved had been answered in a lofty spirit—“By prerogative royall, without any accompt to be rendered to other nations; yet others to declare the reasons thereof.” But the Privy Council had to consider the matter more carefully. They remitted the draft proclamation to a committee consisting of Sir John Herbert, the second Secretary, Sir Julius Cæsar, now Chancellor of the Exchequer, Sir Daniel Dunn, Sir Thomas Crompton, and Sir Christopher Perkins, instructing them, after perusing all the Burgundy treaties, to report as to the lawfulness or unlawfulness of the proposed action.[277]

A fortnight later the report of the committee was sent to the Council. They had, they said, considered of the liberty taken by the subjects of foreign princes and states to fish upon the coasts of the King’s Majesty, by which not only the English fishermen received wrong in their fishing, but the very coast towns were decayed; they had also considered the proclamation for the restraint of fishing, and had perused the Burgundy treaties as required, and they were “of opinion that the King’s Majesty may without breach of any treaty now in force, or of the law, upon the reasons specified in the proclamation sent unto us, restrain all strangers from fishing upon his coasts without license, in such moderation and after such convenient notice given thereof by public proclamation, as his Majesty shall think fit.”[278]

It was on this extremely important deliverance that the new policy of interfering with the liberty of foreigners fishing on the British coasts was based. The cautious language of the Privy Council indicates that they were conscious of the strength of the case against them from the existence of the Burgundy treaties; but the committee professed to find that those treaties were no longer in force,—an argument which was made the most of in the subsequent negotiations with the Dutch Republic. The report was submitted to the Council in February; in March Grotius published his Mare Liberum, in which he branded as “insanely cupid” any one who attempted to interfere with the common liberty of fishing in the sea; and within a week or two thereafter the Truce of Antwerp was signed by Spain and the States-General, by which the long war between those Powers was brought to a close, and James was free to begin his policy against the Dutch fishermen. On 12th April 1609 a memorandum was drawn up for the Council, in which it was stated (1) that a conference having been held with the fishermen concerning the seasons of all the fishings on the coast, it was thought fit that the proclamation should take effect from 1st August ensuing; (2) that from that day forward it should be unlawful for any stranger to fish “upon those his Majesty’s coasts and seas of Great Britain and Ireland and the Isles adjacent,” where the fishing was usually carried on, until they had obtained license for the same from the king; (3) that commissioners should be appointed by the king, at London, for England and Ireland, and for Scotland at such place as the king should select, to give out licenses on such conditions as he might think fit; and (4) that the licenses should be apportionable to the number and tonnage of the ships.[279]

These provisions were embodied in the proclamation, which was issued on 6th May 1609.[280] “Whereas,” said James, in his wordy style, “we have been contented since our coming to the crown, to tolerate an indifferent and promiscuous kind of liberty to all our friends whatsoever, to fish within our streams, and upon any of our coasts of Great Britain, Ireland, and other adjacent islands, so far forth as the permission or use thereof might not redound to the impeachment of our prerogative royal, nor to the hurt and damage of our loving subjects, whose preservation and flourishing estate we hold ourself principally bound to advance before all worldly respects: so finding that our connivance therein hath not only given occasion to over great encroachments upon our regalities, or rather questioning for our right,[281] but hath been a means of much daily wrongs to our own people that exercise the trade of fishing, as (either by the multitude of strangers, which do preoccupy those places, or by the injuries which they receive most commonly at their hands) our subjects are constrained to abandon their fishing, or at the least are become so discouraged in the same, as they hold it better for them to betake themselves to some other course of living, whereby not only divers of our coast-towns are much decayed, but the number of mariners daily diminished, which is a matter of great consequence to our estate, considering how much the strength thereof consisteth in the power of shipping and use of navigation.” It was therefore both just and necessary, the king continued, to take lawful means to put an end to these inconveniences, although he had no intention, as he desired the world to take notice, to deny his neighbours “those fruits and benefits of peace and friendship” which might justly be expected at his hands in honour and reason. He therefore gave notice to all the world, that after 1st August 1609, “no person of what nation or quality soever, being not our natural born subject, be permitted to fish upon any of our coasts and seas,” “until they have orderly demanded and obtained licenses from us,” or the commissioners appointed at London and Edinburgh. The licenses were to be renewed yearly, “upon pain of such chastisement as shall be fit to be inflicted upon such wilful offenders.”[282]

Fig. 6.—Facsimile of the concluding part of the Draft of Committee’s Report to Privy Council regarding the restraint of foreigners fishing on the British coasts.

The prohibition of unlicensed fishing in the British or Irish seas was general in its character, and applied to all foreigners indifferently. But it was well understood to be aimed at the Dutch. There is no evidence to show that any steps were taken to induce the hundred or so of French boats that took part in the herring-fishing on the east coast to obtain licenses; and though the Earl of Salisbury wrote a long letter to the English ambassador at Madrid, explaining the reasons that had induced the king to issue the proclamation, it does not appear that the numerous Spanish fishermen who caught mackerel off the coast of Ireland and the south-west coast of England were ever interfered with, or asked to apply for licenses.[283]

In the United Provinces the important step taken by the King of England was regarded with much concern. Early in June the proclamation was discussed by the States of Holland, and it was resolved that as the interference with the liberty of fishing was contrary to the treaties between England and the Netherlands, the States-General should maintain their right to fish off the British and Irish coasts.[284] This resolution was confirmed on the same day by the States-General, and it was decided to make representations against putting the proclamation into force. The herring-fishing, as previously described, began in June at Shetland, and was prosecuted down the east coast to Yarmouth, where the busses were usually to be found in September. There was therefore not much time to lose. Sir Noel Caron, the Dutch ambassador in London, had several interviews on the subject with the Earl of Salisbury and with James himself. Lord Salisbury, who was believed by Caron to be the real author of the scheme, held out little hope of an amicable settlement. But the good-natured king, who loved peace even more than he loved his prerogative, was more conciliatory. He explained to Sir Noel that the proclamation was for the purpose of introducing better order into the fishery, and to make manifest to the world the authority and power which he had on the sea,[285] and was not meant in any way to wrong the States, either by hostile force or otherwise. The French Government had in the meantime moved in the matter. At first nothing was said to our ambassador at Paris about the proclamation, and he thought it “no wisdom” to speak about it to them unless they raised the question. This they did later, either on account of the French fishermen or at the instigation of the Dutch, and a year’s respite was granted.[286] Caron learned the welcome intelligence from the French ambassador in London, that a promise had been made to him that the project would proceed no further until after mutual negotiations, which would occupy the whole of that year.[287] Sir Ralph Winwood, who was appointed English ambassador at The Hague in August 1609, also had conferences about the proclamation with Barnevelt, whose authority in Holland was then supreme. He was told that the States would send special ambassadors to the king, “to acknowledge those many royal favours they had received from him,” and to treat of the liberty of fishing. Meantime their ambassador in London had been instructed to beseech the king to have patience with their people “trading” on his coasts, and that “without impeachment they might use their accustomed liberty and ancient privileges.”[288]

Sir Noel Caron had also discussions in London with respect to the legality of imposing any tax on Dutch fishermen, the principle of which he could not well understand. As previously mentioned, one of the precedents upon which James founded his claim to impose tribute was the payment by Scottish fishermen of the so-called “assize-herrings.” This was an ancient tax or custom of a thousand herrings levied from each fishing-boat employed at the herring fishery, and they belonged to the king as part of the crown revenues.[289] From the extent of the Dutch herring fishery it is evident that a similar tax imposed on it would have brought in a goodly sum annually to the king’s coffers. A few years later, when James did attempt to collect the tax from the Dutch fishermen, each buss was to be charged an “assize duty” of 10,000 herrings, or £66, 13s. 4d. Scots, which was equal to about £5, 11s. 1d. sterling; so that if the duty had been exacted from the 2000 herring-boats fishing on the coast the crown would have benefited to the extent of about £11,000 a year, and the Hollanders would have been all that the poorer.

When the principle of the assize-herring was explained to the Dutch ambassador, he appears to have devoted some attention to it. He argued that although the Scots Acts showed that the assize-herrings had been exacted from the Scottish fishermen in the firths on the east and west coasts, the tax had never been imposed in the north seas and at the Isles (Shetlands) where the Hollander busses fished; it would therefore be an “innovation” to enforce the payment there now. He further averred that treaties between King James and the United Provinces existed by which Dutch fishermen were freed from any payment to the king for fishing on his coasts and seas. Moreover, he declared the sea was free to all, mare est liberum, and consequently there was no king nor lord to be acknowledged upon the sea, “but every stranger may fish over all the seas where he pleases, without asking license, or paying any toll or duty whatsoever.” It was moreover apparent, apart from considerations of principle as to the freedom of the sea, that no certainty existed that the king, or a successor, would not raise the tax, if once imposed, as the King of Denmark had done with the dues at the Sound, until they became a heavy burden.