A Scottish lawyer, probably in the service of the crown, in reply to the objections of Sir Noel Caron, argued that it could not be called an “innovation” to exact the tribute, if the herrings swam from the ancient places of their resort and appeared in new places in his Majesty’s seas, where the tax was not previously levied, or because there was an “oversight” in levying it in olden times when, he said, there was little fishing in the north seas and about the Isles, and the cost of collecting it would have been great. As for treaties, it was most improbable that any stranger would ask or king grant that strangers should be more free to fish “within the seas of the king’s dominions” than the native subjects of the kingdom. But even if such grant had been made, it could not stand good in law, because it was “repugnant to reason.” By negligence, he said, the Hollanders had been allowed two advantages. In ancient times they were “appointed” to fish no nearer the land than they could see the shore from their main-tops; but now they fished as near as they pleased, excluding the natives and breaking up the shoals. Then, while the natives had to pay three assizes yearly, the Dutch were “as yet” asked to pay only one, though many of the busses made three voyages in a year. And if the sea was free to all, why had the Netherlanders entered into treaties for freedom of fishing? By making covenants with the kings of Scotland, “and taking liberty of them to fish within the Scottish seas,” they had “disclaimed mare liberum and acknowledged the Kings of Scotland to be Lords of these Seas.” Why should the Dutch alone object, if the natives, the French, and all other foreigners willingly pay the assize-herring?[290] It was, however, untrue to say that the tax was paid by the French or other foreign fishermen. Even Scottish fishermen who fished at the North Isles were exempt; and when an attempt was made some years later to force them to pay, the burghs obtained a decree of absolvitor from the court and the Privy Council, on the ground that the tax could only be levied on “green” or fresh fish landed, and not on herrings cured on board ([see p. 166]).
In the spring of 1610 James’s proclamation was again taken into consideration by the States of Holland and the States-General, and it was resolved to send an embassy to London, primarily to thank the king for his friendly offices in connection with the conclusion of the truce with Spain, but in reality to deal with the fishery question and some other matters. One of the ambassadors was Joachimi, who afterwards represented the States at the English Court for over twenty-five years. Another was Elias van Oldenbarnevelt, a brother of the great statesman who was then at the head of affairs in the Netherlands, and to him the business of the fishing was specially committed. They arrived in England on 14th April, and had an audience with the king a few days later and another with the Privy Council. They asked for an assurance that the king’s proclamation was not meant to extend to the United Provinces, since he was in alliance with them, and treaties existed between the two countries. But the Earl of Salisbury plainly told them that the principal motive of the proclamation arose from the multitude and disorder of their fishermen, “who had wholly drawn the fishing to themselves, to the destruction of his Majesty’s people and coast-towns”; and they were invited to further conference.[291]
On the 6th May, exactly a year after the publication of the proclamation, the ambassadors had a formal conference with Sir Julius Cæsar, Sir Thomas Parry, Sir Daniel Dunn, Sir Christopher Perkins, Dr Henry Marten (Advocate-General), and Levinus Muncke, a Fleming, and “clerk to his Majesty’s Signet.” The English commissioners began the discussion by justifying the proclamation on the grounds previously indicated. The Dutch contended for complete freedom of fishing, resting their case on arguments drawn from the civil law, on immemorial possession, on the existence of treaties, and on political considerations. They said the United Provinces had always been in peaceful possession of free fishing, and that from time immemorial they had enjoyed complete liberty to fish over the whole sea, both as a matter of usage and of right. To disturb them by force in the enjoyment of that right would be unjust. Besides, by the Law of Nations the boundless and rolling sea was as common to all people as the air, “which no prince could prohibit.” No prince, they said, could “challenge further into the sea than he can command with a cannon, except gulfs within their land from one point to another,”—the first occasion on which this principle for delimiting territorial waters, afterwards so celebrated, appears to have been advanced.[292]
Fig. 7.—Facsimile of Minute of the Declaration of the Dutch Envoys as to the range of guns.
Besides these more or less abstract arguments, the ambassadors made a strong case by reason of the treaties in which liberty of fishing was stipulated. It is noteworthy that they referred to only one of the treaties with England, the Intercursus Magnus of 1496, while they laid stress on the treaties with Scotland in 1541, 1550, and especially in 1594, when James himself was on the throne of the northern kingdom ([see p. 81]). They further declared that there were reasons of state which forbade the United Provinces from allowing the free use of the sea to be disputed. More than 20,000 mariners were maintained by the herring fishery alone, besides other 40,000 people who gained their livelihood by making nets, packing the fish, and in other industries depending upon the fishery. The power and security of the country and much of its commerce rested on the fishery. As for the complaint that the decay of English coast-towns was caused by their fishing off the coast, it was explained that they only fished there for herrings which were cured on board, and that this industry had been discovered by themselves, which gave them a prior claim to it. The English were free to carry on the herring fishery themselves, though, they dexterously added, it was a business that required much experience, and it would be a long time before they succeeded, especially as heavy losses sometimes occurred, which the Dutch were able to bear, since they lived cheaply and each of the 60,000 people mentioned were “adventurers,” the losses being thus spread over a great number. They suggested that the English had given up the fishery because they had found a more comfortable livelihood in other ways.[293]
On the other side, the English commissioners argued that by the custom of nations the king had a right to the whole of the seas around his coasts; and this right was exercised by other countries, as Spain, France, Denmark, Sweden, Venice, Genoa, and Russia, and generally by all maritime states; and it was not opposed to the Roman law or the teachings of the Civilians. They admitted that the sea was free for navigation, but denied that it was free for fishing. All the kings of England since Edgar had the adjoining seas under their jurisdiction, and had always received “consideration” for the fishing within them. The commissioners evidently felt that the treaties offered the greatest difficulty to the policy of James, and they contended that all the Burgundy treaties had become obsolete for a variety of reasons. The great treaty of 1496 had lost its effect, inasmuch as a later treaty in 1520 (which, however, dealt with quite other things) did not confirm it. The treaties, moreover, had been made with the House of Burgundy, and concerned only the subjects of that house; but there were now no subjects of the Duke of Burgundy; and the Dutch at least could not found upon those treaties, because they had themselves broken and transgressed them. Even if those old treaties could be supposed to be in force and provided liberty of fishing without license, that could not mean without the payment of the usual dues, customs, and taxes. Besides, when the treaties were made the circumstances were different. The fishing of the Netherlanders was not then so disagreeable to this country as it was now; then about 100 vessels came to fish, while now they sent 2000. The king was therefore not bound to tolerate them any longer.
The negotiations between the English and Dutch commissioners went on for a short time, the arguments on either side being elaborated without much hope of agreement, when an event occurred that brought them to a sudden end. This was the assassination of King Henry IV. of France, the head of the Protestant League, which made James anxious to retain the goodwill and alliance of the Dutch Republic, in view of his relations with Spain. On 14th May the ambassadors were told by the Earl of Salisbury that while the king held his right to forbid the Netherlanders to fish on his coasts to be indubitable, he, “out of his great love to the Low Countries, would forbear to proceed according to the proclamation.”[294] At the farewell audience James used very kind expressions. He made the remarkable but characteristic statement to the ambassadors that he had issued the proclamation owing to the just complaints of his subjects, not from the solicitation of courtesans or courtiers.[295] He assured them of his affection towards them and the preservation of their state, “which next unto his own he held most dear above all other respects in the world.” As for the business of the fishing, he thought it was not fit now to spend more time on it, but to refer it to some better season, and in the meantime, he said, things would remain as they were.[296] This termination to the negotiations was naturally gratifying to the Dutch. Barnevelt and the States-General had become somewhat anxious as to the issue, and the ambassadors had been instructed to try to get the matter shelved for a little. Although James had suspended the operation of the proclamation, however, he had not withdrawn it. The question was merely postponed to a more convenient season.
The failure to carry out the policy of exacting tribute from the Dutch fishermen was fatal to the scheme of the London merchants to form a Society of Fishing Merchants. Rainsford wrote to Lord Salisbury in October 1609 expressing his fears that the Earl disapproved of the project to raise a great revenue to the king for the fishing in his seas;[297] and in 1611 he again addressed a memorandum to the Earl, answering various objections that had been raised to the scheme, and renewing the offer for farming the tribute.
The plans to form a national herring fishery founded on taxation of the Dutch having failed, others were brought forward on the basis of receiving special privileges and immunities from the crown. One proceeded so far towards realisation, that in December 1611 a corporation was formed, consisting of a governor, deputy-governor, a treasurer, twenty-four “consuls,” with “searchers” (cure-masters), gaugers, and other officials, in imitation of the Dutch system. The administration was to be general “for matter of order, and particular for matter of adventure,” leaving every town at liberty to venture for itself; and laws and ordinances were drawn up for the central body in London and the affiliated societies throughout the country. Since the money necessary was to be found by private individuals, a number of privileges were asked from the Government. One of these, which made it lawful for the corporation to carry their fish abroad and to bring back commodities in exchange, “from all parts wheresoever, notwithstanding any former privileges to the contrary,” was strenuously opposed by all the trading companies, and in particular by the Merchant Adventurers, who objected that it would be most injurious to their great trade in cloth.[298] This opposition killed the “business of the busses,” as the fishing project was popularly called. Writing ten years later, Gerard Malynes, a London merchant and author, who appears to have been one of the promoters and to have spent both time and money on it, deplored the failure of this society, which he said was due to the opposition of the Merchant Adventurers, the Russia Company, and the Eastland Merchants.[299]