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 Dutch ambassadors arrived in England on 27th November;[350] but notwithstanding the earnest exhortations of Carleton, their instructions were confined to the “Greenland” (Spitzbergen) and East Indian questions, and did not contain what the king most desired—full powers to treat on the herring fishery.

James had been looking forward to this embassy as providing an opportunity for the final settlement of the fishery dispute. Sir Dudley Carleton had informed the States-General that the king wished to go into the matter of the treaties on which their claim to liberty of fishing was in great measure based, adding jesuitically that it was probably with the view of confirming them. The king in reality felt that owing to the dissensions in the Low Countries and the general political state of Europe, the time was specially opportune for negotiating a treaty in his favour.[351] He had accordingly made considerable preparations to meet their arguments both with reference to the treaties and the Law of Nations. Early in November he wrote to the Council at Edinburgh, saying that the wrongs suffered by his Scottish subjects from the fishing of the Hollanders in the seas of Scotland had caused him to bring the matter before the States, and to acquaint them of his “resolution to have them duly repaired.” The States had signified their desire to have their rights and the actions of their subjects “orderly tried and determined,” and they were therefore about to send over commissioners “sufficiently authorised” for that purpose. As commissioners to meet them, he had chosen the Duke of Lennox, the Marquis of Hamilton, Lord Binning (Secretary), and Sir George Hay (Clerk of Register), and he asked the Council to expedite the issue of their commission under the great seal. He also desired them to send him, in writing, the most perfect information they could procure as to his right to exclude the States from their pretended right or alleged possession of the herring-fishing, with full particulars of the wrongs committed by the Dutch on the Scottish people, either by scattering the shoals of herrings or by “usurpation of farder libertie to themselves nor hes bene formerlie granted or tolerated be us or our prediceesoris to them.”[352]

The commissioners named were accordingly authorised to treat with the Dutch commissioners “anent the trial and verification of the rights, immunities, and privileges alleged to have been granted by his Majesty or any of his most noble progenitors, Kings of Scotland, to the said States-General of the United Provinces, or any others from whom they deduce and derive their claim to fish in the seas of the said kingdom of Scotland, or any part or place thereof.” They were further instructed to treat as to the redress required for the injuries committed by the Dutch fishermen, and for preventing in future any unlawful proceeding by the States, “either by fishing in his Majesty’s Scottish seas” or by doing wrong to the inhabitants. They were, moreover, “to concur” with the English commissioners to be appointed as to the “friendly behaviour” of British subjects and the subjects of the United Provinces in all other seas, fishings, voyages, and other foreign intercourse, necessary for the continuance of peace and amity.[353] The business of the herring fishery was thus placed in charge of the Scottish commissioners, while the English had specially to deal with the other subjects in dispute—the East Indian trade, the whale fishery, the coinage, and the trade in cloth. Towards the end of November Lord Binning informed the king that the Council had sent off the commission, together with a statement of the injury sustained by the whole kingdom by the daily increase of the Dutch usurpation in his seas.[354]

With regard to the other matter about which James had desired “the most perfect information,”—his right to exclude foreigners from fishing on his coasts,—the Council had the greatest difficulty in discovering anything whatever pertaining to it. It was the most important part of the question to come before the commissioners, because the States had already issued a strongly-worded edict forbidding their people from committing any wrongs upon the Scottish people ([p. 179]), and the king could scarcely make out a just case for prohibiting the Hollanders from fishing on this ground alone. He desired to show, what he no doubt fully believed, that his claims were supported by historical precedents and the laws of Scotland, and that none of the treaties on which the Dutch always relied in such negotiations were contrary to his claims. In his letter to the Council he therefore repeated the request that the public records should be searched, and desired that Lords Lauderdale and Balmerino, the Laird of Lundy, and others into whose hands such documents might have come, “from their ancestors, Chancellors, secretaries, clerks of register, ambassadors, or councillors of state,” should try to find any which bore upon the matter, and to have them forwarded to him without delay. The terms of the king’s letter show plainly enough the confusion and imperfection of the Scottish state records at that time; and the Lords of the Council sought high and low to discover copies of the treaties or any other official papers relating to the subject, but for a long time without any success. Copies of some of the treaties were afterwards found, but nothing to establish the king’s right to exclude the Hollanders from the fishery. In these circumstances the Council advised the commissioners “to proceed warily,” and to make the Dutch ambassadors produce what they had to show for their claim to the fishing, and then to answer that.[355]

But as things turned out, it was of no immediate importance whether or not the Scottish commissioners were armed with documentary proofs of the king’s claims to the fishery. The Dutch ambassadors, as has been said, came without any powers to treat on that subject. In their private instructions, indeed, they were enjoined to avoid carefully any discussion about the herring fishery. If it was forced upon them, they were to point out that the States had already issued a proclamation to prevent wrongs being done to Scottish fishermen, which would be strictly enforced. If this was not sufficient, they were to fall back on general arguments as to the natural freedom of the sea, their immemorial possession of the fishery and its paramount importance to their country, and to plead for delay on account of the confusion and difficulties of their home affairs.

On their arrival in London they were met by two high Scottish personages, who had been awaiting their coming for some weeks. They took this for a bad sign, concluding from it that the king was resolved to raise the fishery question. They had several interviews with the Council and the king. On finding that their instructions limited them to the discussion of the two points on which there was least anxiety in England, the East India business and the whale-fishing, the Council received them coldly, Bacon indeed rating them soundly for coming without adequate powers. James himself was very angry, and made no effort to conceal his disappointment. He expressed astonishment that after all the complaints that had been made, and after all the negotiations that had gone on through the ambassadors at London and The Hague, they had ventured to come unprepared to deal with the principal matter in dispute. “The fishing,” he told them, “on the coasts of England, Scotland, and Ireland, as a regality and point of sovereignty, was possessed by him alone, to the exclusion of all others.” Spain, he said, had asked leave to negotiate about freedom of fishing, while France enjoyed the privilege only under great limitations, a few small vessels being allowed to fish for the use of the Court and the king’s family.[356] How little becoming was it therefore, continued James with heat, that a Republic which had only been recognised for a few years should be the first to contest his sovereign rights! It was useless for them to plead unprofitable years and immemorial possession. He was king of the greatest islands in the world, and he knew very well the rights he had on the coasts of his three kingdoms.[357] He further informed them that he was bound by oath at his coronation to maintain the rights, liberties, and privileges of his crown, and that he would rather lose all that he had than give up his right to the fishings.[358] Declarations equally strong were expressed in despatches to the British ambassador at The Hague. The king, it was said, would not be taught the laws of nations “by them nor their Grotius.”[2] It would be to their advantage to ask the king’s leave for the fishing and to acknowledge his right as other princes had done, or it might well come to pass “that they that will needs bear all the world before them with their Mare Liberum, may soon come to have neither Terram et solum nor Rempublicam Liberam,”—phrases which lead one to think that James penned the missive himself.[359] The Council intimated to the ambassadors that the king declined to discuss only the two points mentioned in their instructions, and that they must get powers from the States-General to deal with the question of the herring fishery.

Language of this kind from the king and Council disturbed and perplexed the envoys. They were anxious that the friendly relations between the two countries should be strengthened, and yet it appeared not unlikely that they would have to return home without having been heard on any of the matters in dispute. They began to think that after all it would be better if the fishery question were taken up and settled, and they advised the States-General in that sense. The British ambassador at The Hague was using pressure with the same object. But the Prince of Orange told him that in his opinion the States of Holland would refuse to give authority for the fishery question to be opened, “for fear of the people,” because the livelihood of 50,000 of the inhabitants of that province depended on the herring-fishing, and they feared that the same thing would happen with the tribute the king claimed as had happened with the dues at the Sound, which had been gradually raised until they had become an intolerable burden. He threw out the suggestion at the same time that perhaps the freedom of fishing might be purchased by a lump sum. A little later Carleton proposed to the States-General that the three subjects omitted from the ambassadors’ instructions should also be brought into the negotiations—viz., the trade in cloth, the coinage, and especially the herring fishery. In a minatory speech he declared that the king, who had “a legitimate title and the exclusive sovereign right and propriety to the fishery on the coasts of his three kingdoms,” would not any longer permit the subjects of the United Provinces to encroach on his rights, which were recognised by all other princes and states. The condition of affairs, he said, had been brought to extremities by the extravagant discourses of one of their politicians and the violent conduct of the commanders of their ships.[360] Sweeping aside the treaties and the claim to immemorial possession, and using much the same language as the king had done as to the hardihood of a young republic flouting the sovereign rights of princes, he ended a long harangue by declaring that if there was any further delay in dealing with the fishery question, England would take measures to provide for her rights by force of arms, “for such,” he said, “was the demand of the people, the advice of the Council, and the resolution of the king.”

But all those strong speeches and brave words came to nothing. The leaders in the States knew the character and difficulties of James, and felt that the warlike threats of a monarch whose greatest desire was that he should be known as Rex pacificus[361] were not likely to be carried to the extremity of the sword. A little more delay brought about a change in the English attitude. In the Privy Council there were signs of wavering and evident hesitation to recommend extreme measures against an allied and Protestant state. In the political condition of Europe—troubles in Bohemia, the King of Spain threatening the overthrow of Venice, &c.—it was urged that harsh measures might drive the Dutch to have recourse to France, which supported Barnevelt, the king’s enemy. Above all, it was feared that the Protestants throughout the world would be unable to understand how the king could attack the Dutch at that critical time over so small a matter. On the whole, “for the sake of the peace of Christendom,” it might be better to “continue” the question to another time, and thus avoid an immediate rupture. The faltering in the Council coincided with a humbler tone on the part of the Dutch ambassadors. They strove to convince James that it was by no means the desire of the States to refuse to treat of the fishery, or absolutely to deny his right to regulate it on his own coasts. All they asked was that the matter might be delayed a little owing to the religious troubles which were raging in the Netherlands, and because as all the provinces were concerned and the records and treaties would have to be searched, it would take some time before they would be in a position to deal with it in an equitable way. The States-General used language equally conciliatory to Sir Dudley Carleton, and promised to send other ambassadors later, fully empowered to treat of the herring fishery and the trade in cloth. James was appeased and agreed to the delay, but he told the ambassadors that unless the States gave an undertaking in writing to send commissioners sufficiently authorised to settle the matter before a year had expired, he would take it as “a plain and perpetual declining of the treaty.”[362]

Thus James was again baffled in his endeavour to force the United Provinces to acknowledge his rights in the fishery. But scarcely had the arrangement been completed when he brought forward another proposal. Pending the conclusion of the final treaty, he wished the States to issue a provisional edict forbidding their fishermen from approaching within fourteen miles of the British coasts, to which they had been coming closer and closer in recent years, a proceeding which was the principal cause of the complaints from Scotland.[363] The distance mentioned was that embodied in the Draft Treaty of Union in 1604, and was supposed to be equivalent to a “land-kenning.”[364] Carleton, however, thought the States would not immediately agree to this,—their cumbersome system of government would alone cause great delay,—and he counselled the king “to begin with the fishers themselves,” by publishing a proclamation fixing the distance at which they would be permitted to fish.[365] But the States were disposed to go so far to meet the wishes of the king. They objected, indeed, that fourteen miles was a greater distance than that at which a person could see the coast from the sea, and thus exceeded a “land-kenning” or the range of vision, but they promised to issue orders to their fishermen to keep so far from the land as to be out of sight of people on the shore, and to strongly prohibit them from going nearer.[366]

The business of the herring fishery having thus been shelved, the negotiators took up the other matters in dispute. The East Indian question was settled by a treaty,[367] but the differences as to the whale fishery were not so easily adjusted. The English case was founded on the contention that Spitzbergen belonged to King James, on their prior fishing in those seas, and on the depredations committed by the Dutch in 1618 on English vessels. The Dutch claimed a right to the fishery from their discovery of the island, and they proposed three alternatives: (1) that both nations should fish at Spitzbergen with an equal number of ships, the bays to be divided by drawing lots;[368] (2) that fishing should be carried on by both parties everywhere with an equal number of ships of equal size, disputes to be settled by regulations; (3) that the island should be divided by an imaginary line into two equal parts, the Dutch to have one part and the English the other. The English declined all these proposals, and James informed the ambassadors that even if the island had been discovered by their nation the English had the right to the fishery because they were the first to practise it,—an argument which, it may be remarked, if applied to the herring fishery, would have been unfortunate for the king’s claim to it. But while maintaining his abstract right to the sea at Spitzbergen, James gave way on the immediately practical point, consenting that the Dutch should continue their fishery at the island for three years longer.[369]