The stipulation in the treaty of 1604 was now brought to mind in the negotiations on Charles’s fishing scheme. These negotiations, which were carried on for more than two years, were conducted on the part of Scotland with an ingenuity and refinement of procrastination scarcely surpassed by the Dutch in the previous reign.
After the report above mentioned, a large committee was appointed to discuss the business with the English authorities, and to report to the meeting of Parliament in November. Accordingly, on 3rd November the committee submitted the report of their proceedings with the English commissioners, which was signed by the Earl of Monteith, the President of the Council. They understood, they said, that the general fishing proposed by the king referred only to those fishings of which the benefit was exclusively reaped by strangers (that is to say, to deep-sea buss-fishing), and did not in any way touch the fishings which were enjoyed by the natives of any of the three kingdoms, so that the laws and freedom of every kingdom might be preserved, as indeed was “contained in the said instructions.” It was therefore necessary, they said, in the first place, that such fishings “in everie kingdom whiche ar onely injoyed be the natives be made known,” and that it should be clearly determined what those fishings were which were called “common benefits” that could not be “dividedly enjoyed.” With their eyes probably on the fate of the nationalisation clauses in the Draft Treaty of 1604, they declared it to be desirable that Scottish adventurers in the proposed association should be naturalised in England; and with reference to the commodities brought back for exported fish, they said it was necessary to inquire how the return for the fishes exported out of each kingdom should be made to the kingdom in which they were actually taken. As to founding a burgh in the Lewes, that, they said, would be an infraction of the rights of the existing burghs.
The reply of the English commissioners was somewhat vague and general. It was, however, made clear that the king’s intention was that every member, or “brother,” of the company should be free to fish “in places near and remote, where common fishing is, or may be, used by any of his people,” this “mutual participation being the bond of union and sole means to recover his Majesty’s right and power at sea, and to enrich all his subjects, and those chiefly where the greatest fishings are.” On the other points they said, in effect, that the king would do what was best.
A letter from the king to the Parliament was also read, expressing his desire that the business should be advanced, as it would be “a worke of great consequence for the generall good of our whole kingdome, and more particularlie for the benefite of that our ancient kingdome” by the improvement of its trade and shipping. So anxious was Charles for the success of his enterprise, that he added a postscript in his own hand, in which he said: “This is a worke of so great good to both my kingdomes that I have thought good by these few lynes of my owne hand seriouslie to recommend it unto yow. The furthering or hindering of whiche will ather oblige me or disoblige me more then anie one business that hes happened in my tyme.” He also sent a letter to the burghs to mollify them, saying that it was in no ways intended that they should be wronged in their ancient privileges or benefits; and he requested Parliament to appoint commissioners charged with absolute powers to settle the matter with the English commissioners, so that there should not be undue delay.[414]
The Parliament thereupon appointed commissioners, on 11th November 1630, to treat with those of England.[415] Nominally they were given full powers to treat, but their instructions, dated 23rd December, were so detailed and remarkable that it must have been obvious to every one that rapid progress was not intended. Nothing was to be done prejudicial or derogatory to the liberties and privileges of the kingdom, the crown, or the laws of Scotland; special care was to be taken that the natives of Scotland were to be preferred in the choice of the best places for establishing “magazines” for the fishery, and that the places appointed for the English should be such as would not prejudice the “land fishing” of the Scotch; the Scottish members of the association were to have the same privileges and immunities, with power to erect magazines, in England and Ireland; English members who settled in Scotland were to be debarred from fishing in the reserved waters, or from buying fish from the natives, except for their own sustenance, as well as from any trade or commerce, unless for the same purpose; they were to be prohibited from importing or exporting commodities except fishes taken by their own vessels, and they were to pay customs and other duties for the fish they cured in Scotland and exported—and many other conditions were laid down which showed how little the Parliament had been moved by the personal appeal of the king.[416]
With respect to the fundamental question, the limits of the territorial seas pertaining to Scotland, the demands of the Parliament went much further than any previous claim. The old principle of division by the mid-line, which was held by some lawyers in the reign of Elizabeth, was now put forward. The commissioners were instructed to take care that a clause was inserted in the treaty to make it clear, “that the seas foreanent the coasts of this kingdome and about the Yles thairof and all that is interjected betuix thame and that mid-lyne in the seas whilk is equallie distant and divyding frome the opposite land, ar the Scotish Seas properlie belonging to the crowne of Scotland, and that the English hes no right nor libertie to fishe thairin, nor in no part thairof, bot be vertew of the association and not otherwayes.” But while these were the Scottish seas ideally regarded, English members of the association were to be permitted to fish in them, except in the waters which were reserved to the Scottish people in the Draft Treaty of Union of 1604—namely, bays, firths, and lochs within land, and a belt of fourteen miles along the coast. These waters were to be strictly preserved for the native fishermen.[417]
The instructions which the burghs gave to their representative, Mr John Hay, although less ample, were equally to the point. He was to agree to the proposal for the establishment of an English settlement at the Lewes, provided they did not fish in the reserved waters, and had no magazines or settlements in any of the other West or North Isles, or north of Buchan Ness or Cromarty, and not at Aberdeen if they wished any south of Buchan Ness; and the burghs were also to have the right to establish colonies at the Lewes. In “retribution,” as they said, for these privileges to be granted to the English in Scotland, they required the “liberty” of the pilchard-fishing in England and Ireland, with equal privileges regarding it. The king was also to remove the “Flemings” from the Isles, and to prohibit them and all other strangers from fishing within a “land-kenning” (that is, within a distance at which the land was visible from the sea), and power was to be conferred upon the burghs, with the assistance of the Sheriffs and other officers to prevent their fishing nearer. “Hamburgers, Bremeners,” and all other strangers, were also to be removed furth of Shetland, Orkney, Caithness, and other places.[418]
A week or two before the Scottish commissioners were selected, Charles issued a commission appointing Lord Weston (High Treasurer of England), the Earl of Arundel and Surrey (Earl Marshal), the Earl of Pembroke (Lord Chamberlain), the Earl of Suffolk (Lord Warden of the Cinque Ports), and eight others as commissioners on behalf of England and Ireland.[419] His object, he said, was to establish a “common” fishing, both to be a nursery of seamen and for the increase of navigation, and “to make the store of fish of all kinds, being a necessary food for the people on fish-days, to be had at reasonable prices, and the overplus thereof to be a principal addition to the staple commodities of our kingdom for the increase of trade.” In order that this common fishing might be extended and freely exercised in “all places by his subjects of each of the three kingdoms,” he appointed them “with full power and authority to confer severally and jointly, and to consider, treat, propose, determine and conclude what they concurrently found fit and expedient for the ordering, establishing, and advancing of the said common fishing.” Power was also given to them to call for any of the records in the Tower or elsewhere which might bear upon their labours.
The commissioners from both countries met early in 1631. In March the Privy Council of Scotland received a report from the Scottish commissioners in London, stating that several meetings with the English commissioners had been held, and that the extent of the waters proposed to be reserved “was thought too much,” unless it could be shown that “the intention was only to reserve so much without which the natives could not subsist, and not to hinder the good public work,” and they craved full and particular instructions on this point. The Privy Council at once summoned the Lord Provost and Bailies of Edinburgh before them to furnish the information required, but they replied that it was a subject which concerned all the burghs, and that time must be given to consult them. After some further delay the burghs submitted an elaborate and interesting report to the Council on 21st April, in which, after citing the clause in the Draft Treaty of Union, they proceeded to define the bounds of the waters “without the whiche the countrie can not subsist,” and “whiche trewlie is the bounds whairupon if anie stranger sall resort this countrie sall suffer utter ruine.” These bounds were as follows:—
“Vpon the east side of Scotland, frome Sanct Tabsheid [St Abb’s Head] in the shiredom of Beruick directlie north to the Reidhead in Angus whiche comprehends the coast of the Merce, Lothiane, the Firth, Fyfe and ane part of the coast of Angus, and 14 myles without the course frome the said Sanct Tabsheid to the Reidhead. Frome the Reidhead north north-east alongs the coast of Angus, Mernes, Mar and Buchan to Buchannesse, northwards and be north to Dungisbeyheid [Duncansby Head] in Caithnes, comprehending thairin the coast of Bamf and Murrey upon the south side, Murrey firth and the coast of Rosse, Sutherland and ane part of Caithnes vpon the north, and fourtene myles without the course frome the said Buchannesse to the said Dungisbiehead, and frome the same Dungsbie in Caithnes west alongs the coast of Caithnes and Strathnauer to Farrayheid in Stranauer [Cape Wrath], and fourteine myles aff the said coast, with fourtene myles round about the yles of Orkney and Yetland. Frome the Farrayheid alongs the coast of Stranauer to the head of Stoir of Assint [Stoir Head] and 14 myles aff the said coast, and frome the said heid of Stoir Assint directlie west north-west to the eastmost point of the yle of the Lewes, comprehending thairin the haill seas interjected betuixt the said heid of Stoir of Assint and eastmost point of the said yle of the Lewes, with all the yles and loches within the same, and 14 myles without the course frome the said heid of the Stoir of Assint to the said east point of the Lewes; frome the said eastmost point of the Lewes south about the haill yles of the Lewes to the westmost part of Barra, and 14 myles without the samine; frome the said westmost part of Barra n-west, south, south-east to southmost part of the yle of Yla [Islay], frome the said southmost part of yla south-east to the mull of Kintyre, frome the said mull of Kintyre n-west, south-east, to the mull of Gallouay: Whiche bounds frome the said heid of Stoir Assint west north-west to the eastmost point of the Lewes and frome thence south to Bara be Yla, and mull of Kintyre to the mull of Gallouay, comprehends the haill west yles and loches within the samine with the loches vpon the mayne of Stranauer, Tarbet, Lochaber, Kintyre, Argyle, Renfrew, Cuninghame, Kyle, Carrick, Gallouay, Quhithorne; alongs the coast of Gallouay eastward to Solloway [Solway] sands and 14 myles aff the said coast. Quhilk bounds above designed being so necessar both for the haill lieges living vpon the saids coasts and yles, as if these sould be exhausted be strangers of fishes, they sould be depryved of all benefite of living and so be tyme bring ane vtter desolatioun vpon the land, as lykeways so necessar for ws of the borrowes [burghs] as without the said fishing the most part of our inhabitants sould be brought to extreem miserie. Quhairfoir we of the burrowes doe humbelie beseeke your Lordships to recommend the bounds abone designed to the saids commissioners in suche maner as they give not way that strangers be permitted to fishe within the saids bounds vpon anie conditioune.”[420]