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

In the debates between the Scottish and English commissioners in London, at most of which the king was present,[428] Coke exerted himself to reconcile the differences that existed. He adroitly pointed out that, as the complaints from Scotland showed, strangers now possessed their fishings, and said they would be able to oust them only by degrees and by making the most of the natural advantages on the sea which both nations had. And while claiming that all the fisheries in the British seas (and even in America) belonged to the crown, and that there could not therefore be, strictly considered, any right to “reserve” certain of them, still the king, by the undoubted right of sovereignty he had in all his seas, had power to give license of fishing within them, either to subjects or foreigners as he might think fit, and by his royal prerogative alone he could establish the proposed company “whereby all his subjects which are brethren thereof may enjoy that fishing by right which strangers have by usurpation in our seas.”[429] By this time the Scottish commissioners were becoming reconciled to the proposal of forming the society on very much the original plan, and their opposition, perhaps partly from the presence of Charles at the conferences, was beginning to give way. They had been told, too, in answer to some of their objections, that while it was the king’s intention to maintain existing rights, all their liberties depended wholly upon the king’s grace, and he had expressed his purpose that his Council in both kingdoms should advise them in anything that required further consideration. It was much to be desired, they were told, that his Majesty’s clear intentions should prevail with them as they had done with the English commissioners, not to question, but to advance and settle so needful a work.[430]

Charles himself came forward to help them with an alternative plan to that of the “reserved waters.” The ground upon which the claim to the latter was based had gradually shifted. The initial argument that the surrounding seas pertained to Scotland as an independent kingdom—that they were the “seas of Scotland”—had been disposed of by the declaration that the right to the sea and to its fisheries was a prerogative of the crown; and it could not be denied that though no union of the kingdoms had taken place, there certainly had been union of the crowns. The question of the prerogative was a thorny one, which the Scottish commissioners had to avoid; and the claim to the reserved waters was now made solely on behalf of the poor inhabitants of certain parts of the coast, who subsisted mainly by their fishing in the sea, and would, it was said, be reduced to poverty and indigence unless these waters were reserved for their exclusive use. To meet this objection, Coke proposed a resolution at one of the meetings that the king should be asked to lay down a regulation to guard against interference with the poor fishermen at the places where the fishing of the company would be carried on, and at the next meeting a draft in the king’s handwriting, perhaps laid on the table by Charles himself, was read as follows: “The English commissioners desire to take away all showes of wordes that may show diffidence between the two nations, and hauing heard that the Scots commissioners are to desire some places to be reserved from the company or association, it is conceived this to be the fitter way:—That instead of those reservations, that the association should appoint the same fishermen that now fishe in them, [so that they] may continue as particular company of the said association, and to be subject [to] the law of the same, and are willing that no others should fish in those places, [unless] it be found upon examination that those places may admit more fishermen than those that now fish in them, and in that case the great committee of the association shall add such to them as they shall think fit, desiring them always to remember that the said committee is compounded equally of both nations.”[431] The king’s proposition was in keeping with the intention of Coke, “to bring all private fishing vessels under the company,” and though it was obviously impracticable, it furnished a plausible argument against the claim to reserved waters.

After further conferences a number of articles were agreed to: That an association should be established, with no joint-stock except that received from those who voluntarily joined the undertaking; that a standing committee of the two nations in equal numbers should be formed, some of whom were to be appointed, also equally from both nations, to judge of controversies amongst the busses according to regulations to be made, with the right of appeal to the standing committee. Two hundred busses were “propounded” for the first year; “whereof,” said the Scots commissioners, “wee gott to advise what number we would undertake, but our answer was never yet sought; always we intend, God willing, to sett out 100 busses.” The main point, in regard to the reserved waters or fishing-places, was left for the king’s consideration. Finally, the king was to be asked to give order for drawing up the charter of association.[432]

In July 1632 Charles was able to announce that the difficulties were overcome and the negotiations completed, to his “great contentment,” and with the mutual consent of both parties. Desirous of removing as soon as possible the causes of the complaints which had been made by the burghs, he wrote to the Privy Council at Edinburgh about the great wrongs done by the Dutch inhabiting the Lewes and fishing there “against the laws of that our kingdom,” instructing them to put in force a decree which had been previously issued at the request of the burghs, to prevent all strangers from trading or fishing there or at Shetland.[433] He also requested the Council to prohibit unseasonable fishing for herrings at Ballantrae Bank near the mouth of the Clyde, which, he had been informed, was very injurious to the herring fisheries on the west coast of Scotland, the Isles, and the neighbouring coast of Ireland, by destroying the fry of herrings at unseasonable times, which, he was informed, if they were spared, might produce such plenty in all these coasts as might very much advance the intended work of fishing. At the same time he declared that it was necessary to establish settlements for the fishings at the Isles, and the Council were asked to take sureties from the landlords of the Isles, and of the lochs of the mainland, against violations or oppressions on those of the association engaged in fishing there, and from exacting any duties or impositions from them. The Council was also invited to take into serious consideration the Act of the Scottish Parliament “of 4 James IV.” respecting the building of busses by the noblemen, and to use their best means to put it into execution.[434] The nobility and gentry of Scotland were apparently expected to build forty busses for fishing on both coasts, at an estimated cost of £10,960; and in addition to equip them with nets, salt, casks, and victuals.[435]

On the all-important question of the reserved waters the king did not grant the “irreducible minimum” of the burghs. The condition which the burghs attached to their surrender of everything except the three great Firths, that is, the exclusion of the Hollanders from fishing on the coasts of Scotland, was in the meantime nominally met by the instructions to the Council mentioned above. In two or three years, as we shall see, when his naval power was greater, he would attempt to carry out their desire in quite a forcible and dramatic way. Charles would not concede the Moray Firth as an exclusive preserve for the Scottish fishermen, but he gave up to them the Firth of Lothian within a straight line from St Abb’s Head to Red Head in Forfarshire, and also the Firth of Clyde within a line drawn between the Mulls of Galloway and Cantyre; because, as he said, the inhabitants of the coasts of these parts were chiefly maintained by the fishing within them and could not well subsist otherwise. These waters were therefore to be reserved to Scottish fishermen, “according to ancient custom.”[436]

Everything having been arranged to the king’s satisfaction, he issued a commission providing for the establishment of a Fishery Society under the great seal of both kingdoms, which was approved by the Scottish Parliament on 7th September 1632.[437] The Society was to consist of twelve councillors appointed by the king, six of them to be English or Irish and six to be Scots,[438] and also a “commonalty” composed of a large number of noblemen and other persons. They were empowered to appoint officers, to make laws, and to punish transgressions. In every “province” of the kingdom and in the towns most convenient, “judges” were to be elected by the resident members to settle disputes and make regulations. The members, their servants and fishermen, were favoured by certain immunities and privileges; they and their vessels were exempt from impressment for the king’s service and relieved of certain civil obligations. They were to be free to fish for sea-fish wherever they pleased “within his Majesty’s seas” and dominions, and at the isles pertaining thereto, as well as in the “lochs, creeks, bays and estuaries” wherever herrings or sea-fish were or might be taken, except in such creeks or firths as might be reserved in a proclamation of the king. On the trading side of the enterprise, they were to be at liberty to carry the fish to any place within the kingdom, “as well within free burghs as without them,” to salt, dry, and barrel them, to erect the necessary buildings and magazines, and to dispose of the fish as they thought best, within the realm, or to export them either in their own vessels or in others. Other clauses prohibited any person not a member of the Society from exporting, or causing to be exported, abroad any sea-fish taken within, or brought within, his Majesty’s dominions. Charles and his advisers aimed at no less a thing than to bring the whole of the sea fisheries and fish-curing industries of the country, as well as the foreign exports, under the control of the Council of the Society. The whole business was then to be organised and developed in such a manner that the Dutch fishermen would be driven from the British seas, and the nation to which they belonged deprived of the commanding position which, it was believed, their fisheries had been the chief means of conferring.

But the patience and perseverance of Charles in wearing out the opposition of Scotland to his scheme, and in giving it the semblance of a national design, were most inadequately rewarded. Like almost everything to which he put his hand, the fishery association failed miserably. The Scottish burghs promised to equip sixty busses for the fishing in the following year, but in point of fact the Scottish people took scarcely any part in the operations of the Society. The London merchants, canvassed personally by Sir Thomas Roe and appealed to by Pembroke, also held aloof. They gave “fair answers,” but kept their money. The subscriptions, or stock, came almost exclusively from persons about the Court, from naval officers and others desirous of preferment. The first meeting of the Council was called for 24th January, but so few members attended that the meeting had to be adjourned until 19th February, when it took place in the Star Chamber. Oaths were administered, two silver seals were ordered (and never paid for) at a cost of £12, and Captain John Mason was made “Admiral of their fleet” of busses. Differences of opinion soon arose in the Council, and the Society split up into two branches or associations, one under Weston (now Earl of Portland),—that “man of big looks and of a mean and abject spirit,” as Clarendon describes him,—and after his death, under the Earl of Arundel; the other branch under the Earl of Pembroke, the Lord Chamberlain, who appears to have been almost the only one, besides the king and Coke, who took a sincere personal interest in the Society. Portland’s society had its headquarters at Lewis, while Pembroke’s was more particularly designed to carry on operations at Shetland and the east coast, but also had a station in the Lewes. The total amount of the subscriptions to the Society up to 3rd February 1636 was £22,682, 10s., of which only £9914, 10s. was paid up, and the company had been forced to borrow £3550 at interest to set the scheme afloat. The stock of Portland’s association amounted altogether to £16,975 up to and including the year 1637, while the losses in the same period reached £21,071, 5s. 7d.

Ground was acquired and houses and magazines for salt and casks erected at the Lewes,[439] and several busses were purchased in Holland by both associations, ready for fishing and manned entirely by Dutchmen. Agents despatched to Shetland and Lewis sent favourable reports of the prospects. “We hope,” said the one at Lewis, “to furnish London with some plenty against the hard times of winter”; yet the total quantity of herrings cured at the island in that the first year of the Society’s fishing was only 386 lasts, and the price obtained for them was so low that the loss amounted to £4261. This, according to the agents, was due to want of proper means of curing them (salt, casks, hoops, &c.), otherwise they said they might have obtained 1000 lasts or more. A great effort was therefore put forth in the following year. Preparations were made to deal with 1500 lasts, and vessels were chartered to carry them from Stornoway to various Continental markets. But less than 443 lasts were cured in the second year; some were sent to Dantzic and fetched “mean prices,” the rest reached London “when Lent was wellnigh over,” and were sent on to Dunkirk and Dantzic, the vessels coming back in ballast, and the loss in this year was £8163, 19s. 4d.[440] In this way the operations of the Society went on. The herrings then failed to come into the lochs, and the Society turned its attention to the salting and exportation of beef, salmon, cod, and coal-fish,—a course fraught with less disastrous financial results, but not well calculated to carry out the objects for which it was founded.

Ill-fortune was encountered in other directions. Both the islanders and the Scots from the east coast treated the English adventurers badly. The Bishop of the Isles and the heritors insisted on their tithes and dues in spite of the king’s charter. The busses were attacked by bands of Highlanders, armed with “swords and bows and arrows and other warlike weapons,” who took various articles from them in lieu of dues. The Lowlanders, under the leadership of “one Thomas Lindsay, a fisherman of Crail,” who pretended to be the deputy to the deputy of the Vice-Admiral of Scotland, were still less considerate. Lindsay “villified” their certificates, declared that King Charles had nothing to do with the Lewes, and vowed that “he would be the death of every Englishman on the island.” He forcibly seized one of the vessels laden with herrings which had gone ashore, on the ground that it was wreck, and wreck belonged to the Admiral of Scotland, and committed other hostile actions. The grievances of the Society became so acute, and redress from the Privy Council and the Admiralty Court so tardy and imperfect, that Charles in May 1635 appointed a commission, consisting of Archbishop Laud, the Earl of Pembroke, Sir Thomas Edmonds, and Secretaries Coke and Windebank, as judges, according to the charter, to deal with cases as they thought fit.

Disasters at sea were even more injurious to the Society than the troubles ashore. Again and again the busses were taken by Dunkirk privateers, who threw the crews into prison and held them for ransom. When those freebooters came across a Dutch-built buss, with a Dutch crew on board, they did not quite see why they should relinquish it because they were told it belonged to an English society; and the letters of “denization” which were provided by the king did not avail them much.[441] Notwithstanding strong protests, prolonged negotiations with the Cardinal Infanta, and reprisals made by English men-of-war on Dunkirk shipping, the Society suffered great loss in this way.