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

CHAPTER X.
THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE.
THE FIRST DUTCH WAR.

On the 3rd November 1640 the Long Parliament commenced its sittings at Westminster, and within two years thereafter—on 22nd August 1642—Charles raised the royal standard at Nottingham, and initiated the great Civil War. During the period of strife little was heard of the claim to the sovereignty of the sea, although the Parliament continued to issue the usual instructions to the naval commanders to compel homage to the flag. But under the Commonwealth and Protectorate the English pretensions were carried to as high a pitch as ever they were under the Stuarts. The stern men who then guided the destinies of England were as jealous of the symbols of the nation’s greatness as had been the vacillating king they destroyed. In particular, the salutation of the flag was enforced with great vigour. A dispute on the point between Tromp and Blake occasioned the first Dutch war, and the result proved to the world that after all England possessed the actual dominion of the sea by reason of her naval power. In the negotiations with the Dutch which preceded the treaty of peace, we shall find that Cromwell put in the forefront of his conditions the recognition of England’s right to the herring fishery, and to the striking of the flag within the British seas.

At first, as might have been expected from the actions of the king with regard to the ship-money collections, little sympathy was shown by the Parliament for the claim to the sovereignty of the sea. The necessity of maintaining that sovereignty had always been put forward as a principal argument for levying the money, and on that ground it was objectionable to many of those opposed to the king. In a work said to have been presented to the Parliament at its first meeting, forcible opinions were expressed against the pretension. It was doubtful, it was said, whether the sea really belonged to the crown, as the king claimed. Even if it did, it was not apparent that the fate of the land depended upon the dominion of the sea. That dominion might be considered as a right, an honour, or a profit. As a right it was a theme “fitter for scholars to fret their wits upon than for Christians to fight and spill blood about”; as an honour, by making others strike sails to our ships as they passed, it was “a glory fitter for women and children to wonder at than for statesmen to contend about”; as a matter of profit, to fence and enclose the sea, it was of moment, but not more to us than to other nations: by too insolent contentions about it we might provoke God and dishonour ourselves, and rather incense our friends than quell our enemies.[680] If such sentiments reflected the feeling of the Parliament at the beginning of their labours, they were not of long duration. Within a few years a change was wrought, which was probably in large measure due to the part taken by the fleet in the struggle with the king, as well as to the abiding spirit of the people for predominant power on the sea.

From an early stage in the conflict the control of the fleet passed into the hands of the Parliament. In the summer of 1642, when the Earl of Northumberland, the Lord High Admiral, was laid aside by illness, the Parliament succeeded, with his connivance and assistance, in placing the Earl of Warwick in actual command; Sir John Pennington, the nominee of Charles, having to stand aside.[681] Under the management of its new masters the navy rapidly became a powerful and efficient instrument for the defence of the realm, as was shown at the opening of the Dutch war. The general instructions given by the Parliament to its naval officers respecting the honour of the flag and the sovereignty of the sea were almost identical with those which had been issued to the Earls of Lindsey and Northumberland, but the phraseology was sometimes a little varied. On 5th April 1643 the Parliament, in view of the attempt organised by Queen Henrietta Maria to smuggle into England military supplies from the Netherlands for the use of the royalists, ordered the Earl of Warwick, if he met with “any foreign forces, ships, or vessels, as Spaniards, French, Danes, Dunkirkers, or any other whatsoever, making towards the coasts of England, Ireland, or any other of his Majesty’s dominions,” to command them, “according to the usual manner, to strike their flags or top-sails,” and cause them to be examined and searched for soldiers or munitions of war. If they refused to strike, he was “to compel them thereunto by force of arms and surprise, and to take all such ships and vessels, or otherwise to burn, sink, or destroy them.”[682] In the following year the Committee for the Admiralty instructed Vice-Admiral Batten, who was in command of the fleet, “upon all occasions, as you shall be able, to maintain the Kingdom’s sovereignty and regality in the seas.”[683]

In the spring of 1647, the Committee of the Admiralty, for some reason or other, appears to have devoted special attention to the question of the flag and the sovereignty of the sea. Collections were made from the Admiralty archives of precedents showing that all ships refusing to strike in English waters were to be reputed enemies, and were liable to forfeiture,—the examples beginning with the Ordinance of King John and ending with the instructions issued by Charles.[684] These collections were probably made in connection with the instructions which the Committee drew up at this time for the guidance of the captains and officers of the navy, and which were essentially similar to those given by Charles to his ship-money fleets. “It must be your principal care,” they ran, “to preserve the honour of this kingdom, and the coasts, jurisdictions, territories, and subjects thereof, being in amity with the Parliament, and within the extent of your employment, as much as in you lieth; that no nation or people whatsoever intrude thereon or injure any of them. And if you chance to meet in any of the seas that are under the jurisdiction of England, Scotland, and Ireland, with any ships or fleets belonging to any foreign prince or state, you must expect that they, in acknowledgment of this kingdom’s sovereignty there, shall perform their duty and homage in passing by, in striking their top-sails and taking in their flags.” If they refused they were to be forced to do so in the usual way. It will be noticed that the region within which foreigners were to be compelled to strike was greatly extended by the Parliament. Up to and including the reign of James the “acknowledgment” was confined to the narrow seas, in which it had been exacted for centuries; Charles in 1635 ordered Lindsey to compel it “in his Majesty’s seas,” and now the Parliament extended it specifically to all the seas under the jurisdiction of England, Scotland, and Ireland. From a clause in the instructions it is clear that the seas over which the Parliament claimed sovereignty reached to the coasts of the Continent; but a territorial limit was excepted on foreign coasts. The clause in question enjoined the naval officers “to be very careful not to meddle with any ships within the harbours, or ports, or under the command of any of the castles of any foreign prince or state, or within any buoys (Buoyes) or rivers, that they may have no just cause of offence.” Another feature of these instructions is of interest. The clause which was inserted in the instructions to Lindsey and Northumberland in 1635, 1636, and 1637, commanding them to prevent all hostilities between men-of-war or merchant vessels in the presence of the king’s ships, was repeated.[685] The Parliament clearly intended to abate no jot of the pretensions which had been put forward by the king.

An opportunity soon came for putting the instructions regarding the flag into force. In May of the same year a Swedish fleet of fifteen sail, consisting of ten merchantmen bound for the Mediterranean and five ships of war convoying them, was met by Captain Owen in the Henrietta Maria off the Isle of Wight. On being called upon to strike, the Swedes refused, declaring that they had been commanded by the Queen of Sweden “not to strike to any whatsoever.” Owen, reinforced by Batten, thereupon attacked them, the fight continuing till night. The Swedes suffered much loss; the colours of their vice-admiral and rear-admiral were shot away, a “great breach” was made in the vice-admiral’s ship, and their vessels were captured and taken into Portsmouth. They were afterwards released, but the Admiralty Committee expressed the opinion that the proceedings of their officers “in order to the maintenance of the kingdom’s sovereignty at sea” were to be commended, and this resolution was reported to both Houses of Parliament.[686] The question of the salute between ships of war of different nations had been brought to the front in most other maritime countries by the forcible measures taken by Charles in 1633 and later. Two years before the encounter with the Swedes in the Channel, Denmark and Sweden had regulated the ceremony, as affecting their own ships of war, in the treaty of peace then concluded between them.[687]

From this time until shortly before the war with the Dutch there is little to record about the claims to the dominion of the sea. In 1649, the instructions issued to Popham, Blake, and Dean, the commanders of the fleet, included the guarding of the North Sea and the mackerel-fishing, as well as the maintenance “of the sovereignty of the Commonwealth in the sea,” all in the prescribed form.[688] In the following year the Council of State issued express commands to Blake on the subject when he was ordered to proceed against Prince Rupert and the revolted ships at Lisbon. The dominion of “these seas,” they said, had anciently and time out of mind belonged to the English nation, and the ships of all other nations in acknowledgment of that dominion had been accustomed to take down their flags “upon sight” of the Admiral of England, and not to bear them in his presence. Blake was therefore, to the best of his powers, and “as he found himself and the fleet of strength and ability,” to do his utmost endeavours to preserve the dominion of the sea, and to cause the ships of all other nations to strike their flags and keep them in in his presence, and to compel such as were refractory, by seizing their ships and sending them into port, to be punished according to the “laws of the sea,” unless they, submitted and made such reparation as he required. At the same time, although the dominion of the sea was so ancient and indubitable, and it concerned the honour and reputation of the nation to uphold it, Blake was not to imperil his fleet over it in the expedition on which he was employed. If he was opposed in the question of the flag by a force so considerable as to prove dangerous, he was not to press it, but to note who they were that refused, so that they might be forced to strike at some better opportunity.[689]

Such were the instructions of the Government to the English naval commanders, and they were soon to bear bitter fruit. At this period the Dutch men-of-war apparently did not show unwillingness to salute the English flag, even sometimes in distant seas. Penn notes in his journal, on 13th September 1651, that on meeting with the Dutch Admiral with his vice- and rear-admirals between Cape Trafalgar and Cape Sprat, they struck their flags to him and saluted; but they then hoisted them, which would have been contrary to the custom in the narrow sea, and Penn thereupon called his captains together for advice, but they said the Dutch “had done enough.” A little later he records that young Tromp, convoying thirteen merchantmen, came into Gibraltar Road, where Penn was lying, with his flag in the main-top. The English Admiral, however, did nothing, since Tromp was in a port of the King of Spain. Shortly afterwards in the same place eight sail of Hollanders, four of which were men-of-war, all struck their flags and saluted the English fleet.[690]

The claims of England to the sovereignty of the seas were now about to enter on a new phase, which culminated in the first Dutch war. So long as the ambitious and energetic Prince William II. of Orange was alive, the relations between the United Provinces and the Parliament were strained and menacing. The States-General, under Orange influence, refused to enter into diplomatic communication with the English Government, or to admit their ambassador, Strickland, to audience. The execution of Charles I. had raised strong feelings of reprobation and horror in the Netherlands, even amongst the Hollanders and Zealanders, who sympathised with the Puritans; and it was believed in England that the Prince of Orange was contemplating war against them for the restoration of his brother-in-law, Charles II., to the throne. The death of the Prince, on 27th October 1650, produced a great change. It was followed by a political revolution in the United Provinces, the chief outcome of which was the predominance of the States of Holland and of the party opposed to the Orange faction, and most favourably inclined to maintain good relations with the English Commonwealth.[691] It was therefore agreed at The Hague to send back Joachimi, who had been dismissed by the Parliament in the previous year, with credentials as ambassador from the States-General to the Parliament.

In London the accession to power of the republican party in the Netherlands had been watched with keen interest. The time, it was believed, was come for a close alliance between the two great Protestant Republics for safeguarding their religious and political liberties; perhaps, it was thought by some, for even a closer union than was implied in the strictest alliance known to diplomacy. The Parliament accordingly lost no time in opening negotiations with the States-General. On 17th March, 1651, Lord Chief-Justice St John and Walter Strickland entered The Hague with great pomp and splendour as ambassadors from the Commonwealth, attended by an imposing retinue of 246 persons. They were greeted in the street with insulting cries from Orange partisans and royalist refugees. On the following days their suite only ventured abroad in parties, and with their rapiers in their hands. The ambassadors themselves were openly jeered at, and threatened by Prince Edward, son of Elizabeth, Queen of Bohemia; and though the States-General received them with ostentatious courtesy, and prompt measures were taken to suppress the disorders and insults, the conditions of their surroundings produced irritation and impatience in their minds, with important results in the sequel.[692] The principal object of the Parliament was to make use of the Dutch Republic to help them to maintain the Commonwealth, and to resist any attempt to place Charles II. on the throne. In return they were willing to aid the Republic against the House of Orange or any other inclined to disturb it.