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

St John had with him two series of propositions,—one relating to a strict alliance and union; the other, private and never fully disclosed, included a novel scheme for the coalescence and fusion of the two states and peoples, on the lines propounded by the Council of State in the following year. He brought out his propositions one by one, requiring categorical acceptance of each before dealing with the next, the design being to lead step by step to the proposals for coalescence and fusion. His first proposition was in substance for “a more strict and intimate alliance and union” than any before, by which there might be “a more intrinsical and mutual interest of each in other” for the good of both.[693] After some fencing and much hesitation and delay—the Dutch proferring a qualified acceptance, which the ambassadors rejected—a guarded assent was given. St John, though not satisfied, thinking the “manner of penning the answer was dark and doubtful,” “determined to proceed into some further thing which might come nearer to make a discovery of their temper and inclination in point of their neutrality, than stay any longer upon general terms,” and he accordingly at the same meeting submitted another proposition requiring the confederation of the two states for the defence and preservation of the freedom and liberty of the people of each against all that might attempt to disturb them, or that were declared to be enemies to the freedom and liberty of the people living under either Government.[694] The Dutch commissioners, however, declared that this was a general proposition, and they insisted on a request they had made from the first, to be furnished with the “particulars”—they wanted the particulars, simul et semel, that were intended to be insisted upon.

The negotiations had been protracted. By this time a month had elapsed since the ambassadors arrived, and St John, now conscious that his mission for coalescence would fail, and irritated by the indignities to which he had been subjected, obtained an order from the Parliament for his recall. At the urgent entreaty of the States of Holland the Parliament allowed their ambassadors to stay for other forty days, and also gave them authority to treat on the basis of the old Intercursus Magnus of 1496, which the Dutch had suddenly proposed. The States, in truth, had totally different aims from the Commonwealth. They were thinking about their commerce, their navigation, and their fisheries, rather than about the repression of “rebels”; and they desired that their alliance with England should confirm and extend the benefits conferred upon them in these respects by the old treaty. The Intercursus Magnus had for generations been the sheet-anchor of Dutch policy towards England. It gave them the utmost freedom of commercial intercourse, and complete liberty of fishing on the English coasts. But it contained other clauses appropriate in spirit to the political conditions of 1651. The treaty had been concluded by Henry VII. in the year in which apprehensions were entertained that Perkin Warbeck would effect a landing in England; it provided for mutual military aid against the enemies of either country, and the expulsion of rebels and fugitives from the territories of the other. St John naturally took the clauses embodying these stipulations as the basis of his new draft articles, which he submitted to the Dutch commissioners on 10th May. They were seven in number. The first required that the proposition made on 17th April for mutual defence of the freedom and liberty of each people should be an article of the treaty. The second provided that neither party should afford any aid or favour to any one whomsoever to the injury or prejudice of the other, but should expressly oppose “and really hinder all whomsoever,” abiding in either commonwealth or under its power, that should do or attempt anything against the other; and the remaining articles were of similar tenour, relating to “rebels” and enemies. They were, in short, political articles of the most comprehensive scope, aimed against the royalists; so comprehensive and thorough that the English Commonwealth might, by declaring the Prince of Orange himself its enemy, demand his expulsion from the Provinces.[695] St John’s articles were by no means to the liking of the Dutch; and though he pointed out that they were “but a translation of the old treaty, only enlarged for the better assurance of performance,”—the treaty which they themselves had proposed as the basis for the new one,—they insisted on sending the articles to the various Provinces for their opinion. For a full month the English ambassadors waited without an answer to their articles—a delay which they believed was meant “to spin out the treaty until the Scotch mist was over” and the result of the struggle in Scotland apparent. But the Dutch, though slow, had not been idle. On 14th June, when only four of the forty days allotted by the Parliament remained, the Dutch produced counter-proposals in the form of draft articles, thirty-six in number, which were paraphrased from the Intercursus Magnus, the treaty with King James VI. of Scotland in 1594, the treaty of Southampton with Charles in 1625, and the marine treaty with Spain in 1650.

These articles had been submitted by Holland to the convocation of the States-General on 15th May, and were under the consideration of the provincial states for nearly a month. They provided for a “perpetual friendship, unity, correspondence, and a further and nearer alliance, confederation, and union” against all who should attempt anything derogatory to the liberties of the two peoples, their commerce, and common interests; mutual defence and mutual assistance with men and ships against “notorious or known” enemies of the other, and the prohibition of assisting rebels. But there was no article under which the royalists could be expelled from the United Provinces, or which prevented the House of Orange from aiding or harbouring declared rebels of England; and it was expressly stipulated that the States should in no way be drawn into the disputes and war between Scotland and the Parliament. Having thus whittled down the proposals of the Parliament for a close alliance directed against the royalists, the Dutch propounded a whole series of articles providing for the freest commercial intercourse between the two countries, for freedom of navigation and of fishing. The trade to Virginia and the Caribbean Islands, which had been closed by the Parliament, was to be thrown open to both nations; ships were to be free to anchor without seizure of goods; the subjects of one state were not to be taxed higher in the territories of the other than the natives, and they were to be free to carry on their business or profession with the same liberty. A number of articles dealt with questions relative to the sovereignty of the seas, in such a way as to show clearly that the design of the Dutch was to render harmless a pretension which had caused them so much trouble. They had not forgotten the declarations of Charles sixteen years before, or the forceful operations of Northumberland against their herring-busses. With regard to fishing, they wished the subjects of either state to be at liberty to go to any part of the sea to fish for herrings and all other kinds of fish, great or small, without any license or pass being required. If the fishermen were forced by storms, pirates, enemies, or any other cause, to go to land, they desired that they should be courteously received and well treated in the ports of either country, and permitted to depart with their ships and cargoes, and if they had not broken their cargoes, without paying any customs or dues.[696] These stipulations paraphrased corresponding provisions in the Intercursus Magnus, and rather more favourably to the Dutch. If they had been accepted, they would have destroyed the English policy which had been pursued, though fitfully, from 1609 to the outbreak of the Civil War, of requiring foreigners to pay tribute and take out licenses for fishing on the British coasts.

Some of the other articles proposed by the Dutch were directed against the claims put forward in Selden’s Mare Clausum, and by Charles himself, to a special dominion and jurisdiction of England in the surrounding seas. If the freedom of commerce and navigation was to be assured, it would be necessary, it was said, for both countries to equip fleets to secure the safety and liberty of the subjects of both, to purge the sea of pirates and sea-rovers, and to preserve the security of commerce and of fishing. The proposition was that each state should set forth a fleet yearly, its strength to be fixed by mutual agreement, and the ocean as well as the North Sea and the Mediterranean, with their straits and channels, were to be patrolled by the two fleets, each under its own admiral and flag. This was in effect asking the Commonwealth not only for equality of sovereignty on the sea, but for the assistance of England in protecting the immense commerce and shipping of the United Provinces. They desired that each nation should shield and defend the merchant vessels of the other, and help to recover them if taken by an enemy.

Among other proposals were that men-of-war, but only in small numbers, should be allowed freely into the ports and havens of the other, and were not to be subjected to visitation and search, the showing of the commission to be sufficient; and that no sea-rovers were to be tolerated in harbours, and no ships with letters of marque allowed to leave without first providing security that they would not exceed their commissions. One of the provisions went much further, and seems to smack of Dutch humour, when we think of the action of James and Charles. For the sake of liberty, both peoples were to use their fleets, not only against pirates, but against all and sundry, whomsoever they might be, who should attempt to molest, hinder, or—“against the right of all peoples”—impose exactions on their commerce, navigation, or their fishery. In such an event, if amicable remonstrances failed, the whole sea forces of each nation were to attack the depredators and wage war against them until complete satisfaction had been obtained.[697]

So resolved were the Dutch to have a general clearing-up with England on all points concerning the sovereignty of the sea, that they at first proposed to insert among their draft articles one relating to the striking of the flag and similar ceremonies, which frequently gave rise to differences. The States-General, however, considered the matter “too delicate” to be raised at that time, and the article was not inserted.[698] Two or three months before this, as elsewhere mentioned ([p. 398]), the question of striking the flag to the English had been raised and debated in the States-General in connection with Tromp’s expedition to the Scilly Islands.

With the foregoing proposals before him, it is not to be wondered at that St John was dissatisfied, and longed more than ever to get away from The Hague. The Commonwealth had asked for a strict and close alliance at the very least, for the security of religious and political liberty and the common interests of both Republics, but in reality and above all for aid against the royalists. The Dutch also desired security for liberty, but it was chiefly for the liberty of commerce, navigation, and fishing; and they were anxious, if they could, to get rid of the troublesome English pretension to a sovereignty of the sea. The proposals of the two sides were incompatible, and St John left The Hague a few days later with the unuttered plan for the fusion of the nations in his pocket and with bitterness in his heart. His disappointment was to cost the Dutch dear. Within a few months of his return the Navigation Act was passed, mainly by his impulse, and it dealt a serious blow to the commerce of the United Provinces.[699] It was the retort of the English Commonwealth to the rebuff of the States. If the Dutch put their commerce and fisheries above everything else, the Parliament would show them how they could injure them and at the same time foster English shipping and fisheries.

But much more than the Navigation Act, some other proceedings of the Parliament increased the tension between the two countries. In November they renewed certain letters of reprisal against the Dutch, under which a few of their vessels were captured. More serious were the actions of English men-of-war and of some privateers who held letters of reprisal against the French. An informal maritime war with France began in 1649 and continued till 1655, and though there was nominally peace, the English captured French vessels, and vice versâ. They then began to seize Dutch ships, suspected of having French goods on board, and brought them into English ports for trial in the Admiralty Court. This was an interference with freedom of commerce which the States could not tolerate, and an embassy to England, which had been decided upon after St John left The Hague, was despatched thither.[700] The three ambassadors, Cats, Schaep, and van de Perre, arrived in London on 15th December 1651. They were instructed to renew negotiations for a treaty on the basis of the thirty-six articles, to endeavour to get the Navigation Act repealed, the captured vessels released, and the letters of reprisal withdrawn, with compensation for the losses suffered by reason of them. The question of adding another article to their instructions, about the striking of the flag, which had been omitted from the thirty-six articles, had again been considered. But, for the same reason as before, it was withheld. “The carrying or striking of the flags by the one side or the other” was judged to be “very delicate”; and it was decided (on 10th November 1651) that the States-General should deliberate further on the matter, and send later to the ambassadors such instructions “as should be found suitable for the removal of misunderstandings and hostilities.”[701] We thus see that in 1651 the Government of the United Provinces was fully alive to the risks and difficulties about the flag. But from their proceedings at this time it would seem that they were unwilling to acknowledge unreservedly the claim of the Commonwealth to the salute, which was looked upon as a symbol of England’s sovereignty of the sea. The question was only rendered “delicate” because of certain qualifications and conditions of reciprocity which they desired to attach to it, and for which they struggled hard with Cromwell during the subsequent negotiations for peace.

The ambassadors had an audience with the Parliament on 19th December,—Cats treating the members to a long and flowery oration in Latin,—and with the Council of State on 1st January 1652; but it was not until the 16th that commissioners were appointed to deal with them. The English commissioners[702] showed no anxiety to facilitate the negotiations. The spirit with which they were animated was evident from their eagerness to bring forward all imaginable reasons for dispute,—the interest taken by the Dutch in the fate of Charles I.; the partiality of some of their ambassadors at foreign Courts; their refusal to receive Strickland; and so forth. In the end, the Dutch ambassadors failed to get what they wanted. The English refused to cancel or modify the Navigation Act, to release the captured ships before the cases had been tried in the Admiralty Court, or to make reparation. They suspended the letters of direct reprisal against the Dutch, but not those against the French, which were by far the more important.

It was felt in Holland that such interference with their trade could not be endured. There were loud complaints about the seizure of the ships, and the opinion was growing in the Netherlands that it was the intention of the Commonwealth to force a war upon them. As a precautionary measure the States-General decided on 22nd February to add 150 ships to the existing fleet, “for the security of the sea and the preservation of the shipping and commerce of the United Provinces”; and the ambassadors were requested to inform the English Council of their intention, which was done on 5th March, with the explanation that it was not with the object of doing the slightest harm to any nation, and least of all to England, that the increase in the fleet was to be made, but only to preserve their freedom of navigation.[703] As this extraordinary addition to the navy of the Dutch Republic would raise it to the formidable number of 226 ships, it is not surprising that the proceeding was viewed in England as a preparation for war. The Council, on their part, put forward a series of more or less provoking claims. They demanded reparation for wrongs and losses suffered by the English at the hands of the Dutch at “Greenland” in 1618, in the East Indies since 1619, and at Brazil; and they complained of various other wrongs and affronts they had suffered. But pending an answer from the States-General to their complaints and requests, they agreed, on 3rd May, to discuss with the ambassadors the thirty-six articles.