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

These articles had been previously considered by the Council of State, which had prepared a commentary on them; and now both documents were taken up together. On the proposals concerning the sovereignty of the sea many differences arose. With regard to the right of the English to visit and search vessels, men-of-war as well as merchantmen, the ambassadors referred to the edicts of the States forbidding warships to take merchandise on board, and to the certificates of their Admiralty to the same effect; but it was argued on the other side that these measures had not stopped the abuse, and that the visitation was not prejudicial; and no agreement on this clause was reached. The commentary of the Council on the fishery article ([see p. 388]) was that, saving and asserting the right of the Commonwealth, they would be willing to proceed to such an agreement as should be found fit and reasonable; while the Dutch took their stand on the provision in the Intercursus Magnus, and urged that it would be unjust to deviate from an agreement which had endured for a century and a half. It was admitted by the English commissioners that the treaty gave liberty of fishing, but they asserted that long before the time of Henry VII. the right to the fisheries and to the sovereignty of the sea belonged to England. It had, moreover, been impeached by succeeding kings and especially by James, to whom, as King of Scotland, the right to the fishery pertained; while after the union of the crowns he pursued the same policy as King of England, and now that Scotland had been brought under the dominion of the English Republic, it was thought that the best course was to make a new treaty about the fisheries.[704] The ambassadors could obtain no definite information as to the nature of the treaty proposed, but it would not be difficult for them to comprehend its general tenour, for they had to listen to the recital of the “evidences” that England had constantly made use of her rights in the fishery, and of the care she had always exercised as to the sovereignty of the sea. The Dutch endeavoured to avoid mixing up these two questions, pleading that the fishery concerned the lives of a multitude of poor fishermen; but the commissioners retorted that it was a very valuable industry, the right to which belonged to England, and this, they said, had been acknowledged by neighbouring nations paying taxes for liberty to fish in their seas, adding that all peoples had been accustomed to recognise in them the masters of the sea by striking the flag to them, and that the Dutch themselves had earlier instructed their naval officers to salute English ships “cum debita reverentia,” and it was also expressly ordered in the commissions issued by Prince William and Maurice. From the language of the English commissioners, it appears probable that they were acquainted with the proceedings of the States-General as to the proposed article on the striking of the flag, and with the debates in the previous year concerning Tromp’s instructions ([see p. 398]). The negotiations on the fishery question were not carried further at this stage.

With regard to the article relating to the equipment of a fleet by each nation for the protection of commerce, the commentary of the Council of State was that “the Commonwealth of England shall take such care for the guard of their seas and defence of the freedom of trade and commerce therein as shall be fit”; and with respect to the next, which stipulated that both countries should protect commerce and fisheries from molestation or impositions, the reply was equally uncompromising. “If any person,” it was said, “shall, within those seas, trouble, hinder, or unlawfully burthen any in the exercise of that freedom of trade which belongs of right unto them, this Commonwealth will use all means just and honourable to restore and preserve freedom to all lawful commerce in those seas as aforesaid.”[705] The meaning of this language was unmistakable. The Commonwealth intended to adhere to the old claim to the dominion of the seas, which had been revived by Charles. And this exclusive sovereign jurisdiction, it was explained, would be of advantage to the Dutch, since they would bear no part of the cost; they must be content with freedom of navigation and commerce, and leave to the English the duty of maintaining the security of “their seas.” On inquiring what means the Commonwealth proposed to take for this purpose, the ambassadors were told that the intention of the Council was “to defend the sea in their own right,” and that any further explanation would be given by the Council if they applied to it.

At this stage of the proceedings William Nieuport, a member of the States-General, came to London with fresh instructions for the ambassadors. That body had been considering the English demands for reparation, above alluded to, and also the commentary of the Council on the thirty-six articles; but the refusal to liberate the captured ships, or to stop the operations of privateers against Dutch vessels, made them obdurate. The ambassadors were now told to insist on the articles relating to visitation and search as an essential part of the treaty. No Dutch vessel was to be visited, whether it was on the sea, in harbour, or in a roadstead. The principle of “free ship, free goods,” was to be strictly enforced, and no investigation of the cargo of a merchant vessel was to be permitted; still less should they agree to the visitation of a man-of-war. The ambassadors were specially requested to avoid discussion as to any claim on the part of England to exclusive right in any portion of the sea; in any case, they were not to admit that such right existed, but were to treat only about the liberty and security of the fishery on both sides.[706] If the English protested that they would not allow themselves to be prejudiced in any of their “pretended rights,” the ambassadors were then to make a formal declaration that they, on their part, could not allow the freedom of navigation and of fishery, or the free use of the sea, to be called in question, nor could they recognise the special claims of any one over the sea which might prejudice those rights. In order to avoid, if possible, directly raising the question of the dominion of the sea, they were requested when dealing with the crucial articles to speak only of commerce and fishery, and not of the “purging” of the sea of pirates; and they were also to abandon the proposal for a division of the sea into districts.[707]

So passed, peacefully enough, the early weeks of May at the conferences in London. The States’ ambassadors, on the one hand, demanding freedom of navigation and fishery; above all, that the visitation and seizure of their vessels should cease. The English commissioners, on their part, putting forward incompatible claims to the sovereignty of the British seas: the right of exclusive jurisdiction, of guardianship, the right to the fishery. Whether the negotiations would have reached a happy conclusion, as the ambassadors, and apparently also the States-General, believed they would, may only be conjectured. For an event of momentous importance now occurred which swept their labours away and embroiled the two nations in war. On the 19th May, at the very moment when the Dutch ambassadors were conveying their new instructions to the English commissioners, Tromp and Blake were engaged in furious battle in the Straits of Dover about that very matter which the States-General had found to be “so delicate”—the striking of the flag. The long-impending struggle engendered by years of mutual jealousy and commercial rivalry had now come suddenly. The claim of England to the sovereignty of the sea was to be decided, in the words of Sir Philip Meadows, by a longer weapon than a pen.

Tromp had put to sea early in May, 1652, with a fleet of forty-two sail, and bearing instructions to prevent the searching of Dutch merchantmen, to protect them against any who interfered with them, and to free them, by force if necessary, if they were captured. He was further told to refrain as far as possible from going on the English coast.[708] On one important point his instructions were defective. He received no definite orders as to how he should act if the fleet of the Commonwealth called upon him to strike his flag. The subject of the salute had been much discussed in the Netherlands, and an opinion was widely held that while their ships would suffer no loss of dignity in striking to a fleet belonging to a crowned head, it was doubtful whether the same homage should be rendered to the ships of a republic like themselves. The question had been definitely raised and fully discussed early in the previous year in connection with Tromp’s expedition to the Scilly Isles, in view of the likelihood of his falling in with the English fleet,—its consideration, indeed, delayed his departure,—but the Government hesitated in coming to a decision, and a general wish was expressed to hear Tromp’s own opinion first. He accordingly prepared a memorandum describing what the States’ ships had done in the past. He said that whenever their men-of-war met at sea a ship of the King of England carrying the flag of an admiral, vice-admiral, or rear-admiral, they struck their admiral’s flag, lowered top-sails, and fired nine, seven, or five guns, the English answering with a like number, and the States’ flag remained struck until the ships separated, when three or one adieu-shots were fired, and the flag was then hoisted. On meeting a single king’s ship, he said, they did not strike their flag, but only exchanged guns; but it sometimes happened that an English ship of little power tried to compel them to strike, out of pride (“uyt hooghmoet”), but when they fired back and showed their teeth, and the English ship found it had not power to force them, it went on its way with derision; in such cases striking was a matter of discretion. When they entered a harbour or came before a castle they fired a salute, which was returned; the flag was taken in and a pennant run up in its place, and kept flying so long as they were there, particularly if a king’s ship, carrying the king’s flag, was present. If no king’s ship was present, the governor sometimes gave his permission, out of courtesy, for the admiral to wear his flag until his departure, when it was again struck and a salute exchanged.[709]

The substance of Tromp’s report was communicated to the States of Holland by De Witt on 1st/11th March 1651, stress apparently being laid on the point that it had been the custom in earlier times for the States’ ships, “particularly when they were weakest,”[710] to salute with guns and strike their flag on meeting the English fleet.[711] The Government, however, thought that the conditions had changed; but they failed to give the admiral definite directions one way or the other as to how he should act if he met the fleet of the Parliament. He was merely told in general terms that he must so manage matters, if he met with the English fleet, that the state should suffer no affront (“geen cleynicheyt”),—a decision which left everything to his own discretion. There was the more risk in this course as the English at this time were said to be jealous of Tromp, owing to his reluctance to strike his flag to them.[712]

Later in the same year, the question was again raised by Vice-Admiral Jan Evertsen, who was placed in command of a squadron to cruise between Cape Ortegal, the Scillies, and Ushant. Before his departure he endeavoured to obtain precise orders as to how he should comport himself if called upon to strike, so that no “inconvenience” might be caused. The States thereupon merely renewed the instructions they had given to Tromp in March, and they ordered that copies of Tromp’s memorandum should be distributed to the other commanders.[713]

No further directions on the matter were given to Tromp when he took command of the fleet in 1652, though it ought to have been evident to the States that in the delicate position of affairs with England, and from the nature of the duties they had laid upon their admiral, the risk of misunderstanding and collision with the English fleet was great and imminent. They hesitated to give decided orders to strike, apparently lest such action might be construed into an acknowledgment of the inferiority of the Dutch Republic to the English Commonwealth, especially at a time when they believed themselves to be superior to it in naval power;[714] and though alive to the importance of the matter, they were very reluctant to have it discussed in the negotiations in London. But if the Dutch had no clear idea as to what they were to do about the flag on meeting the English fleet, the English commanders had no doubt about their own line of action. Their instructions were explicit. They were, by force if necessary, to compel the ships of all nations to this acknowledgment of England’s sovereignty of the sea.

Tromp proceeded to his cruising station off the coast of Flanders, between Dunkirk and Nieuport, and while riding at anchor there a strong north-east gale set in, which damaged some of his vessels, and on the evening of the 18th May he crossed over to the English coast for shelter and repairs. At this time Bourne was lying in the Downs with eight Parliamentary ships, and Tromp sent two of his captains to him to explain the accidental cause of his coming, the ships conveying them saluting Bourne’s flag. One of the officers, according to Bourne’s account, said that Tromp himself would have gone into the Downs “but that he was not willing to breed any difference about his flag, forasmuch as he had not orders to take it down”; to which Bourne replied that he “presumed there would be no new thing required of them, and neither more nor less would be expected from them but what they knew to be the ancient right of this nation”; and he added that the reality of the explanation given for their presence “would best appear by their speedy drawing off from this place.”[715] According to Tromp’s account of the interview, Bourne merely thanked him courteously for the message.[716]

At all events, the Dutch fleet passed along the English coast in all its bravery, the admiral’s ship with his flag on the main-top-mast head, the rest with “jacks and ancients” flying, and about seven in the evening they cast anchor off Dover, within little more than gunshot of the castle. Here they remained till the following afternoon with all their flags displayed, and without saluting. Three times a gun was fired from Dover Castle, according to the usual practice, warning the Dutch admiral to strike his flag; but Tromp—strictly within his right if beyond gunshot—took no heed. He had probably purposely selected an anchorage beyond the range of cannon in order to avoid striking to the English flag. Not only did he not strike, but he exercised his raw musketeers in discharging volleys of small-shot for many hours together, in a way that must have been provoking to the English. On the afternoon of the 19th, Blake, who had been lying at anchor in Rye Bay a little to the westward, and who had received intimation from Bourne of the presence of the Dutch fleet, came upon the scene with fifteen ships. As he approached Tromp weighed anchor and stood off to sea towards Calais,—a movement which Blake thought to be due to a desire to avoid “the dispute of the flag.”[717] So far Tromp had carried out his instructions. He had indeed, through stress of weather, gone upon the English coast, which he had been requested to avoid as far as possible. But he had preserved the States from suffering any “indignity” about the flag. Obviously there was great tension between the fleets as to the question of striking. Not unnaturally, Tromp’s proceedings were regarded by the English as an attempt to brave them upon their own coast; and the English admirals, who were vigilantly watching, would not be slow to challenge any infraction of the custom of the narrow seas. They too had to take care that their country suffered no dishonour, as they understood it.