To this long argument the deputies replied with arguments as long. With respect to the treaties, they said that the treaty of 1496 was not between prince and prince, but between states and towns, as specified in it; and that the article which provided for mutual liberty of fishing had been confirmed in later treaties, notably in the treaty of Binche, in 1541, between the Emperor Charles and the King of Scotland; in that of 1550 with Queen Mary of Scotland; and in that between the United Provinces and King James of Scotland in 1594.[771] Moreover, in the treaty between England and Spain in 1630, there were certain words which confirmed the ancient treaties of intercourse and commerce.[772] They expressed the opinion that Cromwell had not been well informed in saying that licenses for fishing had been granted before the Intercursus Magnus was concluded, because it was doubtful if the invention of the salting and casking of herrings was much before that date.[773] As to the alleged lease of the fishings by King Philip, there was nothing to compel him to take such a lease, and they saw no reason why he should have done so; while the proclamation of James, so far from being an argument against them, was entirely in their favour, because, as they could prove from papers in their hands, it was never put into execution, but was suspended on the representations of the States. The action of the Earl of Northumberland they described as simple extortion, since he had compelled a few defenceless fishermen, without the knowledge of the States, to pay him some money. The deputies concluded their arguments by saying they had no further instructions on the matter, and that if the Council pressed the article, they would require to return and report to their Government: there was, they said, a high and mighty Lord in heaven who knew the hearts and rights of all, and He would judge. Cromwell assured them that the article had not been inserted in the draft treaty with the object of breaking off the negotiations, but only that they might maintain their just rights. Why, he asked, should the States object to acknowledge the right of the Commonwealth to the fisheries, when other Powers like France and Sweden, who had as much claim to liberty as they, had not scrupled to acknowledge it?[774]
As Cromwell was immovable, and the deputies equally obdurate, the negotiations came to a stop, and the latter on 5th December formally requested their passports to return to The Hague. In the interval they asked the French ambassador if France had requested permission from England to fish in the sea, as Cromwell averred. He told them nothing had been said to him on the matter since he came to England, but that his papers showed that the Duke of Guise had formerly asked that certain fishermen of Treport should not be molested in their fishing.[775] They also learned that the Swedish ambassador had sought to obtain from England free commerce in general, free fishery, and freedom of trading to the Barbadoes. It was indeed the case that Sweden had made such proposals. In the negotiations for a treaty with the Commonwealth, the queen expressed her desire to obtain liberty for her subjects to fish for herrings in the British seas,[776] and in the preceding August the Council of State, at the request of her ambassador, had actually issued a license to four Swedish vessels to fish in the narrow seas and upon the British coasts.[777] In a treaty concluded in 1656 between the King of Sweden and the Lord Protector, the privilege, it may be said, was carried much further. The treaty provided that Swedish subjects should be free to fish for herrings and other fish in the seas and on the coasts under the dominion of the Republic, provided the number of ships so employed did not exceed a thousand; and no charges (such as the assize-herring) were to be demanded of the Swedish fishermen, who were to be treated courteously and amicably, allowed to dry their nets on the shore, and to purchase necessaries at a fair price.[778]
It may be noted as remarkable that, throughout the long discussions with Cromwell about the fishery, the Dutch deputies never made use of the argument, so frequently employed by their predecessors at the Court of James, that the English claims were opposed to the law of nations. They probably shrank from using an argument of that kind to the great dictator who had ruthlessly trampled on the laws of England; perhaps they were deterred by the abrupt intimation made earlier, that the Council had not come to listen to scholastic subtleties, but to consider the real legal rights of England. The obstinacy of Cromwell in refusing at this stage to modify the fishery article is also noteworthy. No doubt he was moved by a sincere desire to benefit England. The belief was still prevalent that the herring fishery which the Dutch carried on along the British coasts was the foundation of their commerce, wealth, and naval power. It, moreover, provided them with a great “seminary of seamen” to recruit their fleets—a consideration which must have had a special force at a time when we had only the ships in the coal trade between Newcastle and London to draw upon for ours, and when the most rigorous system of pressing failed to provide sufficient men for the navy.[779] But Cromwell had other reasons for insisting on the English claims, even to the point of rupture of the negotiations. It was by this time obvious that the Barebones or nominated Parliament had only a short life before it, and it was desirable that its dissolution should be free from violence and as far as possible voluntary. The majority of the members were strongly opposed to the Dutch, and to the conclusion of peace except on humiliating terms to the enemy; and it is probable that Cromwell’s insistence was partly due to his desire to conciliate them. He was now about to put on the mantle of the Lord Protector of the Commonwealth of England.
When the Dutch envoys wrote to the Council for their passports, they received no answer. On repeating their request two days later, they got a hint of what was impending,—that the Parliament which was against them would soon be dissolved, and the management of affairs placed in the hands of a council of ten or twelve.[780] Then on the 9th December they were asked by Viscount Lisle, in the name of the Council, to delay their departure, as commissioners would soon be appointed to treat with them and conclude the treaty. Cromwell took the oath as Lord Protector on the 16th; the new Council of State met on the 19th; and the conferences on the treaty were resumed four days later.[781]
Cromwell did not now attend the conferences, the negotiations being entrusted to four members of the Council—Viscount Lisle, Sir Charles Wolseley, Sir Anthony Ashley Cooper, and Walter Strickland, who had accompanied St John to The Hague in 1651. The discussions on the questions affecting the claim to the sovereignty of the sea were continued: the striking of the flag, the visitation of ships, and the declaration that the dominion of the sea belonged to England. The former arguments on both sides were repeated, and the Dutch proposed the following article with reference to the flag: “That the ships and vessels of the United Provinces, as well men-of-war as others, meeting with any of the ships of war of the State of England shall honour and dignify them with the striking of the flag and lowering the top-sail, in such a manner as ever under any form of government in times past they have been honoured and dignified; and to prevent all quarrels for the future the particulars thereof shall be regulated by the advice of the generals and commanders.”[782] The English commissioners reiterated the objections previously made, but now stated that they had been referring only to the narrow seas;[783] and it was agreed to refer the points in dispute to the Lord Protector.
Another difficulty arose on the third article, which fixed the dates on which the peace should take effect on the sea, after which dates the capture of prizes would be illegal. The part was as follows: “Excepting such depredations as shall be committed in the British Seas (Maria Britannica) after the space of twelve days, and betwixt the British Seas and the Line after the space of ten weeks,” &c. At the first, the phrase “British Seas” had caught the eye of the envoys; but, thinking it was merely an ordinary appellation such as might appear on a chart, and that no deep design lurked beneath it, they decided that it would not be desirable to raise “the business of the sea” on such a point.[784] They now took exception to these words, and suggested that it would be better to begin, “in the narrow sea, which was called the British Sea” after twelve days, from there to Cape St Vincent after six weeks, &c. This matter also was referred to the Protector.
Cromwell, who was now settled in his new dignity, gave close attention to the peace negotiations. On 26th December the deputies were handed a paper in his name, in which he gave up the demand for a money payment in reparation for the war; agreed to the stipulation about the exclusion of the Prince of Orange—which was the corner-stone of the treaty—being put in a secret article; agreed to some new articles which the Dutch had proposed, after slight modifications; and at the same time introduced a new element of trouble and debate by formulating three additional articles requiring justice to be done for the “murder” of the English at Amboyna in 1623, and concerning the settlement of disputes and wrongs committed in the East Indies, Brazil, and Greenland. Important concessions were at the same time made on the maritime question. The article respecting the fishery was dropped. “Concerning the fishing,” wrote the Protector, “the Lords Deputies having by their former papers desired that freedom of fishing in these seas might be declared in this treaty, the 17 article was thereupon propounded, whereby license is granted to the people of the United Provinces to fish freely in these seas upon the terms therein expressed, notwithstanding as in their Lordships’ power either to accept or refuse, but it cannot be admitted that anything should be inserted in this treaty that may prejudice the right of this state in their fishery.”[785] The Dutch thus again scored a diplomatic victory and preserved their liberty of fishing on the British coasts, just as they had done in the reigns of James and Charles. They did not succeed in getting the clause in the Intercursus Magnus inserted or confirmed, as they desired, but it still remained in force. Later writers accused Cromwell of having surrendered the rights to the fishery, and much else, as a quid pro quo for the stipulation regarding the exclusion of the Orange family in the Netherlands, which was his main object;[786] but there is no doubt at all that the States-General would never have agreed to the English proposal.
Concessions were also made as to the striking of the flag. “The 15 article,” said Cromwell, “to be as following: that the ships and vessels of the United Provinces, as well men-of-war as others, meeting at sea with any of the ships of war of the State of England, shall strike their flag and lower their top-sail, and perform the other respects due to this State until they be passed by”; but the request that a naval commission should draw up a “regulation” on the subject was not acceded to. On the other hand, the clauses which stipulated for a right of visitation of Dutch ships at sea, and the declaration that the dominion and sovereignty of the sea belonged to England, were entirely withdrawn; but the Protector would not yet part with the clause which provided for an English fleet to guard the seas and protect commerce. Surely, he said in effect, since the article limiting the number of warships has been withdrawn, you will not contest our dominion of the sea in this?—and at this stage it was retained, with the remark, “this article is insisted on.” One of the new clauses provided that not more than eight men-of-war at a time were to enter any port of the other Power, unless constrained by force of tempest, without having obtained consent to do so; and when compelled to enter by danger of the sea, they were immediately to signify to the chief magistrate the cause of their coming, and to leave when he required them to depart.[787]
On the subject of striking the flag, the deputies were not yet satisfied. They still continued to urge that a “regulation” should be prepared; and they now raised a new point. Cromwell had always used the words “at sea,” which might mean any sea or any part of the sea. They now desired that the ceremony should be restricted to the narrow seas, “which,” they said, “are called the British seas.”[788] To this proposal Cromwell assented in so far that the words “in the British seas” were inserted later. It is curious to notice how the meaning of the term “British Sea” thus became confused even within the compass of a single treaty. In reference to this article, the Protector made the important admission that the narrow seas and the British seas were synonymous.[789] In the third article, as we have seen, the same term was used, and it was natural for the Dutch to suppose that it there had the same significance and meant the narrow seas or Channel. Since the clause dealt with a matter of great practical importance, namely, the restitution of vessels that might be captured after a specified date, and the term “British seas” appeared to be restricted to the Channel, they wished specifically to include in it the North Sea and the East Sea (or Baltic), both regions of great traffic. The envoys were accordingly instructed later by the States-General to have these words added, so that the clause would read, “excepting such depredations as shall be committed in the British Sea, the East Sea, and the North Sea.”[790] By this addition, moreover, the objectionable phrase “the British seas” would be formally restricted to the narrow seas or Channel, with the consent of England. The proposed change was instantly rejected. When Beverning brought it forward, Thurloe resisted it with great warmth,[791] and the qualifying words confining the term British seas to the narrow seas, which the Dutch had inserted, were also deleted.[792] When it was verbally agreed that the striking of the flag should be restricted to the narrow sea,[793] the deputies made a new proposal. It was to the effect that Dutch ships, without any distinction, not only in the narrow seas but throughout the whole world, on meeting English men-of-war should give them the first salute by striking the flag and top-sails and firing guns, provided that the English ships immediately returned the salute in precisely the same manner. This, doubtless, was the proposition which lurked behind the reiterated suggestion for a “regulation”; but the English commissioners would not agree to any form of reciprocity. The Dutch again raised objections to the part of the sixteenth clause concerning pirates, on the ground that it contained an implication of the claim to the dominion of the seas, which they had constantly opposed, and they cited the treaties with Elizabeth in 1585, and with Charles in 1625, as having assigned to them the protection of the sea off the Flemish coast and neighbouring coasts. They declared they would prefer it to be dropped altogether unless it was amended or made reciprocal.[794]
The differences as to the sovereignty of the sea or the phraseology of the maritime articles were now, however, of little actual importance. The progress of the negotiations, secret and otherwise, had narrowed the real ground of contention to two crucial points—the exclusion of the Prince of Orange from office, and the inclusion of Denmark in the treaty. The former had been secretly agreed upon by Cromwell and Beverning, the latter acting in conjunction with De Witt;[795] but the Protector was obdurate as to the inclusion of Denmark, and the deputies decided to return home to report the state of the negotiations. They left London on 3rd (13th) January, and though a message from Cromwell overtook them at Gravesend conceding the point in dispute as to Denmark, they thought it better to continue their homeward journey. The treaty, so far as it had been officially arranged and made known, was received with approbation in Holland, the vital stipulation respecting the exclusion of the Prince of Orange being concealed. Beverning came back to London on 25th January, but was refused audience by the Protector until he had obtained proper credentials recognising the new Government. He was joined by Nieuport and Jongestal a month later, but it was not till 15th March that the conferences were resumed.[796]