In the treaty above referred to, between Great Britain and France, the rights of trading and fishing went together. This was a very common thing in those times, particularly in remote seas, where the two pursuits were often combined, and it was especially the case in the northern seas which were supposed to be under the sway of the King of Denmark. The disputes which occurred between Denmark and the United Provinces of the Netherlands are of interest in this regard, since they reveal the methods and the stages by which a defined boundary was eventually substituted for a general claim to maritime dominion. They show, moreover, that at the end of the disputes Great Britain stood by the side of Holland in opposing the Danish pretension to mare clausum, and was altogether in favour of the free sea. It was apparently the assertion of James I. to a monopoly of the whale-fishing at Spitzbergen ([see p. 181]) that induced Denmark to put forward a similar pretension with regard to Greenland. As early as 1615 a Danish man-of-war demanded a contribution from Dutch whalers for liberty to fish there, and the King of Denmark complained to the States-General that their subjects were carrying on the fishery without his license and contrary to his rights. The Dutch opposed this claim and sent armed ships to the scene, which kept the Danes from active interference. A little later, in 1623, Denmark raised fresh complaints in connection with the fishing at Jan Mayen, an island discovered by the Dutch, and which, therefore, according to the charter of the Dutch Arctic Company, belonged to them. In 1639 Danish men-of-war again interfered with Dutch whalers, this time at Spitzbergen, in virtue of a decree prohibiting fishing without a license from the King of Denmark; but the firm attitude of the States-General, whose fleets were then all-powerful, cooled the ardour of the Danes. Denmark also raised difficulties in connection with the cod-fishing in the northern seas. In 1616 foreigners were prohibited from fishing either at Færöe, Iceland, or on the coast of Norway, an injunction renewed in 1636 and 1639, and various limits were assigned with respect to the cod-fishing at Iceland. In 1636 the Norwegian Government declared that the exclusive right of fishing pertained to subjects within a distance of four to six Scandinavian leagues from the coast, which is equal to from sixteen to twenty-four geographical miles. The Danish claim to mare clausum also included a monopoly of trade in those remote regions, and the Hanseatic towns as well as the Dutch were forbidden to carry on traffic with the natives. But the efforts of Denmark to preserve a monopoly of fishing and trading in the Arctic seas were intermittent and ineffectual. The great Dutch Arctic Company (Noordsche Compagnie), by their charter granted in 1614, were entitled not only to the exclusive right, so far as concerned Dutchmen, “to trade and fish from the United Provinces on or to the coasts of the lands between Nova Zembla and Davis’ Strait,” including Spitzbergen, Barent’s Island, and Greenland, but also to the possession and fishery of any islands they might discover in those seas. The rights granted to this powerful company were thus directly opposed to the Danish claim to mare clausum, and owing to the preponderating naval force of the United Provinces, which was behind them, they eventually prevailed. In February 1691, after the defeat by the French of the allied British and Dutch fleets off Beachy Head and the suspension of the Dutch whale-fishing by reason of the war, King Christian V. issued another decree prohibiting whale-fishing at Greenland to all but Danish subjects; and in the following year Hamburg was forced to conclude a treaty with Denmark to enable her citizens to carry on fishing and navigation in Davis’ Strait.
It was at this time, nevertheless, that Denmark substituted a fixed limit at other parts of her dominions for her previous vague and general claim to maritime sovereignty. By a decree of 26th June 1691, the sea between the south coast of Norway and the coast of Jutland, within a straight line drawn from Cape Lindesnæs to Harboore in Rinkjobing, a distance of over a hundred geographical miles, was declared to belong to Denmark; and it was further ordained that in places where the king possessed only one of the coasts, the sea was under his dominion up to the distance at which the land was lost sight of—i.e., within the range of vision. At the end of the following year (3rd December 1692) another edict was issued declaring that no one without royal authority would be allowed to carry on whale-fishing within ten Norwegian leagues, or forty geographical miles, of the coast.[958] This tendency of Denmark to formulate defined boundaries in the seas along her coasts was carried further, as we shall see, in the eighteenth century.
Within the areas above mentioned, Denmark enforced her authority with considerable vigour. In 1698 a Dutch ship was seized and confiscated for fishing at the Færöes; and in the period 1738-1740 great energy was displayed in repressing violations of the Danish decrees. Several Dutch ships were fired on by Danish men-of-war for trading at Greenland; the crews were turned adrift in open boats, and the vessels taken to Copenhagen, where they were condemned as prize in the Admiralty Court. In retaliation, a Danish ship was seized at Amsterdam, and then Danish men-of-war fell upon the Dutch doggers fishing around Iceland, about a hundred in number, captured four, and dispersed the others without, it was alleged, offering to molest the British and French smacks fishing along with them. While bringing the captured doggers to Denmark, one of them managed to escape, and carried off to Holland the prize crew on board, consisting of a Danish midshipman and three seamen—an episode that recalls John Brown’s experience in 1617. These occurrences were naturally followed by diplomatic controversies. Denmark at first based her action in seizing the doggers on a decree of 1733, reserving to her own subjects the exclusive right of fishing and navigating within four leagues of the coast of all Danish possessions in the Arctic seas; and the Dutch were accused of carrying on an extensive illicit trade at Iceland, under cover of fishing. The States-General used the familiar arguments about the freedom of the seas for fishing and navigation, urged long-continued possession, and cited an old treaty of 1447 which gave the Dutch the right to navigate “usque ad Boreæ oras.” Then Denmark placed her case on its ancient basis, declaring that the kings of Denmark and Norway had enjoyed from time immemorial the dominion of the northern seas, and were therefore entitled, even according to the teaching of Grotius, to the exclusive fishing. They denied that the Dutch had ever possessed the right of fishery in these seas, alleging that clandestine acts, punished as soon as discovered, could not be construed into possession. This revival of dominium maris called forth an energetic protest from the States-General, and affairs took a bellicose turn. Denmark sent a squadron north to maintain her claims, and Holland provided an armed convoy for her whalers and Iceland cod-smacks, “to defend themselves against the pretensions of the Danes.” Hostilities were averted by the intercession of Sweden, and of the British and French Ministers at Copenhagen, in favour of the Dutch Republic and the freedom of the seas.
Occasional disputes of the same kind occurred between Denmark and the United Provinces later in the century. In 1757 a Dutch ship was arrested—it was said in the open sea—on the ground that it had been trading in Davis’ Strait, and the matter was adjusted a few years later by an undertaking that the Dutch vessels would refrain from trading within the precincts of the Danish possessions. The States-General in 1762 issued a placard to this effect, and they also sent a ship of war to enforce it. In 1776 an English brigantine and two Dutch vessels were seized for trading at Greenland, and condemned by the Danish Admiralty Court, and although on the protests of the British and Dutch Governments the vessels were released, compensation for detention was refused.[959]
Other and later examples of the tendency alluded to, of fixing definite limits for the rights of the state in the seas washing its territories, may be found in the international treaties, which were concluded during the eighteenth century, concerning the rights of fishery on the coasts and islands of the British possessions in North America, a region of the world which has furnished numerous examples of agreements of the kind. One of these, in 1686, has been already mentioned. By the great treaty of Utrecht in 1713, following Marlborough’s successful campaigns on the Continent, France ceded Newfoundland and Nova Scotia to Great Britain; but certain concessions were made to French fishermen, who, of course, previously enjoyed the right of fishing there, which subsequently for a long period formed a fertile source of trouble and dispute. In addition to certain privileges as to landing and drying fish, French subjects were to be free to fish in the seas, bays, and other places to thirty leagues from the south-east coast of Nova Scotia.[960] Half a century later, by the treaty of Paris in 1763, at the conclusion of the seven years’ war, Canada was ceded to Great Britain, and the concessions to French fishermen at Newfoundland were confirmed, with some modifications. Liberty of fishing was also granted to them in the Gulf of St Lawrence, subject to the condition that they did “not exercise the said fishery, except at a distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said Gulf of St Lawrence.” On the coasts of the island of Cape Breton, outwith the Gulf, they were not to fish within fifteen leagues of the shore.[961] These provisions concerning the fishery in the Gulf of St Lawrence and at Cape Breton were confirmed twenty years later by the treaty of Versailles in 1783, the article regarding Newfoundland being at the same time modified.[962]
In these various treaties the fisheries were dealt with in a special and exceptional manner, in connection with the cession of the adjacent territories by France to Great Britain. The French fishermen had always enjoyed the right of fishing in these seas in virtue of the ownership of the land; and though full sovereignty over the latter was acquired by Great Britain, the liberty of fishing, under certain restrictions, was continued notwithstanding the transference of territory. The fisheries of Newfoundland and Canada were of great importance. They were highly valued by France as forming nurseries of seamen for her navy, and for this reason the preliminary treaty of 1762 was severely criticised by the Opposition in the British Parliament, and especially by Pitt, who perceived that the concessions with respect to the fisheries would enable France to revive her naval power.[963]
A concession still more extensive, on the same principle, was granted by Great Britain to the newly-established United States of America in the treaty of 1783, by which their independence was recognised. The question of the rights of fishery was very fully discussed in the negotiations which preceded the treaty; and though Great Britain did not deny the right of American citizens to fish on the Great Banks of Newfoundland, or in the Gulf of St Lawrence, or elsewhere in the open sea, she denied their right to fish in British waters, or to land on British territory for the purpose of drying or curing their fish. A compromise was arrived at, and the treaty provided that the people of the United States should continue to enjoy, unmolested, the right to take fish of all kinds on the Newfoundland Banks, in the Gulf of St Lawrence, and at “all other places in the sea where the inhabitants of both countries used at any time heretofore to fish”; also on such parts of the coast of Newfoundland as British fishermen should use, and “on the coasts, bays, and creeks” of all other parts of the British-American dominions. They were further permitted to dry and cure their fish on unsettled parts of the coast of Nova Scotia, the Magdalen Islands, and Labrador, so long as these parts remained unsettled.[964] It will be observed that by this treaty the liberty of fishing in the territorial waters of the British possessions in America was conceded to the citizens of the United States, who had exercised the fishery before their independence was declared. They continued to enjoy the right which they had had as British subjects after they had ceased to be British subjects, and they did so until the war of 1812.
With regard to the fisheries at home, in whose interest James I. had originally raised the question of the sovereignty of the sea, the clamour against the Dutch gradually died out, or was only heard at intervals and received but scant attention. Pamphleteers continued to denounce the liberty allowed to foreigners to fish along the British coasts, and drew the usual picture of the great national advantage that would flow from the creation of native fisheries to rival those of the Dutch.[965] Under James II., William, Anne, and the Georges, the policy of fostering the fisheries by protective legislation and by means of organised societies or associations was continued, with but little good result. The most serious attempt was made in the middle of the eighteenth century, when an Act was passed[966] for the incorporation of “The Society of the Free British Fishery,” giving power to raise a stock of £500,000, and guaranteeing 3 per cent interest on the sum raised within eighteen months,—which amounted to £104,509,—as well as conferring various privileges and immunities, including a tonnage bounty to encourage the equipment of busses. This society, which was incorporated in the autumn of 1750, with the Prince of Wales as Governor, had a chequered career. Its headquarters were pitched at Southwold, Suffolk, where docks were built and buildings erected. In 1756 it possessed thirty busses and six “yagers” to carry the pickled herrings to Hamburg and Bremen, the masters of the busses being Dutch or Danish, and the crews chiefly from Orkney, the fishing being carried on at the Shetlands and down the coast to Yarmouth. Financial and other difficulties were encountered, some of the vessels being taken by French privateers, and all the remaining busses and effects were sold in 1772 for £6391. Half a century later, the relics of some of the discarded busses were dug out of the mud at Southwold.
The Act above referred to was the parent of many others designed to encourage the fisheries, chiefly by providing bounties; but probably more effective than such measures in stimulating the native industry was the decay which overtook the fisheries of the Dutch. This decay was no doubt due to several causes, but among the chief must be reckoned the frequent maritime wars of the eighteenth century in which the United Provinces were engaged. Their herring-busses were often captured or destroyed, sometimes in large numbers at a time, as in 1703, when a French squadron fell upon them at Shetland and burned many of them—variously stated at from 150 to 400.[967] Not infrequently their herring fishery was entirely suspended, it might be for a series of years, owing to the inability of the States-General to protect the fishing vessels from the French or the British cruisers; and such interruptions told seriously upon a business which depended so largely on the export trade of the cured herrings. From these repeated blows the Dutch fisheries never recovered, and the fleets of busses gradually dwindled. In 1703, 500 of them fished at the Shetlands and southwards along the coast; half a century afterwards there were but little over 200; and in the later years of the century the number sank as low as 120, which scarcely exceeded the vessels from Denmark, Prussia (Emden), and Belgium. Thus the part of the pretension to the sovereignty of the sea which related to the fisheries along the British coasts was gradually solved, the British fisheries, now the greatest in the world, rising on the ruins of the Dutch.