QUEEN ELIZABETH AND FREEDOM OF THE SEAS 199 submitted similar limits, were not accepted by those in authority. Plowden denied the Queen's rights of property in the sea, or that she could prohibit anyone from fishing in it. Elizabeth, who is sometimes wrongly accused of inconsistency in this matter,1 long before Grotius wrote his Mare Liberum in 1609, put forward no such claims over the seas adjacent to her realm. Her protest to Mendoza, the Spanish ambassador, is mentioned below, and in her dispute with the King of Denmark arising out of the Danish monopoly of the Iceland fisheries, her instructions to the English ambassadors (in 1602) contained a remarkable argument in favour of the free sea. She claimed that the law of nations allowed fishing in the sea everywhere. There could be no property in the sea even though both sides belonged to the same monarch, the most that she was prepared to allow was some oversight and jurisdiction for a small distance from the coast. Elizabeth was not thinking alone of the English seas, she had already combated the claims of Spain and Portugal whose demands extended to the complete exclusion of other nations from the waters allotted them under the papal bulls and treaty. Her dispute with Portugal began early in her reign,2 but it was with Spain that the most serious trouble was occasioned. Elizabeth's policy was to secure freedom to trade and to fish for all her subjects, and Drake, Frobisher and Hawkins in the West and Cavendish and Lancaster in the East provided the practical answer to these pretensions of the Iberian Powers. The foundations of the British Empire were being laid beyond the seas, and this great undertaking was only legally possible on the assumption that the seas were free to the navigation of all and that no newly discovered territory, not effectively occupied by any other Christian Power, was closed to the English adventurers and their ambitions. The Spanish pretensions received careful consideration by Elizabeth and her advisers. To Mendoza's complaints in 1580 of Drake's depredations the Spanish ambassador was told by the Queen that his master was violating the law of nations in forbidding English commerce in the West Indies, and that her subjects would continue to navigate those seas since "the use of the sea and air is common to all".3 With the accession of James I the claim of England to the sovereignty of the seas entered upon a new stage. In the first year of his reign he decided that charts should be prepared marking out the "King's Chambers", the areas between the headlands round the coast of England within which all hostile acts of belligerents were prohibited. This step was for the fuller ascertainment of the jurisdiction of the king and is noteworthy also as an assertion of neutral protection. But very soon a further step was taken with a view to 1 Hall, W. E., International Law, § 40. * Camden, W., Annals, p. 225 (ed. 1635). See Fulton, p. 107. protecting fisheries along the coasts of Britain and Ireland. The Scots had always been jealous of foreign fishermen, and during the reign of Elizabeth the Dutch had vastly increased their encroachments on English waters. The political situation was now changed. Elizabeth had stood as the protector and ally of the Protestant Dutch in their revolt against the Spaniards. The United Provinces were rapidly becoming the chief maritime competitors of England. James I's attitude to Spain was quite different from that of Elizabeth. Spain at the beginning of the seventeenth century, though still a great Power, was not the danger she had been in the middle of the sixteenth century. James early concluded peace with Spain,1 and turned his attention to the Dutch who throughout the seventeenth century were to be the great rivals of England and amongst whose chief commercial assets were the fisheries in the North Sea. So James proceeded in 1609 to claim all the fisheries along the coasts of Great Britain and Ireland and to prohibit foreigners from fishing there without licences. From this time the English claim to the sovereignty of the sea was asserted in a far more extensive manner than had ever been suggested before, and this assertion met with the approval of the people of England, jealous of their rivals not only in the fisheries but in their commercial enterprises in other parts of the world, and actuated by the feeling that in their dealings with the Dutch, the latter were by no means open and fair. The Plantagenet claims were based on the necessity of keeping the seas clear of pirates, the Stuart claim embodied "the national jealousy of the success of active and industrious competitors". In support of his claim the King referred the matter to the Privy Council to examine the question whether he was fettered in his action by treaties, and especially by the Intercursus Magnus. The report of the Committee was favourable to the King.2 The Dutch were not unprepared, as the tenor of the report of the Privy Council was known several months before the proclamation was issued, and almost immediately it was followed by the publication by Grotius, at the request of the Dutch Government, of his Mare Liberum the classic argument against the principle of the sovereignty of the sea. This was followed, before the issue of King James's proclamation, by the Truce of Antwerp (1609) whereby the long struggle between Spain and the United Provinces was brought to a standstill for twelve years. The States-General at once protested. The operation of the proclamation was suspended, but not withdrawn, and James ordered the State archives to be searched to ascertain what arguments could be found to support his pretension to maritime sovereignty and exclusive fishing in the waters in question. Special embassies passed between England and Holland, the position being complicated by a Dutch protest against England's activities in the Far East, where the English claims for freedom of navigation and commerce were being 1 Vide supra, p. 77. 2 Fulton, p. 147. 1 DISPUTES BETWEEN ENGLAND AND HOLLAND 201 asserted. It is clear that considerations of interest, rather than of principle, were the motive power of both parties. Meantime James was punctiliously reasserting the right of the flag in the Channel. Charles I carried his father's claims still further. James had laid emphasis on fishing rights and the inviolability of the "King's Chambers"; Charles claimed the lordship over all the surrounding seas, the Channel and the North Sea. There was some excuse for this in the lawless warfare which for years was carried on between the Dutch and the Dunkirkers, who were little better than pirates. Flagrant violations of English territory occurred. Twice in 1634 fights occurred in the harbours of Yarmouth and Scarborough between these belligerents-in the latter case the fight was actually concluded on shore; this notwithstanding a proclamation of Charles in 1633, reasserting his sovereignty over the whole of the four seas of Great Britain. Unfortunately, the Navy of England was very weak and unable to exercise its primary duty of preserving peace in the Channel which was rendered more difficult by the incursions of Mediterranean pirates. There was, therefore, in the opinion of the English political leaders of the day, some reason for an active naval policy, even for a "Ship-money" fleet, built under circumstances of grave constitutional danger. For a time the question of the salute of the flag raised but few difficulties on the part of the Dutch, and it was not Richelieu's policy to engage France in war on such an issue. Charles's attempts to assert his claims were, on the whole, a pitiable failure, but at his instigation search was again made for precedents to support them and Selden devoted his massive learning to this end. The Long Parliament made the efficiency of the fleet one of its first cares, and under it and the Commonwealth the Stuart claims were not only asserted, but enforced, and the refusal of Van Tromp to lower his flag to Blake in the Straits of Dover was the proximate cause of the first Dutch War. This subject cannot be left without further reference to the great juridical controversies on the freedom of the sea which filled the first half of the seventeenth century, and whose results were only manifested towards its end, when doubts began to be cast on the genuineness of the historical precedents on which English claims were based and also on the wisdom of their enforcement.1 The controversy has been well called "the battle of the books", and it produced a series of works on both sides characterised by an amazing amount of erudition and dialectical skill. The protagonists on their respective sides were the Dutch Grotius and the English Selden, both men of immense learning and ardent patriotism. Grotius, as subsequent events showed, was on the winning side, and it is quite as much— if not more to his Mare Liberum, as to his better known De jure belli 1 Meadows, Sir Philip, Observations concerning the dominion and sovereignty of the seas (1689). ac pacis, published in 1625, that his claim to be the founder of international law is due. The general position as regards the claims made by Venice, Genoa and Denmark has already been noted. These claims were small and unimportant when compared with the extravagant pretensions of Spain and Portugal to the monopoly of trade and navigation in the New World and the East, which involved the exclusion of all other nations from all the waters of the world except those washing the shores of Europe and North Africa. The English were by no means the only nation to suffer by these claims; French and Dutch were likewise excluded, and this interference with the Dutch traders in the East Indies was the prime reason for Grotius writing his Mare Liberum. By a curious irony of fate, not unlike that from which Milton suffered in relation to his plea for the freedom of the press, Grotius soon afterwards was arguing for the exclusion of the English from a share in the trade in the East Indies which the Dutch had been able to wrest from the Portuguese.1 The Mare Liberum was the twelfth chapter of a work called De jure praedae in defence of the Dutch trade, and the only part of it which was published during the writer's lifetime. The manuscript of this work remained unknown till 1864, and was not given to the world till 1868. Grotius had been preceded in his arguments for the freedom of navigation and commerce by two Spanish writers, Francis Alfonso de Castro2 and Ferdinand Vasquicas or Vasquez,3 who, like so many other Spanish jurists of the period, showed an astonishingly independent attitude towards the legal controversies of the time. It is doubtful whether any country can show such a remarkable body of jurists as those of Spain in the sixteenth and seventeenth centuries whose views were based on the broadest outlook of humanity and without whose inspiration it is doubtful whether Grotius would have written, or, if he had written, would have achieved the success which his works attained. Both de Castro and Vasquez held that the sea was common to all and that the claims of both the Portuguese and the Spaniards to prohibit other nations from navigation in the East and West Indies were untenable. Grotius not only adopted these arguments, but also assailed the papal grants. He took the position that every nation is free to travel to, and to trade with, any other nation, a position which even to-day is not fully accepted in practice. As regards the sea and navigation he argues that the sea is incapable of occupation by any one State and is common to the use of all. He is speaking here of the outer sea or ocean, not that adjacent to the shores of a State and within sight of the shore. Further, since the 1 For an account of the origin of the Mare Liberum and its connection with the De jure praedae see Knight, W. S. M., The Life and Works of Hugo Grotius (1925), chap. v; also Fulton, chap. ix; Fenn, chap. viii. 2 De Potestate legis penalis. 3 Controversiae Illustres. 4 See Nys, E., Le droit des gens et les anciens jurisconsults espagnols. THE “BATTLE OF THE BOOKS” 203 sea is free to all, so is fishing in it, and this ought everywhere to be exempt from tolls. Grotius repeated in more concise form these principles in his De jure belli ac pacis, with some modifications especially relating to what afterwards became known as "territorial waters", anticipating the position which Bynkershoek, another Dutchman, one hundred years later assumed in his limitation of the waters adjacent to the shores of a State to so much as was capable of being controlled from the land. The Dutch obtained what they sought from the Portuguese by a treaty signed a month after the Mare Liberum was published. But this work seems to have passed almost unnoticed on the continent for some years. A reply was prepared by Seraphim de Freitas, a Portuguese monk, in 1625, De justo imperio, and at the same time there also appeared works in defence of the claims of Venice,1 though they do not appear to have been replies to Grotius. But in England the Mare Liberum received much more attention, the King was angry, and the English ambassador at the Hague held up the author to opprobrium.2 The first reply from England came from the pen of William Welwood, a Scotch Professor, who published in 1613 a new edition of his treatise on the sea laws of Scotland which contained a chapter on "The community and property of the sea", and two years later he published a formal work in Latin on the same subject, De Dominio Maris. Welwood asserted the right of the inhabitants of a country to the fishery in the seas adjoining their shores, both for the maintenance of the inhabitants and also to prevent the exhaustion of the fishery. Welwood was the only antagonist to whom Grotius replied, though the reply was not published but was found in manuscript with that of the De jure praedae in 1868. The classic reply to Grotius was made by John Selden in his Mare Clausum published in 1635. Between the publication of the Mare Liberum and Selden's reply other works dealing with the subject had been published in England, and of these reference must be made to the Hispanicae Advocationis of Albericus Gentilis, published in 1613. This was a reproduction of his arguments as representative of Spain in the English Prize Courts, in which he contended that the English seas extended on the west as far as America, and that territorial jurisdiction extended round the coast to a distance of 100 miles, an argument which was based on the doctrines of the Italian school represented by Bartolus and Baldus, but not accepted by the English courts. Sir John Boroughs, the Keeper of the Records, was also engaged at this time, by command of Charles I, in preparing a defence of the Stuart claims, using as one of his chief arguments the De Superioritate roll to which reference has already been made. Boroughs's work on Sovereignty of the British Seas, written in Latin and dated 1633, was not published till 1651, but it was available to Selden. * Vide supra, p. 196. 1 See Fenn, chap. ix. 2 Fulton, p. 351. |