ENGLISH CLAIMS OVER THE ADJACENT SEAS 197 the lowering of the topsail was to enable the vessel to be stopped to ascertain whether she was a pirate or engaged in lawful trade. It was not till the sixteenth and seventeenth centuries that the "right of the flag" was enforced to signify an acknowledgment of claims of sovereignty of the sea far in excess of those of the Plantagenets. Edward III by a commission of 1336 to Geoffrey de Say as admiral made the definite assertion that the kings of England had in times past been lords of the English seas on every side and defenders of the same against the incursions of their enemies. Edward III in the earlier part of his reign well deserved the title of "Lord of the Sea", and in 1340 after his victory over the French in the battle of Sluys he coined the famous gold noble of which the obverse bears the effigy of the King, crowned, standing in a ship with a sword in one hand and a shield in the other. This was taken to represent "king, shype, and swerde and pouer of the sea" by the author of The Libel of English Policy who, seventy years later, was bewailing the condition of the English fleet. By the end of the reign of Edward III the fleet was starved and defeated by the Spaniards, and in the reign of Henry VI the naval power of England was reduced to a very low ebb.1 The words used to designate the nature of the claims were superioritas or dominium, but it does not appear that the monarchs considered the seas over which they made these claims as part of their domains or that foreigners were prevented from passing through them or taking the produce, nor was tribute levied as was done by Denmark at the Sound or by Venice in the Adriatic. "The Plantagenets strove for little more than a high sounding title, and were willing for the prestige which it conferred to undertake the burdens and duties which it involved."2 During the fifteenth century the sea power of England was at its lowest, and until the claim was revived in an exaggerated form by the Stuarts there is little trace of attempts to assert maritime jurisdiction during the fifteenth and the first half of the sixteenthcentury. The attitude of Queen Elizabeth to such questions is considered below. The demand for the observance of the lowering of the topsail and the ceremonial striking of the flag was made from time to time and enforced. In the reigns of Henry VIII and Edward VI we have examples, and this demand began to be made from foreign ships of war in the Channel. In 1554 the Spanish admiral's ship carrying Philip of Spain to marry the Queen was fired on by Lord William Howard and compelled to lower her colours in the presence of the English fleet. It was not, however, till the next century that the ceremony became of international importance. The subject of fisheries in the North Sea and the waters surrounding England is one of great importance in this period, but from the reign of Edward III there was considerable liberty of action for all foreign fishermen, with occasional assertions of ceremonial acknowledgments. 1 Fulton, p. 37. 2 Wade, in Brit. Year Book of Internat. Law, 1921-22, p. 107. To the end of the sixteenth century many of the treaties concluded for mutual commerce and navigation included permission to fish in English waters. The Dutch were the greatest fishermen of the period, and the industry became of supreme national importance to them. The most important treaty on this matter was that made in 1496 between Henry VII and Philip, Archduke of Austria and Duke of Burgundy, known as Intercursus Magnus (The Great Intercourse, 't Groot Commercie-Tractaat), which has been called the "sheet-anchor of Dutch policy in relation to England in the seventeenth century”.1 This treaty endured for about 150 years, and under it the fishermen of both nations-English and Dutch-were to be at liberty to go in security to fish anywhere on the sea, without requiring any licence or safe-conduct, and to have free use of one another's ports when compelled thereto by stress of misfortune, weather or enemies, paying the ordinary dues (solvendo in locis ubi applicabunt quin et theolonia praedicta) and being free to leave with their ships and cargoes without hindrance. Throughout the Tudor period English policy towards foreign fishermen was liberal and conceded the right to fish in English waters. The policy of Scotland was more restrictive, the Scottish fisheries were of even greater value than those of England, and with the accession of James I, whose upbringing had been in a very different atmosphere from the liberal policy of England, the "bloody quarrels"-as Welwood terms them-of the Scottish and Dutch fishers extended to England. After the Reformation a rapid decay of the English sea fisheries had set in, and the revival of the industry became an important object of the domestic politics of the country. To this end there arose a desire to prohibit all foreigners, and especially the Dutch, from using the fisheries, and this led to a movement for the assertion of England's sovereignty of her seas. The literary pioneer of England's claims was Dr John Dee, better known as "magician" and astrologer, but also a scientist and political thinker. He published in 1577 a book entitled General and Rare Memorials pertayning to the Perfect Arte of Navigation, known also as The Brytish Monarchie. While admitting that the British seas were common to all for navigation, he put forward the view that the fisheries within the royal limits and jurisdiction wherein the English Crown had its sovereignty, pertained to the Crown and should be free only to such foreigners as were licensed and paid tribute. Of Dee it has been said that he "was not only the first English writer who claimed the sovereignty of the sea and the fisheries for England; but he was also the first who attempted to define their boundaries in detail". The limits were based largely on the writings of Italian jurists such as Bartolus and Baldus,a but such claims, even with the support of Plowden, who had previously in arguing a case 1 Fulton, p. 72. 3 Fulton, p. 101. 3 2 Rymer, T., Foedera, XII, 583; Dumont, ш, ii, 338. Fenn, P. T., jr., The Origin of the Right of Fishery in Territorial Waters, chap. vi. 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. 3 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. 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). |