The Sovereignty of the Sea by Thomas Wemyss Fulton

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Title: 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

Author: Thomas Wemyss Fulton

Release Date: June 24, 2017 [EBook #54977]

Language: English

Character set encoding: UTF-8

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The Sovereignty of the Sea

The “British Seas,” according to Selden.

ii

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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: with special reference to the Rights of Fishing and the Naval Salute BY

THOMAS WEMYSS FULTON

LECTURER ON THE

SCIENTIFIC STUDY OF FISHERY PROBLEMS, THE UNIVERSITY OF ABERDEEN

WITH ILLUSTRATIONS

William Blackwood and Sons

Edinburgh and London

1911

ALL RIGHTS RESERVED

I DEDICATE THIS BOOK TO

MY WIFE

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PREFACE.

In this book I have endeavoured to bring together from all available sources such information as exists as to the claims
formerly made to the sovereignty of the British Seas, and to trace the evolution of the territorial waters in recent times.
The work was originally undertaken with the intention of dealing only with these subjects so far as they related to the
sea fisheries, but it soon became apparent that to restrict the scope in this way would involve considerable
disadvantages, and would enable only a partial picture to be presented. For though during a large part of the period
with which the book is concerned, the question of the fishery was the main question in determining the claim to sea
sovereignty, and is the one of the greatest frequency at the present day with respect to the territorial waters, it was by
no means the only one. The freedom of commerce to regions more or less remote; the jurisdiction of a State in the sea
which washed its shores or which it claimed as belonging to it; the naval salute or homage to the flag, and various other
matters, were commonly bound up with the question of the fisheries. It was therefore deemed more satisfactory to
treat the subject as a whole, even though this necessarily involved much additional labour.

The book is divided into two sections, the first comprising an historical account of the pretensions to the dominion of
the sea; the second dealing with the relic of such pretensions, the territorial waters, more particularly in the aspect
which they present under the Law of Nations and in relation to the rights of fishing. With some doubtful exceptions, the
claim to a special sovereignty or dominion over the so-called British Seas was a doctrine of the Stuarts, introduced
from Scotland to England with that dynasty, and terminating with it. It was aimed in particular against the Dutch, whose
commerce, shipping, wealth, and power were believed to be derived from the fisheries which they carried on along the
coasts of this country. Hence a very considerable part of the work refers to the dealings and negotiations with that
people as to the liberty of fishing and the homage to the flag. Such pretensions to extensive maritime sovereignty
gradually decayed and disappeared, but the troubles and disputes as to the rightful jurisdiction of a State in the waters
adjacent to its coasts have continued to the present day, and are dealt with in the second section of the book. Scarcely
a year passes that does not witness one or more international differences of this kind, notably with respect to fisheries,
and in various quarters of the globe—it may be now on the coasts of Portugal and Spain, or in the Pacific and South
America, or again at the White Sea, each case giving rise to international negotiations and discussions as to the
common usage and the Law of Nations.

One great group of such questions, which for long formed a troublesome heritage of the British Foreign Office,
concerns the fisheries on the coasts of British North America. Under various treaties, some of them old, France and
the United States possess special rights in these fisheries, the true nature of which has occasioned numerous disputes.
It is a happy circumstance of recent years that those differences have now been composed. The agreement with
France in 1905 settled the question of the fishery rights of that Power at Newfoundland, and the Award of the
Permanent Court of International Arbitration at The Hague in the North Atlantic Coast Fisheries Arbitration, which
was made last autumn while this work was passing through the press, has in a manner equally satisfactory settled the
difficulties with the United States,—a fortunate result due in great part to the exceedingly able, lucid, and temperate
presentation of the British case by Sir Robert Finlay, but chiefly, it cannot be doubted, to the growing feeling of
goodwill between the two great branches of the Anglo-Saxon race. It is to be hoped that similar differences now
pending and to come, as to the fisheries on other coasts, may be adjusted in a corresponding spirit of amity and
compromise. The fish in the sea, as Dr Nansen has said, are not the property of any particular nation. They are, if the
word may be used, international, and it would therefore be as just as it would be auspicious if all such questions were
dealt with in a spirit of international brotherhood, with due regard to the interests of the coast population on the one
hand, and the legitimate rights of the enterprising fishermen from other nations on the other. To this end the joint fishery
investigations at present being conducted under the guidance of a Council of representatives of the western and
northern Powers of Europe may be expected to contribute, if only by providing that full and precise information,
without which an effective and equitable arrangement is difficult.

As far as possible, I have gone to original sources for my information; the State Papers in the Record Office, the
MSS. in the British Museum, and those preserved at Hatfield—access to which was courteously granted by the late
Marquess of Salisbury—have been laid under contribution. References to the various authorities are given for
practically all the statements in the book; and in the Appendix are printed, either entire or in part, some of the more
important documents which are cited.

Among foreign friends and colleagues to whom my thanks are due for information kindly given during the progress of
the work, I must mention four, who, alas! are no longer with us: Professor A. F. Marion, Marseilles; Professor Enrico
H. Giglioli, of Florence, for long the esteemed President of the Commissione consultiva per la pesca, Rome; Secretary
of State M. Vladimir I. Weschniakow, President of the Société Impériale Russe de pisciculture et de pêche, St
Petersburg; and Dr Rudolf Lundberg, Stockholm, all very willingly complied with my requests for information. Among
others who have aided me from time to time are Dr Georges Roché, Paris; Dr Eugène Canu, Boulogne-sur-mer;
Señor Rafael Gutierrez Vela, Madrid; Dr Cav. Enrico Giacobini, of the Ministry of Agriculture, Rome; Dr F. Heincke,
Heligoland; Dr Johan Hjort, Bergen; and Captain C. F. Drechsel, Copenhagen. My thanks are also due to Dr Fridtjof
Nansen, formerly the Norwegian Minister in London; to M. J. Irgens, his successor; and to Dr T. Baty, Honorary
Secretary to the International Law Association, London, for copies of documents and laws relative to the

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Scandinavian limits of the territorial sea; and likewise to Mr R. M. Bartleman, the American Consul-General at Buenos
Aires, for papers referring to the extensive claims recently advanced by the Argentine Republic for the regulation of the
fisheries in the adjacent seas.

Very specially have I to thank my friend, Dr P. P. C. Hoek, the Scientific Adviser for the Fisheries of the Netherlands,
and the Commissioner appointed by The Hague Tribunal in the North Atlantic Fisheries Arbitration, for his valued
assistance and advice. Dr Hoek was good enough to read over the proofs of the book, and I am indebted to him for a
number of emendations and improvements which his knowledge of Dutch fisheries and history enabled him to suggest.

In transcribing records and preparing the index, and in some other ways, I have been assisted by my wife.

I feel that an acknowledgment is due to my publishers for the patience and consideration they have shown in the delay
which, for several reasons, has occurred in the completion of the book.

It is right to add that I alone am responsible for all the opinions expressed, unless when otherwise stated.

T. WEMYSS FULTON.

41 Queen’s Road, Aberdeen,
January 1911.

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CONTENTS.

INTRODUCTION.

PAGE

Prominence of maritime affairs in English history—The meaning of the term Sovereignty of the Seas—Early
appropriation of seas—Venice—Genoa—Denmark, Sweden, Poland—Spain and Portugal—Reasons for
appropriation—Insecurity of sea in middle ages—Merchants associations—Origin of the English claims—

Their nature—Became important under the Stuarts—James I.—Charles I.—The Commonwealth—Charles
II.—Decay of the English pretension to the dominion of the seas—Extent of the “Sea of England” and of the
“British Seas”—The “Narrow Seas”—The “Four Seas”—Selden on the British Seas—The territorial waters
1

SECTION I.—THE HISTORY OF THE CLAIMS TO THE SOVEREIGNTY OF THE

SEA.

CHAPTER I.

EARLY HISTORY.

Alleged sea sovereignty exercised by ancient Britons, Romans, and Anglo-Saxons—King Edgar—Canute—

Norman, Angevin, and Plantagenet kings—The Channel or Narrow Sea—The safeguarding of the sea—

Admiralty jurisdiction—Impressment of ships—Liberty of navigation and fishing—The question of tribute—
English kings as lords of the sea—King John’s ordinance as to lowering sail to a royal ship—The sovereign

lordship in the so-called Sea of England—The roll De Superioritate Maris Angliæ—Complaint against

Reyner Grimbald—Nature of jurisdiction exercised in Sea of England
25

CHAPTER II.

THE FISHERIES.

Importance of fisheries in middle ages—Ecclesiastical fasts—A great herring fishery—Foreign fishermen
frequent British coasts—The question of freedom of fishing—Licenses to French to fish in the Channel—

Treaties guaranteeing liberty for foreigners to fish on the British coasts—The “Burgundy” treaties—The

Intercursus Magnus—Practice in Scotland differed from that in England—Waters reserved for natives, and

foreigners excluded—Treaties with the Netherlands—Acts of the Parliament of Scotland
57

CHAPTER III.

UNDER THE TUDORS.

Decay of English fisheries—Influence of Reformation—Rise of Dutch fisheries—The “Political Lent”—Cecil’s
inquiries and proceedings—Legislation to protect the English fisheries and encourage the consumption of fish

—First complaints against foreign fishermen on English coast—Hitchcock’s “Pollitique Platt”—His scheme

of a national fishery association to compete with the Dutch—Proposals of Dr John Dee to tax foreigners

fishing on British coasts—Claim advanced to the sovereignty of the sea—Supposed limits of British seas—

Queen Elizabeth opposes all claims to Mare Clausum—Spanish and Portuguese pretensions to dominion on

the great oceans—Negotiations with Denmark as to trading and fishing at Iceland and Norway—Queen

Elizabeth’s exposition of the principles of the freedom of the seas—Further legislation to promote the

fisheries—Failure of the policy of fish-days—The striking of the flag
86

CHAPTER IV.

UNDER THE STUARTS. JAMES I. A NEW POLICY.

Change of policy as to freedom of fishery—The “King’s Chambers” defined and described—Limited to

questions of neutrality—Beginning of struggle with Dutch for commercial and maritime supremacy—

Expansion of Dutch fisheries—English accounts of their extent—John Keymer—Sir Walter Raleigh—Tobias
Gentleman—The Dutch great herring fishery along British coast—Its value and importance—English fishery

trifling in comparison—English envy and jealousy of Dutch—Rival fishery schemes proposed—Plan of

London merchants—Proposals to tax foreign fishermen—Complaints of encroachments of Hollanders in

England and Scotland—Petition from Cinque Ports for protection—Privy Council consider unlicensed fishing
by foreigners—Recommend proclamation restraining foreigners from fishing on British coasts without license

from the king—Proclamation issued—Aimed against Dutch—Protest of States-General—Proclamation

suspended—The “assize-herring”—Discussions with the Dutch ambassador—Dutch embassy of 1610—

Fishery question postponed—Other fishery schemes—The queen’s proposals—Records to be searched to

establish king’s jurisdiction at sea and right to the fishings 118

CHAPTER V.

JAMES I.—continued. DISPUTES WITH THE DUTCH.

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Grant of “assize-herrings” in Scotland to Duke of Lennox—Considered by Scottish Council—James instructs

that the tax be levied from foreign fishermen—Mr John Brown collects them in 1616 from Dutch—Protest
by Dutch ambassador—Dutch naval commanders ordered to prevent further payments—Brown again sent

in 1617—Seized and carried to Holland by Dutch man-of-war—Repudiation of act by States-General—
Further complaints in Scotland against Dutch—Representations by British ambassador at Hague—“Land-

kenning” or range of vision claimed as limit—Scottish Council asked to prevent Hollanders from fishing

within sight of land—Dutch edict of 1618—Assize-herrings again demanded by the Restore—Mare

Clausum in the Arctic Seas—Spitzbergen whaling disputes—Dutch embassy of 1618—Evasion of fishery
question—James’s displeasure—Threats to use force—Fishery treaty again postponed—A limit of fourteen

miles requested—Dutch concession—Proposals regarding whaling at Spitzbergen—Assize-herrings again
demanded by the Charles—The Dutch strengthen their convoying squadrons—Dutch embassies of 1619

and 1621—Fishery question still evaded—Edict of 1618 renewed—Fresh complaints against Hollanders—

Fishery societies proposed—The striking of the flag—Incident with French in 1603—Monson’s action

against Dutch—Spanish complaint—The custom as to striking the flag 165

CHAPTER VI.

CHARLES I. FISHERIES AND RESERVED WATERS.

Extravagant pretensions to the sovereignty of the sea—The ship-money writs and the old records—Charles

proposes a great fishery society to compete with the Dutch—Coke prepares a scheme—Difficulties with
Scottish burghs—Charles requests Scottish Privy Council to further the scheme—Strenuous opposition in

Scotland—Claim of “reserved waters” advanced—Commissioners on behalf of England and Scotland

appointed—Prolonged negotiations—Extent of reserved waters defined—Modifications proposed—Burghs
petition Charles to prevent the Hollanders from fishing in Scottish waters—Fisheries declared to be under the

royal prerogative—Charles attends the conferences of the commissioners—Scheme finally agreed to—The

“Royal Fishery of Great Britain and Ireland” established—Operations at the Lewes—Misfortunes and

eventual failure of the society 209

CHAPTER VII.

CHARLES I.—continued. THE NAVY.

Need of a strong navy—Insecurity of seas from pirates—Violations of King’s Chambers and ports by Dutch

and Dunkirkers—Proclamation concerning same and claiming sovereignty of sea—Charles’s private policy

to recover the Palatinate—Negotiations for alliance with Spain against the Dutch—Pretexts for creating a

fleet—The ship-money writs—Feeling in Holland—Coke’s despatch on the dominion of England in the seas
—The first ship-money fleet, under the Earl of Lindsey—His instructions—All hostilities in narrow seas to be
prevented—Previous instructions to Pennington compared—The king’s private instructions—Their object—
Lindsey’s queries—Proceedings of the fleet—Rumours in London—Friction with the admiral—Fails to meet

the French fleet—Richelieu’s strategy, and proposals as to salute—Licenses for Dutch herring-busses—
Lindsey quits the fleet—Discontent at his failure—The question of the salute becomes very prominent—

Doubts and queries as to the custom in enforcing it—Practice on foreign coasts—Between ships and forts—

Arrogance of English captains—Usual compliance of the Dutch—British merchantmen the worst offenders 246

CHAPTER VIII.

CHARLES I.—continued. THE NAVY.

The second ship-money fleet—Placed under the Earl of Northumberland—What was to be done with it?—
Opinion of Admiralty as to convoying foreign merchant vessels and preventing foreigners from fishing without

license—The instructions to Northumberland—The proceedings of the fleet—Cruise in Channel—Royal

proclamation forbidding foreigners from fishing without license in British seas—Northumberland goes in quest
of Dutch herring-busses—Licenses forced upon them—English men-of-war left to “guard” them—Anxiety in

the United Provinces—Mission of van Beveren—States of Holland resolve to equip a fleet to protect their
fishermen from molestation—Mission of Joachimi—Intervention of Queen of Bohemia—Northumberland’s

fleet goes to the Yarmouth fishing—Licenses again forced on the Dutch fishermen—The amount of the

“acknowledgment money” received—Misrepresentations on the subject—Renewed excitement in Holland—

Proceedings of Admiral Van Dorp—Another change in the king’s policy—Arundel’s mission to Vienna—

Negotiations with the Prince of Orange—Terms of a proposed treaty—Charles tries to get his licenses

secretly accepted in Holland—Third ship-money fleet—Tortuous action of Charles—Captain Fielding sent in

a merchant vessel to offer licenses to Dutch fishermen—Dutch men-of-war interfere and prevent licenses
being taken—The story leaks out, and is to be “cried down” and another story told—National discontent

and domestic troubles—The “Sovereign of the Seas”—The question of the salute—Increasing strength and

boldness of Dutch fleet—Arrest and search of English ships—Tromp and Pennington—The battle in the

Downs—Action of English fleet—Humiliation of Charles—The Dutch the real masters of the seas 286

CHAPTER IX.

CHARLES I.—continued. THE JURIDICAL CONTROVERSIES.

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Mare Liberum and Mare Clausum—Dawn of international law—Claims to maritime dominion conflict with
commercial expansion of period—Opinions of publicists previous to Grotius—De Castro—Vasquius—The
Mare Liberum of Grotius—Its origin and object—Arguments of Grotius against appropriation of seas—His

later work and opinions—Opponents of Mare Liberum—De Freiras—Pacius—Welwood—His

Abridgment of All Sea Lawes and De Dominio Maris—Arguments for appropriation of sea fisheries—
Grotius’ Defensio in reply to Welwood—Other authorities—Thomas Craig—Gerard Malynes—Alberico

Gentilis—The 100-mile limit—The rights of the Crown in the foreshores and bed of the sea—Thomas

Digges—Sergeant Callis—Chief Justice Coke—Charles desires to establish his rights to the dominion of the
seas by “some public writing”—Records searched—Sir John Boroughs’ Soveraignty of the British Seas—
Its contents and reasoning—Selden’s Mare Clausum—Begun at desire of King James—Published in 1635

by the king’s commands—Its importance immediately recognised—The king’s eulogy—The character of
Mare Clausum—Its facts and arguments—Absolute sovereignty claimed for English crown—Anxiety in
Holland—States-General resolve on an official refutation of Mare Clausum—Graswinckel’s treatise—

Pontanus 338

CHAPTER X.

THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE.

THE FIRST DUTCH WAR.

Claim to the sovereignty of the sea and the salute continued—Instructions to naval officers essentially the same

—Encounter with Swedish squadron—Action approved by Admiralty committee—Council of State instruct

Blake to preserve the dominion of the seas—The Dutch strike willingly—Strained relations between the

Parliament and the United Provinces—Political revolution in Holland—Mission of St John and Strickland to
The Hague—Propositions for fusion and alliance—The Intercursus Magnus taken as basis for treaty—St
John’s seven Articles—The thirty-six Articles of the Dutch—Failure of negotiations—Feeling in England—

English letters of reprisal—Embassy of Cats, Schaep, and Van de Perre—Dutch fleet increased—Discussion

of thirty-six Articles—Fresh instructions from Holland—The negotiations suddenly interrupted—Blake’s

encounter with Tromp in the Straits of Dover regarding the striking of the flag—Its antecedents—Tromp’s
defective instructions as to striking—Account of the fight—Indignation in London—Embassy of the Grand

Pensionary, Adrian Pauw—First Dutch war—Blake and the herring-busses—Tromp’s broom—The

Parliament asserts the right of the Commonwealth to the sovereignty of the seas and the fishery—Selden’s
Mare Clausum translated and published by order of the Council of State—Controversy between Selden

and Graswinckel 378

CHAPTER XI.

THE PARLIAMENT, THE COMMONWEALTH, AND THE PROTECTORATE—continued.

THE PEACE NEGOTIATIONS.

The negotiations for peace—Mission of Beverning, Nieuport, Van de Perre, and Jongestal—The attitude of
Cromwell—Proposals for fusion abandoned—Cromwell’s twelve Articles—The sovereignty of the sea and

the fishery put in the foreground—The twenty-seven Articles proposed by the Council of State—Claim to

the fishery, the salute, the right of search, the exclusive guard of the British seas, &c.—The strong objections
of the Dutch—Cromwell acts as spokesman of the Council—Discussion on the flag and the herring fishery—
The negotiations come to a standstill—The Dutch ambassadors ask for their passports—Cromwell becomes
Lord Protector—Negotiations continued—Dutch proposals regarding the salute—Cromwell withdraws the
fishery article and the declaration respecting the sovereignty of the sea—The terms British Seas and Narrow

Seas—Dutch propose to strike the flag all over the world—The ambassadors return to Holland—They

come back again—Cromwell suddenly reopens the question as to the British seas—Conclusion of treaty of

peace—Diplomatic success of the Dutch regarding the claim to the sovereignty of the sea—The article on the

striking of the flag—Enforcing the salute—Complaints of English fishermen 414

CHAPTER XII.

CHARLES II.

THE SECOND DUTCH WAR.

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Pretension to sovereignty of sea maintained—Efforts to revive the fisheries—Legislation—Bill against foreigners

fishing on British coasts—Act of Scottish Parliament—Council of the Royal Fishery of Great Britain and

Ireland appointed—The scheme receives little public support—Slovenly management of the Society’s affairs

—Negotiations with Dutch regarding the sovereignty of the sea, the flag, and the fishery—Attitude of De

Witt—His negotiations with France—Treaty concluded with Louis XIV. guaranteeing mutual protection to

fishermen—Downing and De Witt—Treaty of London—Article on flag—Ignorance at Admiralty as to
practice in striking—Second Dutch war—Causes of—De Ruyter in the Thames—Licenses for fishing

offered to Dutch and refused—Grant of fishing rights to Bruges—Effect of the war on the fisheries—Dispute

between Dutch and French as to salute—Peace conference at Breda—Claim to fishery withdrawn by

Charles—Treaty article on flag—The term British Seas restricted to the Channel—Ambiguities regarding the

practice of striking—De Witt’s proposals to Temple for a “Regulation”—The Dutch ambassadors discuss

the matter with Charles—Their declaration about striking to a frigate or ketch—Practice of striking described

—Denmark also proposes a “Regulation”—De Witt’s intrigues at Paris regarding the salute disclosed to
Charles—Arrangement between France and England as to striking—Admiralty give close attention to the

rules—Foreign disputes about the salute—General order by the States of Holland 441

CHAPTER XIII.

CHARLES II.—continued.

THE THIRD DUTCH WAR.

Policy of Louis XIV.—The Triple Alliance—Secret compact of Charles and Louis against the Dutch—
Parliament deceived—Pretexts for a fleet—Ill-feeling against Dutch fomented—Inquiries by Sir Leoline

Jenkins as to striking and extent of British seas—The king’s yacht, Merlin, sent to pick a quarrel about the
flag—The scheme miscarries—Downing’s mission to The Hague—Capture of Dutch shipping—Attack on
Smyrna fleet—Declaration of war—The dominion of the seas flouted—The English to salute the French—

The war and the fisheries—The Dutch sue for peace—The terms offered—Tribute for fishing asked—

Meeting of Parliament—Shaftesbury on the sovereignty of the sea—The war most unpopular—Attempts to
arouse public feeling as to dominion of the sea—Prynne—Smith—Roger Coke—Henry Stubbe—Charles

forced to negotiate for peace—The Congress at Cologne—Prolonged discussions about the flag, the

fisheries, and the sovereignty of the seas—Charles requires the salute between Cape Finisterre and the North

Cape—Dutch assume a firmer attitude—Refuse to ask for liberty to fish—Offer to strike in all seas—

Congress breaks up—Strong attitude of Parliament in favour of the Dutch—Separate peace made in London

—Sir William Temple—The claim to the fishery dropped—Article regarding the salute—A diplomatic

triumph for the Dutch—Disputes at sea about striking—The incidents of the Cleveland, the Charles, the
Cambridge—English commander condemned to death for striking to the Spaniards—Masters of foreign

merchantmen prosecuted in Admiralty Court for refusing to strike—Works on the sovereignty of the sea—

Evelyn—Molloy—Further schemes to promote the fisheries 474

CHAPTER XIV.

JAMES II. AND AFTER.

Gradual decline of the pretension to the sovereignty of the sea—England and the United Provinces allied against

France—Louis’ ordinance regarding the salute—William III. claims the sovereignty of the narrow seas—The

question of striking becomes of little international importance—The Admiralty instructions concerning—

Disputes about it less common—Encounter with a Swedish man-of-war—The case of the Gironde—The
naval historians on the sovereignty of the sea—Articles regarding striking in later treaties—The ceremony
abandoned after the battle of Trafalgar—General claims to maritime dominion give place to international
arrangements—Sir Philip Meadows—His treatise against the dominion of the seas—Definite boundaries

begin to be fixed for fisheries—Fishery disputes between Denmark and the United Provinces—Great Britain

sides with the Dutch in opposing claims to Mare Clausum—The North American fishery treaties of the

eighteenth century—The claim to the sovereignty of the seas dies out—Decay of the Dutch fisheries and rise

of the British 517

SECTION II.—THE TERRITORIAL WATERS.

CHAPTER I.

THE HISTORICAL EVOLUTION OF THE TERRITORIAL SEA.

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xix

Various limits proposed or adopted—The old English lawyers, Glanville, Bracton, Britton, “Fleta”—Early
Italian jurists—Bartolus, Baldus—Limits of 100 and of 60 miles—Bodin—Gentilis—No general common

usage—The mid-line or Thalweg—The “Mirror of Justice”—Plowden—Chief Justice Hales—Jurisdiction of

Cinque Ports in Channel—The range of vision or “land-kenning”—Lord Stair—Sarpi’s proposal—Bays,
straits, and arms of the sea—The King’s Chambers—Range of guns from shore—Proposed by Dutch in

1610—Not adopted in seventeenth century—Selden, Pontanus, Burgus, &c.—Influence of Loccenius and
Puffendorf—Opinion of publicists at end seventeenth century—Usage in seventeenth century—Decisions of
High Court of Admiralty regarding King’s Chambers—Gradual change of opinion and practice—Publicists in

eighteenth century—The teaching of Bynkershoek—Dominion extends as far as projectiles can be thrown

from the shore—Connection with salute and visit and search—Bynkershoek’s principle only slowly accepted

—Opinions of Casaregi, Abreu, Wolff, Vattel, Hübner, Valin, Moser, Lampredi, Galiani, Von Martens—

Three miles as equivalent to the utmost range of guns proposed by Galiani (1782), C. F. von Martens

(1789), and Azuni (1795)—Summary of opinions—Usage in eighteenth century—Tendency to fix definite
boundaries—Venice—Great Britain—Denmark—Sweden—Norway—Spain—Range of guns adopted by

Tuscany, the Pope, Genoa, Venice, and in various international treaties—Three-mile limit first adopted by the

United States of America in 1793—Exception of bays—Various limits claimed by the United States 537

CHAPTER II.

GENERAL ADOPTION OF THE THREE-MILE LIMIT.

Cannon-range and three-mile limit as its equivalent introduced into English Jurisprudence in 1800, 1801—Lord

Stowell’s decisions regarding the Twee Gebroeders and the Anna in British High Court of Admiralty—
Restricted to questions of neutrality—The practice of Great Britain and the United States leads to general

adoption of three-mile limit—First applied to fisheries (of North America) by Great Britain—Treaty of 1818
—Negotiations concerning Behring Sea—Russian claim of 100 miles—Adoption of gunshot or three miles—
Judicial decisions as to extent of territorial sea—The Bristol Channel—Conception Bay—Statutes relative to

territorial waters—Foreign Enlistment Act—Territorial Waters Jurisdiction Act—The Franconia case—

Three-mile limit restricted to the open coast for certain purposes only—Bays excluded—The Hovering Acts

—Customs’ jurisdiction—Quarantine Acts—Opinions of publicists of earlier part of nineteenth century—

Rayneval, Chitty, Schmalz, Klüber, Wheaton, Kent, Manning, Heffter, Reddie, Ortolan, Hautefeuille, Pistoye

and Duverdy, Massé—Summary—Most accept cannon-range—Few accept the three-mile limit 576

CHAPTER III.

THE FISHERY CONVENTIONS.

In nineteenth century the boundaries of territorial sea concerned chiefly with fisheries—Encroachment of foreign

fishermen—Dutch decrees of 1824 and 1829 fixing a limit of two leagues on British coast—Disputes with
French fishermen—Inquiry by select committee of House of Commons, 1833—Their recommendations—
Opinion as to bays—Renewed encroachments and disputes—Convention with France, 1839—Three-mile
limit and ten miles for bays adopted—Granville Bay reserved for French—Regulations regarding trawling—

Disputes with Belgian and Dutch fishermen—Belgians claim special rights under Bruges Charter—

Convention of 1852 with Belgium—Dispute about Fame Islands—Second Convention with France, 1867—

Not ratified—Question of Irish oyster-beds beyond three-mile limit—Fishery disputes in British North

America—The definition of bays and creeks—British cruisers seize American vessels—The British

Government relax the rule as to Bay of Fundy—Decision of referee as to this bay—Reciprocity Treaty,

1854—Terminated by United States, 1866—Concessions by British Government—Licenses to American
vessels—A six-mile limit for bays conceded—Treaty of Washington, 1871—Terminated by United States,

1885—Treaty of Washington, 1888—Precise delimitation of bays—Treaty not ratified by United States

—Modus vivendi conceded and still in force—Discussion as to bays—Renewed disputes in North Sea—
The Belgian “Devil”—The Higgin’s Inquiry—Conference at Hague, 1881—Views of British Government as

to territorial limit—Question of dependent banks—Trawling and preservation of fish—North Sea

Convention, 1882—Sweden and Norway refuse to join—Discussion of its terms—Views of British

Government as to inclusion of banks—Question of the Eddystone, the Bell Rock, the Seven-Stones Rocks
—Discussion as to limit under the Conventions and under the Law of Nations—Anglo-Danish Convention,

1901, respecting the Faröes and Iceland 604

CHAPTER IV.

THE MODERN PRACTICE OF STATES AND THE OPINIONS OF RECENT PUBLICISTS.

xx

xxi

Apparent discrepancy between general practice and the opinions of publicists—No state has formally defined
the extent of its territorial sea—Practice in Germany—Denmark—Two limits enforced—Russia—The White

Sea—France—Belgium—Netherlands—Austria-Hungary—Italy—Greece—British Colonies—Japan—

United States of America—Chile—Argentina—Uruguay—Three-mile limit generally adopted for fisheries—
Exceptions in four European states—Spain and Portugal claim six miles—Repudiated by British Government
—Discontent in Spain and Portugal—Norway and Sweden—Special Scandinavian limits—Fjords reserved
—Vestfjord—Varangerfjord—Discussion of Norwegian limit—Rejection of three-mile boundary—Recent

Norwegian laws—The three-mile limit is an Anglo-American doctrine—Opinions of modern publicists—

Calvo, Bluntschli, Phillimore, Halleck, Lawrence, Bishop, Woolsey, Dana, Twiss, Fiore, Pradiere-Fodéré,

Perels, Ferguson, Desjardins, Kleen, Aschehoug, de Martens, Hall, Oppenheim—The limit under the Law of

Nations is the range of guns—Declarations of the International Law Association and the Institut de Droit

International—Three miles insufficient—Six miles proposed for fisheries, &c—The zone or line of respect for

neutrality to be declared by each state 650

CHAPTER V.

THE INADEQUACY OF THE THREE-MILE LIMIT FOR FISHERY REGULATIONS.

Three miles insufficient for the regulation of the fisheries—Seal fisheries—Behring Sea arbitration—Oyster,
pearl-oyster, and coral fisheries—Regulations for “floating” fish—Relation of trawl-fishing to three-mile limit
—Recent great extension of trawling—The effect on the fishing-grounds—Official inquiries—English trawlers

desire an increased limit in North Sea—International conference at London, 1890—Inquiry by select

committee of House of Commons—They recommend international extension of present limit for fishery

purposes—Immature Fish Bill—Its object—Parliamentary inquiry, 1900—They urge international

arrangement for North Sea—Bill again introduced—Inquiry by committee of House of Lords, 1904—They
recommend international agreement for North Sea—The impoverishment of the fishing-grounds in the North

Sea—Trawlers flock to foreign coasts—Feeling among foreign fishermen—Legislation in various countries

regulating trawling beyond the three-mile limit—Norway, Spain, Portugal, Italy, Austria—Ireland—Not

restricted to bays—Scotland—Fishery Acts—Firth of Clyde—Moray Firth—Act of 1895 empowering a

thirteen-mile limit—Intrusion of foreign and pseudo-Norwegian trawlers into Moray Firth—Prosecutions and

convictions—Case of Peters versus Olsen—Case of Mortensen versus Peters—Decision of the Scottish
High Court of Justiciary—Opinions of the judges—Intervention of Norwegian Government—Release of

offenders—Foreign Office decline to open negotiations with foreign Powers—Debates in Parliament—Lord
Fitzmaurice on territorial limit and bays—Opinions of Lord Halsbury, Lord Herschell, Lord Salisbury, Lord

Chancellor Loreburn—Declarations of Sir Edward Grey, Minister for Foreign Affairs—Views of British

Government—Previous action of Great Britain in connection with extra-territorial fisheries—Recent

proceedings with foreign Powers regarding the three-mile limit—The international fishery investigations—

Need of an international arrangement 693

xxii

xxiii

APPENDIX.

A.The Libel regarding Reyner Grimbald. De Superioritate Maris Angliæ et Jure officii Admirallatus in eodem
741

B.Abstract of Proceedings before the Auditors regarding the same
744

C.License for Fishing at the “Zowe” Bank in the Channel, 1615
749

D.Proclamation of James I. relative to the King’s Chambers, 1st March 1604/1605
750

E.Declaration of the Jury of the Trinity House as to the Limits of the King’s Chambers, 4th March 1604/1605
753

F.Proclamation of James I. for the Restraint of Foreigners fishing on the British Coasts, 6th May 1609
755

G.Instructions by the Privy Council of Scotland for the Levying of the “Assize-herrings” from Foreign Fishermen 757
H.Proclamation of Charles I. as to preventing Abuses in the Narrow Seas and Ports, and claiming Sovereignty

of the Sea
759

I.Report of the Admiralty to Charles I. as to the Employment of the Ship-money Fleet in wafting and securing

Foreign Merchants passing through His Majesty’s Seas, and in protecting Foreign Fishermen who accept
the King’s License, 5th February 1635/1636
762

K.Abstract of the Thirty-six Articles proposed by the Dutch to St John at The Hague, 1650, 1651
764

L.Tromp’s Memorandum to the States of Holland as to the Custom of Striking the Flag to the English, 27th

February/9th March 1651
770

M.Copy of Originals of Letters between Tromp and Blake, after the encounter in the Straits of Dover, 1652
771

N.Concession to Bruges to fish in the British Seas, 1666
772

O.Articles adopted by the Institut de Droit International at Paris, and by the International Law Association at

London, with reference to the Territorial Waters
774

Index
777
xxiv

xxv

LIST OF ILLUSTRATIONS.

FIG.
PAGE

THE “BRITISH SEAS,” ACCORDING TO SELDEN
Frontispiece

1.EDWARD’S NOBLE
37

2.HITCHCOCK’S REPRESENTATION OF THE ENGLISH AND FLEMISH FISHERIES
99

3.CHART PREPARED BY THE TRINITY HOUSE, SHOWING THE BEARINGS OF THE

KING’S CHAMBERS. FROM SELDEN
121

4.SHOWING THE KING’S CHAMBERS ON THE COAST OF ENGLAND
123

5.FACSIMILE OF KEYMER’s SIGNATURE TO HIS ‘BOOK OF OBSERVATIONS’
127

6.FACSIMILE OF THE CONCLUDING PART OF THE DRAFT OF COMMITTEE’S

REPORT TO PRIVY COUNCIL REGARDING THE RESTRAINT OF FOREIGNERS
FISHING ON THE BRITISH COASTS
149

7.FACSIMILE OF MINUTE OF THE DECLARATION OF THE DUTCH ENVOYS AS TO

THE RANGE OF GUNS
156

8.DUTCH WHALERS AT SPITZBERGEN. AFTER VAN DER MEULEN
182

9.SHOWING THE LIMITS OF THE “RESERVED WATERS” CLAIMED BY SCOTLAND
231

10.DUTCH HERRING-BUSSES UNDER SAIL. AFTER VAN DER MEULEN
297

11.DUTCH HERRING-BUSSES HAULING THEIR NETS, WITH CONVOYING SHIP-OF-

WAR. AFTER VAN DER MEULEN
299

12.FACSIMILE OF THE OFFICIAL ACCOUNT OF THE MONIES RECEIVED FROM THE

DUTCH HERRING FISHERMEN FOR THE KING’S LICENSES
310

13.THE “SOVEREIGN OF THE SEAS.” AFTER VANDEVELDE
324

14.FACSIMILE OF PART OF THE CHART, SHOWING WHERE THE “TWEE

GEBROEDERS” WERE TAKEN. FROM ROBINSON, ADMIRALTY REPORTS
578

15.THE BRISTOL CHANNEL
587

16.SHOWING THE LIMITS RESERVED FOR FRENCH FISHERMEN IN GRANVILLE BAY
613

17.BAY OF FUNDY
623

18.BAY DES CHALEURS
625

19.SHOWING THE SANDBANKS AT THE MOUTH OF THE EMS
635

20.SHOWING THE LIMITS FOR THE ANGLO-DANISH FISHERY CONVENTION OF 1901
648

21.SHOWING THE TWO LIMITS IN DANISH WATERS. FROM ‘DANSK-

FISKERITIDENDE’
654

22.THE WHITE SEA, SHOWING THE LINE BETWEEN CAPE KANIN AND CAPE SVIATOI
656

23.SHOWING THE LIMIT AT ROMSDAL AMT, NORWAY
670

24.THE VESTFJORD, LOFOTEN ISLANDS
673

25.THE VARANGERFJORD
675

26.SHOWING THE THREE-MILE LIMIT AND A THIRTEEN-MILE LIMIT IN THE NORTH

SEA
703

27.SHOWING THE AREA OF THE SMALL-FISH GROUNDS, WHICH THE ENGLISH

TRAWLERS DESIRED TO HAVE CLOSED FOR THE PRESERVATION OF
IMMATURE FISH
705

28.CHART SHOWING THE FISHING-GROUNDS FREQUENTED BY BRITISH TRAWLERS.

FROM REPORT OF THE BOARD OF AGRICULTURE AND FISHERIES FOR 1906
712

29.THE FIRTH OF CLYDE, SHOWING THE LINE OF CLOSURE AND THE ORDINARY

THREE-MILE LIMIT
719

30.THE MORAY FIRTH, SHOWING THE LINE OF CLOSURE
723

xxvi

1

THE SOVEREIGNTY OF THE SEA.

INTRODUCTION.

One of the most prominent and characteristic features in English history relates to the sea and maritime affairs, and the
reason is not far to seek. The geographical situation of the country—everywhere surrounded by the waves, separated
on the one side from the Continent by a narrow strait and open on the other to the great ocean—made it almost
inevitable. And to the advantage of insularity was added the potent influence of race. A great part, if not the larger
part, of our blood has come from the old Scandinavian peoples,—the sea-wolves, as the Roman poet said, whose
school was the sea and who lived on the pillage of the world; and it is to this circumstance even more perhaps than to
the accident of position that we owe our maritime and naval supremacy and the vast empire scattered around the
globe. Running through the web of English history one perceives the connecting thread of maritime interest and
occupation interwoven with the national life, and at all times affecting the national policy. First and foremost was the
necessity of securing the land from invasion; then came the duty of safeguarding shipping and commerce; and with
regard to those fundamental interests, the language used by our rulers centuries ago was the same as that which is used
by our statesmen to-day. The sea must be “kept.” That has been the maxim and watchword of national policy
throughout the ages, and the recognition of its truth was by no means confined to rulers and statesmen. The people at
large have always been as convinced and as resolved that the supremacy or dominion on the sea should be maintained
as were those in whose hands was placed the guidance of the affairs of the state. Again and again, when owing to
mismanagement of the national resources, the poverty of the exchequer, or from some other cause, the supremacy at
sea was endangered or temporarily lost, one will find the people clamouring for steps to be taken to maintain it. On the
other hand, such was the deep and abiding sentiment with respect to the sovereignty of the sea, when this king or that
wished to embark upon a policy or engage in a war for an object that was secret or unpopular, there was no better
method of deceiving the people than by declaring that the dominion of the sea was in danger. Thrice in the compass of
a single generation the nation was plunged into war with the object of maintaining it.

One thus finds in English history a great deal which refers to the sovereignty of the sea, although the words were not
always used to signify the same thing. Most commonly perhaps they meant a mastery or supremacy by force of arms,
—what is now so much spoken of as sea-power. In times of peace, the strength of the navy should be such as to
safeguard the commerce that came to the realm and went from it, thus enabling merchants and traders to carry on their
traffic in security. In time of war, the fleets should be strong enough to sweep the seas, so that, as it has been
described, the bounds of the empire should then be the coasts of the enemy. But, more strictly, the sovereignty of the
sea was a political sovereignty that existed as a matter of right, and was duly recognised as such, apart from an actual
predominance of naval power at the time, just as the sovereignty of a state exists on land, though in both cases its
maintenance may depend upon the sword. In this sense, the sovereignty of the sea signified the same sole power of
jurisdiction and rule as obtained on land, and also, in its extreme form, an exclusive property in the sea as part of the
territory of the realm,—very much indeed like the rights that are now admitted by the law of nations to appertain to the
so-called territorial waters of a state. Many things and many interests were thus embraced in the term besides the
question of naval ascendency. There were jurisdictions of various kinds and for various purposes. There was the
important subject of the fisheries in the waters adjacent to the coasts, or, it might be, in distant regions. There was the
still more important question of the freedom or restriction of commerce and navigation from one European country to
another, or to the remote countries in the east or west which had been opened up to commercial enterprise by the
discoveries of the early navigators. There was, moreover, another subject which was specially characteristic of the
English pretensions to the dominion of the seas, and which gave rise to more trouble than all the others combined, and
that was the demand that foreign vessels on meeting with a ship of the king’s should lower their top-sails and strike
their flag as a token and acknowledgment of that dominion.

Although according to the Roman law the sea was common and free to all, in the middle ages many seas had become
more or less effectively appropriated, and Civilian writers began to assign to maritime states, as a principle of law, a
certain jurisdiction in the waters adjacent to their coasts. The distance to which such jurisdiction was allowed by those
writers was variously stated. Very commonly it extended to sixty or one hundred miles from the land, and thus
included all the bordering sea within which navigation was practically confined. Sometimes the principle governing the
ownership of rivers was transferred in theory to the sea, the possession of the opposite shores by the same state being
held to entitle that state to the sovereignty over the intervening water; or, if it possessed only one shore, to the same
right as far as the mid-line. In most cases, however, the appropriation of the sea was effected by force and legalised
afterwards, if legalised at all, and the disputes on the subject between different nations not infrequently led to
sanguinary wars.

The most notable instances are to be found among the early Italian Republics. Long before the end of the thirteenth
century Venice, eminent for her commerce, wealth, and maritime power, assumed the sovereignty over the whole of
the Adriatic, though she was not in possession of both the shores, and after repeated appeals to the sword she was

2

3

4

able to enforce the right to levy tribute on the ships of other peoples which navigated the Gulf, or to prohibit their
passage altogether. The neighbouring cities and commonwealths were soon compelled to agree to her claim, which
was eventually recognised by the other Powers of Europe and by the Pope. The right of Venice to the dominion of the
Adriatic, arising in this way by force, became firmly established by custom and treaty; and even after she had fallen
from her greatness and was hardly able to sustain her claim by the sword, it was still for a time admitted by other
nations, who looked upon the Republic as forming a useful barrier to the farther extension of the Turk in Europe and
as a scourge to the Saracen pirates.1 On the other side of the Italian peninsula, the Republic of Genoa advanced a
similar claim to the dominion of the Ligurian Sea, and some of the other Mediterranean states followed the example in
the waters with which they were most immediately concerned.

Then in the north of Europe, Denmark and Sweden, and later Poland, contended for or shared in the dominion of the
Baltic. The Sound and the Belts fell into the possession of Denmark, the Bothnian Gulf passed under the rule of
Sweden; and all the northern seas between Norway on the one hand, and the Shetland Isles, Iceland, Greenland, and
Spitzbergen on the other, were claimed by Norway and later by Denmark, on the principle referred to above, that
possession was held of the opposite shores. The Scandinavian claims to maritime dominion are probably indeed the
most important in history. They led to several wars; they were the cause of many international treaties and of
innumerable disputes about fishery, trading, and navigation; they were the last to be abandoned. Until about half a
century ago Denmark still exacted a toll from ships passing through the Sound,—a tribute which at one time was a
heavy burden on the trade to and from the Baltic.

Still more extensive were the claims put forward by Spain and Portugal. In the sixteenth century these Powers, in
virtue of Bulls of the Pope and the Treaty of Tordesillas, divided the great oceans between them. Spain claimed the
exclusive right of navigation in the western portion of the Atlantic, in the Gulf of Mexico, and in the Pacific. Portugal
assumed a similar right in the Atlantic south of Morocco and in the Indian Ocean. It was those preposterous
pretensions to the dominion of the immense waters of the globe that caused the great juridical controversies regarding
mare clausum and mare liberum, from which modern international law took its rise. The task of Grotius in
demolishing them by argument was, however, materially facilitated by the exploits of Drake, Hawkins, and Cavendish
on the part of the English, and of Jakob van Heemskerk on the part of the Dutch; and, as we shall show, the credit on
having first asserted the freedom of the seas in the sense now universally recognised, belongs rather to our own Queen
Elizabeth than to the Dutch publicist.

In thus appropriating the seas adjacent to their territories, or which formed the means of communication with them, the
various nations were doubtless impelled by consideration of their own immediate interests. Sometimes it helped to
secure the safety of their coasts or commerce; in other cases it enabled them to levy tribute on foreign shipping
traversing the appropriated waters, and thus to increase their revenues; or it allowed them to preserve the fisheries for
the exclusive use of their own subjects. In most instances, however, the principal object appears to have been to
maintain a monopoly of trade and commerce as far as possible in their own hands, in accordance with the commercial
spirit of the times.

But when the matter is more carefully examined in its historical aspects, a less selfish explanation may be found of the
tendency to appropriate seas in the middle ages. In the state of wild anarchy which prevailed after the break-up of the
Roman empire, pirates swarmed along every coast where booty might be had. Scandinavian rovers infested the Baltic,
the North Sea, and the Channel; Saracens and Greeks preyed upon the commerce of the Mediterranean; everywhere
the navigation of trading vessels was exposed to constant peril from the attacks of freebooters. The sea was then
common only in the sense of being universally open to depredation...