But James went further than this. In 1609 he issued a proclamation in which he laid claim to the fisheries along the British and Irish coasts, and prohibited all foreigners from fishing on those coasts until they had demanded and obtained licenses from him or his commissioners. This policy of exclusive fishing, though in complete agreement with the views held in Scotland as to the waters “reserved” for the sole use of the inhabitants, was a reversal of the long-settled practice in England, where fishing in the sea was free. It is from this time that one may date the beginning of the English pretension to the sovereignty of the sea. The proclamation and the policy were aimed against the Dutch, the great commercial people of those times. Their ever-increasing herring fishery along the British coast was one of the principal sources of their wealth and power; by means of it indeed, according to their own accounts, they were able to maintain their vast commerce and shipping. The action of James may be looked upon as the first blow in the great contest between the English and the Dutch for maritime and commercial supremacy, which was prolonged throughout the seventeenth century; and the ready acceptance of the new policy by the English people was owing to the fact that the conditions had been gradually preparing for it in the preceding reign, while the two nations were still bound together in alliance against Catholic Spain. With the new development of commercial enterprise the English found the Dutch their competitors in trade in all parts of the globe to which they ventured. The feeling of jealousy that was thus engendered was embittered by the belief that they were often circumvented by the Dutch by unfair means, and this feeling deepened with every year as the century advanced. It was thus against the Dutch that the English pretension to the sovereignty of the sea was specially directed, and it eventually culminated in war. From various circumstances, and not least perhaps from the timid character of James when force was necessary, the policy of preventing the Dutch from fishing on the British coasts was not carried into effect in his lifetime. But with the tenacity that was a curious feature in his nature, his claim to the fisheries was kept alive and formed the subject of mutually irritating negotiations throughout the whole of his reign.
Under Charles I. the English pretension rapidly developed and reached its greatest height, in connection more particularly with the ship-money fleets. The need of an efficient navy for the most elementary duty of safeguarding the sea had been made fully manifest by the frequent and flagrant violations of the king’s sovereignty in his “chambers,” and even in the ports and harbours, both by the Dutch and Dunkirkers. And some of the reasons which were used to justify the formation of a powerful fleet, far beyond the requirements necessary to enforce the ordinary jurisdiction, were sound enough. Without it, it was said, the kingdom could not be made safe, whereas if the king had the command of the seas he would be able to cause his neighbours “to stand upon their guard” whenever he thought fit; and it could not be doubted that those who would encroach upon him by sea would do it by land also when they saw their time. But the pretensions of Charles went far beyond this. He had caused the records in the Tower to be searched for evidence of the ancient supremacy exercised by the crown in the Sea of England, and when they were found they were interpreted in the widest possible sense. Charles assumed the rôle of the Plantagenets with a good deal added. The bounds of the Sea of England were extended to the coasts of the Continent, and over all the intervening water the king was to enforce an absolute sovereignty. No foreign fleets or men-of-war were to be allowed to “keep any guard” in them, to offer any violence, or to take prize or booty. All passing through them were to be “in pace Domini Regis,” in the peace and under the protection of the King of England, who was Lord of the Seas, ruling over them as part of his territory, and he would take care that there was no interruption of lawful intercourse. And as an acknowledgment of this sovereignty, all foreign ships or vessels meeting with a king’s ship in “those his seas” were to lower their top-sails and strike their flag as they passed by. Charles even proposed to levy tribute on the foreign ships that passed through “his seas,” but by the advice of the Admiralty this was to be only voluntary, in payment for waftage or convoy.
These extraordinary pretensions Selden attempted to justify in his book, Mare Clausum, but Charles was unable to carry them into effect. It is pitiful to read of the proceedings of the great ship-money fleets, created under circumstances so memorable in English history, roaming about the Channel in their vain attempts to compel the French men-of-war to strike their flags, and in the North Sea forcing the king’s licenses on the poor Dutch herring fishermen. The Earl of Northumberland succeeded in the latter mission, against which the Dutch Government strongly protested, and there is no doubt that if the policy had been persisted in, the first Dutch war would have been antedated by some fifteen years.
At this period and during nearly all the remainder of the century the greatest prominence was given to the striking of the flag, which had continued to be a matter of small importance in the reign of James. It was now claimed as a token and acknowledgment of England’s sovereignty of the sea, and it was insisted on with the utmost arrogance. The “honour of the flag” burned like a fever in the veins of the English naval commanders, who vied with one another in enforcing the ceremony, not merely in the Channel or near the English coast, but in the roads and off the ports on the Continent; and the records relating to their achievements in this respect were treasured up in the archives of the Admiralty, to be used again and again in later diplomatic negotiations as to the rights of England to the sovereignty of the sea. Dutch ships, and in particular the men-of-war, made little scruple about performing the “homage.” The Government of the United Provinces were keenly concerned about their commerce and fisheries, and so long as the English pretension did not menace these substantial interests they were willing to show “respect” to the English flag—never, however, as an acknowledgment of any supposed sovereignty of the sea.
While Charles was on the throne no serious international consequences resulted from the enforcement of the salute. The Dutch, as has been said, readily rendered it, and by the prudent policy of Richelieu the French ships were kept out of the way; and not very long thereafter Charles was stripped of his sovereignty on land as well as on the sea. But a little later it had noteworthy results. It was the reluctance of Lieutenant-Admiral Tromp to lower his flag to Blake in their historic meeting in the Straits of Dover in 1652 that precipitated the first Dutch war. By this time the States-General of the United Provinces, and the State of Holland in particular, had considerably abated their readiness to render the “homage of the flag,” even as a mark of respect, thinking that it might be construed as an acknowledgment on their part that the Republic of the Netherlands was inferior to the Republic of England. They had dallied with the subject when it was brought before them in connection with the instructions to their fleets, and had refrained deliberately from giving precise orders about it. The Commonwealth, on the other hand, assigned as much importance to the striking of the flag as Charles had ever done, considering that it touched their dignity as well as their sovereignty in the seas, and the instructions they issued to the naval commanders were practically the same as those that had been given to the ship-money fleets. Even the godly Barebones’ Parliament of 1653, which looked upon the Dutch as a carnal and worldly people, held it necessary that the seas should be secured and preserved as peaceable as the land, as a preparation for the coming of Christ and the personal reign. The traditional sentiment of the English nation respecting supremacy at sea had never been stronger; their jealousy of the commercial pre-eminence of the Dutch was never keener. In the prolonged negotiations that preceded the conclusion of peace, Cromwell, who, until he became Lord Protector, acted as spokesman for the Council, put the questions relating to the dominion of the sea in the foreground. The draft articles which he submitted to the Dutch for their acceptance, while permitting their merchant vessels to navigate the British seas (a provision offensive in itself), proposed to limit the number of their men-of-war that might be allowed to pass through those seas, and if occasion arose for a larger number, the Dutch Government were to give three months’ notice to the Commonwealth and obtain consent before they put them forth. Their men-of-war, as well as their merchant vessels, were to submit to be visited and searched. The Dutch were to have liberty to fish upon the British coasts on payment of an annual sum for the privilege. They were to render the honour of the flag to any ship of the Parliament. Of all these demands the only one that was conceded was the last, and it was a small triumph for Cromwell that he was able, for the first time, to bind another nation to this ceremony by the formal stipulation of a treaty. The Dutch, however, were able to eliminate from the article the words representing that the striking of the flag was an acknowledgment of England’s sovereignty of the sea; and it was pointed out in Holland that they had undertaken to do nothing more than they had previously done.
After the Restoration the pretension to the sovereignty of the sea was continued with almost as much zeal as before. Charles II. did not indeed lay claim to an absolute dominion over the British seas, such as his father had done in the earlier part of his reign. But on all occasions when the opportunity offered, he held to his alleged right to levy tribute for the liberty of fishing on the British coasts, but without the least success. And as for the right to the “honour of the flag,” if it was not exacted with the same arrogance as it had been earlier in the century, it came now to be more than ever before a subject of importance in international relations, especially with the United Provinces. De Witt, the able Minister who directed Dutch affairs, was very desirous to arrive at a definite understanding about it, for he saw that to leave in ambiguity a matter which England regarded as touching her national honour would be to imperil the peaceful relations between the two countries. His object was to have a well-considered regulation prepared and agreed to, so that the points in ambiguity might be made clear, and also to provide that if the Dutch saluted first the English should then return the salute; and he stipulated that the striking of the flag or any agreement about it must not be looked upon as an acknowledgment of England’s so-called sovereignty of the sea; the Dutch, he said, “would rather die” than admit it. One of the points which was in obscurity was whether a whole fleet or squadron of the States was to strike to any single ship of the king’s, even if it was a frigate or a ketch, which did not customarily carry the royal flag in the main-top, or only to an admiral’s ship or one carrying the royal flag. De Witt let it be known in the clearest manner that in his opinion it was intolerable that an English frigate or ketch could claim to force a whole Dutch fleet to strike to it. A few years later, when Charles wished to give effect to his secret compact with Louis XIV. by waging war against the United Provinces, it was necessary to hoodwink the English people as to this flagrant breach of treaty obligations. He therefore contrived, as the means of picking a quarrel with the Dutch, a dispute about the honour of the flag, and he sent, not a frigate, but his yacht, the Merlin, to force the whole Dutch fleet to strike to it, and thus to raise a clamour in England, as he hoped, about the sovereignty of the sea being flouted and endangered. In the third Dutch war which followed, the United Provinces maintained the contest at sea with credit and success against both the English and the French. For domestic reasons Charles was forced to make a separate peace, and in the long negotiations with that object the question of the sovereignty of the sea was brought prominently forward. An attempt was made again to induce the Dutch to agree to pay an annual sum of £12,000 for the privilege of fishing on the British coasts, but the only concession obtained from them related to the striking of the flag. The article in the treaty of peace which dealt with this differed from the corresponding article in previous treaties. The term “the British Seas” was omitted, and it was agreed that even squadrons of the Dutch should strike to any single ship of the king’s in “any of the seas” from Cape Finisterre to Van Staten in Norway; but it was to be done as an “honour” to the king’s flag, and not as an acknowledgment of his alleged sovereignty of the sea. The Dutch, indeed, offered to strike in the same way all the world over.
After this time the English claim to the sovereignty of the sea began to lose its importance. In subsequent treaties with the Dutch Republic, even as late as 1784, a clause was inserted providing for the salute, but it had become merely a matter of form and precedent. The ceremony, in truth, had grown to be a political encumbrance, and after the battle of Trafalgar, when British supremacy at sea was unquestioned, the clause relating to the enforcement of the salute was quietly dropped out of the Admiralty instructions.
It is remarkable that throughout the whole of the long period in which England claimed sovereignty in some form or other over the so-called “Sea of England,” or the “British Seas,” no authoritative definition was ever given of the extent of sea included in the term. In the case of the Adriatic there was no difficulty in understanding the limits within which Venice assumed maritime dominion, for the Adriatic is a narrow landlocked gulf whose boundaries were obvious. It was much the same with the claims put forward by Denmark. Both shores of the Sound were in her possession, and both coasts of the northern or Norwegian Sea. But with our island, washed everywhere by the waves, no such natural boundaries existed. Except when the crown possessed the opposite coast of France, England was isolated; and the Sea of England, so frequently referred to from the thirteenth to the seventeenth century, like the British Seas later, remained only a political expression, not officially described or represented on charts. Reasons have been given above for supposing that the Sea of England prior to the accession of the Stuarts included the waters of the King’s Chambers as defined by James, and perhaps also at times the Straits of Dover and it may be the Channel, though precise evidence is lacking. In the seventeenth century, when the term the British Seas was commonly used, it is clear that the boundaries assigned to them were as vague and fluctuating as the sovereignty exercised over them. They expanded and contracted according to the naval power at the time and the condition of international affairs. Sometimes the whole sea up to the continental coasts was claimed as British; at other times the claim was restricted to the Channel or the Straits of Dover, and to a more or less narrow but undefined belt along the coast; not unfrequently it seemed to vanish altogether, at least as a thing to be regarded in international affairs. In the earlier records in which the sea is referred to in connection with English law or jurisdiction, it is evident that a certain part was held to appertain to the crown. In an article in the Black Book of the Admiralty which is ascribed to the reign of Henry I. (A.D. 1100-1135), reference is made to “the sea belonging to the king of England”; in John’s ordinance of 1201 the term was simply “the sea” (la mer), but very commonly it was “our sea,” or the “sea of England,” or “the sea under the dominion or jurisdiction of the king”; while the declaration is often made that the kings of England are lords of the sea or of the English sea.5 Similar phrases were used in later times. Thus Queen Elizabeth spoke of “our seas of England and Ireland,” and James of “his seas” and “streams,” as did also Charles I.; and such terms as “the adjacent sea,” the “environing seas,” the “ambient seas,” and “the seas flowing about the isle,” were not uncommonly used.6 Still more common and scarcely more definite was the term the “Four Seas of England,” or simply the “Four Seas,” which was employed as early as the thirteenth century in law books, statutes, and official documents, as indicating the boundaries of the realm in connection with legal proceedings. Within the four seas (infra or intra quatuor maria; dedeinz les quaters meers) was to be within the realm; and without the four seas (extra quatuor maria, oultre les quaters meers) was to be without the realm.7
In the seventeenth century, when the English pretension to the sovereignty of the sea was at its height, Coke, Selden, Prynne, and others maintained that to be on the four seas, as well as within them, was to be within the realm, under the jurisdiction of the Admiralty, and this doctrine was held, at least formally, as late as 1830.8 Rarely the “Three Seas” are mentioned,9 and less rarely the “Two Seas,” by which was meant the two arms of the sea passing respectively between England and France, and England and Flanders, and corresponding to one of the meanings of the Narrow Sea.
The term, the Narrow Sea or the Narrow Seas, was applied at different times or by different writers to very various areas. In its original and more restricted sense it denoted the Straits of Dover; sometimes it signified only the southern sea or the Channel proper; at other times it included also the sea south of the Wash and the Texel; and yet again it was synonymous with the whole of the British seas in which dominion was claimed. In the political poem, The Libelle of Englyshe Polycye, which was written about 1436 with the object of rousing the nation to the paramount duty of “keeping the sea,” the narrow sea is spoken of as lying between Dover and Calais,10 as it is also in the records of the Privy Council for 1545, which mention the appointment of ships to “kepe the passage of the Narrow Seas.”11 Later in the same century, and very generally in the seventeenth century, it was used to include the Channel, as when the Earl of Salisbury in 1609 referred to “his Majesties narrow seas between England and France,”12 and likewise the sea off the Dutch coast; and at this period the Admiralty usually distinguished between the guard of the Narrow Seas and that of the North Sea.
But in other cases, and very commonly in the seventeenth century, the Narrow Sea was equivalent to the marginal sea along the whole coast or to the “British Seas.” Thus in one of James’s proclamations in 1604 for preventing abuses in and about “the narrow seas,” they are referred to as being commonly called the four English Seas, and this was repeated in a proclamation of Charles I. in 1633. So also Lord Chief Justice Hale in his treatise, De Jure Maris, describes the narrow sea, adjoining to the coast of England, as part of the waste and demesnes and dominions of the King of England; and in another work he speaks of the narrow sea lying between us and France and the Netherlands.
After the union of the Crowns the “British Seas” were very often referred to, and there was equal want of definition of their limits as in the case of the Sea of England. The advocates of the English claims to the sovereignty of the sea assigned them a wide but vague extent, while the Dutch argued that the British Sea was the Channel, the Mare Britannicum of Ptolemy and others, the North Sea being distinct and known as Oceanus Germanicus. In many of the diplomatic negotiations that took place on the subject there were heated discussions as to the meaning of the term the “British Seas,” and in point of fact the British representatives, like the Admiralty itself, were unable to define them. The only serious attempt which was made to define the Sea of England or the British Seas in relation to the claim to its sovereignty was made by Selden in 1635. It did not fail on the side of modesty, for according to him the Sea of England was “that which flows between England and the opposite shores and ports.”13 More particularly in the opening chapter of his second book he describes the British Sea (Oceanus Britannicus) as being divided into four parts according to the four quarters of the world. On the west lay the Vergivian Sea, also called the Deucaledonian Sea where it washes the coasts of Scotland, and in which Ireland is placed; on the east is the German Ocean, so called by Ptolemy because it lies opposite the German shore; on the south, between England and France, is the sea especially noted by Ptolemy as the British Sea, the Mare Britannicum; but in reality all the sea extending along the shores of France through the Bay of Aquitaine (Bay of Biscay) as far as the northern coast of Spain was British. Since the northern and western ocean stretches to a great distance, to America, Iceland, and Greenland, and to parts unknown, it could not “all be called British,” but inasmuch as the King of Great Britain had very large rights in those seas, beyond the extent of the British name, it was not wholly to be left out of account. The indefiniteness of these boundaries to the north and west is obvious, but in a chart which he furnished, and which is reproduced in the frontispiece of this book, he presumably represented what he regarded as the British seas proper; and in several places in his work he expressly declared that the English sea and the English sovereignty of the sea extended to the opposite shores of the Continent.
Throughout almost the whole of the remainder of the century after the appearance of Mare Clausum, Selden’s authority was paramount on all questions relating to the sovereignty of the sea, and his description of the extent of the British seas was very generally adopted, both by writers and by the Government, at least in theory. But it not infrequently happened on particular occasions when a precise definition of their extent was required, that only a vague declaration was forthcoming. Again and again one finds English admirals and naval commanders imploring the Admiralty to tell them the bounds of the British seas, so that needless broils about the salute might be avoided. As a rule, no reply was given to their inquiries; and when it was, it was usually so oracular as to be of little practical advantage. Thus the Earl of Lindsey, when placed in command of the first ship-money fleet, put the question to Secretary Coke, and was told that his Majesty’s seas “are all about his dominions, and to the largest extent of those seas,” and similar explanations were given on other occasions. There is evidence that neither the Admiralty nor the law officers of the crown were able to state what the boundaries of the British seas were, and sometimes the Trinity House was appealed to, with but little better result. In truth, it was part of the national policy to leave their boundaries undetermined. The free navigation of the North Sea and the Channel was of vital importance for many of the states of Europe, and three of them at least—the Netherlands, France, and Spain—had large interests in the fisheries on the British and Irish coasts. If this country had by a formal act of state assigned definite and wide boundaries to the British seas within which sovereignty was claimed, it would have led to frequent and hopeless wars or to constant humiliation. By leaving them vague and ambiguous the pretension to maritime sovereignty could be put forward and used as a political instrument when the navy was strong and occasion offered, and when the navy was weak the pretension might fall into the background without the national honour being unduly tarnished. But on the whole, the claim to the sovereignty of the so-called British seas became an anachronism and was allowed to die out from practical affairs, surviving only in the pages of historians, naval writers, and pamphleteers. During the almost constant naval wars in the eighteenth century a new principle came into being for the delimitation of the neutral waters of a state, the extent of the adjacent open sea that might be appropriated being determined by the range of guns from the shore. All the water within reach of cannon-shot could be protected and commanded by artillery on the land, and thus made susceptible of exclusive and permanent dominion. This principle was accepted very generally by the various maritime Powers as offering a just and equitable means of fixing the limits of their territorial waters, within which the bordering state had exclusive sovereign jurisdiction. It has also been accepted by the great majority of modern publicists, and the phrase of Bynkershoek, “terræ dominium finitur ubi finitur armorum vis,” has become enshrined in the Law of Nations.
Later, and mainly through the action and practice of the United States of America and Great Britain since the end of the eighteenth century, the distance of three miles from shore was more or less formally adopted by most maritime states as equivalent to the range of guns, and as more definitely fixing the limits of their jurisdiction and rights for various purposes, and, in particular, for exclusive fishery. At the time the three-mile limit was introduced, that distance did indeed represent the farthest range of artillery, so that the boundary was the same in each case; and it was sufficient to secure to neutrals that their coasts should not be violated by the operations of belligerents carried on beyond three miles from the shore, while at the same time it furnished a practical measure of the extent of the protection that neutral Powers were bound to afford to the vessels of one belligerent from attacks by the other. But all this is changed. Guns are now able to throw shells to a distance of fifteen miles and more, and the three-mile limit has become quite inadequate to secure the coasts of a neutral from damage from the guns of belligerents engaged in hostilities in the waters near their shores. The argument is not uncommonly used that inasmuch as Great Britain is the predominant maritime Power, it is to her advantage that the territorial waters of all countries should be as narrow as possible. The wider the theatre the better chance for our navy, either in engaging the battle fleets of the enemy or in capturing his shipping. The importance of the change in the conditions referred to above is overlooked. There has been no great maritime war in Europe since the three-mile limit was adopted as the equivalent of the range of guns. If and when another maritime war unfortunately breaks out, it would be absurd to suppose that the neutral Powers within the sphere of possible operations would be content with a three-mile limit to safeguard the security of their coasts. As provided for in the rules drawn up by the Institute of International Law, their duty would be to prohibit all hostilities within such distance of their coasts as would render them secure, and this in turn would involve the immunity from capture within the same space of the merchant vessels of one of the belligerents by the vessels of the other. And thus if this country were engaged in a great maritime war, such as occurred a century or so ago, a very considerable belt of sea on neutral coasts would be closed to the operations of the fleet, and the conditions of naval warfare would be profoundly changed.
With regard to the other questions of sovereignty or exclusive rights in the seas washing the coasts of a country, it is becoming more and more recognised that there is no reason in nature why the boundary for one purpose should be the boundary for all purposes. Just as the three-mile limit is now obsolete in respect to belligerents and neutrals in time of war, so is it inadequate in all cases with regard to the protection and preservation of the sea fisheries. In the concluding chapters of this book it is shown that all recent inquiries by Parliament into the condition of the fisheries, especially of the North Sea, have resulted in proving the inadequacy of the present limit for fishery regulations, and in recommendations that the subject should be dealt with internationally by the various countries concerned.
SECTION I.
THE HISTORY OF THE CLAIMS TO THE
SOVEREIGNTY OF THE SEA
CHAPTER I.
EARLY HISTORY.
When the claim of the English crown to the sovereignty of the British seas became a question of international importance in the early part of the seventeenth century, the records of history and the treasures of ancient learning were searched for evidence to establish its antiquity. Some of the greatest lawyers and scholars of the time took part in the task, and they were not always content with the endeavour to prove that the claim was in conformity with the laws of England as an old heritage of the crown, but they tried to trace it back to a remote past. Selden, who was incomparably the ablest and most illustrious champion of the English pretension, as well as Boroughs and Prynne and other writers of lesser note, laboured with more or less erudition and ingenuity to show that the British dominion in the adjoining seas was anterior to the Roman occupation. From the ancient Britons it was supposed to have passed to the Roman conquerors as part and parcel of the British empire, and to have been exercised by them during their possession of the island.14 It is unnecessary to discuss the evidence and arguments for these contentions. They are for the most part drawn from scattered passages or even phrases in the writings of classical authors, to which a strained and improbable significance was assigned. An example may be given from Selden, who, in referring to the well-known passage in Solinus15 in which Irish warriors are described as decking the hilts of their swords with the tusks of sea-beasts (walrus), first tries to show that the passage applied also to the Britons, and then argues that there must have been a great fishing and a large number of fishermen to provide sufficient material, the conclusion being that the British seas were “occupied” by navigation and fishing. In reality the walrus tusks came by barter from the north, and there is little or no evidence to show that the ancient Britons fished for anything except salmon. At the utmost it may be said that the Romans were masters of the British seas, or parts of them, in a military sense. During their occupation of Britain they were also in possession of Gaul, and thus held both coasts of the narrow sea, and no doubt exercised authority over it, as the Norman and Angevin kings under similar circumstances did later.
Throughout the Anglo-Saxon period of English history evidence of the existence of a sovereignty over the adjoining sea, or even of a pretension to it, is almost as unsatisfactory. Here again the authors who championed mare clausum professed to find in very ordinary events arguments in favour of their case. The seafaring habits of the Teutonic invaders and their daring and valour—they were described by the Roman poet as sea-wolves, fierce and cunning, with the sea as their school of war and the storm their friend—were regarded as proof that they possessed maritime sovereignty after their conquest of Britain. The Danegeld, a tax which was originally levied as a means of buying off the Danes, or of providing a fleet to resist their attacks, was thought by Selden to show the same thing.16 So also with the fleets collected by Alfred, Edgar, Ethelred, and other English kings to oppose the invasions of the Northmen,—they were believed to have secured and maintained dominion over the sea. Even the beautiful lesson in humility which Cnut desired to convey to his courtiers when, seated in regal pomp on the seashore, he vainly commanded the inflowing tide to stay its course at his behest, was seized on for the same end. “Thou, O sea,” said the great king, “art under my dominion, like the land on which I sit; nor is there any one who dares resist my commands. I therefore enjoin thee not to come up on my land, nor to presume to wet the feet or garments of thy lord.” In these words Selden professed to find clear proof that Cnut claimed the British seas as part of his dominions.17
There appears to be only one instance before the Norman Conquest in regard to which prima facie evidence was produced that an English king expressly claimed the sovereignty of the sea, and as it is constantly quoted by later writers it may be worth while examining it. The chronicles agree that the naval power of England was specially manifested by King Edgar (A.D. 959-975), who is said to have possessed a fleet of several thousand vessels, with which he cruised every year along the English coasts. In the words of the Saxon Chronicle, “no fleet was so daring, nor army so strong, that mid the English nation took from him aught, the while that the noble king ruled on his throne.”18 According to William of Malmesbury, who wrote in the twelfth century, Edgar usually styled himself the sovereign lord of all Albion and of the maritime or insular kings dwelling round about,19 the assumption being that he also exercised sovereignty over the intervening and surrounding seas. In a charter by which Edgar, in 964, granted large revenues to the Cathedral Church at Worcester, the claim to the ocean around Britain is more definite, and it is this version that is usually quoted by the writers maintaining the antiquity of the English rights.20 The title thus said to have been used by Edgar is expressive enough, but an important difference in the wording of this part of the charter is to be found in the transcript printed by Coke in the Epistle to the Fourth Book of Reports, by Spelman,21 Wilkins,22 and by the more recent authorities on Anglo-Saxon charters, Kemble,23 Thorpe,24 and Birch,25 from which it appears that Edgar claimed to be, not lord of the sea, but of the islands in the sea.26 This is the version given by Sir John Boroughs in his Sovereignty of the British Seas, and it is also mentioned by Selden. But, after all, the authenticity of the preamble of this charter is not well established. Kemble marks it as doubtful, a view supported by intrinsic evidence as to an imaginary conquest of Ireland. Thorpe is of opinion that the preamble was fabricated about 1155, when Henry II., in concert with Pope Adrian IV., was meditating the conquest of that island. It may therefore be concluded that King Edgar’s assumption of maritime sovereignty had its source in a monkish fable, although he may have possessed the actual command of the sea in his time. Later on, the supposed rôle of Edgar among the Anglo-Saxon kings was a common argument for the English claims. He was looked upon as a sort of patron saint of the doctrine that the kings of England were lords of the sea. Charles I. put his effigy on the beak of his great ship, the Sovereign of the Sea, and inscribed his name in a motto on her guns. Oliver Cromwell, too, quoted his exploits to the Dutch ambassador in the course of the negotiations after the first war with Holland.
It is not to the Anglo-Saxon period of our history that we must look for the origin of the claims of England to the sovereignty of the sea, even in a purely military sense. At that time, for at least three centuries before the Norman Conquest, the Northmen and not the English were the real lords and masters of the sea. They offered an example of what is now so much spoken of as the influence of sea-power on history that is unsurpassed in later annals. Their leaders were styled sea-kings for the best of reasons. Their fleets darkened every coast from within the Arctic circle to the furthermost bounds of the Mediterranean. Through their command of the sea they took permanent possession of the larger part of England; they penetrated almost every great river in Europe—the Elbe, the Schelde, the Rhine, the Seine; they formed settlements from Friesland to Bordeaux; they discovered and planted colonies in Iceland (A.D. 861), Greenland (A.D. 985), and North America (A.D. 861); and they founded kingdoms or dynasties not only in England, but in France, Sicily, Ireland, and Russia.27 In the presence of such irrepressible energy in maritime and warlike enterprises the English were not able to hold their own on the sea, far less to acquire dominion over it.
It is not until a considerable time after the Norman Conquest that valid evidence is to be found of the English claim to the sovereignty of the sea. Although obscurity surrounds the precise time and mode in which the pretension took its rise, there is little doubt that it originated in the period following the Conquest. The shores on both sides of the Channel were then brought under the same dominion. In the reign of Henry I. almost the whole of the Atlantic coast of France from Flanders to the Pyrenees was in the possession of the English crown, and for about four and a half centuries, until the loss of Calais in 1558, England held more or less territory in France. The Channel thus became in effect an English sea—the narrow sea—intervening between the continental and insular territories of the king, and it acquired high importance as the passage from one part of the realm to the other. It was in this connection and for the guarding of the coasts that the organisation of the Cinque Ports was developed by the Norman and Angevin kings.28 Even after the loss of the French provinces, the continued possession of the Channel Islands and the usual possession of Calais kept alive the English claim to the narrow sea. The Conquest was, moreover, followed by a great increase in the stream of traffic between the two countries,29 while fishermen from Normandy and Picardy, as well as from Flanders, came in large and increasing numbers to take part in the great herring fishery along the east coast of Scotland and England.
During the frequent wars with France from the commencement of the twelfth century onwards, the Channel acquired special significance from a military point of view, and it was from this time that the importance of “keeping the narrow seas” began to be recognised in English policy. The command of the Channel was not only of value in safeguarding the coast. The Channel formed the great avenue of commerce between the north and south of Europe. The merchant vessels from Venice, Genoa, and the Mediterranean, from Spain and France, passed northwards through it on their way to Flanders and the Baltic, and those from the Hanseatic towns and northern parts had in like manner to traverse it in their southern voyages. The Channel was thus crowded with shipping in summer, and the nation which commanded it had the power of interrupting the commerce of other nations, and consequently retained a potent political weapon in its hands. It is this aspect of “keeping the narrow sea” which forms the burden of the remarkable old poem, The Libelle of Englyshe Polycye.
Moreover, in the period following the Norman Conquest another condition came into existence in connection with the security of the commerce passing through the Channel, which throws light on the origin of the English claim to sovereignty over it. As already mentioned, owing to the lawlessness that prevailed on the sea after the break-up of the Roman empire, when pirates and freebooters infested every coast, it became customary for merchants to associate themselves together for mutual protection. Their vessels sailed forth in fleets under the charge of an elected chief, called the “admiral,” and armed vessels were frequently fitted out by them for the express purpose of purging the sea of pirates. In the course of time this duty of maintaining the police of the seas was taken over by sovereign princes, who exercised their jurisdiction through an admiralty, and put in force the old “laws of the sea” which had gradually grown up among the merchant associations.30 In the thirteenth century this supreme admiralty jurisdiction came to be regarded among the principal states of Europe as a prerogative of sovereign power, and it is about this time and in this connection that we first find certain evidence of the claim of England to the sovereignty of the adjacent sea. The Plantagenet kings, or at all events some of them, asserted the right of “maintaining the ancient supremacy of the Crown over the Sea of England” by exercising jurisdiction according to the old maritime laws, for the maintenance of “peace and justice amongst the people of every nation passing through the said sea.”31 It was the production of the old rolls concerning these claims by Sir John Boroughs, the Keeper of the Records in the reign of Charles I., which furnished that king with the material on which to base his pretension to the sovereignty of the sea.
The English writers of the seventeenth century who strove to prove that the kings of England anciently exercised an exclusive sovereign jurisdiction over the so-called Sea of England, as if it were a “territory or province of the realm,” quoted largely from the old Admiralty records. Selden sought to show that they had perpetually enjoyed the dominion of the surrounding sea from the coming of the Normans from the fact that they had maintained a guard upon it.32 The evidence adduced, however, merely proves that measures were taken for guarding the seas, defending the coasts, and suppressing piracy,—duties which were discharged, even in the same seas, by the Admiralty of other countries, as that of France. Such phrases as “to guard the seas,” “to guard the sea and sea-coasts,” are common enough in the early records of the Admiralty,33 but they do not imply exclusive dominion. It was a duty common to neighbouring nations. In England, from the time of Henry I., at the beginning of the twelfth century, orders were given for the seas to be guarded as occasion required; and officers were appointed by Henry III. and other kings as Wardens, Keepers, and Guardians of the sea and sea-coasts, and also as Governors and Captains of the Navy, whose title was subsequently changed to Admiral in the latter part of the thirteenth century, following the practice of the merchant associations, as above mentioned. Much was made by the English writers of the appointment of admirals by the kings of England for safeguarding the sea. The first appears to have been appointed in 1297 with the title of Admiral of the Sea of the King of England,34 but before this time the King of Castile and Leon had appointed an admiral with similar duties, and an Admiral of all France was appointed about the year 1280.35 So too with the equipment of fleets. Edward I. divided the ships charged with the guarding of the seas into three squadrons, each with an admiral,—a measure which, it was argued, showed his resolution to maintain his dominion of the sea. But the practice in France was similar. From an early period French fleets were equipped under “governors or custodians of the sea” (præfectus maris), “lieutenants-general of the sea and the shores thereof,” and “admirals,” and their maritime jurisdiction was regulated from at least the early part of the fourteenth century.36 Selden laboured to show that the office of admiral and the admiralty jurisdiction had a different significance in France from what they had in England,37 but on quite inadequate grounds.
Another class of evidence adduced by the English authors refers to the impressment of ships for the defence of the realm or the transport of troops on occasions of emergency. These duties were at first performed by the vessels of the Cinque Ports, in accordance with their charters; but as early at least as the reign of Richard I., ordinances were issued (at Grimsby) regulating the mode of arresting vessels and men for the service of the king,38 and it became an established and common practice. Numerous instances occur which show that on such occasions foreign vessels were not exempt from arrest, though compensation was at least sometimes made to their owners.39 The argument of the English writers that these arbitrary proceedings were evidence of the dominion exercised by the kings of England on their sea is rebutted by the practice in France. Froissart40 tells us that the French adopted similar measures in 1386 when they were preparing for an invasion of England, and the practice was doubtless common enough, and justified by the emergency which occasioned it.
With regard to the most important attribute of maritime sovereignty—the right to exclude others from an equal use of a particular sea by prohibiting navigation, at least of vessels of war, and from fishing in it, or by imposing dues and conditions for the liberty—there is scarcely a scrap of evidence to show that any authority of the kind was exercised by England in the adjacent seas. The circumstance is noteworthy, inasmuch as other countries which then enjoyed undoubted maritime sovereignty, did not permit unrestricted navigation or fishing in the seas specially under their control, as Venice in the Adriatic, and Denmark in the northern seas and in the Baltic. The evidence concerning the liberty of fishing in the sea along our coasts is dealt with in another chapter, but it may be said here that this liberty was provided for in a series of treaties with other Powers. As for liberty of navigation, it was asserted, or rather implied, by Selden, in guarded language, that the kings of England anciently possessed the power of refusing it;41 but the evidence relates for the most part to passports and safe-conducts “by land and sea,” and to the impressment of vessels, referred to above. There appears to be not a single fact to prove that the liberty of innocent navigation in the English seas was ever interfered with by the king. The Parliament of Ireland, it is true, passed an Act in 1465 prohibiting all foreign vessels “from going to fish at Ireland among the king’s enemies” without first obtaining a license, on pain of forfeiture of the vessel. But it is clear from the preamble that the Act was passed because foreign vessels frequenting the Irish coast for fishing were supplying the king’s enemies with money, arms, and provisions.
Nor is there any valid evidence that tribute was ever imposed on foreigners for liberty of navigation in the sea of England. A case frequently quoted to the contrary was the imposition of a duty by Richard II., in 1379, on merchant vessels and fishing smacks, to provide means for the defence of the eastern coast and the security of navigation and fishing. At that time the English navy had almost ceased to exist, through the mistaken policy of Edward III. in the latter part of his reign. In 1377 a French and Spanish fleet had not only scoured the seas, but plundered and burned Rye, Folkestone, Hastings, Plymouth, and other towns on the southern coast, which they ravaged. In the following year they continued their depredations on the English coast, and held such complete command of the sea that “no victualler, fishing boat, or any other, could pass or return without being taken.”42 In 1379, as the enemy still held the sea and the coast, Parliament, after consultation with the merchants, decreed that certain duties should be levied to provide means to secure the safeguarding of the sea, and among these was one on vessels laden with goods belonging to merchants of Prussia, Norway, or Scania. Selden says this ordinance applied to foreign as well as English vessels, which had therefore to pay for passage through the sea “just as one may exact payment for passage over one’s field.”43 But there is no evidence that the tax was levied on other than English vessels; and in any case it is clear from the preamble that it was a voluntary arrangement, and probably made at the request of the merchants themselves, who had been petitioning the king and Parliament for protection.44 It is noteworthy also that the keepers of the northern sea were not to convoy the vessels to or from Flanders and Calais unless they were paid for doing so.
An incident which occurred early in the next century shows the temper in which the Parliament regarded the sovereignty of the narrow sea, as well as the caution of the king. By that time the English navy had recovered its strength and France lay prostrate at the feet of Henry V., and the Parliament petitioned the king to levy an impost on all foreign ships passing through the Channel, in emulation, no doubt, of the practice of the Danish kings at the Sound. It was a few years after the battle of Agincourt, and the Treaty of Troyes, by which Henry was recognised as the future king of France, had just been concluded. “The Commons pray,” ran the petition, “that seeing our Sovereign Lord the King and his noble progenitors have ever been Lords of the Sea, and now by the grace of God it has come to pass that our said Lord the King is Lord of the shores on both sides of the sea, such tribute should be imposed on all strangers passing through the said sea, as may appear reasonable to the King for safeguarding the said sea.”45 The answer of the king was that he would consider it (soit avise par le Roy), the usual formula of refusal. In the following year Henry was again involved in war with France, and he died in 1422 and nothing more was heard of the proposal. But it is extremely doubtful if he or any other English king would have ventured to adopt the policy recommended by the Commons. The shipping that passed through the Channel was far more voluminous and important than that passing through the Sound, and the waterway could not be so easily commanded, as by guns from the shore. Any measure of the kind would doubtless have led to a combination of other maritime Powers against England, which would have been fatal to the attempt. It may be noted that the Parliament based their proposal on the king’s possession of both shores; and this, in accordance with the opinions of the Italian lawyers of the preceding century, whose authority was great, carried with it the right of sovereignty over the intervening sea.
The statement in the petition that the kings of England had ever been lords of the sea is true at least to the extent that on several occasions previously the title was applied to them, and this was usually at times when they possessed actual supremacy and mastery over the seas in a special manner, though it may also have implied the idea of sovereign jurisdiction. Nearly a century earlier than the above petition we find the same title used by Edward III., who is peculiarly identified with the naval glory of England, and he too refers to his progenitors as having been lords of the sea. In a mandate to his admirals in 1336, the king, after stating that twenty-six galleys of the enemy were reported to be on the coasts of Brittany and Normandy, said: “We, calling to mind that our progenitors, the Kings of England, were Lords of the English sea on every side, and also defenders against the invasions of enemies before these times; and it would greatly grieve us if our royal honour in such defence should be lost or in any way diminished in our time, which God forbid, and being desirous with the help of God to obviate such dangers and to provide for the safety and defence of our realm and people, and to restrain the malice of our enemies: We strictly require and charge you” to proceed against the galleys, &c.46 Later in the same year, in a commission to certain nobles, prelates, and the Warden of the Cinque Ports respecting measures to be taken against the Scottish fleet, which was attacking merchant and other ships, and had ravaged Guernsey and Jersey, the king desired it to be remembered that his progenitors the kings of England, in similar disturbances between them and other lords of foreign lands, were in all bygone times “lords of the sea and of the passage across the sea,” and he would be much afflicted if his royal honour should be in his time impaired.47 These declarations, made in the first half of the fourteenth century, indicate clearly enough at least the pretension to special interest and jurisdiction in the narrow sea and the Straits of Dover on the part of the earlier kings. No English king deserved the title of Lord of the Sea better than Edward III. Only a few years after the above missives were written he gained the memorable victory over the French in the battle of Sluys, and in 1350 the equally great victory over the Spaniards off Winchelsea (“Les Espagnols sur Mer”), commanding the fleet in person on each occasion.48