Imágenes de página
PDF
ePub

ensure a demand for an almost unlimited quantity of salted fish. It would be idle to suppose that, on the return of friendly relations with the Dutch, we shall be able to prevent their fishing on our coasts, and in our very harbours, as they have been accustomed to do heretofore. In the last short interval of peace they came over to dredge for ovsters, and to procure whilks for bait, in the very mouth of the Thames. French fishing vessels visited the banks and inlets on the coast of Ireland; and a boast was made, in the official journal of that country, that, in the course of two months, the Boulogne fishermen caught as many herrings on our side of the Channel, as produced them L28,000; and that one third of this sum was paid by English fishermen in ready money for the purchase of fish caught on their own shores !

In any negociatiou for a general peace, every effort will be used by our inveterate and deadly foe to thrust forward, as a prominent feature, the liberiy of the seas. Our naval superiority is, in fact, the lethalis arundo that rankles in his breast. By that superiority the spark of liberty lias still been kept alive on the continent of Europe, and by it alone have Spain and Portugal been rescued from the tyrant's iron grasp. We are therefore accused by him, on all occasions, and the accusation is re-echoed by his worthy coadjutor in America, of wishing to exclude the universe from that elemeyt which constitutes three-fourths of the globe;' and of throwing a barrier across this common highway of nations. The accusation, we need not say, is utterly mmfounded. The superiority which we have obtained by the skill and valour of British seamen has been used with British generosity and moderation. But, we confess, it has frequently occurred to us, that the charge might have been answered by a public declarauon, stating clearly and explicitly what those maritime rights are, which, to use the words of Mr. Abbot when speaking in the name of the Commons of England, ve have resolved never to surrender. The ground on which we stand is too tirm and 100 elevated to require us to rest our foundation on undefined preteitsions. e may, with safety, not only declare what those rights are, but further, that we shall wage interininable war rather than abate os compromise one iota of them. We hold the full and free use of the oceau, and every part thereof, by the whole universe, as a fundamental principle of public law, subject only to those regulations which have been established and sanctioned by the law of pations. England, it is true, las long claimed the sovereignty of the seas as a rigiit wlich universal conquest has fairly given her; a right which we trust she will long continue to hold for her own honor imd for the general liappiness of mankind. Her sovereignty however is purely military, and in other respects but a' barren FOL. IS. NO. XVIII.

sceptre,

We

sceptre ;' for, we repeat that at no period does it appear that she ever intended to set up any claim to a legal and possessory right of the sea to the exclusion of other nations.

That we have used the sovereignty of the seas with moderation is no idle assertion. If, by the common consent of nations, the sea has been held to be innocent, and inexhaustible, and therefore, that every one has a right to use it for navigation, and for fishing, England has not infringed either of those rights. She has exercised no prerogative of power beyond what is strictly recognised by the law of nations--- assumed no privilege that could tend to the establishment of any legal right to the dominion even of her own seas.

The Mare Clausum of Selden was certainly calculated to mislead, and it did mislead, a great part of the public on a point to which the public feeling was tremblingly alive; but the ablest statesmen of that day never thought of confounding the two questions of military dominion, and legal right of possession; or, as Vattel expresses it, * England never claimed the property of all the seas, over which she has claimed the empire;' whilst he admits at the same time, that she had a right to take possession of the herring fishery on her coasts, though the omission of so doing caused that fishery to become common.

As the right to an appropriate fishery on our own coasts may speedily be brought into public discussion, it may be worth while to inquire how the fact stands with regard to our claims to the fishery in the seas of Great Britain—whether we have, in point of fact, at any period of our history, established a claim, by assuming 10 ourselves the power of granting licenses, or assigning limits, to those fisheries. There are two or three points on record that would seem to countenance the idea of the Kings of England having exercised these acts of sovereignty. Sir Jolin Boroughs, whom we have before quoted, says, in his Sovereignty of the British Seas, that Philip the Second, king of Spain, obtained of Queen Mary his wife, a licence for his subjects to fish upon the north coasts of Ireland, they paying yearly for the same one thousand pounds sterling, which was accordingly paid into the exchequer of Ireland; but he produces no authority excepting the hearsay of the son of Sir Henry Fitton the treasurer. Such payment is no where on record, and, if ever made, was either a private bribe or an extortion. What appears to render this the more probable, is that the ambassadors of Queen Elizabeth openly affirmed to those of Denmark, when that power pretended to prevent foreigners froin fishing between Norway and Iceland, that the kings of England had in no time forbid the freedom of fishing in the Irish sea, albeit they were lords of both banks. Again, it is recorded by Camden, and quoted by a number of writers, that the Dutch asked leave of the

governor

[ocr errors][ocr errors]

governor of the castle of Scarborough to fish for herring on that part of the coast, observing that the English always gave leave to fish, reserving the honour to themselves, but slothfully resigning the profit to others.' But Sir Philip Meadows observes that Mr. Camden has produced no authority for such an assertion; that the governor might probably, by his civilities to the fishermen, make some perquisites, and derive some emoluments, by permitting them to dry their nets on shore, fetch victuals and water, &c. but that it is not likely he had so indefinite a power, as to enable him to give leave, upon bare asking, for foreigners to fish at pleasure within the royalties of the crown; that at any rate it is manifest that no state ever did pay to the crown of England any yearly sum or other consideration for liberty of fishing upon the seas of England, for, in such case, such sum must have passed into the account of the exchequer as a branch of the royal revenues, and have there remained on record.* He further observes that none of our leagues and treaties made either with the house of Burgundy or with the house of Austria, since the union of the two houses, or with the States General, since their disunion from both, have ever reserved to the crown of England, any annual payment, fee-farm or consideration, for their liberty of fishing in our seas; that a certain suin was never agreed, and that an uncertain one could never be demanded; that, on the contrary, all the ancient treaties from the time of Edward IV, to James Í. with the dukes of Brittany and Burgundy and the princes of the Low Countries, invariably covenant on both sides that their respective subjects should freely, and without let or hindrance, fish every where upon the sca, without asking any licenses, passports or safe conducts.--For instance, in the treaty between Edward IV. of England and Francis duke of Britany, the fishermen of both nations pourront peaceablement aller par tout sur mer pour pescher et gaigner leur vivre, sans impeachement, ou disturber de l'une partie ou de l'autre,' &c. Thus also in the Intercursus Magnus made in 1495 between Henry VII. and Philip IV. it is agreed quod piscatores utriusque partis poterint ubique ire navigare per mare, securè piscari, absque impedimento, licentia, scu salvo conductu. And the Dutch in the time of Queen Elizabeth were never molested in the enjoyment of the same privileges.

There are two cases, however, on record, that would seem to establish the fact of a licensed fishery on the part of England. In the seventh year of King James I. 1600, a proclamation was published, inhibiting all persons of what nation or quality soever, not being

Observations concerning the Dominion and Sovereignty of the Seas, composed by Sár Philip Meadows. Pepysian Manuscripts.

V2

natural

natural born subjects, from fishing upon any of the coasts and seas of Great Britain and Ireland, and the isles adjacent, without first obtaining licences from the king, or his commissioners, authorized in that behalf, which licences were to be renewed yearly. This royal edict, however, which further required a rateable composition to be paid into the exchequer, proportioned to the tonnage, seems altogether to have been disregarded by the continental states, whose subjects met with no difficulty in obtaining an indefinite liberty of fishing every where close upon the English shores, and even within its bays and havens, without the least fear of molestation, by the payment of some trifling fee or gratuity. A repetition of the proclamation by King Charles I. in 1636, with the view of establishing a claim to an appropriate fishery, met with no better success. The better to enforce this edict, the Duke of Northumberland, as admiral of the fleet, was sent into the North Sea to compel the Dutch fishermen to take licences, and to pay for the same, at a moderate rate, which they gladly accepted, to secure to themselves the benefit of the fishery without molestation; but the ambassador of the States General in England remonstrated against this un. precedented proceeding and disavowed the act of their fishermen. Henry IV. of France did, however, it seems, pay England the compliment of asking permission to fish for soles on the English banks for the use of his own table; and our own Henry VIII. condescended to renew a treaty which Henry VII, had made with John II. of Denmark, in which it was mutually covenanted that

the liegemen, merchants and fishermen of England, should fish and traffic upon the Northern Sea, betwixt Norway and Iceland, but under a proviso of first asking leave, and renewing their licences from seven years to seven years, (de septennio in septennium,) from the kings of Denmark and Norway and their succes

1.

'* sors.

Next as to a limited fishery. This expedient has also been tried, but with no better success than a licensed one. · The precise boundaries of that marine territory, which approximates to the dominions of any prince, have never been established by universal consent. It has been held indeed as a general maxim of national law, ' that he, who is lord of buih banks, is lord of the intermediate channel;' but even this covcession is subject to modification where that channel is the passage into open seas. Civilians unanimously agree as to the right of sea property, but differ as to the extent and quantity of that right. One living on the borders of the Atlantic, might with seening propriety extend that right an hundred miles into the ocean; another duelling on the shores of the Baltic or Mediterranean

Sir P. Meadow's, on the Dominion and Sovereignty of the Seas. Pepysian MSS.

nght think twenty leagues of sufficient extent; another again might maintain, that so much of the sea appertains to the land, as a man can see over from the shore on a clear day; all these notions have in fact had their supporters. But as Sir Philip Meadows observes with regard to the last, “if a man see from Dover to Calais, I suppose the like can be done from Calais to Dover; and whose shall the sea be betwixt? The opinion of more modern writers on the law of nations seems to assign the distance of a cannon shot from any part of the shore as the extent of marine jurisdiction, er, as a general principle, that legal dominion of the sea should estend so far from the coast as the safety of the nation renders i necessary, and her power is able to assert* The extent of the Betish seas has at all times been a fruitful theme of dispute and éscssion with neighbouring nations. In the attempt to settle the bour of the flag between England and France, Richlieu proposed that French ships should strike the flag and lower the topsail to British ships in the English Channel when nearer to the English abore, and that British ships should strike to those of France when meeting nearer to the French coast. The Cinque ports considered their jurisdiction to extend half seas over: the Trinity house were of opinion that the British seas extended from Cape Finisterre to the middle of Van Statenland in Norway, and from thence worthward of Scotland and the isles thereof. "The Lords of the Admiralty having in 1712 called on Sir Charles Hedges, the judge of the Admiralty Court, for his opinion as to the extent of the British seas, he delivered it as follows, which our readers will perhaps be inclined to consider as that of a good courtier, rather than of a sound lawyer.

1. I take it without any doubt that the four seas, namely, east, south, west and north, are within her Majesty's sea dominions, as Queen of Great Britain. 2. That the east and south parts of this dominion extend to the opposite shores, and if a line be drawn from Berwick to the Naze in Norway, and another from Cape Finisterre to Cape Clear, or the most western point of land in Ireland, I conceive the space within those lies has been always reputed a part of the British seas; but I cannot say this is the utmost extent of them southward, there being some opinions that carry them farther. 3. If a line be drawn from the north Foreland to Calais, and another from the islands of Scilly to Ushant, I think the space between those lines and the opposite, shores describe that part of the British Seas called the Channel; and the other space from the Channel to the Naze is called the German ocean.' After describing the seas of Scotland and Ireland, he goes on to say that if the British doini

[merged small][ocr errors][merged small]
« AnteriorContinuar »