Читать книгу The Sovereignty of the Sea - Thomas Wemyss Fulton - Страница 19

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It would probably be too flattering to James to suppose that he had any well-considered plan for extending his authority over the foreign fishermen frequenting his coasts, or for extracting from them a tribute for their liberty of fishing. But the existence of the tax of the assize-herrings in Scotland clearly offered the best means for bringing that about if it was to be brought about at all. It has been explained that in the negotiations which followed the issue of the proclamation of 1609, Sir Noel Caron laid his finger on a weak spot in the English case, by pointing out that the assize-herring had never been levied on the native fishermen who fished where the Dutch fished at the North Isles. The special ambassadors in 1610 also mentioned that their fishermen had never been asked to pay it, though they naturally did not lay stress on the point. James resolved that those omissions should be remedied. In 1610 he granted the assize-herrings to Captain John Mason, who was employed with two ships of war in that and in the following year on the coast of Scotland. Mason accordingly made strenuous efforts to collect the tribute. The fishermen of Fifeshire, who carried on a herring fishery at Orkney and Shetland, resisted the unaccustomed tax, and in 1612 raised an action of absolvitor before the Lords of the Privy Council and gained their case.308 The Lords of the Council decided that the “adventure” of the fishermen at the Northern Isles was of the nature of a merchant voyage, and that the fishermen had no right to pay any such assize, which had never been craved of them before.309

Notwithstanding this decision of the Privy Council of Scotland, James in 1614 again granted the assize-herrings of the North Isles, on this occasion to the Duke of Lennox, who was his Admiral in Scotland and one of the chief noblemen of the time. In ordinary course the grant came before the Privy Council for confirmation, and the Council at once informed the Convention of Burghs, requesting them to make it known to the burghs that the Duke of Lennox had obtained a gift from the king of “ane excyse to be tayne of all heyring to be tayne be north of Buqhan Nes” (Buchan Ness, Aberdeenshire), so that they might lodge their defences. The commissioners for Dundee, St Andrews, Dunbar, and the burghs on the coast of Fife, were accordingly appointed to proceed to Edinburgh to give reasons to the Council against the “gift.”310 After hearing the representatives of the burghs and the agents of the Duke (one of whom was “Maister Johnne Browne,” the central figure in the dramatic episode in 1617, referred to later), the Lords of the Council indited a long letter to the king. They cited the decision in Mason’s case two years before, and the reasons for it. They expatiated on the great decay which had occurred in all trades and commerce in Scotland, and stated that the fishings would also decay if the duty was levied. In plain words they told the king that the fisheries should rather be encouraged—for the general welfare of the country, the increase of customs, the inbringing of bullion, and providing work for the poor. In face of the decree in Mason’s case, the Duke’s agents had to admit that they could not levy the tax from the burghs, but they craved leave to exact them from the native fishermen of Orkney and Shetland, and from the foreign fishermen who fished there. On the former point the opinion of the Council was clear. They upheld the contention of the burghs that the native fishermen were only their servants, since they paid wages to them for their labour, and that the herrings, being cured and barrelled on the sea, were exempt from assize duty, which could be exacted only on herrings brought fresh and “green” to land.311 The Council evaded giving an opinion on the point of chief importance, the proposal to levy the tax on the foreign fishermen, all of whom cured their fish on board their vessels. There were, they said, according to information supplied by the burghs, “some strangers, especially of Holland,” who claimed the liberty and privilege of fishing “by his Majesty’s patent granted in their favour to fish in his Majesty’s waters”; but the tenour of this patent was obscure and not known to them, and they had no record of it. They suggested that the king should ask his ambassador at The Hague to procure an authentic copy of it, to be sent to Scotland for inspection and consideration.312

Evidently the Council in Scotland were at this time as cautious as the Council in England in doing anything contrary to the treaties with the Netherlands. Had they sanctioned offhand the request of the Duke to exact the assize-herrings from the Hollanders, they would have taken the responsibility, without direct authority from the king, of an act which they knew might have serious consequences. They had no sympathy with the foreign fishermen, for complaints regarding them from the burghs were frequent. In 1611 the city of Edinburgh represented to them the “inconvenience” which was sustained by the whole realm and by the merchants in particular through the non-observance of the Act of 1581, “anent the comming of schippis to burrowis in the west and north Isles be Flemings and uther nations”; and in the following year the “mater of the fischeing of the Flemins in the West and North Isles” was again brought up, and it was remitted to the burghs of Edinburgh and Dundee to draw up a supplication to the Privy Council to have the fishing by the Flemings in those places repressed.313

In view of the decision of the Privy Council, the Duke of Lennox did not at this time attempt to collect the tribute from the foreign fishermen at the North Isles. But two years later the political relations between this country and the Netherlands having become strained, the opportunity was seized to raise once more the question of the fishery and the exaction of the assize-herrings. Serious disputes involving retaliatory measures had broken out respecting the trade in cloth. In England strong resentment was aroused by an edict of the States prohibiting the importation of English dyed cloth. Winwood, now Secretary of State, wrote to Sir Dudley Carleton, who had taken his place at The Hague, that it was the opinion of “every true-hearted Englishman” that the king “ought to forbid all manner of intercourse between the Kingdoms and the United Provinces, and forbid the Hollanders, by a fresh reviving of former proclamations, to continue their yearly fishing upon our coasts.”314 The influence of this feeling was soon apparent. The Duke of Lennox was now instructed by the king to levy the assize-herrings from foreigners fishing at the North Isles, the grant, under the great seal of Scotland, being dated in June 1616; and to render his task more easy he obtained from Sir Noel Caron in the same month a letter of recommendation (“aanbevelingsbrief”) to the captains of the Dutch convoying-ships. This letter was innocently given by Caron in the belief that it concerned the payment of dues on land at Shetland, which the busses had been accustomed to pay, and which were then payable to the Duke,315 but it was made use of by the Duke’s agent to cover the collection of the assize-herrings. The duty of collecting the tax was assigned to Mr John Brown, one of the Duke’s deputies. The detailed instructions he received in 1616 do not appear to have been preserved, but they were probably similar to those issued a year or two later (see Appendix G). He was to proceed to the North Isles in one of the king’s pinnaces and there to demand the assize duty from the foreign fishermen.

At the end of July 1616 Brown, in one of the king’s vessels, appeared among the Dutch busses at work off the Scottish coast, and began to carry out his instructions, offering a “quittance or receipt” for the tax claimed. Probably to his surprise, it was peaceably paid by the busses, amounting for each to one angel or a barrel of herrings and twelve cod-fish. The fishermen were told that if they did not pay it the amount would be doubled in the following year; and that the king had a right to levy this tax for a distance of 100 miles from the coast in virtue of the agreement made with the States at the baptism of Prince Henry.316 Although the toll was paid by most of the busses, it was without the consent of the captains of the convoying men-of-war. They came to Brown and demanded to see his commission; and it is said that he showed them the letter which the Duke of Lennox had obtained from Sir Noel Caron. Since no force had been used in collecting the tax, the States’ officers contented themselves with forbidding any further proceedings, and Brown then departed.317

The success of the mission was gratifying to James, and the payment willingly made on this occasion by the Dutch fishermen was often afterwards cited as an argument that they had acknowledged the king’s rights in the fishery. In the United Provinces the matter was naturally viewed in another light. The Dutch officers promptly reported the occurrence to the directors of the Enkhuisen branch of the fishery; the authorities of the town complained to Barnevelt in energetic terms, and the matter was brought before a meeting of the States-General, who characterised the proceeding of Brown as an “unheard of and intolerable innovation, contrary to the existing treaties,” and instructed their ambassador in London to make a strong protest against it. Orders were, moreover, issued to the commanders of the convoying ships of war to put a stop to any further payments, and even to refuse to give their names. Caron, who was indignant at the use to which his friendly letter had been put, complained to the king and to the Duke of Lennox. James explained that it was merely a small tribute or tax which was levied in Scotland on all foreign fishermen, and even on his own subjects, and had been leased to the Duke of Lennox, who paid an annual rent for it into the Exchequer. He had, he said, arranged that one of his ships of war should be stationed on the fishing-ground for the security of the fishermen and to protect them from pirates. Caron declared that their High Mightinesses were exempt from all imposts or taxes for their fishery, both by the treaties “and otherwise,” and he begged the king to give other instructions, as the matter had occasioned great disquiet and alarm in Holland. Lennox also tried to minimise the importance of the measure. It was, he said, a small matter; a mere “acknowledgment” of a barrel of herrings or ten shillings from each buss, which had to be paid thrice a year by all the king’s subjects who fished at the North Isles, and was willingly paid by the English, French, German, and all other foreign fishermen. The ambassador says he was shown a printed book in which it was stated that the Scottish Parliament had decreed that the assize-herrings should be paid not only by the native fishermen but by foreigners who came to fish on their coasts.318 The latter were furthermore prohibited from approaching the coast nearer than they could see the land from the top of their masts, whereas of late they came within ten, eight, six, and even four miles of the shore, which had caused much murmuring in the country, particularly as in that year between 1500 and 1000 of their busses were there in June. Sir Noel Caron, however, continued to protest against what he said was an unjust innovation, and he closed the interview with the important declaration that, be the consequences what they might, the States would not allow a single herring to be paid in future, as it might be regarded as a precedent for further demands.319

Notwithstanding this strong protest from the Dutch ambassador, and a request he made to the king to forbear the right he claimed pending the appointment of a special embassy to treat of the matter, Brown was again sent to the North Isles in the next year to collect the king’s dues from the herring fishers. This he attempted to do as quietly and inoffensively as possible, but his mission had an abrupt and dramatic termination. Immediately on his arrival among the busses, Captain Andrees Tlieff, the commander of one of the convoying ships from Rotterdam, formally refused the payment in the name of all the Netherland fishermen, handing to Brown a declaration to that effect in writing. Brown professed himself satisfied, and was about to leave Tlieff’s vessel to proceed, as he said, among the fishermen of other countries, when the captain of the convoyer from Enkhuisen, Jan Albertsz by name, who had spoken to Brown in the previous year, came on board. He asked Brown if he was the person who had levied the tax in the year before, and on receiving a reply in the affirmative he at once arrested him, saying he had orders to that effect; and notwithstanding Brown’s warning as to the consequences, and the exhibition of his commission, he was made prisoner by the irate Dutchman and carried off to Holland. Whether the king’s pinnace had on this occasion, as two years later, more than “two small guns and ten muscattis” to represent the power and majesty of the British navy, does not appear. But Brown, meek and peaceful, was seemingly quite contented with his position. He wrote from the Dutch ship to Captain Murray, in charge of the king’s pinnace, telling him of his arrest and advising him to make no attempt at rescue, but to return to Scotland and report the matter to the king.320

James received the news of the capture of Brown at Dumfries while on a visit to Scotland. He felt that the arrest of an officer of the state, discharging business of the state and with his Admiral’s commission in his pocket, was an “insolent” personal affront to himself. The members of the Privy Council who were with him—and the Duke of Lennox was one of them—immediately wrote to the Council in London requesting them in the name of the king to arrest the masters of two or three Dutch ships in the Thames by way of reprisal, and to retain them as hostages; to inform Sir Noel Caron that reparation must be made by the States; and to instruct the British ambassador at The Hague to “demand satisfaction from them for this insolence offered to his Majesty.” Winwood at once sent for Caron, and informed him of the “disgraceful affront” which had been put upon the king while his Majesty himself was in Scotland. The king, he said, was very sensible of their “injurious and scornful carriage,” and immediate satisfaction and redress were demanded. Sir Dudley Carleton used even stronger language in addressing the States-General at The Hague. What, he asked, would the world say when they knew that a public officer and Minister of the King of England had been seized by them in Scotland, in sight of the ships of other nations and while the king himself was in that country? That the outrage was committed by the orders of the States he did not believe; but the captains pretended they had a commission for what they did, and produced certain letters patent containing, as they said, an express commission from their masters. The ambassador concluded by requiring instant reparation and satisfaction.321

Meanwhile Brown himself had, perhaps, little cause for regret. He spent two days on board the Dutch man-of-war, and was then landed at Enkhuisen. The authorities of the town at once perceived the rashness of the step that had been taken by Captain Albertsz. Brown was immediately liberated, treated with the greatest courtesy, and conducted by one of the chief magistrates, with profuse apologies, to the British ambassador at The Hague. All his expenses were defrayed; he was presented with seventy “double Jacobus pieces” as a personal gift, and he left for home on 13th September. Count Maurice and Barnevelt promptly disavowed the act of Albertsz, and when the matter was brought before the States-General by Carleton, it fell to the lot of Grotius, in the absence of Barnevelt, to express the regret of the assembly for the “accident,” and to request the British ambassador to put the case in writing for inquiry. In their reply later, the States-General threw the whole blame on the captains, Albertsz and Tlieff, who had, they said, acted without authority, and would be punished on their return from the fishing. They renewed their regrets, said that Brown had been immediately released, and begged that the Dutch merchant captains who had been thrown into prison in England and Scotland might be set free, and their “ancient accustomed liberty of fishing maintained.” In preferring this request the States relied on their treaty with James in 1594, and the gracious answer he had given to their ambassadors in 1610 concerning the proclamation of the year before.322

If the States-General thought they were to get so easily out of the awkward position in which the precipitate action of their officers had placed them, they were disappointed. James not only refused to release the Dutch ships, but said their masters would be detained in prison until the offending commanders had been sent as prisoners to England, there to receive such justice as their case merited. This request was most unpalatable to the States, and they raised various objections to it, founded both on law and privilege; and although they were assured by Carleton that the only punishment the offenders would receive would be “the crossing and re-crossing the seas,” they begged that some other means might be found of settling the matter. James, however, who had submitted the case to counsel as to the legality of his demand, remained obdurate.323 Finally, after much negotiation and debate, the States, in February 1618, resolved to send over the two captains to receive the personal rebuke of the king. Albertsz, the chief offender, fell ill and died, but Tlieff did actually come to England in April. Notwithstanding letters of recommendation from the States-General, Sir Noel Caron, and Sir Dudley Carleton (with whom Grotius had interceded), he was “very wrathfully” received by James, who scolded and rebuked him severely for the enormity of his offence, and then dismissed him without further punishment.324 Thus ended an incident in the claims to mare clausum which almost led to a rupture between the two countries.

It would appear that James, though thus foiled in his attempt to levy the assize-herrings from the Hollander fishermen in 1617, did not intend to let the matter rest in the following season, and circumstances occurred which brought up the question of the “land-kenning” in another quarter. Early in 1618 the King of Denmark complained to him that Scottish fishermen were in the habit of fishing “within the waters of Faeröe,” which was part of the dominions of Denmark, and that the native fishermen had been so much injured by their encroachments that they were unable to pay their dues and taxes. Here was a complaint against Scottish fishermen like that which they so commonly made against the Dutch. The complaint was brought before the Privy Council of Scotland, who summoned the burghs concerned325 to appear and explain their conduct. They admitted that for some years they had gone to the Faeröe Isles to fish, but they said that they had been “driven thereto upon necessity, and by the violence and oppression of the Hollanders, who came yearly with two thousand sail and above within his Majesty’s waters, and within a mile of the ‘continent’ of Orkney and Shetland, and not contented with the benefit that the liberty of their fishing within the said bounds affords yearly unto them, they do very heavily oppress his Majesty’s poor subjects and fishers.” They said that the Hollanders “stoppis thame, houndis and chaisis thame frome thair fischeing, cuttis thair nettis, threatnis thair lyveis, and thairby compellis thame, who ar a nomber of poore people haveing no other trade quhairby to manteene thair families, to seeke thair fischeing elsquhair and far frome thair awne coist, with grite tormoyll, travell, trouble, and chargeis.”326 The Lords of the Council, however, held that the oppression committed by the Hollanders on them was no warrant for their oppressing the subjects of other princes, and “that they ought not to have fished in the said waters without some license and oversight.” A proclamation was thereupon issued by the king and Council forbidding Scottish fishermen “to fish within sight of the land of the Isle of Faeröe, but to reserve the [fishings there327] to the inhabitants of the said Isle, and to other” subjects of the King of Denmark, “conform to the law of nations,” under a penalty of confiscation of the ships, vessels, and goods of the persons offending. At the same time the Council wrote to the king acquainting him with the oppressions committed by the Hollanders on the Scottish fishermen, and suggesting that his ambassador at The Hague should demand reparation and “instant prohibition” by the States to their people, “that they fish not within sight of his Majesty’s land, but reserve these bounds to his Majesty’s own subjects, conform to the law of nations.”328

Sir Dudley Carleton accordingly made a strong representation to the States-General on the subject in April. They asked for particulars as to the persons who were alleged to have been ill-treated in Scotland, and the nature of the wrongs done to them; while with respect to the limit proposed to be set them in their fishery—namely, not to come within sight of land—they said they had never heard of any such custom, and did not understand how it could be put into practice.329 On reporting this home, Carleton was told by the king to raise the question of the fishing again before he came away, and he explained to him that the custom of the land-kenning was that no stranger should fish either within the creeks of the land or within a kenning of the land, “as seamen do take a kenning.” He asked Carleton to ascertain whether the Dutch claimed to fish wherever they liked, or were willing to accept reasonable bounds, adding that the resolution that might be taken on the subject would depend largely on this.330 A few months before this Carleton had brought similar complaints to the notice of the States-General, declaring that the Hollanders were daily guilty of “great outrages and insolencies on the Scottish fishermen.” It was even said to be the opinion in London that the prosecution of the herring fishery by the Dutch under the protection of ships of war was a direct challenge to and defiance of the king.331

The authorities in Scotland lost no time in preparing statements recounting in detail the outrages and insolences committed by the Dutch fishermen; but an impartial perusal of the complaints leaves little doubt that they were greatly exaggerated. The Dutch fishermen were accused of going ashore in large numbers and chasing, taking, and slaying sheep; they “intromitted” with growing timber, trod down all the corn they could find, induced the best and ablest of the native fishermen to join them, or even took them by force; entered the kirks, where they broke down the seats and polluted the pulpits; carved their names on the green pastures; took uninvited rides on the horses in the fields, “to the great hurt of the owners”; and made free with the eggs and young of seafowl on the uninhabited isles, to the hurt of the proprietors. In the long catalogue of their supposed outrages on land, two were more important. It was alleged that they gave refuge to thieves and malefactors, so that justice could not reach them; and that some years before they seized an honest young woman who was selling stockings among them and held her head-downwards on an eminence in sight of the whole fleet, owing to which she died later. Among their offences at sea they were charged with shooting at native fishermen, “catching of their small netts and lynes within those huge long netts” that they used, and which they laid hard by the shore, “whereas before they approached not nearer the coasts than fourty (sic) myles.” By fishing near the shore they had impoverished the whole trade of fishing; before they began to do so the herrings came close in, so that the poorest fisherman could enrich himself, while the shoals were now broken up and dispersed. So near did the busses come in stormy weather that they fished “hard by gentlemen’s doors,” where the fishing was “appropriate to the owners of the land nearest adjacent for their own fishing in the time of storms when they could not go to sea for the entertaining of their houses.”332

Since the States-General appeared to be tardy in admitting the offences with which their fishermen were charged, the king wished strong measures to be taken by the Council in Scotland, and he instructed Lord Binning, his Secretary there, to take steps “for interrupting and staying the Hollanders to fish in his seas within sight of the land.” The Council, however, pointed out in a very humble tone that inasmuch as it was a matter which concerned not only “thir Hollanders, who ar your Maiesties confederatis, pretending thair awne interes thairin, ather be right or lang possessioun,” but also the whole of the kingdom, it would be better if the king’s proposals were first imparted to the Privy Council in England. They requested, further, that the ambassador in Holland should again expostulate with the States as to the injuries caused to the king’s subjects by their “unjust usurpation to fish within sight of his Majesty’s land,” and to urge them to issue a proclamation to prohibit, under heavy penalties, their people from all further fishing within his Majesty’s seas, which, they said, ought by the Law of Nations to be exclusively reserved for his own subjects. They advised the king to make the States clearly understand that if they continued any longer in their “oppression,” he would so provide for the maintenance of his right and the freeing of his people as his honour and justice required; and if the answer was not satisfactory he might then resolve upon the “next expedient,” and the Council would be ready to obey whatever he should command.333

The States-General, while they did not go so far as the Council desired in prohibiting their fishermen from approaching near to the land, did all that they reasonably could do to prevent injuries being committed on the Scottish people. After an inquiry was made among those taking part in the great herring fishery, without any evidence being forthcoming in support of the Scottish complaints, they published an edict forbidding their subjects, under pain of severe punishment “as pirates and malefactors,” from interfering with the Scottish fishermen, with whom they were enjoined to maintain “true friendship, neighbourliness, and good correspondence.”334 In forwarding a copy of this proclamation to the king, the States said that they had issued it for his satisfaction, and had given strict orders to their captains to apprehend any one who acted contrary to it. But they expressed the hope that he would not permit the fishermen of the United Provinces to be disturbed or troubled in the liberty and freedom of taking herrings throughout the whole sea, of which liberty they were in immemorial possession, and it had been confirmed to them by several treaties, in particular by that made in 1551 between the king’s predecessor and Charles V. The prosperity of their country, it was added, depended on navigation, traffic, and fisheries, and the freedom of these had been provided for in treaties.335 James, however, was far from satisfied. He sent on the missive to the Privy Council in Scotland, with the request that the rolls and registers should be searched to see if any record existed of any such treaty, whether “with the said Emperor or any other potentate of the Low Countries.” The States, he said, had promised to send a copy of it, but they had not done so, and in the meantime he would cause the rolls in London to be searched.336

The negotiations with the States-General dragged on throughout the summer without much result, and in August James took the sudden resolution again to demand from the Dutch fishermen the payment of the assize-herrings. This was doubtless caused by the receipt of a letter from Sir Dudley Carleton, informing him that the herring-fishers had gone that year to the coast of Scotland with extraordinary convoy, the number of their men-of-war having been doubled, and expressing the hope that notwithstanding this the king would send some one to make the usual demand in a peaceable manner; otherwise, said Carleton, the Hollanders “will think his Majesty has laid aside his pretension.”337 James accordingly wrote hurriedly to the Council at Edinburgh, saying it was necessary to make requisition of his duties from the Hollanders fishing on the coasts of Orkney and Shetland, in order both to keep possession of the fishing and to foil any plea from the States-General that no such duties had been demanded of them. He had intended, he said, to send a ship of war, but those which were ready were otherwise engaged, and there would not be time to equip a vessel in England before the Hollanders returned from the fishing. The Council were therefore instructed to fit out with all expedition either his own pinnace or any other ship which could conveniently be procured, and to send it to the North Isles with such person as the deputy of the Duke of Lennox should choose, who was to be instructed “in fair tearmes and calme and peciable maner to crave oure said dewties, and accept of any suche answer as they sall gif him, without making any furder questioun or dispute in the mater.”338 Here was another Brown mission over again; but James forgot, if indeed he ever knew, that at that time of year the Dutch herring fishermen would be very far from the North Isles, and fishing along the English coast.339 The fact was well known at Edinburgh, but, for whatever reason, it was not pointed out to the king; and the Council, urged to use “exceeding great haste,” chartered a Leith vessel, the Restore, put Mr Patrick Bruce on board to demand the tax from the Hollanders, along with a notary “to give instruments thereupon,” and despatched it on its bootless errand to the Shetlands. No Hollanders could be discovered, and the Restore came back to Leith.

The reason of the king’s action, as well as of Carleton’s advice, is doubtless to be sought in the desire to strengthen the case against the Dutch in view of an expected special embassy from The Hague, whose appointment was now mooted, and which was designed to settle various differences between the two countries that had become acute. Besides the herring fishery, which was a never-failing subject of dispute, there was the trade in cloth, the East Indies, and the “Greenland” whale fishery, about which it is necessary to say something here.

Allusion has already been made to this phase of the controversy respecting mare clausum which sprang up in the Arctic seas, and was now mixed up with the question of the liberty of fishing on the British coasts. Towards the end of the previous century English whalers, for the most part in the service of the Russia or Muscovy Company, frequented the coasts of Greenland, and the northern seas which had been opened up to English enterprise by the voyages of Willoughby and Chancellor;340 and early in the next century they also began to catch whales at Spitzbergen, where they were found in enormous numbers.341 The whalers of other nations followed in their wake, and in 1612 two Dutch vessels arrived at Spitzbergen to take part in the fishery, and although from their ignorance of the methods they failed of success that year, a company (Noordsche Compagnie) was formed at Amsterdam to continue the venture under better conditions.342 The Muscovy Company, whose whalers in 1612 got within nine degrees of the North Pole, sighting 700 whales and bringing back 17,343 became jealous of competitors. In 1613 they procured from King James a charter by which they were entitled to exclude all others, foreigners as well as subjects, from sailing to Spitzbergen; and in that year they dispatched thither a fleet of seven armed vessels to defend their rights by force as well as to catch whales.344 In the seas at Spitzbergen they found a number of other whalers from Spain and France, as well as two Dutch ships which had returned to the fishery. The English vessels immediately attacked them, and drove most of the intruders away.345 The Englishmen then set up a cross on the shore with the king’s arms on it, and they called the land “King James’s Newland.” It is noteworthy as indicating the attitude and practice towards France throughout almost the whole of the disputes about mare clausum, that the French whalers were allowed to continue their operations, subject, however, to the payment of a tribute of whales or train-oil, while the two Dutch ships were despoiled of their catches and fishing-gear and were sent home empty. On their arrival at Amsterdam the ill-treatment to which they had been subjected was naturally resented, and representations to King James were made through the ordinary channels, but without success. The Dutch founded their case partly on the general principle “that according to the practice of all times and peoples, navigation, fishery, and the use of the shore were free and common to all,” and partly on the claim of prior discovery. Spitzbergen, they said, was discovered by Jakob van Heemskerk, a Dutchman, in 1596; they had therefore at least as good a right as the English or any other nation to the fisheries there. On the other hand, the powerful Muscovy Company argued that Spitzbergen was discovered by Willoughby in 1553, and accordingly belonged to England; and the king adopted this view, notwithstanding the elaborate case drawn up by the famous cosmographer, Plancius, on the other side, which was submitted to him.346 The seas around Spitzbergen were held to pertain to the British seas, and to be under the maritime dominion of the King of England,—a claim which Selden attempted to vindicate later.