Dover And the Dutch Fleet put out in like manner upon the North-East Sea and fought the Spanish Fleet in the Downs 'T is true that Sir John Pennington who then commanded the English Guard endeavoured to hinder them from sighting so near the Ports to the disturbance of the Security and Protection of them and troubling the Commerce and Entercourse of the King's Lieges and Allies But no Complaint made either then or afterwards of the two Fleets of War entering the Seas aforesaid parcel of the Dominion and Territory of the Crown of England without a special License first ask'd and obtain'd And it would be Time mispent to recount how often either Spaniards French or Dutch have entred these Seas with armed Fleets and Convoys as their Occasions obliged them freely without leave and without controul I speak not here of the private Notices and Intimations which one Prince may in friendly manner give another to satisfy him of the reason of any extraordinary Military Preparations and of the clearness of his Intentions towards him But of a formal previous Leave to be ask'd and obtain'd by a Foreign Prince or State before they put out to Sea upon the Maritime Territory of the Crown of England in a Warlike Equipage In the year 165â— The States General gave publick Notiâ—e by their Ambassadors here in England that they had Resolved to fit out to Sea an extraordinary Fleet of One hundred and fifty Men of War besides those in present Service for the Security and Preservation of their Navigation and Commerce They did not ask leave to do it but first resolv'd upon it and then gave Notice and they pretended this Notice was an Argument of their Sincerity and good Will in order to prevent all misunderstandings and finister interpretations But they in England understood it otherwise and resented it as a Bravado and Insult I Pass now to the second Incident of the Sovereignty Of the Marine Jurisdiction and the Laws of Oleron Videsis Vs Corstumâ—s de la Mer printed at Boâ—â—deaux 1661. to Examine the Matter of Fact as to that viz. The Marine Jurisdiction 'T is commonly affirm'd by English Writers that our King Richard the First the French give a different accompt did in his return from the Holy Land make and declare certain Marine Laws for the better Regulation of Commerce which from the place of their first Publication were call'd the Laws of Oleron A small Island scituate in the Bay of Aquitain and a Member of that great and wealthy Dutchy which was in the actual Possession of King Richard as his maternal Inheritance for it came to his Father Henry the Second by Marriage with Elianor Daughter and Heir of William Duke of Aquitain And by the way it may be noted that this Dutchy either in whole or part continued in the Possession of the Kings of England by ten Descents to the 32d of Henry the Sixth near 300 years though that of Normandy continued but five Descents and ended in King John. But whether these Laws were Published as aforesaid by King Richard or whether about Sixty years after as some Printed Editions would have them is not an Enquiry pertinent to this place Be it admitted those Laws were Published by King Richard who was actual Duke both of Aquitain and Normandy and in right of the latter Lord on both sides the English Channel The great entercourse betwixt his English and French Subjects and those of his Allies required a certain Rule of Sea-Laws for the more speedy and impartial Determination of all Controversies which might occasionally arise These Laws of Oleron as to the main of them are but a transcript of the old Rhodian Laws with some new Additions and Amendments accommodated to the practice of that Age and the Customs of the Western Nations who thereupon might readily conform to them as to a common Standard and Measure like a Law of Nations for the more equal distribution of Justice amongst the People of different Governments But to infer from hence an Universal Monarchy at Sea and that King Richard in right of his Imperial Crown of England and Ducal Crowns of Nâ—rmandy and Aquitain did as sole or Supreme Legislator for the Marine authoritatively impose Sea-Laws upon the People and Subjects oâ— other Nations is but a strained inference The Romans were far enough from yielding a Sea-Sovereignty to the little Republick of Rhodes and yet were so well satisfied with the Equity of their Sea-Laws that they not only conform'd to them Lab. 11. Dâ—â—â—l but incorporated them into the Body of their Digest And as the Rhodian Laws obtain'd in the Mediterranean and the Laws of Oleron in the Western and English Seas So the Laws of Wisbuy a Town scituate upon the little Isle of Gotland in the Eastern part of the Baltick formerly under Denmark now under the Crown of Sueden call'd from thence Leges Wisbuicenses Pâ—â—k in 〈…〉 Tit. Diâ— Cod. 〈…〉 p. 19â— were received by the general consent of the Northern Traders as a common measure for all Nautick Assairs to the Northwards of the Rhine and throughout the whole Baltick That the Sea is within the Jurisdiction of the King of England is a matter unquestionable not at home only but amongst all Nations His Admiral has and ever had through a long series of Ages the Conusance of all Contracts Pleas and Querrels made upon the Sea out of the Body of any County of England Which Power is inlarged by the Statute of 15 R. 2. cap. 3. to Death and Mayhem upon great Ships in the main Stream of great Rivers And by the Statute of 28. Hen. 8. cap. 15. a Court of Commission may be held under the great Seal Coram Admirallo c. to hear and determine all Treasons Felonies Robberies c. done or committed upon the Sea. But then 't is evident and undeniable also that the Neighbouring Kingdoms and States who border upon the Sea have their distinct Admiralties likewise and have long since had where their Subjects and People receive sinal Sentence in all Maritime Causes without exception of any Seas or without Appeal to the Admiralty of England as the last resort or as having Supream Conusance of all things done and committed in and upon the Brittish Seas If a French or Dutch Vessel take a Pirat of what Nation soever who has committed a Robbery upon the English Seas they do not remit him to the Admiralty of England as to the sole Tribunal of the place where the Fact was done to receive Sentence there but they carry him before their own Judicatories and judge him as an Enemy of Mankind by the Law of Nations If one Foreigner does any Injury to another be it Fraud or Violence upon the British Seas the Party injured makes not his Complaint to the Admiralty of England as the proper Court and as having the sole Juridical Conusance of his Plea but resorts to the Jurisdiction of his own Sovereign or
stands on both sides upon an equal foot both Lords equally giving and taking an undisturb'd Liberty for their respective Tenants This I humbly conceive is good Evidence that the Fishery lies common to both Mannors Suppose again this Lake to be the Sea and the two Mannors to be two Kingdoms and the Case will still be the same None of our Leagues and Treaties made either with the House of Burgundy or with the House of Austria since the Union of those 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 A certain Sum was never agreed an uncertain one could never be demanded And yet Sir John Boroughs in his Book of The Sovereignty of the British Seas says That Philip the Second King of Spain obtain'd of Queen Mary his Wise License 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 instead of an Authentick Record he vouches only the hearsay of Sir Edward Fitton Son to Sir Henry Fitton sometime Treasurer of Ireland who he says had often testified it This may the rather be suspected of mistake Annal. Eliz. An. 1602. because Mr. Cambden relates how that Queen Elizabeth having sent four Ambassadors whereof one was Principal Secretary of State and not lightly to be supposed ignorant of such an Affair to treat at Bremen with the Ambassadors of Denmark upon Complaint of that King 's forbidding Foreigners the freedom of Fishing betwixt Norway and Iseland both appertaining to the Crown of Denmark The Queen's Ambassadors openly affirmed 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 The said Mr. Cambden in his description of the North-Riding of Yorkshire speaking of Scarborow-Castle says That the Hollanders and Zelanders take wonderful Quantities of Herring upon this Coast Cùm veniam priùs veteri instituto ex hoc Castro impetraverint Whereas they were wont by ancient Use to ask leave first of the Castle For says he the English always gave leave to Fish reserving that Honour to themselves but slothfully resigning the Profit to others But all this while he quotes no Authority neither nor directs us to any Original Record where we might consult the plain Truth of the Case Perhaps what he Historically calls Asking Leave was but giving notice of their Arrival and acquainting the Governor who they were and what their Business was upon the Coasts lest under the disguise of Fishermen Pirats and Enemies might privily hide themselves And probably he by his Civilities to the Fishermen might make some Perquisits and Profits to his Place by permitting them as occasion required to dry their Nets ashore to fetch Victual or fresh Water from Land to fish within the Havens and Bays where commonly the best fed Fish are taken But 't is not likely that the Governor of Scarborow had so indefinite a Power as to enable him to give leave upon bare Asking without any further Condition or Consideration to all Foreigners to fish at pleasure within the Royalties of the Crown However 't is too manifest That no Prince nor State did ever pay to the Crown of England any yearly Sum of Money or other valuable Consideration for the Liberty of their Subjects Fishing upon the Seas of England for had such Sum been paid it would have passed into the Accompt of the Exchequer as a Branch of the Royal Revenue and there remain upon Record As for the Case of my Lord of Northumberland in the Year 1636 that 's extraordinary and will not pass for a President The Dutch Busses were then required by the English Admiral to take Licences from him for Fishing in the Northern Seas and to pay moderate Rates for the obtaining those Licences which they did to redeem themselves from the forcible Molestations of a well-appointed Fleet. So that this was the Compulsory Act of private Persons not the Voluntary Act of the States-General who were so far from consenting to what was done that they made Remonstrances and Complaints of this Proceeding by their Ambassadors here in England And as it appears not by the Records of the Exchequer That any Recompence was given by Foreigners for Liberty of Fishing within our Seas so neither does it appear by any the publick Treaties That the Subjects of any Foreign Prince should ask leave for so doing by Stipulation and Contract though they were sure to have it without paying any thing only by the bare asking to keep in memory a perpetual Acknowledgment of a beneficiary Grant derived from the Crown of England as Supream Lord of the Fee. On the contrary the Treaties caution for a Liberty of Fishing absque licentia without any Leave or Licence first to be ask'd And yet England has ask'd leave and covenanted so to do of a foreign Crown I would not have mentioned this had it been a Secret but 't is a thing publick and in Print By Treaty made and concluded in the Year 1490 betwixt Henry the Seventh of England and John the Second King of Denmark which Treaty was afterwards renewed betwixt our Henry the Eighth and their Christiern the Second Anno 1523. it was mutually covenanted That the Liegemen Merchants and Fishermen of England should Fish and Traffick upon the Northern Sea betwixt Norwey and Iseland V. Cambd. Annal ad An. 16â—0 but under a Proviso of first asking leave and renewing their Licences from seven Years to seven Years de Septâ—unio in Septennium from the Kings of Denmark and Nâ—rwey and their Successors they are the words of the Treaties But as Navigation enlarged and England grew more opâ—lent in Trade and posent at Sea all this is gone into utter disuse and discontinuance and the Kings of England may with better Right prohibit the Subjects of Denmâ—k from passing the English Sea or Channel without special Licence first obtain'd than the Kings of Denmark can the Subjects of England from passing the Northern Sea betwixt Dâ—â—â—ark and Iseland There is a Record 〈…〉 which Mr. Selden quotes out of a Parliament Role of King Richard the Second is very remarkable 'T is a Grant in Parliament of an Imposition according to certain Rates and Proportions upon all Vessels Passing or Fishing within the Admiralty of the North viz. Upon the Sea Northwards from the Mouth of the Thames The Rates were as follow 1. To take of every Ship going and coming upon that Sea Six Pence a Tun for the Voyage 2. To take of every Vessel Fishing for Herring Six Pence a Tun by the Week 3. To take of Vessels Fishing for other Fish Six Pence a Tun for every Three Weeks 4. Of Ships laden at Newcastle with Coals Six Pence a Tun for every Three Months 5. To take of all
thus proposed That the Dutch Ships both Men of War and Merchants besides striking the Flag should suffer themselves to be visited if required and should perform all due Offices of Honour and Acknowledgment to England to whom the Dominion and Sovereignty of the British Seas of right appertain'd But this Article was rejected by the Dutch as were several other Proposals of a high nature for it was then urg'd and for some time insisted on that there should be a Coalition of England and the United Provinces into one and the same Republick not an Union only but an Adunation not a mere Coition into a stricter Bond and League of Friendship but a Coalition of both into one Government But this was rejected too as impracticable If the Question were only concerning the Antiquity of this Ceremony how long it has been practised amongst these Europaean Nations for it had a time when it first began and it does not obtain universally We have a Record in our Admiralty which would be pertinent to this purpose It is an Edict or Proclamation published by King John at Hastings in Sussex in the Second Year of his Reign near 500 Years since and is transcribed by Mr. Selden out of the Records of the Admiralty to the following purport Mar. Clauâ— l. 2. c. 26. That if any Ships or Vessels laden or unladen refused to lâ—wer their Sails at the Command of the King's Lieutenant or Admiral or of his Lieutenant then to be compelled to do it by fighting them and if taken their Ships and Goods to be confiscated as may be seen more at large in the place noted in the Margin But the Proclamation says not that this lowering their Sails was to be done as an acknowledgment of the King's Dominion in the Western Channel to which Sea it especially relates and yet none could have better required it than King John for he was at that time in actual possession both of England and Normandy and consequently was actual Lord of both Shores and might have reckoned the Channel as an Appendant and Accession to the Land and to have followed it as the Accessory does the Principal as he is Lord of the intermediate River who is Lord of both the Banks But as this Proclamation expresses no such thing so neither does the penning of it seem to incline that way For it mentions not Ships of War who as such ought the rather to be obliged to make such Acknowledgment as being most likely to dispute it but only Ships laden or unladen Nefs ou Vesseaulx charges ou voide referring to Merchants and Traders be their Ships light or freighted and these Merchant-men are to do it not at the Command of every body but au Commandement du Lieutenant du Roy ou de l'Admiral du Roy ou son Lieutenant at the Command of the King's Lieutenant or the King's Admiral or his Lieutenant intimating a personal Respect due to their Rank and Quality especially from simple Traders However 't is certain that this Honorary Respect or Civility call it what you will is no natural expression of a Subjection to a Sovereign for 't is not founded in Nature but in Institution and is a practise peculiar to the Western Nations and the modes of Respect are so various in different Countries that what in one is a Civility in another is a Rudeness And as it is no natural expression of Subjection so neither is it a necessary one as if it must necessarily signify that or nothing for lowering the Flag or Sails is but like uncovering the Head by vailing the Hat or Bonnet which amongst us 'T is so called in the Journal of King Edw. 6. wrote with his own hand the words are these The Flemings Men of War would have passed our Ships without vailing Bonnet which they seeing shot at them and drove them at length to vail Bonnet See pag. 11. of K. Edw. Journal in the 2d Part of Dr. Burnet's Hist of Reform is used as a Token of Subjection to our King of Respect to our Superiors of Civility to our Equals of Courtesy to our Inferiors Thus we see one and the same specifick Act of uncovering the Head as it relates to persons of different Orders and Degrees admits of divers Significations Some of our Sea-Captains tho' irregularly enough and for want of explicite Orders have required of the Dutch the Honour of the Flag and Topsail in the Mediterranean and Baltick where the Crown of England never pretended Sovereignty And as in the forementioned Treatise of 1673 't is particularly named a Respect so 't is covenanted to be done not only within the British Seas but every where betwixt the Capes Finister in Spain and Staten in Norway beyond the Limits of the Sea-Sovereignty of England and consequently has no relation to it Besides this Honour to the King's Flag is required from his own Subjects but 't is needless to require from them an acknowledgment of Sovereignty to whose benefit it redounds the import is that Foreigners would acknowledge it to whose Profit 't is opposed Well then if this Ceremony does not relate to an acknowledgment of a Sovereignty in the Sea what is it that it relates to And what is the true import and signification of it I answer it imports these two things 1. 'T is Cultus Superioris 't is a Reverence or Respect performed to a person of Superior Quality and Degree 2. 'T is Symbolum Pacis Amicitiae 't is a sign or symbolical expression of Peace and Friendship Sometimes it signifies both these together and sometimes but one of them according to the different degrees of the persons performing it but it always signifies one of them and never any thing more The Dutch and other smaller Republicks perform it both as a Respect to the Crowned Head of England and as a Salutation of Peace and Friendship also But Crowned Heads cannot perform it as to one of a Superior Order because they are in a parity and equality of Degree but they do it upon the later accompt only as 't is an expression of Peace and Amity The Dutch and others do not by the Flag and Topsail recognize the King of England as Sovereign of the four Seas nor acknowledge themselves thereby his local Subjects and their Persons Ships and Goods to be under his immediate Jurisdiction and Protection whilst in and upon those Seas but they acknowledge him as Praeeminent in Order and Quality not as Sovereign over them but as Superior to them in Dignity and Degree Were I to express it in Latin I would do it by that old Roman Phrase of Comiter Colere or Observare Majestatem They pay Honour or Respect to the Majesty of a Crowned Island And as to the Crowned Heads tho' they cannot as I said before pay Respect to a Superior because of the parity of their Degree yet as to the Sea-Salutation by the Flag and Topsail there is a peculiarity on the part of England
Equipp'd for War over the Seas of England Whether any Sovereign Prince or State having occasion to enter upon any the Seas of England with Men of War either in entire Fleets or as Convoys to Merchants have first asked leave so to do of the King of England as the Supreme Lord of the Territory I have often met with a Traditional Story both in Discourse and in Printed Pamphlets that Queen Elizabeth having intelligence that Henry the 4th of France had a design to encrease the Naval Strength of his Kingdom and to Equip a considerable Fleet of War not only for the Mediterranean but for the Seas also toward England She sent to bid him desist from it That the Queen might request him not to put out upon these Seas with an unusual Fleet as that which might occasion Jealousie in her Subjects and oblige her to an extraordinary Expence in Arming proportionably and consequently tend to weaken the Amity and good Assurance betwixt the two Crowns I say that she might do this for I do not find that she did it is neither morally impossible nor wholly disagreeable to the practice amongst Princes But that she did pro Jure interdict and forbid him so doing as an Intrenchment and Invasion of her Right by entring with an Armed Force upon the Territories of her Crown without her leave for this I shall suspend my belief till better Vouchers be produced 'T is too common amongst Men first to form their Opinions and then to seek their Proofs and some rather than not find them will devise them There is another currant Story of the same alloy That Queen Elizabeth seized in the Bay of Cascais in Portugal Sixty Laden Ships belonging to the Hans Towns of Germany and afterwards consiscated both Ships and Goods For having presumptuously pass'd over her Seas without first obtaining her Royal Permission In this several Mistakes are complicated together one in Law and two in Fact. That in Law is this supposing the Dominion of the Seas to have been universally acknowledged as the Queens undoubted Right yet ought not the Hanseaties who were Friends and peaceable Traders and pursuing their lawful Occasions to have been consiscated for not a king leave of Passage over these Seas had there been nothing more in the case because they needed not in Law so to have done No more than a Market-man needs ask leave of the Owner to pass his Field over which the Market Path lies The two Mistakes in Fact are these 1. The said Sixty Sail of Ships did not in Fact pass the Seas of England 〈…〉 15.9 〈…〉 lib. 95. and therefore could not be consiscated upon that accompt Mr. Cambden our faithful Annalist says expresly and so does Thuanus too That they pass'd on the North of Scotland by the Occades Hebrides and great Western Ocean on the backside of Ireland a long and dangerous Passage to avoid being intercepted in the Channel by the Queens Ships 2. The sole Reason why they were confiscated was this because they carried Goods of Contrabanda Prohibited Goods viz. Corn which at that time Spain wanted and Naval Provisions to the relief of an Enemy who at that time was preparing a new Fleet for the Invasion of England in revenge of the Disgrace he had received the year before viz. in 88. And this they did contrary to the Queens Proclamation and Monitory Letters to the Hans Towns whereby she forbad them to supply Spain her declared Enemy with such Provisions under the Penalty of forfeiting Ships and Goods Thus the Dutch in the year 1652. when by their Interest and Influence in the Court of Denmark they had caus'd an English Fleet of above Twenty Merchant men Laden with Pitch Tar Flax Hemp and other Naval Stores to be Arrested in the Sound supposing that England with whom they were then in War would be Distressed for want of sâ—â—n Provisions They Published a Placart forbidding all in general to Import into England any the aforesaid Materials upon pain of confiscation thereof as being a Relief to an Enemy in things they particularly wanted for prosecuting the War against them I enquire not here Quo jure by what Right the Dutch did this and whether it was not a Violation of the free Commerce of Neutral Nations But I only instance in the Fact as parallel with what the Queen did Nay the States did far more than what the Queen did comes to for they in the Year 1599 almost in the Infancy of their Republick publish'd a Placart forbidding all Nations any Commerce with Spain not in this or that prohibited Commodity but in all Goods and Merchandizes whatsoever Grot. Host de Rebus Belg. lib. 8. pag. 372. Edâ—t Amstol Vetant populos quescunque â—llos commeatur resve alias in Hispaniam ferre They are the very words of Grotius in his Belgick Annals the eighth Book this by the way â—â—ly If we consult the publick Treaties which have been betwixt England and other Sovereigns concerning Sâ—â—ps of War passing these Seas we shall find the 〈…〉 have been as followeth The usual Covenants are 〈◊〉 have been That the Ships of War of either side may 〈◊〉 come into the Roads Havens and Rivers each of other provided they be not in such number as may occasion suspicion and therefore the number is ascertain'd and not to be exceeded unless to avoid imminent Danger and in such case notice to be given thereof For Example In the Treaty concluded at Madrid in the Year 1630 betwixt Charles the First of England and Philip the Fourth of Spain which Treaty was but a renewal of the former made with King James in the Year 1604 it is in the 9th Article agreed That it shall be lawful to have access unto each others Ports with Ships of War whether they shall arrive there either by force of Tempest or for necessary Repairs or for provision of Victuals so they exceed not eight when they come of their own accord nor stay longer than they shall have cause And when any greater Number shall have occasion of Access they not to enter the Port without the privity or consent of the King. This is the form of all the Treaties and Articles like to this have been agreed betwixt England and France and England and Helland but they are always reciprocal and as their Ships of War are restrained from access to the English Ports so are the English from access to theirs in equal manner And 't is to be noted that the Restraint is only from access to each others Ports but never any Restraint of Foreign Ships of War from entering in what Number they please the Seas of England Thus in the Year 1639 which was but nine Years after the Treaty aforementioned at Madrid a Spanish Fleet of above sixty Sail equipped for War entred the Western Channel without leave first asked bound for Ostend to supply the Spanish Netherlands with Men Munition and other Necessaries and pass'd the Channel to the height of
Sovereigns under a Personal Obligation of Fealty to another The respective senâ—â—â—ry Princes were siduciary Homagers to the Kings of France but the Crown of France had no Regal Jurisdiction or Authority within those Frincipalities Thus the great Dakedoms of Aquitain and Normandy were under the Kings of England that of Britany was under a Duke of its own the Earldoms of Provence Tolose and â—anders acknowledged their own Sovereign Counts In those days the Crown of France had only a small Sea-Coast upon Picardy and some in the Mediterranean But in the time of Philip the Fair that Crown was in the actual possession of all Normandy and as the other Principalities became reincorporated into the Body of France from whence they had formerly been dismembred as now they all are excepting some part of Flanders that Kingdom as it enlarg'd it self to the Sea by the accession of many new Coasts so the Marine Jurisdiction thereof encreas'd proportionably I say the fore-recited Libel does not deny a Civil Power or Capacity in the Crown of France to create an Admiral and to invest him with Marine Jurisdiction But the Exception is partly against the Person of Grimbald and partly against his illegal Practises and Seisures contrary to the Alliance made betwixt the two Kings Now this Grimbald was a Foreigner and a Mercenary he was a Genoese whom the King of France had hired with several Gallies of that Republick to serve him in his War against Flanders The Plaintiffs in their Libel call him Maistre de la Navy du Roy de France Master or Commander of the French Fleet but would not vouchsafe him the Title of an Admiral only Que se dit estre Admiral that he call'd himself an Admiral and craftily reclaim the Conusance of their Cause from him as an incompetent Judge to the Admiral of England as an undoubted Authority and before whom they were sure to gain their Process I Have done with the Marine Jurisdiction Of the Fishery and proceed now to the third and last Incident of the Dominion of the Sea and which inseparably follows it and that 's the sole Fishing without which it would be a Property without Profit a Name without a Thing He who has the Soil or Ground has the Herbage and other Growth of it or else a Rent for it if others may freely depasture with him it is a Common The Enquiry is upon the Matter of Fact as to Fishing upon the Seas about England in which our publick Treaties made betwixt our Kings and other Sovereigns will be our best Direction And they stand thus All the ancient Treaties I could meet with concluded betwixt the several Kings of England and their old Confederates the Dukes of Britanny and Burgundy which in those Ages were the most powerful Neighbours they had at Sea are of the same tenour and run in the same form viz. They Covenant on both sides that their respective Subjects should freely and without the let or hinderance one of another fish every where upon the Seas without asking any Licenses Pasports or safe Conducts This is the General Form of them all For Example In the Treaty betwixt Edward the 4th of England and Francis Duke of Britanny the Article in the French of that time runs thus That the Fishermen both of the Kingdom of England and Dutchy of Britanny Purront peaceablement aller par tout sur Mer pour pescher gaigner leur vivre sans impeachement ouâ— disturber de l'une partie ou de l'autre sans leur soit besoigne sur ceo requirir sauf Conduct And the same form had been used before in the Treaty betwixt Henry the 6th and the then Dutchess of Burgundy Thus also in the famous Treaty called Intercursus magnus made in the Year 1495 betwixt Henry the 7th of England and Philip the 4th Archduke of Austria and Duke of Burgundy in the 14th Article 't is agreed Quod Piscatores utriusque partis poterint ubique ire Navigare per Mare secure piscari absque impedimento licentia seu salvo conductu And this form is also kept to in the Treaty made betwixt Henry the Eighth and Chaâ—les the Fifth Emperour and Duke of Burgundy In the time of Queen Elizabeth after that seven of the seventeen Provinces had set up distinct Sovereignties of their own they still enjoyed the same freedom of Fishing as they had done before when united with the House of Burgundy And in the Treaty made betwixt King James of England and Philip of Spain in the Year 1604 the ancient Treaties of Entercourse and Commerce betwixt the Kingdoms of England Scotland and Irelanâ— and the Dominions of the Dukes of Burgandy and Princes of the Low-Countries are reviv'd and reconsirm'd From whence it appears upon the whole Matter of Fact That the Kings of England in their Treaties with other Sovereigns not once or twice but in a Succession of Ages not by surprize but deliberately and when the business of the Fishery came under special consultation did not challenge to themselves the sole Right thereof exclusively of all others as being appropriated to the Crown of England For had they esteemed the Fishery the Property of their Crown and all Aliens excluded from it they would not have admitted the Subjects of Britanny and Burgundy to a promiscuous Fishing with their own Subjects without some valuable Consideration had been given for it or at least some License obtained as a beneficiary Grant derived from them or some Acknowledgment made by way of a Salvo Jure a Saving to the Right of the Crown or England Else it would be as unreasonable as if a Man should throw down the Inclosures of his own Ground and lay that common which before was his Property which is too gross a Reflection upon the Wisdom of those Ages And this may be further illustrated by a samiliar Instance Suppose here in England two great Mannors and betwixt them a large Lake of fresh Waters well stored with Fish and it can be proved That not only Time out of Mind the Tenants of the two Mannors have promiscuously fished therein but that also the Lords of both Mannors have in several Ages contracted each with other for a free Fishing without Leave or License to be first ask'd or obtain'd for their respective Tenants And in the Contract no Exception or Reservation is made of the Fishery as parcel of the Inheritance of one of the said Mannors nor any Words creating a Tenure whereby one should hold of the other nor expressing or implying that it was but a Temporary Sufferance that one of the Lords should share for a time in the Profits of the Fishing without any share in the Fee or Inheritance of it And this by the free Donation of the other commonly call'd De Gratia Speciali or for a valuable Consideration usually termed Quid pro quo or to hold by some small Acknowledgment of Tenure as of a Pâ—pper-Corn Yearly But the Contract