CHAPTER II.THE FISHERIES.

Fig. 1.—Edward’s Noble.

It appears to have been in connection with the former victory that Edward coined his famous gold noble, in which the obverse bears the effigy of the king, crowned, standing in a ship with a sword in one hand and a shield in the other, while the reverse bears the legend from St Luke,Jesus autem transiens per medium eorum ibat, “but Jesus, passing through the midst of them, went his way,” which Nicolas thinks was meant to indicate the action of the king in passing through the French fleet at the battle of Sluys. The impress on the obverse has been usually regarded as symbolic of Edward’s power and sovereignty on the sea. The unknown author ofThe Libelle of Englyshe Polycye, written some ninety years later, makes frequent reference to Edward’s noble,—

“Ffor iiii thynges our noble sheueth to me,Kyng, shype, and swerde, and pouer of the see,”49—

and it is always mentioned by the English writers on the sovereignty of the sea as evidence that Edward exercisedthat sovereignty. A recent author50doubts whether there was any connection between Edward’s noble and the battle of Sluys or the claim to the sovereignty of the sea; but at all events in the next century, in the reign of Henry VI., when the naval power of England had again sunk to a low point, the noble was made an object of jest and derision among foreigners, especially the Flemish and French. They told the English to take away the ship from their noble and put a sheep on it instead—an allusion, no doubt, to the growth of sheep-farming in England.51

If Edward intended to symbolise his naval power and sea sovereignty by the device on the gold noble in the early part of his reign, it was certainly inappropriate towards the end of it. The navy had been starved for the sake of the army, and when the Spaniards defeated the English fleet and were masters of the sea, complaints became rife as to the insecurity of the country. The king had then to listen to language from his Parliament to which he was unaccustomed, and which must have galled him. There are many instances in our history where the Commons have shown their spirit and temper when they thought the navy was inadequate for its duties, and on the occasion in question, in 1372, after granting a naval subsidy, they called the king’s attention to the fact that while twenty years previously, and always before, the navy was so noble and so numerous in all the ports, coast towns, and rivers that the whole country deemed and called him King of the Sea,52and he and all his country were the more dreaded by sea and by land by reason of the said navy, it was then so decreased and weakened from various causes that there was scarcely sufficient to defend the country, if need were, againstroyal power, by which there was great peril to all the realm.53From this complaint of the Parliament it would appear that the title of king or Lord of the Sea was applied in a popular sense, to signify the great sea-warrior who had overcome his enemies and made himself master of the sea.

There was another symbol or supposed symbol of the sovereignty of the sea, which later became exceedingly prominent—viz., the striking of the flag or the lowering of the top-sails to a king’s ship, about which there is little to be found in the records of those times. It is nevertheless with this that the earliest of the records relating to the subject is concerned, and it is a very interesting one. The famous ordinance of King John which compelled the lowering of the sails has given rise to much controversy. It was first brought prominently to notice by Selden in 1635,54but it is also contained in the little work of Boroughs on theSovereignty of the British Seas, which was written in 1633, although not published till 1651, and that author transcribed it from a manuscript in the possession of Sir Henry Marten, the Judge of the Court of Admiralty. Selden gave as his authority for it, “MS. Commentarius de Rebus Admiralitatis,” without further specification, and its authenticity was questioned by contemporary critics. Prynne, who, like Boroughs, was Keeper of the Records, printed it in 1669 from theBlack Book of the Admiralty,55and from the fact that theBlack Bookwas lost until quite lately, and the existence of Selden’s manuscript in the Bodleian Library was overlooked, and that used by Boroughs unknown, some recent authors have regarded the ordinance with suspicion.56The most elaborate account of the various manuscripts containing the ordinance of John is given by Sir Travers Twiss in the Introduction to theBlack Book of the Admiralty; and through his efforts the originalBlack Book, lost for more than half a century, was found at the bottom of a chest in 1873.57Twiss gives thefollowing free translation of the ordinance, made by the Registrar of the Admiralty Court in the reign of James II.:—

Item, it was ordained at Hastynges for lawe and custome of the sea in the tyme of Kyng John, in the second yeare of his raigne, by the advice of his temporall lordes, that if the lieutenant of the king or the admirall of the king or his lieutenant in any voyage appointed by Common Counsell of the Kyngdom did at sea meet with any shyps or vessells laden or empty which would not stryke and lower their sailes at the command of the kyng’s lieutenant, or the kyng’s admirall, or his lieutenant, but makeing resistaunce against those of the ffleet, that if they can be taken that they be reputed as enemies, and their shyps, vessells, and goodes, taken and forfeited as goodes of enemies, albeit that the maysters or possessors thereof should afterwards come and alleadge the same ships, vessells, and goodes to be the goodes of friends of our lorde the kyng, and that the company therein be chastized by imprisonment of their bodies for their rebellion at discretion.58

This ordinance is the last of a series of articles in the third part of theBlack Book, which contains Admiralty regulations, the Laws of Oleron, and other three ordinances of King John, as well as ordinances which purport to have been made in the reigns of Henry I., Richard I., and Edward I. The facts ascertained by Sir Travers Twiss show that of the six or seven extant manuscripts which contain the ordinance, the oldest was written before 1422 and probably about 1420,59and appears to have been drawn up for the use of Sir Thomas Beaufort, the Lord High Admiral. The manuscript used bySelden was probably written between 1430 and 1440; that of theBlack Bookitself a little later, but still in the reign of Henry VI.60The others are not older than the seventeenth century. None of the manuscripts is therefore contemporaneous with the reign of John, but it is clear that the ordinance existed and was ascribed to John in the reign of Henry V., before 1422. Moreover, from intrinsic evidence it is proved that part of theBlack Bookoriginated in 1375, in the reign of Edward III., and that the compilation of other parts of it is still earlier. Pardessus,61the great authority on ancient marine laws, is of opinion that the part of theBlack Bookwhich includes the ordinance of John contains the results of the consultations with the judges in 1338 on the subject of the maritime laws, which were recorded in the roll, still preserved, of 12 Edward III.,De Superioritate Maris—which also, as we shall see, claimed supremacy for the king in the sea of England. Twiss, however, thinks it was more probably compiled between 1360 and 1369. He is of opinion that the ordinance is authentic, and was in reality, as it purports, made by John at Hastings on 30th March 1201, and that it was transcribed into the compilation of theBlack Bookwith the earlier ordinances of Henry I. and Richard I.

The arguments against the authenticity of the ordinance are mainly that it is written in the French language instead of in Latin, as was customary at the time; that there is no other evidence that John was ever at Hastings; and that the terms “king’s admiral” or “king’s lieutenant” are not to be found in contemporary documents. Twiss has shown that John and his Queen were at Canterbury on Easter Day 1201, and it is not an improbable conjecture that the king passed from Canterbury to Hastings, and thence to London—a supposition that Sir Thomas Duffus Hardy, the author of theItinerary of King John, regards as quite possible. Twiss also explains in an elaborate argument that the circumstance of the ordinance being written in French offers no difficulty, if the compilation of the third part of theBlack Bookis assigned, as above stated, to the reign of Edward III.; but there might be some difficulty in deciding whether the ordinances attributed to Henry I., Richard I.,Edward I., and John were originally written in French as they now appear in theBlack Book, or were at first drawn up in Latin and translated into French by the compilers.62

The best authority is therefore in favour of the authenticity of the ordinance; but whether it be held as genuine or apocryphal there is no doubt that in the reign of Henry V. it was incorporated among the official regulations of the Admiralty, and it is almost as certain, as Twiss and Pardessus believe, that it was contained in the Admiralty regulations in the reign of Edward III. The question whether it should be antedated one hundred and fifty years, or thereabout, and placed in the reign of John, or ascribed to the time of Edward III., when so much consideration was given to naval affairs, is perhaps of minor importance.

The language of the ordinance is worthy of close attention with regard to the claim to sovereignty in the narrow sea. Selden says that the ordinance shows it was held to be treason for any ship whatever not to acknowledge the dominion of the king of England in his own seas by lowering sails, and that the king prescribed penalties for infraction of the rule, just as if a crime were committed in some part of his territory on land.63In 1201 John still possessed both shores of the Channel, a circumstance which, according to the ideas of the time, conferred on him special rights in regard to it; and though the ordinance contains no qualification of the general term “at sea,” it is probable that it applied in particular, and at first perhaps exclusively, to the waters between the two shores. There is nothing to show whether the ordinance applied to or was enforced against the war vessels of other princes navigating the narrow sea, which was the principal feature of the rule in later times. From the terms used it is probable that it applied only to merchant vessels,—a supposition that agrees with its place in theBlack Bookat the end of the articles entitled the Laws of Oleron, or the laws of the mercantile marine; and it was to be enforced only in voyages appointed by the Council. As already mentioned, it is reasonable to suppose that the lowering of the sail at the demand of a king’s ship was to enable a suspected vessel to be overhauled, and the king’sofficers to be satisfied whether it was engaged in piracy or in lawful trade.

Until the sixteenth century there is scarcely any evidence to show that the “right of the flag,” as it came to be called, was enforced even in the Channel. The record of one such incident, however, exists, which occurred in 1402, in the reign of Henry IV.,—and thus, it is interesting to note, before the oldest extant manuscript containing John’s ordinance was written,—and, curiously, the place where the lowering of the sails was demanded was not the Channel but the North Sea. In the year mentioned, the town of Bruges complained to the king and Council that a poor fisherman of Ostend, named John Willes, along with another from Briel, while fishing for herrings in the North Sea, had been captured by an English vessel and taken into Hull, notwithstanding that they were unarmed—a remark which is significant—and had lowered their sails at the moment the English had called to them.64It is singular that the earliest record of the “ceremony” refers to the humble herring-boats of Flanders. Later on we shall see that the lowering of top-sails and the striking of the flag became a burning question in international politics.

Of greater interest and importance than this question of the lowering of the sail or the ordinance of John is the claim put forward by the Plantagenet kings to sovereign lordship and jurisdiction in the “sea of England,” for the maintenance of peaceful navigation and commerce,—a claim which may still be read in some of the rolls of Edward I. and Edward III. The great importance of these documents for the English pretension to dominion of the sea in the seventeenth century was shown by the fact that Boroughs, Selden, Coke, and Prynne all quote freely from them, Selden especially turning to them again and again for fresh quotation and argument. They are the more interesting since the claim to the sovereignty of the narrow sea in the reign of Edward I. could not, as Boroughs points out, be based on possession of both shores; the king was not thenDominus utriusque ripæ, as when Normandy belonged to the English crown. The rolls in question are still preserved in theRecord Office, and the earlier parchments appear to have been collected together in the reign of Edward III., in connection with the consultations that the judges held in 1338 on the subject of the maritime laws.65

The documents were first brought into prominence by Lord Coke66and Selden,67both of whom published parts of them. The handwriting belongs to the beginning of the fourteenth century, and its contents show that it must have been drawn up after 1304 and before 1307, in which year Edward I. died.

The events that preceded may be summarised as follows. During the war between Edward I. and Philip the Fair of France it was concluded between them in the year 1297 that notwithstanding the war there should be freedom of commerce on both sides, or a truce for merchants, known as sufferance of war, and in the following year certain persons were appointed by both kings to take cognisance of things done contrary to this truce, and to pass their judgments according to the law of merchants and the tenor of the sufferance referred to.68On 20th May 1303 a treaty of peace and alliance was signed at Paris,69the first article of which embodied a declaration of amity and mutual defence of all their respective rights, and the third that each would abstain from assisting or succouring the enemies of the other. A little later in the same year four agents or commissioners were appointed by Edward and four by Philip to hear complaints and decide upon them, and the English members were instructed to inquire into the “encroachments, injuries, and offences committedon either side during the truce or sufferance between us and the said King of France, on the coasts of the sea of England and other neighbouring coasts, and also towards Normandy and other coasts of the sea more remote.”70To these commissioners the following joint complaint or libel bears to have been submitted on behalf of England and certain mariners of other nations, charging one Reyner Grimbald or Grimaldi, a Genoese who is known to have been at the time in command of ships in the service of France operating against the Flemings, with seizing their merchants and merchandise contrary to the treaty at Paris:71—

To you the Lords Auditors deputed by the Kings of England and of France to redress the wrongs done to the people of their kingdoms and of other lands subject to their dominions by sea and by land in time of peace and of truce The proctors of the prelates and nobles and of the admiral of the sea of England73and of the commonalties of cities and towns and of the merchants mariners messengers and pilgrims and of all others of the said realm of England and of other lands subject to the dominion of the said King of England and elsewhere, as of the coast of Genoa, Catalonia, Spain, Almaigne, Zeeland, Holland, Friesland, Denmark, and Norway, and of several other places of the Empire do declare, That whereas the Kings of England by right of the said kingdom, from a time whereof there is no memorial to the contrary, had been in peaceable possession of thesovereign lordship of the sea of England and of the isles within the same, by ordinance and establishment of laws, statutes, and prohibitions of arms, and of ships otherwise furnished than merchant vessels, and to take surety and afford safeguard in all cases where need shall be, and by ordinance of all other actions necessary for the maintaining of peace, right, and equity among all manner of people as well of any other dominion as of their own passing thereby, and by sovereign guard and all manner of cognizance and justice high and low, concerning the said laws, statutes, ordinances, and prohibitions, and by all other actions that may appertain to the exercise of sovereign lordship in the places aforesaid. And A. de B.74deputed Admiral of the said sea by the King of England, and all other Admirals [appointed] by that same King of England and his ancestors heretofore Kings of England, had been in peaceable possession of the said sovereign guard with the cognizance and justice and all other the aforesaid appurtenances, except in case of appeal and complaint made of them to their sovereigns the Kings of England of default of right or of wrong judgment, and especially by putting hindrance (making prohibitions) and doing justice, taking surety of the peace of all manner of people using arms in the said sea, or carrying ships otherwise provided or furnished than appertained to a merchant ship, and in all other points wherein a man may have reasonable cause of suspicion towards them of robbery or other misdemeanours. And whereas the masters of the ships of the said kingdom of England in the absence of the said admirals had been in peaceable possession to take cognizance and to judge of all actions in the said sea between all manner of people according to the laws, statutes, and prohibitions, franchises and customs. And whereas in the first article of the alliance formerly made between the said Kings, in the treaties upon the last peace of Paris are comprised the words which follow in a schedule annexed to these presents.

First, it is concluded and accorded between us and the messengers and proctors aforesaid in the name of the said Kings that the said Kings shall from this time forward be good, true, and loyal friends, and be aiding to one another against all men saving the Church of Rome in such manner that if any one or more, whosoever they be, will disturb, hinder, or molest the said Kings in the franchises, liberties, privileges, rights, dues, or customs ofthem and their kingdoms, they shall be good and loyal friends and allies against every man living, and ready to die to defend, keep, and maintain the franchises, liberties, privileges, rights, dues and customs aforesaid; Except (on the part of) the said King of England, Monsieur John, Duke of Brabant, in Brabant, and his heirs descended from him and the daughter of the King of England, and except (on behalf of) our said lord the King of France, the excellent Prince, Monsieur Albert, King of Almaigne [and] his heirs Kings of Almaigne, and Monsieur John, Count of Hainault in Hainault. And that the one shall not be of counsel nor aiding where the other may lose life, member, temporal estate, or honour.75

Monsieur Reymer Grymbaltz, Master of the navy of the said King of France, who calls himself admiral of the said sea, deputed by his lord aforesaid for his war against the Flemings did after the said alliance made and confirmed, and against the form and force of the same alliance and the intent of them that made it, by commission of the King of France wrongfully usurp the office of admiralty in the said sea of England and did exercise it for a year and more taking the people and merchants of the kingdom of England and elsewhere passing through the said sea with their goods, and committed the people so taken to the prison of his said lord the King of France, and by his judgment and award caused their goods and merchandises to be delivered to the receivers of the said King of France deputed for this purpose in the ports of his said kingdom, as to him forfeit and acquired. And the taking and detaining of the said people with their said goods and merchandises, and his said judgment and award concerning the forfeiture and acquest of them, he has justified before you, Lords Auditors, in writing, according to the authority of the said commission of the admiralty aforesaid by him thus usurped, and during a prohibition commonly made by the King of England by his power, according to the tenor of the third article (sic) of the alliance aforesaid, which contains the words below [above] written, requiring that he may thereupon be quit and absolved, to the great damage and prejudice of the said King of England and of the prelates and nobles and others above named, Wherefore the said proctors in the names of their said lords do pray [you Lords] Auditors aforesaid that you would cause due and speedy deliverance of the said people with their goods and merchandises thus taken and detained, to be made to the Admiral of the said King of England, to whom the cognizance thereof of right belongs, as above is said, so that, without disturbance from you or anyother, he may take cognizance hereof and do that which belongs to his office aforesaid, and that the said Monsieur Reyner be condemned and constrained to make due satisfaction to all the persons wronged as aforesaid as, etc. [so far as he is able to do, and in his default his said lord the King of France, by whom he was deputed to the said office, and that after due satisfaction made for the said damages, the said Monsieur Reyner may be so duly punished for the violation of the said alliance that his punishment may be an example to others in times to come.76] Item, the said proctors require that whereas according to the ancient laws, franchises and customs of the realm of England, to the keeping whereof your said lord the King and his ancestors Kings of England were wont to be bound by their oaths. Their admirals of the sea of England with the masters and mariners of ships of ports of the coast of England, being in the armies of the said admirals, needed not to answer before any justices of the Kings aforesaid concerning actions in the sea abovesaid during their wars against their enemies. And the said admiral of your said lord the King and many of the masters and mariners of the ports aforesaid now being in his army against the [their] enemies of Scotland and their helpers and allies, by express commandment of your said lord the King, are accused before you by people of Normandy and Brittany and elsewhere concerning some actions in the said sea in time of truce and since the peace confirmed between the said Kings of England and France, and before the war begun between them as is said. It may please you to surcease the process already commenced against them and to forbear to commence a new one during the war abovesaid, that they may have no cause to complain to your said lord and to the prelates and nobles of his said realm, bound by their oath to keep and maintain the said laws, franchises, and customs.

Selden alludes to this document as proving that the right of dominion over the sea, and that ancient and confirmed by long prescription, was in express terms here acknowledged by almost all the neighbouring nations to belong to England.77This is, however, not quite justified, because there is no record at all to show any decision, or even whether the matter wasever brought to proof, and no mention is made of the proceedings by any English or French historian. There seems to be no doubt of the authenticity of the record. It is in the handwriting of the time, is preserved among the public records, and agrees with other circumstances elsewhere recorded. On the other hand, even the most complete copy78is only a draft, as Selden states, without date or seals; the admiral’s initials only are given, and the citation of the first article of the treaty at Paris is not on a separate schedule as the text states, but is part of the text. Selden gives it as his opinion that it was a matter “of such moment” that it was thought better to make an end of it by agreement than to bring it to a trial.

Light is thrown on the above record by another of the proceedings before the Auditors deputed by the kings of England and France for the redress of the grievances between the subjects of the two countries, 27-33 Edward I.79It consists of a series of libels or complaints, which, as Mr Salisbury of the Record Office has been good enough to inform me, are in the handwriting of the time of Edward I., and are doubtless those, or part of those, on which theDe Superioritateroll is based.80The complaints are sixteen in number, and they refer to the seizure of a number of ships and the removal of goods from them, between May 1298 and September 1303, at various places,—the foreland of Thanet, the mouth of the Thames, off Blakeney, off Kirkele, Scarborough, Dover, and Orfordness,—the goods, and sometimes the vessel, being taken to Calais. Most of the vessels were freighted from London to Brabant, or from the latter place to London, one from Winchelsea to Dieppe, another from Antwerp to London, a third from Berwick to London, a fourth from Scotland to Brabant, a fifth from Lynn to Scotland, a sixth from Antwerp to England, and another from Yarmouth to London; in two cases the crews were killed, and the ships as well as the goods disposed of. In most cases the complaints are laid against Johan Pederogh or John de Pederogue (see p. 45), Michel de Navare, and others, who appear to have been under Grimbald, but in some instances they are against the latter. The first is byRichard Bush against “Reyner Grymaus,” complaining of goods having been taken from a ship going from Winchelsea to Dieppe, in August 1301, by Michel de Navare and others of Calais, who took the goods thither and disposed of them. The “chevalier” denied this, and asserted he was “not in that country” at the time specified nor for nearly a year afterwards, and in the “rejoinder” note was taken of the answer “that he was not admiral till some time after the events specified.” The eighth complaint refers to the seizure of goods from a ship going from Berwick to London in August 1303, off Blakeney, “by men from Calais.” In reply John (Pederogh) says the demand concerns “mi sire Reniers de Grimaus” only, for he was then admiral, and said John was on shore at the date specified, and was only in the company of Reniers in Zealand and Holland. The twelfth complaint declares that the shipMichele de Arwe, from London to Brabant, with a cargo valued at £556, was seized “on the high seas” by Sire Reyner Grimbaud, admiral, in September 1303, taken to Normandy, and the crew sent to Calais and imprisoned. In reply the “chivaler” confesses he took such a ship, and seized it rightfully, as it was consorting with the enemies of France; and in response to the demand of one of the crew still in prison at Calais, he says he is there as a malefactor against the King of France, and that the commission of the deputies does not extend to such cases. The fourteenth complaint is by John de Chelchethe against Reyner de Grymaus, and John Pedrogh replies “as he did to William Servat,” the latter name not occurring elsewhere in the record, a circumstance which points to these libels being only part of those brought before the commissioners.

It is to be noted that, with the exception of theMichele de Arweabove mentioned, which was taken “on the high seas,”—an elastic term,—all the ships were attacked near the English coast, and well within what may be called the sea of England, or the waters included in the King’s Chambers in 1604, where the jurisdiction of the English Admiralty undoubtedly extended. In all cases, moreover, the goods seized belonged to Englishmen, though some of the ships were foreign.

Too much importance appears to have been attached to the rollDe Superioritate. It furnishes no proof, or even reasonableprobability, that any other Power acquiesced in an English claim to a specific sovereignty of the sea beyond what appears to have been customary among maritime states at the time. The point of the libel is that Grimbald seized shipping after the alliance was made and took people and goods to France, and was thus said to have usurped the sovereign lordship or jurisdiction of the English king or admiral in “the sea of England.”

An important light is thrown on the nature of the jurisdiction exercised by the English admiral by the memorandum of 12 Edward III., in the same roll, the documents in which were collected together at the time it was written, in connection with the consultation of the judges to which it refers.81It recites that, among a number of other things, the King’s Justiciaries were to be consulted as to the appropriate method of revising and continuing the form of proceedings instituted and ordained by Edward I. and his Council for maintaining and preserving the ancient supremacy of the crown in the sea of England and the right of the admiral’s office over it, with the view of correcting, interpreting, declaring, and upholding the laws and statutes made formerly by his ancestors, the kings of England, for the maintenance of peace and justice among the people of all nations whatsoever passing through the sea of England, and to take cognisance of all attempts to the contrary in the same, and to punish delinquents and afford redress to the injured; which laws and statutes, the memorandum states, were by Richard I., on his return from the Holy Land, corrected, interpreted, and declared, and were published in the Island of Oleron and named in the French languageLa Loy Oleroun.82

This memorandum furnishes an important clue as to the nature of the jurisdiction exercised in the so-called sea of England. It is evident from the concluding part that the laws and statutes referred to are the mercantile marine laws, which were best known in this country as the Laws of Oleron, and are included in theBlack Book of the Admiraltytogether with other articles peculiar to the English Admiralty.83They appear to have been published by Richard I. at the end of the twelfth century, at a time when the old customs of the sea began to be committed to writing, as rules proper to be observed by the admirals of his fleet for the punishment of delinquencies and the redress of wrongs committed on the sea. They werecontinued among the Admiralty regulations in subsequent reigns, and it was part of the duties of the admiral to see that they were duly observed in the seas within his jurisdiction. The powers of the admiral were extensive, as may be seen from the memorandum of the fourteenth century defining his office and duties, which has been published by Nicolas,84by those given by Twiss in theBlack Book,85and later by Godolphin.86

At the time with which we are dealing the utmost lawlessness reigned on the sea, the depredations of undisguised freebooters being scarcely a greater evil than the constant acts of reprisal between the traders of different nations. It was a common practice for the seamen of different countries or cities to carry on hostilities with one another, and to enter into treaties of peace or truce without the sovereign on either side being concerned in their quarrels, except as mediators or umpires. In 1317, although there was peace between England and Flanders, the mutual reprisals of the seamen and merchants reached such a height that commercial intercourse was entirely suspended, and Edward II. and the Earl of Flanders had to actively interpose in order to bring about “peace” between their subjects.87A marked feature in the policy of Edward III. was the promotion and encouragement of foreign commerce, and quite a number of statutes were passed in his reign with that object, and to facilitate the entrance of foreign merchants into the realm. One of these, made six years after the consultation of the judges on the maritime laws, was specially passed to declare the sea open to all merchants.88

With these circumstances in view, it can be readily understood how desirable it was to have the maritime laws for the security of commerce and shipping carefully considered andput in force; and a consideration of the whole case shows that the rollDe Superioritate Marisdeals with the maritime laws, the interpretation of the documents having been strained by the later advocates for the English claim to the sovereignty of the seas. It is interesting no doubt to learn that the King of England and his admiral exercised jurisdiction of the kind in the neighbouring sea at the early time referred to, but there is nothing in the case of Grimbald or in the other documents associated with it to indicate any claim to a sovereignty such as was enjoyed by Venice and Denmark. There was no attempt made to interfere with the innocent use of the so-called sea of England, or to exact dues for navigation or fishery. The jurisdiction extended only to the keeping of the peace and the security of the sea—duties exercised by other princes and states in like manner, and indeed now exercised by all countries within the waters under their control. This view is supported by the interpretation of Callis, who stated that the king ruled on the sea “by the laws imperial, as by the roll of Oleron and others,” in all matters relating to shipping and merchants and mariners.89It would no doubt be of great interest if there were distinct evidence as to how far from the coast “the sea of England” extended. The records cited show that the vessels were seized close to the English coast, within the waters covered by the proclamations concerning the King’s Chambers in the seventeenth century, and even within the narrow limits of the territorial waters as now usually defined. It is to be noted with reference to the vessel taken “on the high seas” that in the Court of Admiralty in the seventeenth century this phrase covered seizures made a few miles from the coast.

There is, however, one case which occurred in the fourteenth century which has been referred to as showing that the sea of England and the jurisdiction of the king extended far from the English coast, over indeed to the coast of Brittany. In the mutual aggressions of Flemish and English sailors, the robberies by the men of Rye of Flemish ships off “Craudon” and Orwell became so flagrant that commissioners on both sides were appointed in 1311, further proceedings were instituted in 1314,and finally, in 1320, envoys from Flanders arrived in London during the sitting of Parliament, and a treaty was concluded. In this it is stated that divers merchants of Flanders, while “proceeding on the sea of England near Craudon,”90were robbed of their wines and merchandise by evil-doers of England, and that the goods had been brought to England. The Flemish envoys prayed the king, “of his lordship and royal power to cause right to be done and punishment awarded, since he is lord of the sea, and the said robbery was committed in the sea under his power.”91The account goes on to state that the king and his council in Parliament, with the assent of the peers, agreed to appoint justices to inquire into the matter, and that those who were concerned in the robbery should be promptly punished.92Accordingly, in December 1320, the Keeper of the Cinque Ports and others were instructed to make inquiry regarding the pillaging of a Flemish ship, laden with wines and merchandise, said to have been committed by Englishmen on the sea of England, off Craudon, so that the malefactors might be brought to justice.93Selden, who gives the document in which the previous proceedings are also recited,94does not attempt to locate Craudon, which in other records in the rolls of Parliament in 1315 was also called “Carondon,” “Crasdon,” and “Grasdon”; but Nicolasstates that there was no place of that name on the sea coast of England, nor in any part of the territories of Edward II., and he identified it with a small seaport, since called “Crowdon,” in Brittany, lying on the extreme part of the Point du Raz, about eight leagues west of Quimper, where he shows that the fleets returning to England with wines frequently took shelter.95If this explanation be correct, it would extend the “sea of England” more than 120 miles south of the Lizard, which, however, is still well within the limits which were claimed for it by Selden (see p. 19). Although, according to the English record, the Flemish envoys themselves described the sea off Craudon as part of the sea of England and under the jurisdiction of the king, it is evident that this admission would facilitate redress from England, and standing alone it is not of much weight. The whole value of the admission, moreover, depends on the position of the “Craudon” of the record; and it is remarkable, if it was really the Crowdon referred to by Nicolas, that that fact was unknown to Selden, to whom it would have furnished a very strong argument for his case.-

It was with respect to the right of fishery on the British coasts that the claim to maritime sovereignty was revived in the seventeenth century, and with which it was chiefly concerned. The “honour of the flag,” however gratifying to national pride or important in the international relations of England, was unprofitable, and served at best to stimulate and maintain the spirit of the nation for power and adventure on the sea. But the question of free or licensed fishing touched the profit as well as the “honour” of the king and the prosperity of the people, and hence the monarchs of the Stuart line, the Commonwealth, and the Protector strove to impose tribute on foreign fishermen for the liberty to fish in the British seas. This policy was in direct opposition to that which had long prevailed in England. It is shown below that the freedom of fishing on the English coast had been guaranteed to foreign fishermen by a series of treaties extending over some centuries, and that in point of fact the fishermen of various nations had immemorially frequented the British seas in large numbers, and there peacefully pursued their business of catching fish without molestation or interruption by the English Government. In some respects this liberty enjoyed was remarkable, when one considers the practice in many other countries and the value of the fisheries.

In the early and middle ages the sea fisheries were indeed much more important relatively than they are now. There was a greater demand for fish, and fishermen from various countries—from France, Flanders, Spain, and England—made long and distant voyages, extending to Iceland and even beyondthe North Cape, in quest of fish. One reason for the great demand was the numerous fast-days enjoined by the Church; for although fish were eschewed by the ascetic monks of early times as dangerous to purity of soul, the fashion changed, and they were later consumed plentifully on the days of fast both by clergy and laity.96The fasts were strictly observed throughout Catholic Europe, and a large variety of sea and fresh-water fishes, as well as seals and cetaceans, were consumed on such occasions. Some of the large monastic establishments had their own staff of fishermen, and their fish-houses at seaports for the salting and curing of herring. Another reason for the extensive consumption of fish was the want of winter-roots and the scantiness of fodder in winter, so that it was impracticable to keep cattle and sheep for slaughtering throughout the winter. It was customary to kill them and salt the flesh in autumn; and thus fish, fresh, dried, smoked, or salted, formed a valued article of food in place of salted beef and mutton. Fish were also used to an extraordinary extent in victualling the army and navy, and in provisioning castles, the expense on this item of the commissariat generally equalling or exceeding that for beef, mutton, or pork.97The distribution even of fresh fish was also much better than might have been expected. Barges and boats carried them up the rivers, and pack-horses and waggons transported them throughout the country, so that even in inland counties the harvesters in the fields were supplied with herrings for their dinner.98In mediæval times, moreover, fishermen and fishing vessels constituted a considerable part of the naval force available for the defence of the kingdom, for offensive operations and the transport of soldiers. The fishermen of the Cinque Ports, who had the government of the great herring fair at Yarmouth, had also to provide vessels for the king’s service under their charters. Later, when a permanent navy existed, the fisheries were looked upon as a very important “nursery” of seamen to man the fleets.

The herring fishery was by far the most important of all the sea fisheries, and as this fish was found in greatest abundance on the British coasts, foreign fishermen were attracted hither in great numbers. It was with reference to the herring fishery that exclusive claims were raised by England in the seventeenth century, and it is desirable at the outset to understand the policy which was pursued previously in regard to it both in England and Scotland. At what period foreign fishermen first began to frequent the British coasts is uncertain; but we know that within fifty or sixty years of the Norman Conquest fishermen from Flanders and Normandy—and doubtless from other countries—visited our shores and carried on a fishery for herrings by means of drift-nets. An important fishery was established at the mouth of the Firth of Forth, on the east coast of Scotland, in the early part of the twelfth century, and it was shared by fishermen from England, Flanders, and France, who paid tithes to the monks of the priory on the Isle of May. This monastery was founded by King David I. before the middle of the twelfth century, and was endowed by him with the manor of Pittenweem in Fife, and by Cospatrick, the great Earl of Dunbar, with a house and “toft” at the village of Dunbar, both grants being of value in connection with the fishery. King William the Lion (A.D.1165-1214) confirmed these grants, and addressed missives to “all his good subjects and the fishermen who fish round the Isle of May” commanding them to pay their tithes to the monks as they were paid in the time of his grandfather, King David (A.D.1124-1153); and he prohibited them from fishing in their waters or using the island without license from the monks.99This very early claim to the right of exclusive fishing in the sea is characteristic of the policy of all the Scottish kings. It was repeated on several occasions, the royal mandate being sometimes addressed solely “to all fishermen who fish around the Isle of May”; and that some of them were foreigners appears to be shown not only by the statement above given, on the authority of contemporary monks, but by the size of the vessels, some of which had four hawsers, and paid much higher dues at the neighbouringharbours than the local fishing-boats. We know also from contemporary Flemish records that as early as the first half of the twelfth century fishermen from Nieuport and other places in Flanders fished from large vessels for herrings with drift-nets in August and September in the northern parts of the North Sea.

The men from France and Flanders alluded to, no doubt continued to fish each season down the east coast of England to the mouth of the Thames, as they did later and do still. About the period mentioned, Yarmouth was a great fishing centre, and was frequented by foreign merchants—Flemings, French, Swedes, and Frieslanders—who purchased and cured herrings; but the earliest notice of foreign fishermen on the English coast is in the year 1274, shortly after Edward I. came to the throne. Complaint was then made that during a time of truce the English fishermen had been attacked by the Flemish disguised as fishermen and twelve hundred of them killed.100On the other hand, the Countess of Flanders complained that twenty-two of her subjects who had been fishing on the coast of England and Scotland, and had gone ashore at Berwick to rest themselves and get provisions, had been seized, with their nets, at Norham and thrown into the castle there.101About twenty years later, Edward I. issued a mandate to John de Botetourt, the Warden of the coast of Yarmouth, and to the bailiffs of that town, saying that he understood that many men from Holland, Zealand, and Friesland would shortly come “to fish in our sea off Yarmouth,” and commanding them to make public proclamation once or twice a-week forbidding any molestation or injury to be done to them, but that they should rather be helped to pursue their fishing to advantage.102The number of English fishermen stated to have been killed by the Flemings in the encounter mentioned above, indicates how extensive the fishery then was. This also appears a few years later, when the Flemings resorted to a similar device; for inJuly 1296 above a thousand men of Flanders, and others of France, disguised as fishermen, were preparing to attack and burn Yarmouth and neighbouring places, and the bailiffs and men of the port were ordered to collect their ships to oppose them. These proceedings show the lawless state of the sea in those times. In the thirteenth century an extensive herring fishing was also carried on by the Scots on the east coast, especially in the Firth of Forth and the Moray Firth, and particularly by the men of Fife, and cargoes of herrings, cod, and haddocks, as well as salmon, were exported to England and chiefly to London, but also to Bordeaux, Rouen, Dieppe, and other ports in France.

From the foregoing it is clear that centuries before the question ofmare clausumwas raised, important fisheries were established along the east coast of England and Scotland, and that foreign fishermen took part in them. The number of French and Flemish fishermen attending the fishery must have been always great, because they had to furnish a large part of Catholic Europe with fish. But the number was increased after the fourteenth century, and especially in the fifteenth, from two causes. One was the decline of the great herring fishery at Scania, in the Baltic, upon which the Hanseatic League had risen to power and opulence, and which provided perhaps the greater part of continental Europe with salted and smoked herrings—Germany, Poland, Russia, part of France, and even to some extent Flanders and England. The Scanian herrings were esteemed the best, and the Hanse controlled the trade.103The other circumstance was the invention in the latter part of the fourteenth century by Beuckelsz, a native of Biervliet, in Zealand, of a greatly improved mode of curing herrings,—an invention which most materially aided the Dutch in taking the place of the Hansards in the herring industry, and in the commerce which it brought in its train. Some of the towns in the Low Countries early belonged to the Hanseatic League, and their fishermen were in the habit of going to the Scanian fishery;104but from the fifteenth century at least the herring fishery on the British coasts became by far the most importantin Europe. It attracted foreign fishermen in increasing numbers, and gradually the Dutch came to take the leading part in it, displacing the Flemings and the men from Normandy and Picardy, and even to a large extent the English themselves. In 1512 we find Margaret of Savoy appealing to Henry VIII. to protect the fishermen of Holland, Zealand, and Friesland in their herring fishery, in which they were menaced by the Hanseatic towns, which were fitting out vessels to interrupt them; and in her letter she describes the herring fishery as the principal support of these states.105Towards the end of the century, when the Dutch had begun to call their herring fishery on the British coast their “great gold mine,” another event occurred which tended still further to strengthen their hold on it by opening fresh markets on the Continent. This was the failure of the great Bohuslän fishery in Sweden, which continued barren for about seventy years.106They were also enabled to prosper in their fishery by the beneficent policy of the English sovereigns towards them up to the reign of James I., when the claim to the exclusive fishing in the British seas was put forward on behalf of the crown.

When this claim was advanced in the seventeenth century, it was argued that the sea fisheries had always belonged to the crown. Selden declared that “license had usually been granted to foreigners by the Kings of England to fish in the sea; and that the protection which the kings gave to fishermen, as in their own territory, was an ancient and manifest evidence of their maritime dominion.”107The cases adduced in support of that contention are singularly few and unconvincing. One is the tax imposed by Richard II. in 1379 on fishing vessels, among others, in the admiralty of the north, but which, if it was imposed on foreign vessels at all, must have been done with their consent (see p. 33). Another relates to the arrangements which were occasionally made for “wafting” or guarding the fishermen at the Yarmouth fishing, and for which the fishermen thus protected had to pay,—an arrangement whichwas also adopted in the reign of Charles I. Thus, in 1482, Edward IV. invested certain persons, called Guardians, Conductors, and Wafters, with naval powers, to protect the fishermen “of whatever country they be, who shall desire to fish under the protection” of the said wardens on the coasts of Norfolk and Suffolk; and all those who took advantage of such protection had to pay an equal share of the cost of it; any other persons pretending to have power to protect the fishermen were to be apprehended. This arrangement was repeated in the reigns of Richard III. and Henry VII.108It is evident that the payment was only exigible from such foreign fishermen as took advantage of the protection offered to them; those who desired to fish without protection of the wardens were at liberty to do so. A more pertinent case is the Act of the Irish Parliament in 1465—also during the reign of Edward IV.—which has been previously alluded to.109It was passed to prevent aid being given to the king’s enemies by foreign vessels that went to fish at Ireland. All foreign fishing vessels were prohibited from fishing on the Irish coast (except the north part of Wicklow) without first obtaining a license from the Lieutenant, his deputy, a “justice of the land,” or other person authorised to grant it, upon pain of forfeiture of ship and goods. All foreign vessels allowed to fish, which were of twelve tons burthen “or less,” and had a “drover” or boat, were to pay thirteen shillings and fourpence yearly for the maintenance of the king’s wars in Ireland; smaller vessels, as “scarfes” or boats not having “drover nor lighter,” and within the burthen of twelve tons, were to pay two shillings. This was obviously a temporary measure, designed for a special purpose, though clearly imposing a tax on foreign vessels; but there is not evidence to show whether it was enforced.

Other two instances referring to later times were adduced in support of the contention that the sea fisheries belonged to England, and they may be mentioned here. One was the statementmade by Camden about 1586,110and by Hitchcock some years earlier,111that the Hollanders and Zealanders before they began to fish for herrings off the east coast of England, first, “by ancient custom, asked leave of Scarborough Castle”; “for,” adds Camden, “the English have always given them leave to fish, reserving the honour to themselves, and resigning, as if from slothfulness, the benefit to strangers.” Neither Hitchcock nor Camden quotes any authority for the statement. Scarborough Castle was in early times an important stronghold on the north-east coast, and it is not unlikely that foreign fishermen, who were frequently at the port, found it to their interest to maintain friendly relations with the governor, and gave notice of their arrival, or perhaps asked leave to dry their nets and paid for the privilege. It was the practice for the governor to levy dues, in kind, on fish brought ashore, for Edward III., in 1347, ordered writs of attachment to lie against those who during the fishing season sold their fish at sea instead of bringing them to the town, thus defrauding the Castle of its dues. Another instance, which was frequently made use of in negotiations later with the Dutch on the question of the fishery, was an alleged lease for twenty-one years granted by Queen Mary to her husband Philip II. of Spain, by which his subjects received licenses to fish on the Irish coasts. The first trace of this story is found in a memorandum addressed to Lord Salisbury in 1609 by one Richard Rainsford, an agent for a fishery company,112in which it is said that £1000 per annum had been paid into the Irish Exchequer by Philip for the privilege, and that Sir Henry Fitton, the son of the treasurer at the time, could substantiate the statement “on oath if need is.” No year is mentioned by any of those who put forward this story,113and no record of it is referred to. If not entirely apocryphal, and invented as an argument against the Dutch, who were subjects of Philip in the early part of his reign, it was probably constructed on a very slender basis.

There is, however, one interesting case, or series of cases, inwhich licenses to fish in the Channel were frequently granted by the Lord Warden of the Cinque Ports to a limited number of French fishermen, chiefly of Dieppe and Treport, for the ostensible purpose of supplying the king of France’s table with fresh fish, and especially soles. It is stated that the French kings “time out of mind” had applied for such licenses,114and they were certainly granted under Elizabeth, the Stuart kings, and Oliver Cromwell. It is doubtful when the custom originated, but since the liberty of fishing was granted for a definite area or bank, called the Zowe or Sowe, off Rye and well out in the Channel, it was probably of considerable antiquity, and may have survived from the Norman or Angevin reigns. James also furnished similar licenses for the use of certain high personages, such as the Duchess of Guise and the French ex-ambassador; but the liberty was greatly abused, and was the cause of much friction and trouble with the English fishermen later.115The fact that such licenses were asked for by the French court on behalf of fishermen of Dieppe, Treport, Calais, and other ports on the coast of France, may indicate that the fisheries out in the Channel were at one time claimed by England. But it is possible it was only the survival of a custom adopted during the times when great lawlessness reigned on the seas, and when the men of the Cinque Ports were a terror to their neighbours. A license from the Lord Warden would be then a safeguard and protection.

Such are the cases which were adduced to prove the rights of the English crown to exclusive fishing in the British seas. On the other side there is an overwhelming body of testimony to show that the fishery was free. It may be noted in thefirst place that Bracton and the other early English lawyers, unlike those of the seventeenth century, made no claim for an exclusive fishery. They merely propounded the Roman law that the sea and the shores of the sea were common to all; that the right of fishing in rivers and ports was likewise free to all; and that animals,feræ naturæ, including fish, belonged to no person. The law laid down by Bracton and the others was not, of course, international; but if it had been in agreement with English jurisprudence in the twelfth and thirteenth centuries (as it was made to be in the seventeenth) to consider the sea fisheries as the property of the crown, that would have been declared, because Bracton was embodying the customary law of England, and adopted Roman law only when that failed him. He is careful to state that wreck of the sea and “great fish,” such as sturgeons and whales, “belong to the lord the king himself by reason of his privilege” or prerogative, precisely on the ground that Callis, Coke, Selden, and Hale claimed the sea fisheries generally for the crown in the seventeenth century. Had any such right existed or been thought of in the reign of Henry III., Bracton could not have failed to incorporate it, since the king placed the archives and everything necessary at his disposal to enable him to embody the common law of England.116So also there is nothing in the rolls of Edward I. and Edward III., which deal with the sovereignty of the sea, to indicate any claim to the fisheries; nor is there in the Admiralty ordinances and regulations in theBlack Book, although it was part of the duties of the admirals to supervise the sea fisheries and to enforce the laws relating to them.

But the assertion that the fisheries were free in those early times does not depend upon negative testimony. Liberty of fishing was guaranteed in various treaties concluded with foreign nations from the middle of the fourteenth century until the end of the sixteenth. The first of these was made in the reign of Edward III., and it was in keeping with the liberal policy of that monarch in regard to the promotion of foreign commerce. It was almost a necessity, for English fishermen were by themselves unable to meet the home demand for fish.Fish caught by foreigners were regularly imported into England, and such importation was encouraged by the crown and by Parliament until after the Reformation. Foreign fishermen were also encouraged, as is shown by the mandates of Edward I. and Edward II. above alluded to, and by many others.

The first of the formal treaties providing for liberty of fishing was concluded in 1351 between Edward III. and the king of Castile and towns on the coast of Castile and Biscay. Edward had signally defeated the Spanish fleet in the year before in the battle known as “L’Espagnols sur Mer,” and in the truce for twenty years which followed, it was stipulated that there should be mutual freedom of commerce and navigation, and that the fishermen from Castile and Biscay should be at liberty to come freely and safely to fish in the ports of England and Brittany, and in all other places and ports, paying the dues and customs to the lords of the country.117Spanish fishermen do not appear to have taken part in the great herring fishing on the east coast,—Spaniards, indeed, have never cared for pickled or cured herrings, differing in this respect from the Teutonic races, but have preferred the mackerel, the pilchard, and the cod. The liberty of fishing conferred by the treaty was no doubt chiefly valuable to them with respect to their fishery off the Irish coast, the south-west coast of England, and along the coasts of Aquitaine and Brittany for sardines and mackerel. Two years later a similar treaty was concluded between Edward and the towns of Portugal and Algarve, in which liberty of fishing was stipulated in precisely the same terms,118and no doubt related to the same waters.

Early in the next century we find what seems to be the first of the numerous agreements as to the liberty of fishing for herrings in the narrow seas, quite a number of which were made in the comparatively short and troubled reign of Henry IV. In a truce concluded in 1403 between Henry and the King of France, it was provided that merchants, mariners, and fishermen should be free to pass to and through either kingdomwithout requiring letters of safe-conduct. Henry, therefore, issued a mandate to his admirals and other officers concerned, enjoining that during the current herring season the fishermen of both countries should freely fish for herrings and all other fish, from Gravelines and the Isle of Thanet down to the mouth of the Seine and Southampton, without hindrance or molestation, and that if they were chased by pirates or met with contrary winds they were to be allowed to take refuge in the ports within the area defined, and were to be well treated.119As the king’s missive is dated 26th October, it appears that there was then, as there is now, a considerable winter herring fishing in the Channel. Three years later, on 5th October 1406, Henry took all the fishermen of France, Flanders, and Brittany, with their ships and boats, under his protection until 2nd February in the following year,—that is to say, during the winter herring fishery,—for which time they were to be allowed to fish freely and without molestation, and to carry away their fish, provided they did nothing to prejudice him or his kingdom.120Considering the weak condition of the English navy at the time—the security of the sea had been committed to the merchants on the east coast, a system which in this month of October was known to have failed—and the prevalence of pirates, it is unlikely that the protection of the king was of much avail.

In November of the same year, with reference to his treaty with France, Henry published another proclamation stating that, on the supplication of the burgesses and people of Flanders, it had been agreed that the fishermen of England and Flanders, and generally of all the realm of France, should, during the continuance of the treaty, go in safety to fish in the sea. To the end that the fishermen who travelled on the sea at great peril to gain their living might fish in greater security, and obtain sea fish for the sustenance of the people, it was ordained that for a year from the publication of the proclamation all the fishermen of England, of Calais, and of other towns and places belonging to the King of England, as well as the fishermenof Flanders, Picardy, Normandy, and Brittany, and other parts of France, might go in peace over the whole sea to fish and gain their living, without any restraint or hindrance; provided no fraud was committed, and that English fishermen had the same privileges from Flanders, Picardy, Normandy, Brittany, and other parts of France. If the fishermen were driven into port by the violence of the wind, or other cause, they were to be received freely and treated reasonably, paying the dues and customs as of old, and be at liberty to return to their own ports. The king, therefore, commanded his admirals, captains, bailiffs, the commanders of castles and ports, and others concerned, to see that the provisions of the treaty were carried out.121

In the following year was concluded the first of the great series of Burgundy treaties, about which so much was to be heard in the diplomatic negotiations with the Dutch in the seventeenth century. Flanders was then part of the dominions of the Duke of Burgundy, who held it as a fief of France, and freedom of commerce and fishery was of the highest importance to his Flemish subjects. A treaty or convention was therefore drawn up between Henry’s ambassadors and the Duke of Burgundy, dealing chiefly with commercial intercourse, in which the above-mentioned provisions for mutual liberty of fishing were embodied, in practically the same language, and comprising likewise the whole of France.122In 1408 the mutual freedom of fishing in the sea was twice confirmed,—in the prorogation of the truce with the Duke of Burgundy, and in the ratification by the King of France of the treaty between Henry and the Duke;123and it was againconfirmed at Amiens by John, Duke of Burgundy, in 1417, in the reign of Henry V.124

The various fishery truces and conventions of Henry IV., which were made at a time when great insecurity prevailed on the sea and depredations were committed on all hands, reflect credit on that able monarch, and notwithstanding the naval weakness in the early part of his reign, they must have had a favourable influence in fostering the sea fisheries. The sort of treatment that fishermen in those times had frequently to undergo is indicated in a complaint made to the king in 1410 that, notwithstanding the fishery truce with France, the men of Harfleur had seized an English fishing vessel of twenty-four tons,Le Cogge Johan de Briggewauter, and had thrown the master and fourteen of the crew into prison, without food and water, and held them to ransom for a hundred pounds.125Such occurrences were by no means uncommon, and it was customary for fishing vessels to go to sea armed,126—a provision which also enabled them on occasion to do a little piracy on their own account. It was sometimes difficult for the authorities to decide whether a vessel provided with fishing-lines and armed, as some were, with “minions, falcons, and falconettes,” and having a good store of powder and bullets, had been equipped to catch fish or prey upon other vessels.

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