Part 16

Lowestoft answereth, That such a charter as the Yarmouth men pretend to have obtained, would be a monopoly, and contrary to the common rights of the Kingdom in general. That such a charter, if it was really granted, was obtained privately; that no writs of ad quod dampnum were issued, so that it is evident that they had imposed upon his majesty. That it would be prejudicial to the commonwealth, and the utter ruin of the western fishery, as is testified by above 3000 fishermen, who have subscribed a petition which certifies the truth of this assertion, and prays for relief. That it relates chiefly to the jurisdiction belonging to their court of admiralty, as is evident by their coming with a boat into Lowestoft roads, and demanding sixpence for anchorage. And lastly, That the artifice of having Kirkley road represented in this charter as situated opposite to the town of Kirkley, merely with a design of furnishing themselves with a plausible pretence for extending their liberties beyond the town of Lowestoft, towards the south, and thereby to exclude them from the herring-fishery, was a fraudulent imposition, and a manifest perversion of the Charter 46 Edward III, which represents it as situate near the entrance of Yarmouth haven.

Previous to the report of the attorney-general, a certificate was presented to him from James Wild and Samuel Pacy, two eminent merchants at Lowestoft {90} asserting the reasons why the seven miles, the boundary of the liberties of Yarmouth, ought to be measured from the crane key belonging to the said town of Yarmouth, where the herring fair is usually held, and not from the haven’s mouth.

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To the Honourable Mr. ATTORNEY GENERAL

The humble CERTIFICATE of the INHABITANTS of the town of LOWESTOFT, in SUFFOLK, shewing the reasons why the seven miles, the extent of the liberties of Yarmouth, in Norfolk, ought to be measured from the crane Key, and not from the haven’s mouth.

1st.—That their fore-fathers being obstructed in their fishing by the Yarmouth men (which time out of mind they had enjoyed), had appealed to her late majesty, queen Elizabeth, to her parliament, and privy council, and obtained an order for setting bounds to the seven miles granted to Yarmouth.

2nd.—In consequence whereof an order was also obtained from the lords of the council, directed to several men of authority in both counties, to make due enquiry concerning the controversy, and survey the premises, in order to ascertain the place from whence the admeasurement ought to begin, which was certified to be from the crane Key in Yarmouth, where the herring fair was usually held. And though the Yarmouth men, thinking themselves aggrieved obtained a second survey to be made, yet was it certified by the inquiries a second time, that they found no reason to depart from their former opinion. The reasons which they assigned, were that it was beneficial to her majesty’s good subjects in general, and the encouragement of the herring fishery in particular.

3rd.—That the order from the council, for the admeasurement of the seven miles, was never revoked, as the Yarmouth men falsely suggested, but only suspended, as by the copy of their letters appears, and though by indirect means they occasioned a delay, and endeavoured to weary the commissioner appointed to settle the controversy with frivolous evasions, yet it was agreed, that the seven miles should be measured from the crane Key, in Yarmouth, directly towards Lowestoft, and a great post should be set up at the end thereof, to denote the same, which remaineth to this day.

4th.—That ever since that time (which was in the year 1595 and 1596) the fishers have freely delivered their herrings in Lowestoft roads, in the time of the free fair at Yarmouth, without any molestation, until this last year, 1660, when they were interrupted by a vessel, called a man-of-war, employed by the Yarmouth men for that purpose.

May it therefore please your honour,

That as this controversy has been for so long standing, and it plainly appearing that no remedy can be obtained but by another admeasurement; that your honour will give credit to the orders and certificates lately pleaded before his majesty in council, as also to the certificates of several thousand fishermen belonging to the western fishery, then produced, shewing the inevitable ruin and destruction both to them and their families, that would immediately ensue, if prevented from delivering their herrings at Lowestoft, as from time immemorial they have been accustomed to do, which certificates have been since confirmed by a petition from Captain Tattersell, to his sacred majesty; and that your honour would be graciously pleased to report your sense of this difference concerning the admeasurement as soon as possible; for that the Yarmouth men will continue to claim the same privileges, or greater, than they did in the year 1595; and exercise the same ruin to our poor town, as in the last year (1660), with their armed vessel called a man-of-war. Neither do the Yarmouth men desire that the controversy should be brought before the parliament, but to weary us out with delays and expense, well knowing how unable we are to wage law with them, and that unless they persist in opposing us, it will end in an admeasurement. We therefore humbly pray your honour, that you will be pleased to consider the equity of our case; the great expense, travail and loss of time we have been at; and with due regard to our poor condition, speedily to report the state of the whole matter to his majesty in council, that so we may be no longer delayed, but repair home to follow our lawful callings; and we shall, as in duty bound, for ever pray, and remain, your honours most humble and grateful servants,

JAMES WILD, SAMUEL PACY.

The attorney-general, in pursuance of the order of council, paid due attention to the allegations of both parties; and after hearing what each of them had to advance in support of their several pretensions, together with the opinion of their learned council, delivered a report to his majesty; wherein, after reciting the many charters which had been granted to the town of Yarmouth, and afterwards repealed; and the various ordinances and inquisitions issued and taken by the King’s commission in preceding reigns, and revoked by the same authority; declared that he had considered the statute 31 Edward III, the different opinions of the several judges thereupon, and the orders of her late majesty queen Elizabeth and her privy council, in consequence thereof, which were, that seven miles should be measured from the Key of Yarmouth, and also from the utmost bounds of their haven, and that a certificate should be presented, declaring how far each of the said admeasurements extended; and that during the interval, they should forbear to erect any marks or bounds, pointing out the termination of the said admeasurements, until further orders were issued; but that it did not appear to him that the said seven miles were actually measured by any order for that purpose. It is evident that the attorney-general had not perfectly informed himself of all the circumstances of this dispute, or else they were misrepresented to him; for in 1596 an order in Council was given for seven miles to be measured from the key of Yarmouth towards Lowestoft, and at the end thereof to set up some apparent mark; and in that remarkable commission, which had all the appearance of being fraudently obtained, is contained directions for the two admeasurements, and the suspension of the order for erecting a mark pointing out the extent of the liberties of Yarmouth. Nevertheless the inhabitants of Lowestoft did affirm, and it was certified by great numbers of the Western fishermen, that the said Western fishery had ever since the recited order (as they did before), sold and delivered herrings in the roads of Lowestoft till this last summer, without any disturbance or molestation from the town of Yarmouth.

THE ATTORNEY GENERAL’S FIRST REPORT.

May it please your most excellent Majesty.

In obedience to your Majesty’s order in council, of the 25th January last, I have heard the inhabitants of the town of Lowestoft, in the county of Suffolk, and also the inhabitants of Great Yarmouth, in the county of Norfolk, and their learned counsel on both sides; and do find, that the contention between the said towns concerning the herring fishery, hath depended for a very long time. And that divers statutes have been made in this case by parliaments, and again afterwards repealed. And also divers ordinances and inquisitions have anciently been made and taken, by the king’s commission directed to men of great quality, and afterwards altered and revoked again by the like authority. But there was one statute made in the 31st Edward III, whereby amongst other things it is provided, that none shall sell herrings in any place about the haven of Yarmouth, by seven miles, but in the three towns of Yarmouth, except the said herrings be of ‘their own fishing.’ And I have likewise seen the opinions of several learned judges, some of them conceiving, that the said statute, 31 Edward III is repealed; and others, that the said statute, and also one other Act made in the tenth year of Richard II, for reviving divers former repealed charters, made to Yarmouth, stand still in force bylaw, and are not repealed. And those judges who were of opinion that the same were not repealed, did think it good and convenient to have the seven miles measured, and to begin at the crane key in Yarmouth, where the said fair of herrings is kept (to which place the fishers who sell their fish at Yarmouth must first come, and their cable draw to land, before they deliver their herrings), and so go towards Lowestoft, and where the seven miles do end, to set up some apparent mark to make it known; and did certify the same accordingly to the lords of Queen Elizabeth’s privy council. But the inhabitants of Yarmouth being discontented with the first certificate of the said judges, did procure a rehearing of their cause before them, who having accordingly heard them and their learned counsel, did certify that they did find no cause to alter their former certificate; yet the admeasurement was suspended by reason of the Yarmouth men alledging, that the admeasurement of the seven miles from the key of Yarmouth would be prejudicial to their charters and liberties; and that by the said statute, 31 Edward III, the seven miles ought to be accounted from the utmost bounds of the haven, which they affirmed to have been extended, in the memory of man, a mile beyond where it was then; so that it was directed by the lords of her said late majesty’s most honourable privy council, that there should be seven miles measured from the key at Yarmouth and from the utmost bounds of their haven, where the five ports begin their jurisdiction, and that it should be certified unto them how far each admeasurement did extend; and that in the mean time they should forbear to set up any marks or bounds, until such further orders should be issued therein as might be just and reasonable, and to the mutual satisfaction of both parties. But there is nothing appears to me, that the said seven miles were measured as the said last-recited order did direct. Yet, notwithstanding, the inhabitants of Lowestoft do affirm, and it is certified by great numbers of fishermen, that the western fishery has been ever since the said recited order (as they did before) sold and delivered herrings in the roads of Lowestoft, till this last summer without the disturbance of the Yarmouth men.

All which I humbly submit to your Majesty’s great wisdom.

It also appears that the Attorney-General, upon further consideration of this contested difference, presented an additional report to his majesty, wherein he represented, that since his former report he had seen the certificate of the two learned judges, dated April 29, 1597, subsequent to the certificates mentioned in his first report, in which they declared that they could not see how any method could be taken for compromising the differences between the two towns, but by referring them to Parliament.

THE ATTORNEY-GENERAL’S SECOND REPORT.

May it please your most excellent Majesty.

In obedience to your Majesty’s order of council of the 25th of January last, concerning the matter of difference between the inhabitants of the town of Lowestoft, and the inhabitants of the town of Great Yarmouth, I lately made certificate to your majesty according to the truth of what was then produced before me. But since that time there hath been produced to me a certificate under the hands of the learned judges, dated the 29th of April, 1597, subsequent to those mentioned in my former certificate, wherein they did declare, that they did see no other course could be taken by them, in order to compound their controversies and decide the differences between the said towns, and whereby they could bind both parties in such a manner as was most fit and convenient (their differences being of such great difficulty), and therefore they thought it fit, that the cause should be respited, and referred to the next parliament. At which time, upon supplication and complaint of those that should find themselves aggrieved, the cause might receive hearing and due remedy.

And I humbly crave liberty to certify to your Majesty, that by the word “crane” key, in my former certificate, I did intend the key of Yarmouth, that is known by that name, without any the least prejudice to either party thereby, in relation to the admeasurement mentioned in the same certificate, further or otherwise than the truth of the cause would bear.

All which I humbly submit to your Majesty’s great wisdom.

At a council held at Whitehall the 10th of April, 1661, at which were present his Majesty, and the Duke of York, and many of the first nobility, these reports of the attorney-general were presented and read; and it was accordingly ordered by the council, that by reason of his Majesty’s approaching coronation, they were unable to pay such proper attention to the complaints of the respective parties, as their cases required; therefore the affair must necessarily be suspended a short time longer; and that both parties do attend the Board on Friday three weeks, the third of May next ensuing, at three in the afternoon, for the further hearing and determining of this matter.

Upon the issuing of the order for deferring the hearing of the cause to a subsequent council, the Lowestoft men presented another petition to His Majesty, beseeching him that as it was the opinion of the judges, and also of the Attorney-general, that the only method which could be taken for compromising the differences so long subsisting between these two towns, would be to consider seven miles to be measured from the key of Yarmouth, towards Lowestoft, in order to ascertain the boundary of the liberties of the former place, and secure the privilege of a free fishery to the latter, and at the end thereof to have some apparent mark erected, to denote the same; that his Majesty would be pleased to order the said admeasurement to be immediately carried into execution; or otherwise, by reason of their many misfortunes and losses, they must be involved in inevitable ruin.

TO THE KING’S MOST EXCELLENT MAJESTY, THE HUMBLE PETITION OF THE INHABITANTS OF THE TOWN OF LOWESTOFT, IN THE COUNTY OF SUFFOLK,

Sheweth,

That your majesty having been graciously pleased, at the humble suit and prayer of your petitioners, to hear the complaint of your poor petitioners, against the rich inhabitants of the town of Great Yarmouth, in the county of Norfolk, before the right honourable the lords of Your majesty’s privy council, touching the free trade of herring fishery, which hath of long time been in controversy between them; and upon a full hearing, did order both parties to attend your majesty’s attorney-general, that he, upon due consideration and hearing of all parties, should report to your majesty the true state of the whole matter of fact accordingly: whereby it appears, that the opinion of all the reverend judges, and such other worthy gentlemen of quality to whom the matter hath been formerly referred, is, ‘That there is no other visible way to end their controversies, and to procure unity between the said towns, but by an admeasurement of seven miles from the crane key of Yarmouth towards the town of Lowestoft.’ And whereas your petitioners are exceedingly impoverished by reason of their said controversy, and their sufferings during the late troubles, their affections to your majesty’s late royal father, of ever blessed memory, having been plundered by Oliver Cromwell and the said inhabitants of Yarmouth, who were instrumental with, and assisting him in the same; and since that time have been almost ruined by a sad and lamentable fire which happened in their said town, whereupon inevitable destruction will follow, except a speedy and effectual end be put to their differences, and that they may have free liberty to use their trade of herring fishery.

Your petitioners therefore humbly pray, That your majesty would be graciously pleased, upon the report of Mr. Attorney-General, as also the reports and certificates of former learned judges and justices of the peace of both counties, by your royal command to declare and publish, that seven miles may be measured from the crane key of Yarmouth aforesaid, towards the town of Lowestoft, and not from their pretended utmost bounds of their haven, which is uncertain, and by which means they would destroy your petitioners said fishing trade. And that a post, or some other apparent mark, may be set up at the end thereof, so that the trade of herring fishing may be used during the time of their free fair at any place without the said post or mark, without the molestation of the said inhabitants of Yarmouth, whereby your petitioners, and many thousands of your majesty’s poor western fishermen, may live and subsist by their said trade of herring fishing, as time out of mind they have done; which otherwise will be their utter ruin and undoing, as appears by their humble certificate and remonstrance to your sacred majesty.

And your petitioners as in all duty bound, shall ever pray, etc.

Petitions were also at the same time presented by the Lowestoft men to Lord Chancellor Hyde and the Duke of Albemarle, entreating their interest and authority at the privy council intended shortly to be held for the further discussion of this litigious contest; also that an order might be obtained for the admeasurement of the said seven miles from the crane key at Yarmouth, and that the same admeasurement should not be made from the haven’s mouth, as thereby the town of Lowestoft would be excluded from their indisputable claim to the privileges belonging to the herring fishery.

A petition was also presented to his majesty, praying that his majesty would graciously please to be present in his royal person at the council appointed to be held on Friday the third of May next ensuing, for deciding this long-controverted difference.

In consequence of this appointment a privy council was held at Whitehall on the third of May, 1661, at which were present his majesty, the duke of York, many of the great officers of state, and others of the nobility; when, after hearing the learned counsel on both sides, and after full debate on the several complaints and allegations advanced by the respective parties, it was ordered by his majesty in council, that as the determination of the differences between the said towns of Yarmouth and Lowestoft depended upon the validity of several charters, acts of parliament, and orders of council, that the inhabitants of the town of Lowestoft should make application to the right honourable the House of Lords, shortly to be assembled in Parliament, who would consider their complaints and afford them such redress as their lordships, upon due examination of the whole matter, should think just and reasonable.

The Lowestoft people having conceived the highest expectations of an amicable adjustment of their differences with Yarmouth at the late hearing of their cause before the privy council, were extremely chagrined and disappointed at its being referred to the House of Lords; especially as their inability (from their late misfortunes) to continue the contest, and the continual interruptions and depredations of the Yarmouth men, had rendered a final decision of the affair absolutely necessary. In this critical situation of their affairs, they thought it necessary, as preparatory to the introduction of their cause before the House of Lords, to present a petition to their lordships informing them, that whereas, from time immemorial, they had enjoyed the free trade of buying herrings of the western fishers in the roads of Lowestoft; but that the Yarmouth men, taking advantage of their late misfortunes by fire and civil wars, had greatly interrupted and annoyed them, and threatened them with the total destruction of their fishery, and, consequently, with the utter ruin of their town. That they had laid their case before his majesty and the privy council; that it had been referred by them to the attorney-general, that the opinion of the attorney-general had been laid before his majesty and the privy council; who, after due examination of the premises, were pleased to refer a further investigation thereof to their lordships, recommending such redress of the grievances complained of as they should think just and equitable. Therefore the said petitioners humbly besought their lordships, that they would be pleased to take the matter into consideration, and afford them such immediate relief as would prevent the annihilation of the fishery, the ruin of the town, and the great loss and inconvenience of the nation in general.

On reading of the above petition before the house of lords, their lordships ordered, that the cause so long depending between the said towns should be heard at the bar of that house by such counsel as should be retained on each side, on the seventh of June, 1661; and that the said petitioners should give timely notice thereof to the inhabitants of Yarmouth, and that both parties do attend the same hearing.

DIE SABBATHI, 25º MAIJ, 1661.

On reading the petition of the inhabitants, of the town of Lowestoft, in the county of Suffolk, this day in the house, concerning a free trade of fishing, which the petitioners complain they are molested in by the inhabitants of Great Yarmouth, it is ordered, by the lords in parliament assembled, that the cause shall be heard at this bar, by counsel on both sides, on the seventh day of June next. And that the petitioners, or some of them, shall give the said inhabitants of the town of Yarmouth, timely notice thereof, and that both the said parties do attend the said hearing accordingly.

JOHN BROWNE, Cleric. Parliamenti.