Part 18

5th. That when the fishers come first to Yarmouth, they must sell to none but their hosts, who give them what price they please.

Mr. PALGRAVE deposed, “That the Yarmouth men frequently discharge herrings out of the fishers before they come to the place where the fair is kept.”

MR. PALGRAVE and MR. SAMUEL WILD proved the place where the fair is held, and at what place proclaimed first.

MR. LOCKINGTON, MR. NOY, MR. GREEN, and the Fishmongers’ certificate also proved the general damage which the fishmongers in London, as well as several other places, and also the kingdom in general would sustain, from their not being privileged to buy herrings at Lowestoft as well as at Yarmouth, as they could not be had so good nor so cheap at the latter place as at the former.

The fishermen’s and the fishmongers’ certificate do testify all the aforesaid matters, and the burgesses in Parliament for the county of Suffolk, do certify the same also.

After hearing the above evidence, their Lordships still declined passing a final determination upon the affair, until the judges, to whom they had referred for their opinion, concerning a point of law, had made their report; and therefore a second order to the judges was issued by their Lordships; wherein, after informing them that the witnesses belonging to both parties in the cause between Lowestoft and Yarmouth having been heard that day at the bar of that House, and being desirous to hear the opinion of the judges, concerning the point of law referred to them, before any resolution was formed, it was ordered, that the judges should be as expeditious as possible in hearing the counsel on both sides relative to the matter in reference, and make their report accordingly, that so their Lordships might speedily terminate the business so long depending before them.

DIE JOVIS, 27º Junij, 1661.

This day the witnesses on both sides, in the controversy between the inhabitants of Lowestoft and the bailiffs of Great Yarmouth, were heard at the bar, concerning the usage and custom of fishing and selling of fish, and the House being desirous to hear the judges opinions before any resolution be given between them; it is ordered by the Lords in Parliament assembled, That the judges be desired to expedite the hearing of the counsel on both sides upon the matter of reference mentioned in the order of the 20th of this instant June, and to make their report unto this House, with what convenient speed they can; that so their Lordships may put an end to the business now depending before them.

JO. BROWNE, Cleric. Parliamenti.

The judges returned for answer to their Lordships, that their attention being wholly engaged with the great and important affairs of the nation, and also that upon account of the approaching assizes, they were under the necessity of setting off very shortly upon their circuit; therefore they begged to inform their Lordships, that they were unable to deliver their opinion concerning the matter of reference mentioned in the order of the 20th instant, until the months of October or December next. Thus the final decision of this long-contested difference was further protracted, and the herring season being now nearly approaching, wherein the Lowestoft men and also the northern and west country fishermen would be exposed to the usual insults and depredations of the Yarmouth men they were seized with the most alarming apprehensions that the moment was now hastily approaching wherein they were to be sacrificed to the malice and revenge of their inveterate enemies. In order, therefore, to divert the impending ruin, and to guard against the danger which threatened them, they once more made application to their former and only protectors, the House of Lords; to whom they addressed themselves in a petition, representing to their Lordships, that they had presented an address to the judges, beseeching them to appoint a day for the counsel belonging to the respective parties to attend them, but by reason of the great and weighty affairs of the nation, and the approaching assizes, they could not deliver their report before the months of October or December next; but that lest, during the interval, their petitioners and the northern and western fishermen should be interrupted in the free exercise of their trade of herring-fishing, which was now approaching, as they were the last year, by the outrageous violences of the Yarmouth men; they implored their lordships, that they might be protected from the oppressions of the enemies during the ensuing herring season, and also until such time as the judges shall have made a report to their Lordships concerning the point of law referred to them in the order of the 20th June last.

TO THE RIGHT HONOURABLE THE PEERS OF ENGLAND, ASSEMBLED IN PARLIAMENT.

THE HUMBLE PETITION OF THE INHABITANTS OF THE TOWN OF LOWESTOFT IN THE COUNTY OF SUFFOLK,

Sheweth,

That your Lordships having been graciously pleased, upon the humble suit and prayer of your poor petitioners, to hear the difference between them and the rich inhabitants of Yarmouth, concerning the herring fishing, and to refer to the judges for their consideration, a matter of law, whether the statute of 31 Edward III, ch. i and ii be repealed by the statute of 2 Richard II, ch. vii, or by any other statute. And your petitioners having accordingly made their humble address to their Lordships to appoint a day for the counsel on both sides to attend them, who, by reason of the great and weighty affairs of the nation, and the approaching assizes, and not answer your Lordships’ desires therein before the months of October or December next. And lest, in the meantime, your petitioners and the poor fishermen should be disturbed in the free exercise of their trade of herring-fishing now nearly approaching, to the threatening ruin of them and their families, as the men of Yarmouth practised the last year by force and violence.

They therefore most humbly pray, That your Lordships would be pleased, out of your great wisdom and pious regard to your poor petitioners, to afford them relief in this their so great sufferings in the late war, a lamentable fire, and great expenses in this unhappy contest, that they be not rendered the most miserable people in his Majesty’s dominions; but that they may, by your Lordships’ protection, be encouraged to exercise their trade of herring-fishing, without molestation from the Yarmouth men, the purchasing a present subsistence for themselves and families, until the judges shall deliver their opinion to your Lordships, in pursuance of your orders.

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

In consequence of this petition, an order was immediately issued by the Lordships, directing that town of Lowestoft, and also the northern and west country fishermen, should be permitted to carry on the said fishery as usual, without any interruption or molestation from the Yarmouth men, until such time as the judges had delivered their report concerning the statutes of 31 Edward III, and 2 Richard II.

DIE LUNÆ, 22º July, 1661.

Ordered by the Lords in Parliament assembled, that the northern and western fishermen are hereby empowered to fish this season of the herring fishery about the town of Yarmouth, as formerly they have done, for three years before the last year, with a salvo to the said town of Yarmouth and the town of Lowestoft; the right of which fishing now depends before the Lords in Parliament.

JOHN BROWNE, Cleric Parliamenti.

THE ORDER.

Whereas there is a controversy depending in the House of Lords assembled in Parliament, between the inhabitants of the town of Lowestoft in the county of Suffolk, and the town of Great Yarmouth, in the county of Norfolk, concerning the right and free trade of herring fishing, and of buying and selling the said fish. And whereas upon hearing of the counsel on both sides, it is ordered, by the said Lords, That it be referred to the judges, to consider whether the statute of 31 Edward III, ch. i and ii be repealed by the statute of 2 Richard II, ch. vii, or by any other statute; and that the judges are to deliver their opinion unto the said House of Lords. And in regard much damage may arise, not only to the inhabitants of the aforesaid towns of Lowestoft and Yarmouth, and also to the northern and western fishermen, as well as to his Majesty’s kingdom in general, if some course be not taken for the preservation of the said free trade of herring fishing: be it therefore enacted, by the King’s most excellent Majesty, with the Lords and Commons assembled in Parliament, that fishermen from henceforth shall and may have free liberty and full power to sell herring at all times, at their pleasure, at the town of Lowestoft, or elsewhere, and shall not be compelled to carry the same to Yarmouth; any statute, custom, or usage to the contrary thereof, in any wise notwithstanding: provided that this Act is only to continue and stand in force until the judges have certified their opinions to the House of Lords as aforesaid, and the said differences be settled, and the rights be established and confirmed to such party as the same by law doth properly appertain.

The judges soon after returned from the circuit; but in consequence of the many important affairs they were engaged in, respecting the nation, they were unable to appoint a day for hearing the allegations of the respective parties before the 4th December; when, at a meeting of their Lordships for that purpose, they appointed the 24th of January next ensuing, at three o’clock in the afternoon, for both parties, with their respective counsel, to appear before them at Sergeants’ Inn Hall, in Fleet street, in order to examine the complaints of the several parties, and to hear what each of them had to advance in support of their respective privileges and pretensions.

DECEMBER 4TH. 1661.

We do appoint Friday the 24th of January, next ensuing, at three of the clock in the afternoon to hear the matter in difference between the bailiffs of Great Yarmouth in the county of Norfolk, and the inhabitants of Lowestoft, in the county of Suffolk; at which time both parties are desired to attend us, with their counsel, at Serjeant’s Inn Hall, Fleet Street.

R. FOSTER, ALAN BRIDGEMAN, MATTHEW HALE, THO. MALET, ROBERT HYDE, EDWD. ATKYNS, THOMAS TWISDEN, THOMAS TYRREL, WM. WYNDHAM, CH. TURNER.

Com. Board.

In consequence of this appointment of the judges, both the parties, with their counsel, appeared before their Lordships on the 24th of January; who, after hearing what each party had to advance in support of their several pretensions and also duly investigating their respective claims and privileges, they soon after made their report of the same to the House of Lords; and in consequence thereof it was ordered by their Lordships, that the counsel belonging to each party do attend at the bar of that House, on Wednesday, the 26th of that instant February, at nine o’clock in the morning, in order to sum up the evidence, given at a hearing of the cause, before their Lordships, and to state the case to the House, that such a final determination may be passed as their Lordships shall think just and reasonable.

DIE SABBATHI, 20º FEBRY., 1661.

Upon the report of the Lord Chief Justice of the Common Pleas, concerning the business relating to the towns of Yarmouth and Lowestoft, concerning their fishing; and a petition of the inhabitants of the said town of Lowestoft, read this day after the report was made; it was ordered by the Lords spiritual and temporal in Parliament assembled, That the Counsel on both sides are to be heard at the bar on Wednesday next, the twenty-sixth of this instant February, at nine of the clock in the morning, to sum up the evidence formerly given at a hearing before their Lordships, and to state the case to the House, that such determination may be given therein as their Lordships shall think fit.

JO. BROWNE, Cleric. Parliamenti.

The House of Lords being assembled on the 26th February, 1661–2, the Council on both sides were called to the bar of the House; when, after a full hearing of their respective evidence, and duly weighing the report of the judges, and after a long and serious debate amongst their Lordships concerning the whole matter; it was resolved, declared, and adjudged, by a vote of the Lords spiritual and temporal, that since the judges, in their report, had given their opinion, that the statute of the 31st of Edward III, chap. I and it hath not been repealed by the statute, but continues in full force and effect; but that concerning the principal point in dispute, viz., From what place the seven miles, the boundary of the liberties of Yarmouth, (and mentioned in the said statute of the 31st of Edward III) was to be measured, had been left by the judges to the determination of their Lordships. Therefore it was ordered by their Lordships that an admeasurement of the said seven miles should actually be made some time between that day and the 24th of June next, by the several and respective sheriffs of the counties of Norfolk and Suffolk, beginning from the _crane key_ in the haven of Great Yarmouth aforesaid; and at the end thereof a new post should be erected, to denote the termination of the same; and within which extent the said bailiffs and corporation of Yarmouth were to enjoy their full privileges and immunities as the said statute of the 31st of Edward III and their other charters do afford them, and no farther.

DIE MERCURII, 26º Feby., 1661–2.

Upon hearing counsel on the twentieth day of June last, at the bar, on the behalf of the inhabitants of Lowestoft, in the county of Suffolk, plaintiffs; and the counsel for the bailiffs of Great Yarmouth, in the county of Norfolk, on the behalf of themselves and that corporation, defendants; upon their several petitions depending before the Lords in Parliament, concerning the herring-fishing, and buying and selling of herrings in the fair of Great Yarmouth aforesaid; it was then ordered by this house to be referred to the judges to consider whether the statue of the 31st of Edward III. ch. i. and ii., be repealed by the statute of the 2nd of Richard II. ch. vii., or by any other statute. And that the counsel on both sides should attend the said judges in that behalf; and a report having been since made unto this House by the Lord Chief Justice of the Common Pleas, that he and others of the judges had, according to the said order of the twentieth of June, heard the counsel on both sides, and considered of the statutes therein referred to them; and that they all are of opinion, that neither the statute of the 2nd of Richard II. nor any other statute, had repealed the statute of the 31st of Edward III.; but that the said statute of the 31st of Edward III., in that behalf, is in full force and effect. But as for the great matter of the differences between the petitioners, and the town of Yarmouth, concerning from what place the seven miles mentioned in the said statute of the 31st of Edward III., was to be measured, the judges had left that point to the determination of this House. Whereupon the Lords this day heard the counsel on both sides at the bar, in order to sum up the evidence formerly given before their Lordships; who also stated the cause to the House. And after a long and serious debate amongst their Lordships, it is resolved, declared, and adjudged, by the votes of the Lords spiritual and temporal, in Parliament assembled, That there shall be a measurement made between this day and the 24th of June next after the date hereof, by the several and respective sheriffs of the counties of Norfolk and Suffolk, from the _crane key_ in the haven of Great Yarmouth aforesaid, to extend seven measured miles from the said crane key, and no farther; at which place a new post is to be set up, to bound the limits aforesaid. Within which extent the said bailiffs and corporation of Yarmouth are to enjoy their full privileges and immunities, as the said statute of the 31st of Edward III. and their charters do afford them, and no farther.

JO BROWN, Cleric. Parliamenti.

Thus was this great and litigious contest at length finally determined; and therefore the next business necessary to be undertaken on the part of Lowestoft, was to see that the order of the House was carried into execution. In order to this purpose a letter, addressed to the bailiffs of Yarmouth, was sent from the gentlemen concerned for Lowestoft, acquainting them with the decision of the Lords; and also further informing them, that as the time limited by their Lordships for making the admeasurement would expire on the 24th of June next ensuing, they requested that they would resolve upon a certain day, during that interval, on which the men of Lowestoft, together with the sheriffs, might attend them, and make the said admeasurement.

TO THE BAILIFFS OF GREAT YARMOUTH, NORFOLK,

March 4th, 1661–2.

GENTLEMEN,—There having been a controversy depending between the towns of Lowestoft in Suffolk, and Great Yarmouth in Norfolk, for a very long time concerning the herring fishing, which, after several hearings the last year before his Majesty in Council, he was graciously pleased to refer the matter to the Lords in Parliament, who having heard at their bar the learned counsel on both sides, and where the case was also stated; after a long and serious debate among their Lordships, it was resolved, declared and adjudged, by the votes of the Lords spiritual and temporal assembled, that there shall be a measurement made between this day (the 26th of February) and the 24th of June next after the date thereof, by the several and respective sheriffs of the counties of Norfolk and Suffolk, from the crane key in the haven of Great Yarmouth aforesaid, and to extend seven measured miles and no farther; at which place a new post is to be set up, to bound the limits aforesaid. And in order thereunto, we, whose names are hereunto subscribed, do desire that you will affix a certain time, when and where you will please to meet and make the said admeasurement that accordingly you may be attended by,

Gentlemen, your Servants,

JOHN PETTUS, GEO. REEVE, RICHD. COOKE, JOHN BAYSPOOLE, HENRY FELTON, JOHN ROUS, ROBERT BROOKE, THOS. WALDGRAVE, EDMUND POOLEY.

Accordingly the 27th of May was as agreed on by the respective parties to meet and undertake the admeasurement of the said seven miles; but the Yarmouth men being so much disappointed and chagrined at the late decision of the House of Lords in favour of the town of Lowestoft, and also perceiving that all their attempts for carrying into execution their favourite and long-projected scheme of wholly excluding the town of Lowestoft from the herring-fishery, and monopolising it to themselves, totally frustrated, that they had recourse to stratagem, and endeavoured to accomplish by artifice what they were unable to obtain by legal proceedings. In order, therefore, to effect their designs, they endeavoured to evade the order of the House, by attempting to prevent its being carried into execution. For which purpose they not only prevailed upon Sir Richard Bacon, the high sheriff of Norfolk, to be absent at making the admeasurement, but also so far influenced the under sheriff, Mr. Roger Smith, that when the gentlemen appointed to superintend it were assembled at Yarmouth, in order to undertake it, the said under sheriff absolutely refused to concur with them therein, expecting thereby to render every measure that should be then taken, totally void and of none effect. A circumstantial account of the proceedings in this very extraordinary business, as well as the opinion and behaviour of the Lowestoft people concerning the same, will more fully appear from the following narrative of the case, as drawn up soon after by special order and appointment:

A NARRATIVE

Concerning the proceedings upon an order of the House of Lords, bearing date the 26th of February, 1661–2; wherein the determination of the admeasurement of the seven miles from the crane key in Yarmouth, towards Lowestoft, was referred to the two several and respective sheriffs of Norfolk and Suffolk.

WE, whose names are underwritten (whereof seven of us are the next adjacent justices of the peace, and of equal regard to the interests of both towns—Sir John Playters, Sir George Woodhouse, Sir Henry Bacon, Sir John Pettus, Sir William Coke, John Bedingfield, Esq., and Thomas Scrivener, Esq., besides many other gentlemen of quality in both counties), being solicited by the inhabitants of Lowestoft, and also sensible of the great importance the adjusting of the differences, and the admeasurement of the said seven miles is of, not only to the peace and advantage of the respective parties in particular, but to the fishery of this kingdom in general, did, on the 27th of May, at nine o’clock in the morning, attend the arrival of the sheriffs at the foot of the bridge entering the town of Yarmouth, being the place and day appointed by the sheriffs.

And whereas about eleven o’clock the under sheriff of Norfolk appeared, and made his excuse for the high sheriff, namely, “That he was at his house, about thirty miles distant, and not in health.” But that he, the under sheriff, was sufficiently empowered to dispatch the business. Soon after the under sheriff appeared the second time, and informed us that he expected the high sheriff, and desired that his employment in this business might be suspended as long as possible. So that, apprehending we should be disappointed of both the high sheriffs, and conceiving the under sheriffs might proceed in the undertaking, the town of Lowestoft desired (because the day was far spent, and lest our journey and trouble might be to no purpose) that the under sheriffs would undertake and begin the admeasurement.

On this proposal, the under sheriff for Norfolk made several cavils concerning the House of Lords, declaring that it was not of sufficient validity to dispose of other people’s right; and that there was no certain and legal mode of composing the differences, but by a trial at common law.

On the other hand, the town of Lowestoft insisted on his obedience to their Lordships’ order, and pressed him that he would undertake and begin the admeasurement from the crane key, according to order. The under sheriff replied, that the whole river, from the bridge to the haven’s mouth, (which extends full two miles) was the crane key, as he had been informed; and that the admeasurement might as properly begin at the haven’s mouth as at any other place.