Chapter VI: Section IV (2)

3rd. And that whensoever any ships or boats apply themselves into
Kirkley road, laden with herrings, they may twice unlade again and
return to fish; whereas the ships or boats applying into the port of
the town of Yarmouth, they can but once in the same time unload and
again return to sea to fish.

4th. Also they say that the commonalty do sustain and bear very
great griefs, damages, and hindrances, by colour of the liberties and
privileges aforesaid.

5th. Also they say, that the said place of Kirkley road lyeth in the
main sea over against the town of Lowestoft, in Suffolk, and is
distant from the town of Yarmouth ten miles.

6th. Also they say, that all the ships and boats laden or unladen,
often, and when they come into the sea between the entry of the port
of Yarmouth and the place of Kirkley road, if the wind be not
contrary, they may at their wills enter into the port and also the
said place of Kirkley road.

7th. Also they understand, that the men of Yarmouth may sustain and
bear all charges towards our lord the king, which before the granting
of the liberties of the new charter aforesaid they did bear, and
maintain their town, besides that charge that they render yearly for
the said charter to them newly granted, although the said charter be
revoked and made void.

8th. Also they say, that if the wind do serve for the ships, that
they cannot come to the said town of Great Yarmouth, sometime it
happeneth that they must cast their herrings into the sea for
oldness, if that they may not lawfully deliver their herrings at the
place of Kirkley road.

In Witness, etc.

The charter for uniting Kirkley road to Yarmouth Haven was repealed the second time, the 5th of Richard II. The grant restored again till the meeting of Parliament to consider of it, the eighth of Richard II.

At the meeting of parliament, which was in the ninth of Richard II. the last grant of the eighth of Richard II. was, by an ordinance of that Parliament, dated the 18th day of December, in the ninth of Richard II. annulled, and the act of repeal, in the fifth of Richard II. continued in force.

The last grant annulled the ninth of Richard II. and the repeal of the fifth Richard II. continued in force.

But notwithstanding all the allegations, statutes, etc., to the contrary, the burgesses of Yarmouth, by their petitions, etc., in the subsequent Parliament, holden at Westminster, in the tenth of Richard II, recovered all their former liberties and grants, by an act or ordinance of Parliament, which privileges, etc., were confirmed by a charter under the great seal of England, which charter has never since been repealed, but continues in force to this day.

After the re-granting of the said liberties and customs to the town of Yarmouth, by parliament, and confirmation of the same by charter, under the great seal of England, the burgesses collected the same customs in Kirkley road that had been usually paid in the port and haven of Yarmouth, without any molestation or interruption whatever. For after this legal decision of this litigious and long-contested dispute, the Lowestoft men were compelled peaceably to submit to any inconvenience it might subject them to and, consequently, were under the necessity of farming of the town of Yarmouth the customs belonging to Kirkley road, at a certain annual rent, as the safest and most advantageous mode of proceeding.

FARMERS OF KIRKLEY ROAD.

Rent per Annum.
£. s. d.
1393. In the 17th of Richard II. the 23 0 0
men of Lowestoft paid
1394. In the 18th of Richard II. the 26 0 0
farmer not recorded paid
1396. In the 20th of Richard II. 26 0 0
William Spencer paid
1408. In the 20th of Richard II. a 1 0 0
fisher of Flanders paid for a
forfeiture in Kirkley road
1410. In the 10th of Henry IV. the 8 0 0
farm of Kirkley road was paid
weekly by Simon Thirkeld,
bailiff of Kirkley road
1414. In the 2nd of Henry V. John 8 0 0
Waller paid
1417. In the 5th of Henry V. the men 8 0 0
of Lowestoft paid
1420. In the 8th of Henry V. Thomas 4 0 0
Couehithe’s hosts, for a
trespass and rescue committed in
Kirkley road paid
1433. In the 12th of Henry VI. the 4 0 0
farmer’s name not recorded paid
1434. In the 13th of Henry VI. the 3 16 8
farmer’s name not recorded paid
1438. In the 17th of Henry VI. John 3 0 0
Davy, merchant, paid
1442. In the 21st of Henry VI. John 7 6 8
Folvile, of Lowestoft, paid
1445. In the 24th of Henry VI. 4 13 4
farmer’s name not recorded paid

Sometimes the water-bailiff collected the rents, but it does not appear that Kirkley road was ever farmed during the reign of Queen Elizabeth, or afterwards.

Nevertheless, about the beginning of the reign of Henry IV. fresh disputes arose between the said towns, respecting the manner of collecting the said customs; the Lowestoft men endeavouring to deprive the burgesses of Yarmouth of their just and legal dues; and also indicted several officers and others belonging to Yarmouth, and carried the suit into the Court of Chancery, where it continued till an agreement between the contending parties was made by the King and his council, in the second year of his reign. And in the following year another order was issued by the kings’ council, whereby an accord or composition, and final decision was settled and agreed upon between Yarmouth and Lowestoft, that the latter might buy herrings in Kirkley road under certain conditions therein specified. And these decisions, the Yarmouth men were once more restored to their usual privileges, and for some time were permitted peaceably to collect their lawful customs in Kirkley road, and to proclaim their free fair there as usual as well as at the other stated places in the town and haven.

But, notwithstanding this seeming amicable adjustment, many fresh disputes arose soon after between the towns, which occasioned many interruptions, and at last frequent depredations on each other’s property; for the Yarmouth men would frequently make seizures of boats, etc., belonging to Lowestoft, under pretence of non-compliance with the last-granted charter; and not only continued to do so till the year 1595, the 37th of Elizabeth, but endeavoured also further at that time to extend the boundary of their liberties beyond the limits by the prescribed charter, which gave but too much reason for fresh complaints being exhibited against them.

Before proceeding any further in investigating the causes which produced the various disputes between Yarmouth and Lowestoft, concerning the herring fishery, it may be observed that the burgh of Yarmouth held its charter upon paying the fee-farm rent of £55 per annum, to King John and his successors; which rent they were empowered to raise by levying a toll or custom upon vessels bringing herrings and other merchandise into the port of Yarmouth, to be bought and sold there; but as the entrance into the haven leading to the port of Yarmouth having, in consequence of the sand banks that were formed there, extended itself as far as Corton, and was also so choaked up that vessels could not enter therein, but were obliged to sell their goods in an adjoining place called Kirkley road, by which means the burgesses of Yarmouth lost their customs, and were rendered incapable of paying their fee-farm rent; they therefore petitioned to have the said road united to their haven, which accordingly was granted, upon condition that the above annual rent of £55 was advanced to £60. Thus for the proceedings on the part of Yarmouth were just and reasonable; and the riotous and illegal behaviour of the Lowestoft men, by refusing or evading the payment of the customs belonging to the port of Yarmouth, was very unjustifiable and reprehensible. The point, therefore, which rendered the burgesses of Yarmouth so very blameable in this affair, was their attempting under the pretence of claiming their just rights and liberties granted them by their charter, to extend them much further than they were authorised to do; for they pretended that Kirkley road was situate to the _south_ of Lowestoft; that the seven leuks or miles, the boundary of their liberties, was to be measured from the mouth of the haven and not from the key or port of Yarmouth: and also, that the said leuks were leagues and not miles; and, consequently, had they succeeded in their designs, the town of Lowestoft must either have been wholly excluded from the fishery, or become tributary to the port of Yarmouth, from being liable to the above customs. These proceedings on the part of Yarmouth were illegal, and therefore justly opposed by the town of Lowestoft. The methods made use of in those early times by the merchants at Lowestoft to supply themselves with herrings, were very different from what it is at present; for now they are furnished with herrings by their own boats; but then, in general, they were obliged to repair to the port of Yarmouth whilst it was open, and afterwards to Kirkley road (as the place of general rendezvous for buying and selling herrings), in order to supply themselves with fish, they having but few, if any boats of their own at that time. Whilst the Lowestoft men repaired to the port of Yarmouth to buy herrings, they had a just right to pay the customs that were due there, and also the same in Kirkley road, when it was united to the haven, and therefore were blameable in either refusing or evading them; what, therefore, rendered the burgesses of Yarmouth so very culpable was, their unjust and illegal attempts above mentioned (about the 37th of Elizabeth, and again in 1659) wholly to exclude the town of Lowestoft from the herring fishery, and to monopolise it to themselves. The proceedings relative to these designs will appear in the subsequent part of this section.

The first complaint against the Yarmouth men was that made to the lords of the privy council, in the year 1595, by the bailiffs and other inhabitants belonging to the several towns of Ipswich, Colchester, Dunwich, Orford, Aldborough, Southwold, and Manningtree, in behalf of the ketchmen, who resorted to Kirkley road and parts adjacent to buy herrings; signifying the many hardships and inconveniences which they laboured under from being deprived by the burgesses of Yarmouth of the ancient privilege they enjoyed, and the great injury they were liable to, in consequence thereof.

The ketchmen were those vessels which frequented these coasts in the fishing season for the purpose of buying and selling herrings, which they transacted in the open sea; but now Yarmouth men were for compelling them to resort to Kirkley road, in order that they might receive the customs, grounding their claim upon a grant of Queen Elizabeth.

THE COMPLAINT OF THE KETCHMEN AGAINST YARMOUTH.

Whereas there is a certain grant passed from her majesty to the
township of Great Yarmouth, in the county of Norfolk, as we are
credibly informed, and as the township of Yarmouth aforesaid have
given out speech and reported, That no fishermen, after the feast of
St. Michael, by the space of forty days, should utter or sell any
herrings within the compass or limit of seven miles of the said town,
to any person or persons; but that the said fishermen should be
constrained and urged to utter and sell all such herrings as should
be by them taken within the time before limited at the town of
Yarmouth aforesaid, and there to take and abide their market and
utterance of the same herrings, and not elsewhere. We, therefore,
which hereunder have subscribed, having had due consideration of the
premises, and seeing and proving not only the great damage and
inconvenience that the same will bring to the whole commonwealth of
this realm, but also the utter ruin and destruction that will fall
upon a number of poor ketchmen which be in trade with the said
fishermen, whereby the said ketchmen, their wives and families, as
also a great number of others who are thereby supported, sustained,
and upholden, do think the said grant to be very unprofitable and
inconvenient. The reasons that do move us thereto are these; that is
to say, If the fishermen, after the taking of the said herrings,
shall be constrained to repair, abide, and make their market and
sales at Yarmouth aforesaid, they shall within that time lose the
benefit of the taken twice so many herrings or more, as they shall
utter and sell, and not the half part of the herrings taken that
might be taken if they might abide and make their market at sea. And
also, if the said ketchmen shall be dismayed from buying of herrings
of the said fishermen, the most parts of the realm during that time
shall be unserved and unprovided for, and the queen’s highnesses,
poor distressed people and others would be unrelieved, which were a
most pityful and lamentable thing. And finding also, as we are
credibly informed, and some of us of our own knowledge do know, that
the bailiffs of the said town of Yarmouth have taken seven men’s
goods, which they have brought thither to be sold, and have committed
the owners thereof to prison, and constrained them to buy their own
goods again. (All which inconveniences, discommodities, and hard
dealings being considered.) We doubt not but that their godly
wisdoms to whom these presents shall be committed, will have due
regard and consideration thereof, as well for the benefit and
maintenance of the common wealth of this realm, as also for the
maintenance and relief of the poor distressed therein. And thus
thinking it our duties to certify our knowledge therein, we most
humbly take our leaves, the seventh day of August, 1595.

Signed at IPSWICH—EDWARD GOODYNGE, WILLIAM MYTUAL, Bailiffs
and 46 inhabitants. SOUTHWOLD—27 ditto. MANNINGTREE—10 ditto.
DUNWICH—ROBERT SWOTCHETT, JOHN ALLEYN, bailiffs and 20
ditto. COLCHESTER—22 ditto. ALDBOROUGH—FRANCIS JOHNSON,
JOHN JEAMES, bailiffs and 25 ditto. ORFORD—5 ditto.

The only grant made to Yarmouth in the reign of Queen Elizabeth, was a charter, in the first year of her reign, which empowered them to hold a court of admiralty, to try all maritime causes whatsoever, piracy only excepted; and wherein the boundaries of their liberties were restrained within the limits of seven leuks of the town, haven, or Yarmouth roads, and not from the haven’s mouth, or Kirkley road; without adding any additional privilege tending to justify this encroachment on the liberties of the ketchmen.

Another complaint made also at the same time against the burgesses of Yarmouth was one from the town of Lowestoft; for the town of Yarmouth pretended that the seven leuks or miles which bounded their liberties was not to be measured from the key or port of Yarmouth but from the haven’s mouth; whereas the Lowestoft men affirmed that the said admeasurement ought to be made from the key or port of that town; otherwise the fishermen of Lowestoft would be excluded the indisputable privilege of buying herrings in the open road before their own town, which hitherto they had always enjoyed.

In consequence of these complaints, their lordships after hearing what each party had to alledge in its own defence; referred the further consideration thereof to three judges of the realm, viz., the right honourable Sir John Fortescue, knight, one of Her Majesty’s privy council; Mr. Justice Clench, and Mr. Justice Gawdye, in order that they might certify to their lordships in what manner the dispute between the said towns might be fairly and equitably adjusted to the reasonable satisfaction and advantages of both parties.

A LETTER of REFERENCE to SIR JOHN FORTESCUE, Knight, MR. JUSTICE
CLENCH, and MR. JUSTICE GAWDIE.

After our hearty commendations.—The inhabitants of the town of
Lowestoft, in the county of Suffolk, have exhibited a complaint unto
us against the towne of Great Yarmouth, in the county of Norfolk,
shewing, that by some unlawful courses held by the townsmen of
Yarmouth, they are deprived of their antient trade of buying of
herrings of fishermen in an open road before the town of Lowestoft;
whereupon we have called before us of each town some two or three,
with intention to make order in the controversie between them. And
because the affair do consist of many points and proofs by charters,
and by special statutes we have thought good to be assisted therein
with the opinions of some learned in the laws, and therefore have
thought good to join with you Mr. Chancellor of the Exchequer, you
Mr. Justice Gawdie {74}—and you Mr. Justice Clench. And do hereby
heartily pray and request you, at some convenient time this term, to
call the parties before you, and effectually to appease the griefs of
the plaintiff, and the answers to the other, and to hear and consider
their allegations and proofs, to be delivered either by the parties
themselves, or by their learned council thereupon; we pray you to
certify unto us what you shall find, and with your opinions prove
their differences may in equity be duly and orderly ended and
compromised to the reasonable benefit of either; which we earnestly
recommend unto you, and so bid you each heartily well to fare. From
the Star-Chamber the second of July, 1595.

Your very loving friends,

L. ARCHBISHOP, L. ADMIRAL,
L. KEEPER, L. COBHAM,
L. TREASURER, L. BUCKHUST,
Mr. VICE CHAMBERLAIN.

Con cordat cum origine,

THOS. WILKES.

Accordingly, soon after it was certified to their lordships by the judges, that after due consideration of the premises, and hearing the several allegations advanced by both the said towns, and their learned council, they were of opinion, that by a statute of 31st of Edward III, no persons were legally authorised to hang herrings within seven miles of the haven of Yarmouth, viz., South Town; East Town; and West Town, unless the said herrings were of their own catching.

A CERTIFICATE FROM SIR JOHN FORTESCUE, JUSTICE CLENCH, AND JUSTICE
GAWDIE, CONCERNING THE CONTROVERSY BETWIXT THE TOWN OF YARMOUTH AND
THE TOWN OF LOWESTOFT.

Whereas your lordships did direct unto us your letter dated the
second of July last past, to examine and understand the griefs and
controversies between the inhabitants of the town of Great Yarmouth,
in the county of Norfolk, touching the trade of buying herrings: and
to certify unto you our opinions how their differences might in
equity be duly and orderly ended and compounded; we have accordingly
called before us divers of the inhabitants of either of the said
towns, and heard their allegations alleged by themselves, and their
council learned on both sides. And it doth appear into us, that this
condition between the said towns hath depended of very long time; and
divers statutes hath been made in this case by parliament for the
town of Yarmouth, and repealed again for the town of Lowestoft. And
divers ordinances and inquisitions have been made by the king’s
commission, directed to men of great authority, and afterwards
revoked, and altered again by the same authority. But there was one
statute made in the 31st year of Edward III, whereby, amongst other
things, it is provided, that none shall hang herrings 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 another Act,
made in the 10th of Richard II. for revising of divers former
repealed charters made to Yarmouth, in which, amongst other things, a
certain place in the main sea, then by the mouth of the haven of the
said town of Yarmouth, called Kirkley road, was united to the said
town of Yarmouth, and by which it is provided, that none shall buy or
sell herrings by way of merchandize in time of their fair, within
seven miles of the said town, but only in the said haven and road.
Which said two statutes we do think by the law stand still in force
at this day, not repealed, nor avoided touching these points. But
for unity to be made between the said towns, and for the good and
common wealth of her majesty’s subjects in the counties of Norfolk,
Suffolk, Essex, and the city of London, We do think in our opinions,
it were good and convenient (if it may so seem good to your
lordships), that orders might be given to have the said seven miles
measured, to begin at some such place in Yarmouth town as your
lordships shall think meet; which we think, for our parts, to be the
key, where the fair of herrings is kept, and so to go towards
Lowestoft; and where the said seven miles do end, to set up some
apparent thing to make it known. And this being done we think it
would make some quietness, because there is great contention now in
this point. Also we do think it fit, that all pikers and ketches,
being English, might buy upon the main sea, or coasts thereof, and
also in Kirkley road, of the fishermen, fresh herrings at their
pleasure, to be by them carried to what place of the realm they think
good, without any let or disturbance of Yarmouth men, according to
the true meaning of the statute of the 31st of Edward III, which we
think would be very profitable for the fishermen, and very beneficial
for her majesty’s subjects. Also we think it would make great
quietness in this contention, if, by some commission or other, (as it
shall seem to your honourable lordships), it might be certainly set
down where Kirkley road is, and how far it doth extend. November
28th, 1595.

Concordat cum Registro Exor.
JOHN WOLLEY,
Keeper of the Records of the Councell Chamber.

* * * * *

THE OPINION OF THE LOWESTOFT COUNSEL TOUCHING THE CONTROVERSY BETWEEN
YARMOUTH AND THE SAID TOWN.

A brief being made upon the allegations of the Yarmouth men, and
delivered to the judges in writing (which such allegations, in truth,
were not under the hands of their councel, though they proceeded from
their councel), shewing that the judges should have delivered a
certificate of their opinions to the Council-Table before the
Yarmouth men were gone out of London, although the judges had not
sufficient time for that purpose, the Yarmouth men not presenting
their allegations till the last day of term, and then deferred it
till the judges were going to supper; therefore the Lowestoft men
have retained Mr. Sergeant Drewe and Mr. Bargrave, her majesty’s
attorney, together with Mr. Councellor Bacon, to consider the whole
state of the matter, and that their opinion might be shewed as
occasion should require, they have subscribed to the same, as
followeth: “That by the statutes and charters aforesaid, any man may
sell and buy herrings in the road called Kirkley road, or elsewhere,
without the lawful let or hindrance of the town of Yarmouth; and if
any proclamation be made by the said men of Yarmouth, or any other of
the subjects of this realm, to the contrary, the same, in our
opinion, is unlawful, whether it be within or without the time of the
fair.”

CHAR DREW, JA. BARGRAVE, FR. BACON.

In order to form the better judgment of this intricate and much disputed affair, it may be necessary to observe, that by the statute of the 9th of Edward III it was enacted, “That every subject of the realm might buy and sell herrings without disturbance in city, burgh, sea-port, or elsewhere throughout the kingdom; and if any charters and patents were granted to the contrary they should be holden null; which statute was confirmed in a subsequent parliament.” Probably from some abuse of this privilege, it might become necessary afterwards to lay it under some restrictions, in view of preventing those infringements which interested persons, from lucrative motives, had made on the rights and privilege of others; and therefore to redress this grievance, the following statute of the 31st of Edward III was granted, on which the Yarmouth men grounded part of their claim, and is the statute referred to in the certificate of the judges.

STATUTE OF THE 31ST OF EDWARD III.

Edward, by the grace of God, king of England and France, and lord of
Ireland—To our bailiffs of the cinque ports, and the burgesses of our
town of Yarmouth, keepers of the said town, greeting, etc.

A certain concord by us and our council, made within the time of the
present fair of the said town, we will have kept, etc.

That none shall go by boat nor bridge into the sea, nor unto the road
of Kirkley, for to meet the fishers, to compel them, or to capture
them to sell them herrings in the road of Kirkley, to the disturbance
of the said fair, upon the same pain, etc.

But if the said fishers be disposed and willing to sell their
herrings in the said road after that they be anchored there, it shall
be lawful to the merchants of Lowestoft and Winterton, to buy any
herrings in Kirkley road and Winterton, of ships so anchored there,
as freely as the pycards do load their carts and horses there, which
come thither from divers counties, and to hang there, provided that
they sell no herrings therefore towards the sea, upon pain aforesaid,
etc.

And in case that any fishers ships charged with one last and a half
of herrings, or less, come into the road of St. Nicholas, and will
not come into the haven for the charge thereof, and will sell the
same herrings in the road that it shall be lawful for him to set up
his sign, and sell the said herrings there to the merchants that will
buy them.

When the judges delivered their opinions, that by this statute none should hang herrings about the haven of Yarmouth, by seven miles, etc., they meant that port of the haven near the key where the fair was kept, and not the mouth of the haven. The Yarmouth men on the contrary, insisted that the words in this statute, “and to hang there,” implied, not to hang anywhere else but near the said haven, thereby endeavouring to exclude the town of Lowestoft from the privilege of curing herrings. But the opinion delivered by the judges being found just and reasonable it was confirmed by an order of council as will be afterwards more clearly shewn. Nevertheless, it may be observed that the disputes which these statutes principally refer to, and are alluded to by the judges are those which relate to the extent of the liberties of Yarmouth. For the charter which united Kirkley road to Yarmouth haven was not granted until the 46th of Edward III. which was fifteen years after the passing of the preceding statutes.

And by an Act passed in the tenth year of the reign of Richard II (which confirmed the Act of the 46th of Edward III) it was enacted, that a certain place in the main sea, called Kirkley Road, should be united with the said town of Yarmouth; and by which Act it was provided, that none should buy or sell herrings, by way of merchandise, in time of their fair, within seven miles of the said town, but only in the said haven or road. Which two statutes they thought were still in force, and unrepealed; but yet for the sake of restoring peace and harmony between the said town, and promoting the common benefit of the kingdom in general, they recommended it to their lordships, that the said seven miles which circumscribed the liberties of Yarmouth, should be measured from the key of the said town where the herring fair is always held, towards Lowestoft; and at the termination thereof some apparent mark should be placed, in order to ascertain the exact boundaries of their liberties, and to prevent any farther disputes. And also, that they were of opinion, that by virtue of the statutes of the 31st of Edward III all English vessels were entitled to the privilege of buying fresh herrings in the middle of the sea, or coasts thereof, and also in Kirkley road, without any let or hinderance from the men of Yarmouth. And lastly, that they thought it very advisable, that a commission might be appointed to consider the premises, and to ascertain with precision the true situation of Kirkley road, in order to adjust the present differences, and to prevent any future contentions between the said towns.

This opinion of the judges was no sooner delivered, than it was opposed by the burgesses of Yarmouth with the utmost vehemence, and every method was made use of to conceal its reasonableness, and to divert its consequences, the Yarmouth men still persisting that the seven miles which terminated the boundaries of their privileges, were to be measured upon the sea, and not to be contracted by the numerous windings that would necessarily attend an admeasurement taken upon land.

Upon the starting of these objections by the burgesses of Yarmouth, their lordships were pleased to issue orders for a re-hearing of the case, which was appointed to be held before Sir John Forteseue and the other judges; who after hearing and examining what the learned counsel employed by each party had to advance in support of the demands of their respective clients, and duly considering how far their several pretensions were just and reasonable, they certified to their lordships, that they were unable to discover any legal or equitable reason why they should depart from their former opinion.

A SECOND CERTIFICATE FROM SIR JOHN FORTESCUE, JUSTICE CLENCH, AND
JUSTICE GAWDY, CONCERNING THE CONTROVERSY BETWEEN THE TOWN OF
YARMOUTH AND THE TOWN OF LOWESTOFT.

Whereas, upon the return of our first certificate, the men of
Yarmouth opposed it, as discontented with some things therein
specified: whereupon it pleased your lordships to re-commit to us the
hearing of both parties; and having accordingly heard both they
themselves and their learned council, at Serjeants Inn, in Chancery
Lane, we do further certify, that we find no cause to alter the said
certificate.

CONCORDAT CUM RESISTRO
EXOR
JOHN WHOLLEY,
Keeper of the Records of the Council Chamber, April 30th, 1596.

In consequence of this second certificate of the judges, their lordships, on the 16th day of May, 1596, issued an order that an actual admeasurement of the said seven miles should be immediately carried into execution, and at the termination thereof towards Lowestoft, some apparent mark should be affixed, to point out the boundaries of the liberties of Yarmouth; and that the same admeasurement should commence at Yarmouth key, the place where the herring fair is usually held; and also further to ascertain the true situation of the place called Kirkley road; and accordingly a commission was granted to Sir Arthur Heneningham, Sir Henry Woodhouse, Knight, and Henry Gawdy, Esq., {78} on the part of Yarmouth; and to Sir Robert Jermyn, Sir John Higham, Knight, and Anthony Wingfield, Esq., on the part of Lowestoft, or any five or four of them, to superintend the said admeasurement, to affix the said mark, and to point out the precise situation of Kirkley road, where it beginneth, and how far it extendeth.

AT THE COURT AT GREENWICH, the 16th of May, 1596.

Present,
LORD ARCHBISHOP, LORD CHAMBERLAIN, LORD BUCKHURST,
LORD KEEPER, LORD COBHAM, SIR JOHN FORTESCUE.

This day John Felton and Thomas Dannett, burgesses of the town of
Yarmouth, and William Wild and Thomas Ward, inhabitants of the town
of Lowestoft, having been before the lords of the council, and
presented to them the certificate sent down by Sir John Fortescue,
Justice Clench, and Justice Gawdy, signed with their own hands,
concerning the controversy before referred to them by their
lordships, between the towns of Yarmouth and Lowestoft, concerning
the trade of buying herrings. Their lordships having perused the
said certificate, and deliberately considered of it, have approved of
it in these two points: first, for the privilege of seven miles; and
secondly, for a commission to be granted for finding of the right
place of Kirkley road (leaving the other matter of the pikers and
catchers, mentioned in the said certificate, by consent of both
parties themselves). And because the question between them is
concerning the measuring of seven miles where the same ought to begin
(the one part saying that it should begin at the haven’s mouth, the
other at the key, where and about which place, the fair is usually
kept), their lordships do approve of the judgment and certificate of
the said judges, that it ought to be taken from the said key, or
place of their fair, in Yarmouth town; and have therefore ordered,
that letters should be written and directed from their lordships unto
Sir Arthur Heneningham, Knt., Sir Henry Woodhouse, Knt., and Henry
Gawdy, Esq., for the town of Yarmouth; and for the town of Lowestoft
Sir Robert Jermyn, Knt., Sir John Higham, Knt., and Anthony
Wingfield, Esq., or any five or four of them, to undertake the
measuring of the seven miles from the town of Yarmouth, according to
the intention of the privilege claimed by the town of Yarmouth by
their charter; and at the end of the said seven miles so measured, to
affix and set down an apparent mark; and upon good examination and
enquiry, to set down and define the place where Kirkley road is,
which the charters of Yarmouth mentioneth; where it beginneth, and
how far it extendeth.

Ex. Sipe. THO. SMITH.

* * * * *

FROM THE COURT AT GREENWICH, the 16th day of May. 1596.

Present,
JOHN CANTERBURY, WM. CEICELL, THO. BUCKHURST.
THO. EGERTON, WM. COBHAM, J. FORTESCUE.

To our very loving friends, Sir Arthur Heneningham, Sir Henry
Woodhouse, Sir Robert Jermyn, Sir John Higham, Knts., Henry Gawdy and
Anthony Wingfield, Esqs., or to any five or four of them.

After our hearty commendations.—Whereas, upon some controversy
between the towns of Yarmouth and Lowestoft, concerning the trade of
buying herrings, we have referred the consideration thereof to our
very loving friends Sir John Fortescue, Knt., Justice Clench, and
Justice Gawdy, who have accordingly returned certificates of their
opinions of the matter, which herewith we send unto you; we have now,
by the consent of both parties, made choice of you, as fit persons to
execute the determination of the said certificates and do therefore
pray and request you, or any five or four of you, with all convenient
expedition to undertake the pains of measuring the seven miles from
the town of Yarmouth sideway {79} according to the intention of the
privilege claimed by the town of Yarmouth, by their charters; and at
the end of the said seven miles so measured, to fix and set down
apparent marks; and also upon good examination and inquiry to set
down and define certainly where Kirkley road is which the charter of
Yarmouth mentioneth; where it beginneth, and how far it doth extend.
And of these two material points, and to certify your opinion and
proceedings there upon such further orders shall be given therein as
we shall think requisite. And so we bid you heartily farewell.

From your loving friends, etc.

But the burgesses of Yarmouth being conscious that they were prosecuting a claim for which they had neither a legal nor equitable pretension; and being also apprehensive, that if the affair was carried before the said commissioners, and submitted to a strict and impartial investigation, it would terminate greatly to their disadvantage; therefore they resolved as there was but little prospect of being successful in the enquiry, they would exert every effort in their power to retard and embarrass it; and that the most effectual mode for accomplishing their designs would be to counteract the commission; and accordingly, in a subsequent application to the Privy Council for redress of grievances, they transmitted such a partial representation of the case, as to obtain from their Lordships an order for a new commission. In this second commission we find, that an alteration was made in the appointment of commissioners; for in the place of Anthony Wingfield, Esq., one of the commissioners nominated in the first commission on the part of Lowestoft, William Rowse, Esq., was appointed in this second commission, a person partially attached to the interest of Yarmouth. And whereas, by the first commission, any four or five of the commissioners had a power of deciding any point relative to the dispute; but by the second commission it was ordered, that they should be unanimous; and also it was further directed by the first commission, that the inquiry should determine the two principal points in dispute, viz., the admeasurement of the seven miles and the true situation of Kirkley road; whereas the burgesses of Yarmouth, by this second commission so ordered the business, that when the parties appeared before the commissioners, they confined the inquiry solely to the situation of Kirkley road, and withheld from them every information that related to the admeasurement of the seven miles; and also had given previous directions for Mr. Rowse to be absent from the meeting, which consequently rendered every resolution of the Commissioners void, as by the commission they were directed to be unanimous.

To Sir Arthur Heneningham and Sir Henry Woodhouse, Knts., and Henry
Gawdy, Esq., and to Sir Robert Jermyn, and Sir John Higham, Knts.,
and William Rowse, Esq.

Whereas, we gave orders and directions unto you, for the appeasing of
the controversy between the town of Yarmouth and Lowestoft,
concerning their liberties, to measure the seven miles claimed by
them of Yarmouth for their jurisdiction, from the key of Yarmouth;
whereby they pretend the same will be very prejudicial to their
charter, antient liberties, and other rights. And they also alledge,
that by a statute of the 31st of Edward III, the said seven miles
ought to be accounted from the uttermost bounds of the haven (_i.e._
from the mouth), which hath been extended, in memory of man, a mile
further towards the south than it is now. These, therefore, shall be
to require you, that according to your former directions you will
cause seven miles to be measured from the key at Yarmouth, and
likewise seven miles to be measured from the uppermost bounds of
their haven; and to be unanimous in your opinion, and to certify unto
us how far each admeasurement doth extend; and in the mean season to
forbear setting up any marks or bounds until we shall consider of the
same, and give such further orders therein as shall be agreeable to
reason and equity, and satisfaction of both parties.

LORD KEEPER, LORD TREASURER, LORD COBBHAM, LORD BUCKHURST, MR.
SECRETARY, MR. CHANCELLOR OF THE EXCHEQUER.

Concordat cum Registro Exor.

JOHN WOOLEY.
Keeper of the Records of the Councell Chamber. 8th July, 1596.

On the 4th day of August, 1596, all the Commissioners nominated in the first commission, together with the bailiffs and principal inhabitants of Yarmouth assembled at Lowestoft; and the Commissioners, as directed by their commission, intended to have made the admeasurement of the seven miles the first object of their inquiry; but the Yarmouth men objected against this mode of proceeding, and insisted upon inverting the order of the enquiry, and that the ascertaining of the true situation of Kirkley road ought to be the first business that engaged their attention. The Commissioners so far acquiesced in this unreasonable demand, as to employ about four hours in investigating the exact situation of Kirkley road, and limiting its boundaries; but when the Yarmouth men began to discover that the result of the inquiry would be prejudicial to their interests, as well as contrary to their expectations, they then produced the new commission, which effectually answered all the purposes they had been aiming at; and notwithstanding the Commissioners made a proposal of sending for Mr. Rowse, the absent Commissioner, and also of suspending any further proceedings till he should arrive and concur with them in their deliberations, yet all these offers proved wholly unavailable, and nothing would satisfy the desires of the Yarmouth men but an acquiescence on the part of Lowestoft in such a decision respecting the situation of Kirkley road and the extent of its boundaries, as the bailiffs themselves thought proper.

In consequence of these illegal and unreasonable proceedings on the part of Yarmouth, the commission was dissolved. Nevertheless the Commissioners on the part of Lowestoft were so perfectly convinced of the oppressive designs of the Yarmouth men, as well as apprehensions of the inevitable ruin that would ensue to the inhabitants of Lowestoft, that before they broke up, they unanimously resolved to present a certificate of their proceedings to the Lords of the Privy Council, both for remonstrating against the unjust and unlawful proceedings of the Yarmouth men, as also to represent to their lordships, the apparent poverty and distress which threatened the town of Lowestoft.

THE CERTIFICATE OF SIR ROBERT JERMYN AND SIR JOHN HIGHAM, KNTS., AND
ANTHONY WINGFIELD, ESQ., ON THE PART OF LOWESTOFT; SHEWING THE
UNNECESSARY SHIFTS, DELAYS, AND HARD DEALINGS OF THE YARMOUTH MEN AND
THE NECESSITY OF ENDING THE CONTROVERSY:

Our humble duties to your honours remembered.—May it please the same
to be advertised, That by authority of your lordships’ letters to us
and others directed, concerning the deciding of the controversies
arisen between the township of Yarmouth, and the inhabitants of
Lowestoft, proceeding from the certificate of the Honourable Sir John
Fortescue, knt., Justice Clench and Justice Gawdy, we met together at
the town of Lowestoft, whither the Commissioners named for Yarmouth,
together with the bailiffs and chief inhabitants of Yarmouth, did
also make their repair; and upon our meeting we desired that we might
employ ourselves about the measuring of seven miles from Yarmouth to
Lowestoft; but that would not be allowed of, but only to search and
try out where, and how far Kirkley road did extend, upon which two
points the whole of your honours’ commandment did consist, in which,
after hearing the learned councell on both sides, we had spent at the
least four hours about the extent of Kirkley road only, and had heard
the effect of sundry affidavits taken and returned upon several writs
of ad quad dampnum, mentioning the said Kirkley road: at length the
bailiffs of Yarmouth delivered to us and the other Commissioners, a
letter of your honours, which they had kept in their hands at the
least five days, and had suffered some of us not only to travel
almost fifty miles, but also to spend so many hours as we have before
expressed, about a question, which upon the receipt of this your
honours’ second letter, we had no authority to deal in; namely, the
second point, or to describe the situation of Kirkley road. Also, in
the proceeding of that letter, they omitted the name of Anthony
Wingfield, Esq., who was then absent and had caused the name of
William Rouse, Esq., to be put in; and also had gotten the letter so
indited, as that the whole number of the said six commissioners must
need agree to the measure of the said seven miles, and which could
not be done by reason Mr. Rowse was absent; and although an offer was
made to send for Mr. Rowse, and so to proceed to the admeasurement,
yet in the end they would not proceed to it, except the Lowestoft men
would confess that Kirkley road extended as far as the Yarmouth men
would have it. All which proceedings we are bold to signify to your
honours to prove the unnecessary delays, and hard and unjust
proceedings of the Yarmouth men, and the desire they have to enjoy
their private gain in the herring fishing shortly approaching, to the
utter impoverishing and undoing of the poor inhabitants of Lowestoft,
if by your honours’ favours they be not relieved; and whose
lamentable estate, arising from the hard measure and unjust delays of
the said Yarmouth men, do move us, in consideration of them, to be
bold to offer to your lordships’ view, the hard dealings in this
cause; and in their behalfs humbly to entreat your most honourable
and speedy relief in this their grievous distress. And thus very
humbly we take our leaves of your good lordships.

ROBERT JERMYN,
JOHN HIGHAM
ANTH. WINGFIELD.

From Somerleyton, the 4th August, 1596.

The Lowestoft men were so far from being dispirited by these illegal proceedings of the burgesses of Yarmouth, that, on the contrary, from the favourable representation of their case, made to the Privy Council by the Commissioners, they received so much encouragement as to renew their application to their Lordships for relief; and petitioned that they might be indulged with re-hearing of their cause. {81}

In consequence of their application, their lordships immediately sent letters to the several Commissioners nominated in the first Commission, informing them that as the differences subsisting between Yarmouth and Lowestoft were become a matter of great difficulty, and that some certain points of law were so connected therewith as to require explanation, they were under the necessity of referring it to the judges for their opinion thereon; and in the mean time requesting that the herring fishery and fair at Yarmouth might be conducted as usual and without any interruption, until the said judges had certified their opinion.

To SIR ROBERT JERMYN, SIR JOHN HIGHAM, SIR ARTHUR HENENINGHAM and SIR
HENRY WOODHOUSE, Knts., and ANTHONY WINGFIELD, and HENRY GAWDY, Esqs.

After our hearty commendations.—We have received the letters
severally sent unto us from you that were appointed to be the
Commissioners on both sides for certain controversies between the
towns of Yarmouth and Lowestoft. And because we find by your several
reports, that it will be a matter of great difficulty for you to set
in order those differences, some proceedings depending upon matter of
law, and are to be decided by certificate from the judges, we have
thought good to respite the same until next term; and in the mean
season to request you, that those of Yarmouth may not be interrupted
in their fair and herring fishing this season, but that they may use
the same in such sort as the same has usually been, until there shall
be a final end made in those matters now depending between them. So
praying you to take thorough hearing accordingly we bid you farewell.

JOHN CANTERBURY, LORD KEEPER, LORD BUCKHURST, LORD TREASURER, LORD
CHAMBERLAIN, LORD BUCKHURST, MR. SECRETARY, MR. CHANCELLOR OF THE
EXCHQUER.

From the Court at Greenwich, the 17th August, 1596.

Thus was this long-contested affair brought the third time before the judges, who, after duly weighing every circumstance respecting the same delivered their opinion, “That as the matter in dispute was become so exceedingly intricate and perplexed, and entangled with such numerous difficulties as to make them despair of accommodating the differences to the mutual satisfaction of both parties, they therefore have thought it more advisable to refer the decision thereof to the determination of parliament.”

Whereas it hath pleased the right honourable the lords of her
majesty’s most honourable privy council, upon the humble petition of
the inhabitants of Lowestoft, in the county of Suffolk, to remit to
us now this third time the controversy now depending before their
lordships, between the bailiffs, burgesses, and community of the town
of Great Yarmouth, in the county of Norfolk, of the one party, and
the said town of Lowestoft of the other party, touching the trade of
hanging and making of red herrings, and also the procuring of white
herrings, for victuals of store, to be merchandised: we see no
decisive course therein can be taken by us, to compound their
controversies and adjust their differences, whereby to bind both
parties, as is most necessary and convenient (their differences being
of such great difficulty); and therefore we think it fit that the
cause be respited, and referred unto the next parliament; at which
time, upon supplication and complaint of those that shall find
themselves aggrieved, the cause may receive hearing and due remedy.

J. CLENCH, FRANCIS GAWDY.

Given this 29th day of April, 1597.

But notwithstanding the judges declined passing a final decision upon this long-contested affair, but referred it to parliament, yet the Yarmouth men still continued to pursue the inhabitants of Lowestoft with the utmost rancour, and came shortly after into Lowestoft roads with two armed vessels, and under a pretence of being within the liberties granted by their charter, demanded anchorage; in consequence whereof a battle ensued, and much blood was shed on both sides; and though a complaint was lodged by the Yarmouth men in the star Chamber, against Lowestoft, yet their accusations appeared so frivolous and ill-grounded, that their cause was dismissed, and instead of recovering any damages, were fined twenty marks.

In consequence of this reference, an Act of parliament was passed in the year 1597, directing that an actual admeasurement of the said seven miles (eight furlongs to every mile) should immediately take place, and begin to be measured from the crane key in Yarmouth, and to proceed the directest way towards the roading place, near the sea shore, where the fishermen usually anchor for the sale of their herrings; and at the end of the said seven miles, a post or some other apparent mark, should be erected near the sea shore, to signify to all persons whom it may concern the termination of the said seven miles, prescribing the boundary of the liberties of Yarmouth. {82}

In this defence of their rights and liberties, the town of Lowestoft expended £120 which was collected from a voluntary subscription of the inhabitants; some subscribing £10, some £6, some £4, and others lesser sums, according as their abilities enabled them. But exclusive of the above expenditure, the inhabitants were under the necessity of contracting a debt of upwards of £50 which, by reason of their distressed situation they were utterly unable to discharge any other way than by appropriating a part of the rents and profits of the town lands; for it had always been an established maxim of the town to support and maintain the free trade of buying and selling herrings in Lowestoft roads; therefore, at a general meeting of the inhabitants, it was resolved that as a large sum had already been expended in support of this right, that out of 200 persons who reaped advantages from this fishery, many were unable to contribute towards the above expense; and that if the fishery was not supported, the town would be inevitably ruined. Therefore, the state of the town being thus considered, and the affair regarded as a case of necessity and charity, and of the utmost utility to the inhabitants; they agreed, That, it was a very justifiable application of the rents of the town lands, in the present emergency, in discharging the said debt.

An Act of the 39th of Elizabeth, for the measuring of seven miles from
the town and haven of Great Yarmouth, in the county of Norfolk, mentioned
in the statute made in the 31st year of King Edward III, and certain
letters patent, granted by the same king unto the bailiff and burgesses
of the said town of Yarmouth.