drew up a circular letter regarding the administering of the oaths (a more stringent form being drafted in the following May),1 the taking out of bonds, and the strict execution of the Acts. Already orders had been sent to the Admiralty that the Navy should seize all foreign ships in the Plantations and that additional frigates should be despatched to such waters as the Caribbean and the Chesapeake.2 In 1681 an Order in Council was issued enforcing the rules about bonds and certificates and requiring that these rules be posted in all the customs houses in the kingdom.3 Two years later the Commissioners of the Customs recommended that instructions be sent to the farmers in Ireland ordering them to transmit to England all information possible regarding ships trading between Ireland and the Plantations, and letters were despatched to the King's ministers and consuls in Europe to watch in European ports for enumerated commodities illegally shipped from the colonies. During the next few years additional instructions were prepared by the Commissioners of the Customs, in 1684, 1685 and 1686, which constitute a veritable code for the guidance of the royal officials in America and the West Indies. 5 6 But even these and other efforts, expended during the years from 1675 to 1689, did not bring satisfactory results. Complaints came in from the Commissioners of the Customs to the Treasury of continued evasions of the Acts and of the connivance or negligence of the governors, particularly in connection with the French and the Dutch in the West Indies. Edward Randolph's reports from New England had been largely influential in effecting the annulment of the Massachusetts Bay charter in 1684, and the Dominion of New England that followed under Andros came to a disastrous end in 1689. The troubles in Maryland, the ill-treatment there of the collector Badcock, the murders of Rousby and Payne, the complaints of Blakiston, their successor as collector, the hostility of the planters to the royal frigate that cruised up and down the Chesapeake, and the further comments of Randolph on the derelictions of the colonists in general, were all causes of embarrassment to the authorities at home. The carrying of enumerated commodities to Ireland and particularly to Scotland was becoming far too common an occurrence; the forging of certificates and cockets and the controversies that were arising as to the interpretation of the Acts were making it difficult to enforce them; while the efforts of the Scots to establish a colonial commerce of their own, as seen in the Scottish Act of 1693 encouraging foreign trade and that of 1695 creating the "Company of Scotland Trading to Africa and the Indies," commonly known as the Darien Company, combined with 1 A.P.C., Colonial, nos. 1080, 1171. 2 Cal. St. Pap. Col. 1661-8, no. 1884. Cal. St. Pap. Col. 1681-5, no. 1200. 3 A.P.C., Colonial, п, no. 26. The circular letter for 1684 has not been found, but it is mentioned in Cal. St. Pap. Col. 1693-6, no. 553. Cal. St. Pap. Col. 1685-8, no. 1288; 1689-92, no. 2295; 1693-6, passim. THE NAVIGATION ACT OF 1696 285 the Scottish liking for illicit trade, aroused consternation and wrath among English statesmen and merchants.1 The years from 1689 to 1696 mark the beginning of a new era in the history of England's commercial and colonial systems. The whole matter of English trade and commerce assumed a new importance after the accession of William III and the naval battle of La Hogue, which firmly re-established England's supremacy at sea. Serious enquiry began to be made by Parliament into the state of the nation and the condition of trade in general, with the special purpose of checking the growth of illicit trade and of determining how far the Scottish Act was likely to be prejudicial to the commerce of the kingdom.2 Edward Randolph had already suggested many methods of preventing the illegal trade that he was sure existed between the tobacco plantations and Scotland, and of regulating other abuses; and on the recommendation of the Commissioners of the Customs, which was based on memorials sent in by Randolph, the decision was reached to bring in a bill for a new Act of navigation and trade, the object of which was to checkmate the Scottish movement and to remedy “a great many things which the former Acts [were] short in".3 The preparation of this bill was entrusted to the Commissioners of the Customs, who on 16 January 1696 reported that the draft was finished and in the hands of the Attorney-general for presentation to Parliament. After amendment in committee, the bill passed both Houses and on 10 April received the royal assent.1 This Navigation Act of 16965 was a comprehensive measure of administration, containing nothing that was new in principle, but much, derived from the experience of the preceding twenty-five years, that was new as to the methods of enforcement. It was supplemental only to the Acts of 1660 and 1673, and to that part only of the first Act which had to do with shipping. It did not deal directly with either the enumeration or the staple, though in its application it touched the enumeration very closely. Its main purpose was to prevent "the great abuses that were daily being committed, to the prejudice of English navigation and the loss of a great part of the plantation trade of this kingdom, by the artifice and cunning of illdisposed persons [i.e. the Scots?]". Therefore it enacted as follows: That after 28 March 1698 no goods or merchandise whatsoever should be imported into or exported out of any colony or Plantation of His Majesty in Asia, Africa or America, or be laden or carried from any one port or place in the said colonies or Plantations to any other port or place in the same [or to the kingdom of England, Dominion 1 Insh, G. P., "Darien Shipping Papers", Publications of Scottish Historical Society, N.S. III, vol. vi, Introduction; Bingham, H., “Early History of the Scots Darien Company", Scottish Historical Review, III, nos. 10, 11, 12. 3 Ibid. p. 7. 2 House of Lords MSS, N.S. 11, § 955. 5 Ibid. pp. 17, 21, 22-3, 233-4; Cal. St. Pap. Col. 1693-6, nos. 2187, 2243. 7-8 William III, c. 22. of Wales, or town of Berwick-on-Tweed] in any but English-built ships, or the build of Ireland, or of the said colonies or Plantations (including the build of Guernsey and Jersey (§ xvii)), and wholly owned by the people thereof, except such ships as should be taken as prizes and condemnation thereof made in one of the courts of Admiralty in England, Ireland or the Plantations, and navigated with masters and three-quarters of the men English or colonials. Prize ships were to be manned in the same way. All governors were to take oath to carry out the terms of the Acts, which oath was to be administered by such persons as His Majesty might commission.1 In default of such oath, the governors were liable to be deprived of their posts and to forfeit £1000 each. As time went on, these penalising clauses lengthened and became increasingly severe. Early instructions, such as those to Dongan of New York, imposed no penalty, while those of sixty and seventy-five years later— such as the instructions to Cornwallis of Nova Scotia and Bernard of New Jersey, for example-declare that in case of dereliction the governor would lose his position and forfeit £1000 and in addition "suffer such other fines, forfeitures, pains, and penalties [as are provided for in the laws] and also receive the most rigorous marks of our highest displeasure and be prosecuted with the utmost severity of law for your offence against us". The guilty governor would also forfeit all right to further employment under the Crown.2 In 1701 some doubt arose as to whether a lieutenant-governor-in this case, of St Christopher-could be removed and fined, the Attorney-general ruling that he could be removed but not fined.3 The powers and functions of all royal officials for collecting and managing the King's revenue in the colonies and for inspecting the Plantation trade were defined as those laid down for the corresponding officials in England (§ vi). Inasmuch as the clauses of the Act of 1673 relating to the Plantation duty had never been clearly understood, the Act declared that even if the duty were paid at the colonial port of clearance, bond must still be furnished by the captain to carry enumerated commodities to England, in case such commodities were not landed for actual consumption at the first colonial port of entry (§ viii). The colonies were to pass no laws contrary to the spirit or letter of the Act or of any other Act that related to the Plantations. Provision was made against false or forged certificates— such as had frequently been used by Scotsmen and others trading to the Plantations-by a penalty of £500 fine. These certificates were of three varieties: of bonds given in England; of bonds given in the 1 For the commissions see House of Lords MSS, N.S. 11, 422-5. Those for New Hampshire are not given, but see New Hampshire Province Papers, II, 312. 2 New York Colonial Documents, III, 383-5 (Dongan); ibid. v, 151 (Hunter); New Hampshire Province Laws, 11, 650 (B. Wentworth); C.O. 218/3, pp. 391-439 (Cornwallis); New Jersey Archives, 1st ser. IX, 107 (Bernard). 3 Cal. St. Pap. Col. 1701, nos. 390, 507. THE NAVIGATION ACT OF 1696 287 colonies; and of bonds given in England for the proper freighting of manufactured goods sent to America.1 In case of suspicion the governor or naval officer was to refuse to vacate or cancel the security until he had received word from the Commissioners of the Customs in England that the certificate was authentic. All suits arising out of this Act or other Acts touching the King's duties were to be tried before juries composed only of natives of England or Ireland or of such as had been born in the Plantations, and all places of trust in courts of law were to be held by the same (§ xi). This clause raised two difficult questions: first, were Scotsmen included; and, secondly, were trials to take place before juries only. There were many Scotsmen holding office in America and there existed serious doubt as to whether they were doing so legally; Blair in Virginia, Mein and Skene in Barbados, Hamilton in New Jersey, and Livingstone in New York all came under suspicion. Though a legal opinion was rendered after 1700 favourable to Scotsmen2 as natural-born subjects of the King, the matter was not finally settled until the passage of the Act of Union in 1707.3 The second question was much more difficult to answer. There is no doubt but that before 1696 a majority of the trials for breaches of the Navigation Acts in the colonies had been held before juries, and it is possible that those who drafted the bill took it for granted that such would continue to be the case. Yet as both Governor Nicholson and Edward Randolph had already recommended the erection of vice-admiralty courts in the colonies, in which trial would be without jury under the civil law, it is difficult to believe that the Commissioners of the Customs could have been unaware of the proposed plans. The ambiguity of the clause led to great differences of opinion, when finally vice-admiralty courts came to be established. Penn called the clause "dark and contradictory"—"confused and dark", "darkly and inconsistently worded", said others and even Robert Quary, judge of viceadmiralty in Philadelphia, asked that Parliament should explain what the clause meant. But those whose business it was to enforce the Acts of Trade usually had no doubt in their minds as to the proper interpretation-the clause might mention juries only, but it could not take away the right of the vice-admiralty courts to try cases of this kind. The controversy lasted for more than ten years, but in the end the vice-admiralty courts won the day. Bonds required by the Act of 1673 were now revised and the word "Ireland" was finally left out. From this time forward Ireland was placed beyond the pale of commercial privilege and her industry and 1 Many copies of such bonds may be found in connection with the Shipping Returns among the Colonial Office and Treasury Papers in the Public Record Office. 2 Cal. St. Pap. Col. 1700, no. 428; 1702, p. 145. 5 Anne, c. 8, §§ iv, v, vi. Cal. St. Pap. Col. 1702, no. 708; House of Lords MSS, N.S. IV, 326. The clause seems to look back to 13-14 Charles II, c. 11, § xi. trade were made subservient to the interests of the realm. To prevent any attempt to circumvent this restriction, which at this time included Scotland as well as Ireland, on the ground of disablement or stress of weather, a further clause was added forbidding any ship to put into an "unlawful" port, unless first the vessel had stopped at an English port and paid the duties. A slight exception was made in the case of Ireland, but not of Scotland, whereby vessels stranded or leaking and unable to proceed on their voyage might enter an "unlawful" harbour. All appointments of governors by proprietors or elections of governors by corporate companies were to be approved by the Crown and the governors themselves were to take the required oaths (§ xvi). In point of fact, however, the governors of Connecticut and Rhode Island never received the Crown's approval, though they took the oaths to enforce the Acts. Furthermore, no proprietor or corporate company was to sell any of its territory to other than a natural-born subject of England. Randolph said afterwards that this clause was inserted to prevent the Scots from purchasing land for a settlement or a trading centre in West Jersey or the Lower Counties (Delaware), or one of the islands off the coast, for the purpose of establishing a staple there and so letting "themselves into the trade of his Majesty's Plantations".1 The Act extended to the customs officials in the Plantations the full right of search provided for English ports by 14 Charles II, c. 11, and thus placed the establishment in America in all respects on a par with that in England, of which it was in fact a constituent part. The Act, finally, required that all ships, either in England or the Plantations, including prize ships made "free", be registered, first in a local registry and thence transmitted to the general registry in London, in order to prevent evasion. This requirement applied only to decked ocean-going and coastwise vessels (§ xvii) and not to undecked boats doing business in the Plantations, and the certificate of registration, once obtained, formed a very important part of the ship's papers. Undecked boats-sloops, shallops, lighters, moses-boats, flatboats, pettiauguas, canoes, etc., were licensed by the naval officers in the colonies2 and plied chiefly in the inland waters. With the passage of the Act of 1696, the statutory regulations governing the trade and navigation of the kingdom so far as the Plantations were concerned were complete. In the years to come, decisions, rulings, explanations, and supplemental measures were to render the Acts as a whole more intelligible and more workable, for many difficulties were encountered in application and frequent interpretations were necessary as occasions arose.3 Five days after the 1 House of Lords MSS, N.S. I, 488-9. 2 Maryland Archives, xx, 465; Cal. St. Pap. Col. 1702–3, p. 533 (Jamaica). |