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PARTING COMPANIES: THE GLORIOUS REVOLUTION, COMPANY POWER, AND IMPERIAL MERCANTILISM*

Published online by Cambridge University Press:  14 August 2014

WILLIAM A. PETTIGREW  and
GEORGE W. VAN CLEVE
WILLIAM A. PETTIGREW*
Affiliation:
University of Kent
GEORGE W. VAN CLEVE*
Affiliation:
Seattle University School of Law
*
School of History, University of Kent, Canterbury, CT2 7NX[email protected]
Seattle University School of Law, Sullivan Hall, Seattle, WA, 98122, USA[email protected]
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Abstract

This article revisits the late seventeenth-century histories of two of England's most successful overseas trading monopolies, the East India and Royal African Companies. It offers the first full account of the various enforcement powers and strategies that both companies developed and stresses their unity of purpose in the seventeenth century. It assesses the complex effects that the ‘Glorious Revolution’ had on these powers and strategies, unearthing much new material about the case law for monopoly enforcement in this critical period and revising existing accounts that continue to assert the Revolution's exclusively deregulating effects and that miss crucial subtleties in the case law and related alterations in company behaviour. It asks why the two companies parted company as legal and political entities and offers an explanation that connects the fortunes of both monopoly companies to their public profile and differing constituencies in the English empire and the varying non-European political contexts in which they operated.

Type
Articles
Information
The Historical Journal , Volume 57 , Issue 3 , September 2014 , pp. 617 - 638
Copyright
Copyright © Cambridge University Press 2014 

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Footnotes

*

We warmly thank Michael R. T. Macnair for his indispensable advice and assistance regarding matters of seventeenth-century English law and are grateful to Clive Holmes for encouraging us to look into these issues and to Simon Douglas and Jeffrey Hackney for initial help in doing so. Paul Halliday, Daniel Hulsebosch, and Philip J. Stern provided helpful responses to specific research queries. We also thank Guy Holborn and the staff of the Library of Lincoln's Inn, Renae Satterley of the Middle Temple Library, Robert Menanteaux and other staff of the Seattle University School of Law Library as well as Lynne Bennett and Paul Allain of the Faculty of Humanities at the University of Kent and the Arts and Humanities Research Council for their support and assistance.

References

1 ‘Lord Godolphin to the duchess of Marlborough, 25 October 1708’, in Henry L Snyder, ed., The Marlborough–Godolphin correspondence (2 vols., Oxford, 1975), i, p. 1139.

2 Scott, William Robert, The constitution and finance of English, Scottish, and Irish joint stock monopoly companies to 1720 (3 vols., Cambridge, 1910–12), ii, p. 21Google Scholar; Zahedieh, Nuala, ‘Regulation, rent-seeking and the Glorious Revolution in the English Atlantic economy’, Economic History Review, 63 (2010), p. 876CrossRefGoogle Scholar.

3 Nightingale & Al' v. Bridges, 90 English Reports (Eng. Rep.) 1160, 90 Eng. Rep. 680, 89 Eng. Rep. 496, Cases temp Eyre, Middle Temple Library (MTL) MS 15, p. 61.

4 Pincus, Steve, 1688: the first modern revolution (New Haven, CT, 2009), p. 385Google Scholar; Stump, W. Darrell, ‘An economic consequence of 1688’, Albion, 6 (1974), pp. 26–35CrossRefGoogle Scholar (quotation at p. 28).

5 For studies of the struggle over the East India Company and Royal African Company monopolies in parliament, see Horwitz, Henry, ‘The East India trade, the politicians, and the constitution: 1689–1702’, Journal of British Studies, 17 (1978), pp. 1–18CrossRefGoogle Scholar; Bohun, James, ‘Protecting prerogative: William III and the East India trade debate, 1689–1698’, Past Imperfect, 2 (1993), pp. 63–86Google Scholar; and Pettigrew, William A., ‘Free to enslave: politics and the escalation of Britain's transatlantic slave trade, 1688–1714’, William and Mary Quarterly, 64 (2007), pp. 3–38Google Scholar.

6 An excellent treatment of the East India Company's conception of itself as an extension of the English government is Stern, Philip J., The company-state: corporate sovereignty & the early modern foundations of the British empire in India (Oxford, 2012)Google Scholar.

7 So our conception of the modernity of the Glorious Revolution partly agrees with Steven Pincus's account. The Revolution was modern in compounding the centralization and bureaucratization of political authority of the state, but not modern in terms of an ideological break with the past. See Pincus, 1688, p. 9.

8 Half of any forfeiture's proceeds went to the crown. But under the East India Company's charter prior to 1683, such forfeitures could only have been enforced through royal admiralty courts. Accordingly, there were important checks on its use of the forfeiture power. Admiralty court decisions could be appealed to a court that by the mid-seventeenth century included some common law judges. Holdsworth, William S., A history of English law (17 vols., London, 1903–72), i, pp. 547–9Google Scholar. Admiralty's jurisdiction was also statutorily limited and could be contested in the common law courts. If it was improperly exercised, that abuse could be made the subject of a damages action that included heavy penalties for violations. Baker, John H., An introduction to English legal history (IELH) (4th edn, London, 2002), p. 123Google Scholarn. 31. Admiralty courts proceeded under the civil law, not common law, which meant, inter alia, that they did not ordinarily use juries. Ibid., pp. 123–4.

9 See n. 8. This same broadened authority was granted to the East India Company by letters patent in 1683. Stern, Company-state, pp. 59–60.

10 Davies, K. G., The Royal African Company (London, 1957), pp. 97–9Google Scholar.

11 Ibid., pp. 113–17; Stern, Company-state, pp. 44–60; Zahedieh, ‘Regulation’, pp. 874–6.

12 For the view that many English property and legal rights such as jury trial in essence ‘travelled with’ English merchants overseas, in the sense that they would be protected by English courts against potentially tortious acts such as ship seizures made abroad or violations of due process, see Sir John Maynard's arguments in Skinner v. East India Company, Howell, T. B., ed., A complete collection of state trials … from the earliest period to the year 1783 with notes and other illustrations: compiled by T. B. Howell … and continued from the year 1783 to the present time: by Thomas Jones Howell (State trials) (33 vols., London, 1809–26), vi, pp. 710–70Google Scholar, and the opinion of the judges in that case; and Lincoln's Inn Library, Maynard MSS, No. 42. In Skinner, however, parliament reached an impasse and the issue was not resolved. English common law courts had previously exercised jurisdiction over claims arising abroad using the legal fiction that the events at issue had occurred in England. Baker, IELH, pp. 122–4. In the St George case, when the African Company petitioned the crown in 1682 for reversal of the obviously flawed 1676 St George court decision in which Jamaican courts had upheld the colony's brazen effort to evade the admiralty's jurisdiction by conducting a trial regarding an African Company seizure that violated well-established English legal principles, its petition appears to have fallen on deaf ears. See The National Archives, Treasury Series 70 (T70), vol. 169, fos. 7a–7b; The National Archives, Colonial Office Series, vol. 138/3; Zahedieh, ‘Regulation’, p. 876 n. 65.

13 For these attempts see Littleton, Edward, The groans of the plantations (London, 1689), p. 6Google Scholar; and Coke, Roger, Reflections upon the East-Indy and Royal African Companies with animadversions, concerning the naturalization of foreigners (London, 1695), p. 10Google Scholar.

14 The ‘conquest rule’ announced by Sir Edward Coke in his influential 1608 report of Calvin's case, State trials, ii, p. 559, 77 Eng. Rep. 377 (1608), concerned what laws would govern in conquered foreign dominions of the crown, and when and if such laws could be altered by the king without the consent of parliament. The legal opinions discussed here assume that the case's principles would apply to English traders operating abroad, but that is by no means clear from Coke's report itself. For an outstanding analysis of the case see Hulsebosch, Daniel J., ‘The ancient constitution and the expanding empire: Sir Edward Coke's British jurisprudence’, Law and History Review, 21 (2003), pp. 439–82CrossRefGoogle Scholar.

15 Opinion of Thos. Turnor, Gray's Inn, 12 Dec. 1677; Opinion of Thos. Corbett, 1677 (?) including brief summary of oral opinion of Sir John Maynard, The National Archives, State Papers Series (SP), vol. 398, fos. 110–19.

16 SP 29/442, fo. 172 [Jan.?, 1678].

17 For examples for the Royal African Company use, see T70/169, pp. 7b–8, 20. For a case in which a prohibition was granted, see East India Co. v. Turkey Co., reprinted in D. E. C. Yale, ed., Lord Nottingham's chancery cases, ii, Publications of the Selden Society, vol. 79 (1961), p. 882 (Case 1110) (June 33 Car. 2 (1681)).

18 Sands v. Exton (a/k/a Sandys and the East-India Company), Skinner 91, 90 Eng. Rep. 43, T. Raymond 44, 83 Eng. Rep. 255, 2 Shower K. B. 302, 89 Eng. Rep. 953. The East India Company's action was the subject of a successful tort claim in the 1690s in Sands v. Child (below, text at n. 60). We thank Dr Michael R. T. Macnair for this reference.

19 [Brooks v. Bradley], reprinted in Yale, ed., Lord Nottingham's chancery cases, p. 919 (Case 1152) (Jan. 34 Car. 2 (1682/3)); same case, 2 Ch. Cas. 95 (1682).

20 East India Company v. Sandys, 23 Eng. Rep. 362 (1682).

21 East India Co. v. Sandys, State trials, x, p. 371. The court's upholding of the India Company charter was also a victory for the Royal African Company, since by 1683 the monopolies had essentially the same powers and thus their charters had essentially the same strengths and weaknesses. For further discussion of Sandys, see Pincus, 1688, pp. 375–8; and Stern, Company-state, pp. 46–58, passim.

22 East India Co. v. Sandys, State trials, x, p. 520.

23 Scholars have equated the striking down of one method of monopoly enforcement with the striking down of the monopoly as a whole. This article stresses the multiple enforcement methods the overseas trading companies enjoyed. See Pincus, 1688, p. 386.

24 British Library, London, India Office Records (IOR), H/23.

25 For the African Company's comfort at the court's outcome see ‘Minutes of the General Court’, 14 Jan. 1685, T70/101, fo. 19.

26 East India Company v. Evans et al., 23 Eng. Rep. 486, 1 Vern. 306 (1685). The Company's damages theory in such actions was that separate traders should be compelled to contribute to the cost of maintaining its Indian establishment.

27 See ‘Papers relating to the charge of high misdemeanour … against Pepys … and … Child’, Catalogue of Rawlinson MSS A (1842), Bodleian Library, Oxford, Sub. 170, item No. 52.

28 See Beak v. Tyhrwit, 87 Eng. Rep. 124 (1688), which involved a similar defence.

29 90 Eng. Rep. 379; 90 Eng. Rep. 411; 90 Eng. Rep. 623; 90 Eng. Rep. 924 (1689).

30 90 Eng. Rep. 379 (1 W&M).

31 90 Eng. Rep. 924.

32 After Beake obtained a judgement against it for damages, the East India Company authorized settlement of Beake's claim in late 1690. IOR/B40 Court of Committees minutes, 19 Dec. 1690 (fos. 38–9). Sir Benjamin Bathurst, also an African Company official, was named as the Indian Company negotiator.

33 Nightingale & Al’ v. Bridges, 90 Eng. Rep. 1160, 90 Eng. Rep. 680, 89 Eng. Rep. 496; Cases temp Eyre, MTL MS 15, p. 61. Nightingale began in late 1689; although there is some conflict in the dating of various reports, judgement appears to have been given in mid-1690.

34 Although there is no documentary evidence on this point, there is a strong possibility that they adopted this frontal strategy because they thought that Holt would favour the African Company, since he had represented the India Company in Sandys.

35 Stump and Pincus read what Nightingale's attorney, Bartholomew Shower, proposed to say (if the company had defended its position) and the nineteenth-century summary of the case into Holt's judgement (the precise details of which are not known). See Stump, ‘An economic consequence of 1688’, pp. 31–2; and Pincus, 1688, pp. 385–6.

36 They did attack the jury verdict as inconsistent with the original pleadings, but this seems to have been largely a delaying action.

37 1 Show. K. B. 137, 89 Eng. Rep. 497.

38 Cases temp Eyre, MTL MS No. 15, p. 61. This report is dated Trinity Term, 2 W&M., indicating that Nightingale continued through mid-1690.

39 Ibid. This statement is confusing for two reasons. First, if anyone were going to waive the issue of validity of the Royal African Company's forfeiture authority, one would expect it to be the defendant, not the plaintiff. The report may merely garble Shower's concession that he was not challenging the validity of the monopoly itself, only its forfeiture authority. Second, it is not clear whether the statement that the forfeiture authority was ‘so clearly against Law’ was Shower's contention, or the reporter's editorial comment.

40 But other contemporary decisions show that this reasoning applied only to traders, not to English subjects living abroad. See Blankard v. Galdy, 87 Eng. Rep. 359 (1693); Dutton v. Howell, 1 Eng. Rep. 17 (1694), where courts held that English law did not apply in various colonies.

41 As mentioned, Sir Benjamin Bathurst, the EIC's negotiator in the Beake case, was also a major RAC official and stockholder. Other examples could be given, including Sir Thomas Cooke, George Bohun (Bathurst's nephew), and Sir William Hodges.

42 Instead, probably as a delaying tactic, they sued out a writ of error to the Exchequer Chamber, appealing the King's Bench verdict, but it does not appear that that appeal was pursued. See Fowles v. Bridges, 89 Eng. Rep. 527 (1690), where the company sought to resist enforcement of the judgement against it based on its appeal, and lost.

43 Davies, Royal African Company, p. 124.

44 T70/57 (n.p.), Royal African Company to Christopher Robinson, Virginia, 14 Feb. 1688/9?

45 T70/57 (n.p.), Royal African Company to Nathaniel Johnson, 26 Feb. 1689.

46 T70/57 (n.p.), Royal African Company to Penhallow and Ruding, 17 Dec. 1689.

47 T70/57 (n.p.) Royal African Company to Parsons, 10 Mar. 1690.

48 Davies, Royal African Company, pp. 125–6.

49 90 Eng. Rep. 1060, 90 Eng. Rep. 532.

50 In 1689, Holt and the other major judges of England had explicitly endorsed the position that slaves would be considered as merchandize in international trade. For discussion of Holt's decisions and the evolution of the law on the legality of slavery in England itself, see Van Cleve, George, ‘Somerset's case and its antecedents in imperial perspective’, Law and History Review, 24 (2006), pp. 601–45CrossRefGoogle Scholar, at pp. 616–18.

51 See the estimates in The trans-Atlantic slave trade database (voyages data set), ‘Estimates’ spreadsheet (2010), www.slavevoyages.org/tast/database/download.faces#extended. This invaluable data source makes no claim to be comprehensive.

52 W. A. [Atwood, William], An apology for the East India Company: with an account of some large prerogatives of the crown of England, anciently exercised and allowed of in our law, in relation to trade and foreign parts (London, 1690), p. 33Google Scholar; n. 40, above.

53 For the African Company's gift to William III of company shares worth £1,000, see Minutes of the General Court, 16 Jan. 1689, T70/101, fo. 23. For its gift to Queen Anne and her subsequent refusal to ‘meddle’ in the affairs of the African Company, see Minutes of the Court of Assistants, 8 June 1714, T70/89, n.p.; Davies, Royal African Company, p. 119; T70/61, ‘Instruction to Captain John Hosea, 17 December, 1689’, fo. 87.

54 IOR/E/3/92, fo. 91.

55 IOR/B/40, fo. 103.

56 See, e.g., IOR/B/40, fos. 159–60.

57 IOR/E/3/92, fo. 112.

58 Stern, Company-state, p. 154.

59 Considerations relating to the African bill (London, 1698), p. 3.

60 90 Eng. Rep. 1160, 83 Eng. Rep. 725, 90 Eng. Rep. 436, 90 Eng. Rep. 148, 90 Eng. Rep. 774.

61 The catastrophic failure of the statutory South Sea Company as a rival prop for the state's finances to the East India Company and as an alternative slave trading monopoly to the Royal African Company confirms the extent to which the East India Company had cemented its position in state finance and how much the lobbying opponents of the African Company had ensured free and open access to the growing market in transatlantic human trafficking.

62 See Davenant, Charles, Reflections upon the constitution and management of the African trade, etc., in Whitworth, Charles, ed., The political and commercial works of that celebrated writer Charles D'Avenant, LL.D. …, v (London, 1771), pp. 133–4Google Scholar. For Davenant's advocacy for the East India Company see Davenant, Charles, Memorial concerning the coyn (London, 1695)Google Scholar.

63 The literature on both companies makes constant references to their respective officials trying and failing to impose prices and use their monopoly power. See (for the African Company) Thornton, John, Africa and Africans in the making of the modern world (Cambridge, 1992), p. 65Google Scholar; and Davies, Royal African Company, p. 235; and (for the East India Company) Chaudhuri, K. N., The trading world of Asia and the English East India Company, 1660–1760 (Cambridge, 1978), p. 16CrossRefGoogle Scholar.

64 This is a vast and complex subject and we can add little to it here other than what can be illuminated by some preliminary but strongly suggestive comparisons between the two company's overseas trading environments.

65 Pearson, M. N., ‘Merchants and states’, in Tracy, James D., ed., The political economy of merchant empires (Cambridge, 1991), pp. 52–6Google Scholar. See also Arasaratnam, Sinnappah, Merchants, companies, and commerce on the Coromandel coast, 1560–1740 (Oxford, 1986), pp. 65, 83Google Scholar; Chaudhuri, The trading world of Asia, p. 51; Watson, I. B., Foundation for empire: English private trade in India, 1659–1760 (New Delhi, 1980), p. 58Google Scholar.

66 Davies, Royal African Company, pp. 235, 260, 279. For the African Company's inability (and European inability in general) to develop territorial holdings at the expense of local African polities in the seventeenth and eighteenth centuries, see Eltis, David, The rise of African slavery in the Americas (Cambridge, 2000), p. 149Google Scholar. For a specific and sustained attempt to do so, see the career of the Royal African Company's leading official at Cape Coast, Sir Dalby Thomas: Henige, David, ‘“Companies are always ungrateful”’: James Phipps of Cape Coast, a victim of the African trade’, African Economic History, 9 (1980), p. 29Google Scholar.

67 The case of the separate traders to Africa … [London? 1709?], p. 3.

68 Stern, Company-state, pp. 145, 148. Some also objected to the personal slights the company had meted out to them.

69 For a rare example, see ‘A petition of the clothiers, and woollen manufacturers, in the county of Gloucester’, 7 Feb. 1696, in Journals of the House of Commons (London, 1803), xi, p. 433.

70 A staunch anti-monopolist, Roger Coke resented the use of statute to support an East India Company he believed reversed some of the constitutional reforms of the Glorious Revolution. See Coke, Roger, An apology for the English nation: viz that it is as much the interest for the English nation, that the trades to the East Indies and Africk, should be free as that to Spain [London, 1697?], p. 2Google Scholar.

71 For the long-held and still prominent tradition that the Glorious Revolution liberated overseas trade, see above, and Ashley, William James, Surveys historic and economic (London, 1900), pp. 270–303Google Scholar; Ekelund, Robert and Tollison, Robert, Politicised economies (Texas, TX, 1997)Google Scholar; Hill, Christopher, The century of Revolution: 1603–1714 (London, 1961)CrossRefGoogle Scholar; Root, Hilton, The fountain of privilege: political foundations of markets in old regime France and England (London, 1994), pp. 158–9Google Scholar; and most recently, Pincus, 1688, pp. 386, 397. For those who see the rise of protectionism and the survival of ‘rent seeking’, see, for example, Cannan, Edwin, ed., Adam Smith, An inquiry into the nature and causes of the wealth of nations (Chicago, 1977), ii, pp. 154–8Google Scholar, 264–79; Davis, Ralph, ‘The rise of protection in England’, Economic History Review, 19 (1966), p. 306Google Scholar; and Zahedieh, ‘Regulation’, pp. 889–90.