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CHAPTER VII

THE ACTS OF TRADE

Throughout the entire period of history within which occurred the settlement of the American colonies mercantilism was the dominant theory of trade and industrial organization in Europe. According to this theory the nation or empire which had attained a tolerable degree of political unity became, by virtue of that very fact, an economic unit. In war and diplomacy the nation figured before the world as in a sense a personality, with a distinct and, on the whole, a self-consistent policy. The same thing was considered to hold true in the economic sphere. Trade, therefore, was not free. The merchant or the subject, as well when considered as a producer or consumer, was not regarded as simply an individual, with relations which were quite as likely to be cosmopolitan as national. He was primarily and essentially an Englishman or a Frenchman, and was bound by law and custom to seek through his transactions the advantage of his country and its prince. This involved an application on a national scale of the policy which had prevailed in the mediæval cities and their leagues. In the case of England, because of the early date at which national unity was there attained, it appeared from the first as the policy of the country as a whole. As England began to expand and the empire to take form, the dependencies came within the reach of the same policy.

In the opinion of the mercantilist, trade and industry should be so organized as to secure the maximum of national strength. It was the duty of statesmen to so regulate them as to attain this end, and in doing this a reasoned policy should be followed. Results were most conveniently measured by increase of revenue to the prince or the nation. There was no limit to the possibility of regulation, provided it could reasonably be supposed that it would attain the end

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that was sought. The well-known policy which was applied by statesmen of this period to the circulation of the precious metals, to exports and imports in general, and which was summed up in the doctrine of the balance of trade, was a deduction from this general principle. The organization of trade and its regulation from one centre, whether it were carried on by means of incorporated companies or by individuals subject to general laws, was determined by this motive and had the national well-being as its conscious object. It was natural that in the application of this policy England should not proceed with the logical rigor which characterized French methods in the time of Colbert; but a reasonable degree of consistency was maintained even by the English.

As has been already suggested, it was the development of national strength, the increase of wealth and of prestige throughout the world, which gave to colonization its chief interest in the eyes of English statesmen. This was distinctively the imperialistic motive. It involved an application of the mercantilist policy on the broader stage of trans-oceanic commerce and to relations between England and her dependencies across sea. In this sphere primary, though not exclusive, reference was had to the interests of the island kingdom. That was the central planet, and the colonies were its satellites. The European constellation, and not the American, was the centre of the system. In this connection the strengthening of the navy and of the merchant marine presented itself very clearly as one object to be sought. The merchant ships and vessels of the navy must not only be used for the defence of the dependencies, but they furnished the only means of even approximately bridging the Atlantic. By carrying colonists, officials, commodities, and communications of all kinds across the ocean they formed a most important element in the system of “supplies” which, with the extension of colonization, broadened out into the entire mechanism of communication between Great Britain and its colonies. Many of the plantations, as they were settled, became the source of large supplies of tropical, or semitropical, products which were of the greatest value for British consumption or trade. The effort to secure for England the greatest advantage

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from this fact suggested a second feature of commercial policy relating to the colonies. Still another aspect of the general problem was presented by the import trade of the colonies and their demand for British products as compared with their demand for European goods in general. Clearly connected with this was the advantage or disadvantage which might arise from direct trade between British colonies and the colonies of other nations, whether those situated on the American continent or on adjacent islands or elsewhere. Finally, as the colonies grew in population and wealth, the possibility arose of their developing manufactures, and this necessitated the consideration of the relation which these would bear to the manufactures of Great Britain.

Such were the elements in the problem of commercial relations within the growing British empire. The empire, however, was by no means a political unit, for its various parts, separated as they were by thousands of miles of ocean, had each its distinct tendencies and interests. But the application within this vast complex of the traditional views of the merchants, statesmen, and theorists of the day concerning what might be the interests of England when considered as the sovereign power, gave rise to British commercial policy as applied within the empire. The devices which were used were not new or invented for this special purpose. They had been used of old in England and were in general vogue among the nations of the time. All that was necessary was to apply them in somewhat new and broadened relations. One device was to insist by statute that all or certain imports should be carried exclusively on ships owned and manned by Englishmen. The effect intended by this was to encourage shipbuilding at home and to secure the domestic carrying trade for Englishmen. It gave rise to what was known as the navigation law proper, and it was an extension and adaptation of a policy which had been resorted to at intervals since the time of Richard II.

Another device—that of the staple—was much older and had been much more widely practised. It had been customary to designate certain towns as places where commodities of a special class should be brought for purchase and

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sale. By a measure of this kind merchants were brought together, trade could more easily be supervised, and customs duties better levied and collected. Staple rights were enforced in all the important market towns on the continent of Europe. Various Flemish towns, and later Calais, bore a prominent relation of this kind to the wool trade of England. By an ordinance of 1353 a number of towns in England were designated as staples for the wool trade. One of the most important features of the commercial policy of England, as it affected the colonies, arose from the effort to apply the principle of the staple to their trade. In this case England itself was to be the staple, and the purpose was to force all colonial imports and many of their exports to pass through its harbors. The feature of it which related to the colonial export trade came to be known as the policy of the enumerated commodities. The germ of this appeared in the controversy between the government and the Virginia company, the former insisting that the entire colonial product of tobacco should be brought to England. No attempt was made to impose the corresponding restriction on the import trade of the colonies until after 1660. At no time during the seventeenth century were there colonial manufactures which demanded attention, while the granting of bounties on colonial products was not begun until the eighteenth century. The system of subsidies and imposts, or British export and import duties, applied of course to colonial trade, as it did to that of the realm, throughout the period. At least as early as 1660, and perhaps earlier,¹ drawbacks were granted on colonial products which were reëxported from England. The monopoly of the English market for enumerated commodities it was always the interest of the home government to secure for the colonies. The cost of imperial defence also rested on Great Britain. Thus, though the fiscal motive

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was prominent in British commercial policy throughout, as time passed compensating elements appeared in the measures which were applied to the colonies; and these went far to relieve the monopolistic features which were certainly a chief characteristic of the system.

The dissolution of the Virginia company made no essential change in the attitude of the English government toward the tobacco industry. It repeatedly insisted that colonial tobacco should be sent exclusively to England. In the important proclamation of September, 1624, which was issued at the special request of parliament, the colonists were required in the clearest terms to bring their entire product in English or colonial ships, and that, in order to distinguish it from foreign tobacco which might be smuggled, it should be landed, inspected, and marked at the London custom house.¹ Though this proclamation lapsed with the death of James I, its principles were adhered to, and in later orders express reference was made to its contents as embodying valued ideas and precedents.² Virginia authorities usually expressed acquiescence in the policy, though free trade with the Dutch was attractive and was always indulged in to an extent by planters and merchants.³ Royal commissioners who were appointed in England labored for the same end. Such a body, at the head of which was Sir John Wolstenholme, made a strong report on the subject to the king in 1633, urging that the principle

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of the staple should be maintained and detailing the advantages which might be expected therefrom.¹ In general we may say that the government of Charles I maintained an attitude on this subject which was consistent with that which had been assumed in 1621.²

During most or all of the seventeenth century the government continued its efforts to suppress the production of tobacco in the realm and Ireland. Its production there was never large, but it was sufficient to arouse complaints from time to time on the part of colonists and merchants. To these the government faithfully responded, but at no time apparently with complete success.³

Nor in its attitude toward Spanish tobacco can the government be fairly accused of disregard for colonial interests. We learn in 1625 that it was being smuggled into England, and Charles I appointed a commission, a part of whose duty it should be to discover such offenders.⁴ But the smuggling apparently continued, and in January, 1627,⁵ another commission was created. It was authorized to buy and import Spanish, or other foreign, tobacco not in excess of 50,000 pounds. This small concession may have been made in response to a natural demand and as the readiest means to check smuggling. From 1631 to 1635 highly discriminating duties were levied upon the Spanish product, and after the latter date a policy of prohibition was followed. It is

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estimated that during the period in general not more than one-tenth of the total amount of tobacco imported into England was of Spanish origin.

Of course the only effective answer which the colonial producers could make to the importers and consumers of Spanish tobacco was, if possible, to make their product equal in quality to that of their rivals. If they were able to do this, they would check the decline in price, which even before 1630 became one of the most serious questions with which the planters had to deal. But the quantity of the product, as well as its quality, affected its price, and because of the demand in the European markets and of the immediate return which was expected, the colonists committed themselves to its production on a larger and larger scale. Crude methods and conditions which accompanied this expansion of the industry stood, however, in the way of the improvement of the product, while the rapid increase in its quantity sent the price down and kept it down. Protests and warnings were uttered by English officials, and at intervals these were embodied in royal instructions, the objects of which were to limit the production of tobacco and to improve its quality. The provinces themselves—Virginia in the lead—coöperated in these efforts by laws and administrative regulations. These took the form of the stint, also of inspection, still again of positive measures to encourage the production of other staple commodities, and thus to diversify the industry of the province. And these measures did not cease with the Interregnum or the Restoration, but were perpetuated through the century.

In 1629 the colonists were prohibited from raising more than 3000 plants for each tithable worker, unless the family consisted wholly of women and children. In 1630 the terms of this regulation were changed to 2000 plants for each member of a family, including women and children. In 1632 it was enacted that only 2000 plants per poll should be raised, and a crude attempt to enforce the restriction was made. Tobacco, when ready for the market, if not found merchantable, was to be destroyed. These regulations were confirmed and extended at the first revision of the laws, in 1632.¹

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In 1633 the assembly established a system of inspection. It was provided that warehouses should be built at different points within the province, to which all tobacco, made up into rolls, must be brought before the last day of December of each year. The planters must swear that they had kept back none except what was allowed for their private use. At the warehouses the tobacco must be inspected by sworn officers, one of whom must be the councillor who lived in the neighborhood. The poor tobacco was ordered to be burned and the good to be received into the stores on the planter’s account. At the same time the number of plants to be raised was reduced to 1500 per poll, and provisions for inspecting the crop in the field were made more severe. Ships were ordered not to break bulk until they reached Jamestown, in order that there, as at a staple port, all exchanges of European commodities for tobacco might be made. But the product continued to increase so much more rapidly than did the market for it, that in 1639 the assembly ordered for the ensuing year that not only the bad but half the good tobacco should be destroyed.¹ But under the most stringent regulations which could be enforced the Virginia product which was annually brought to market considerably exceeded 1,000,000 pounds.² For this reason Virginia planters were always dissatisfied with such contracts as Englishmen could offer for its sale, while access to other markets seemed an absolute necessity. Even at best under these conditions, though the quality slowly improved, the price of tobacco tended steadily downward.

While the cultivation of tobacco was being regulated for the purpose of limiting its production, laws were passed to promote the raising of corn and wheat. By a large number of enactments, beginning with 1623, the production of these commodities was made compulsory. The usual requirement was that for every worker on a plantation two acres of land

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should be planted with corn. In 1630, and repeatedly thereafter, it was enacted that any who were found delinquent in this matter should forfeit all their tobacco. In 1642 it was ordered that the constables should inspect the cornfields, and should compel the planters to pay the fines to which, for delinquency, they were liable by law. Many other regulations were issued during the century for the encouragement of these staple products. Efforts were also made to establish the production of the vine and mulberry, iron, salt, and other commodities. But the province continued devoted to the cultivation of its peculiar staple, and all other forms of agriculture, so far especially as they affected exports, remained subsidiary.

The government monopoly was the special form of administrative control which was applied to the tobacco industry after, as well as before, the dissolution of the Virginia company. In the fall of 1624 Edward Ditchfield and others, citizens of London, were appointed officers for searching and sealing tobacco, with a view to preventing the importation of the foreign product. But we are also told that the king contracted with them to act as his agents in receiving the tobacco from Virginia and the Somers islands at such prices as he had agreed to give for it. In addition they were to pay the crown such sums as would reasonably compensate it for losses in the customs and enable it to provide for the defence of the colonies. “It is agreed on all sides,” wrote the king, “that the tobacco of Virginia and the Somers islands (the only present means for their subsistence) cannot be managed for the good of the plantations unless it be brought into one hand, whereas [whereby?] foreign tobacco may be carefully kept out & the Tobacco of those plantations may yield a certain and ready price to the owners.” But the contract proved exceedingly offensive to the colonists, the governor and council calling it “pernicious” and declaring¹ that under its operation supplies had been so scanty and conditions so desperate that many had resolved

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to return to England in order to petition for redress. But instead, as we have seen, Sir George Yeardley was sent over as agent. He procured additional supplies, presumably at lower prices, and a promise of free importation, so that in April, 1626, a letter of grateful acknowledgment was sent to the king. But the commission which was created in January, 1627, with Sir John Wolstenholme at its head, was authorized to buy and contract for the entire product of the English colonies, and one Amys was prominently concerned in this business. We learn that, early in April, the planters and adventurers of Virginia and the Somers islands were called together at Sir John’s house, and there, by order of the privy council, were told what quantity of tobacco they should import and the price the king would pay for it. But they with one voice rejected both proposals, the quantity and price they said not being sufficient to maintain the people in the colonies; and they asked that the king would allow them to retain possession of their tobacco and dispose of it as they liked. The people of Virginia had also learned of the project, and through Yeardley and the council protested against all contracts. The news, it was said, had “deadened their spirits and plunged them into misery.” They besought the privy council “not to let them fall into the hands of avaricious and cruel men, whose exorbitant and wide consciences project and digest the ruin of this plantation for profit and gain to themselves.” But, on August 9, a royal proclamation was issued¹ prohibiting the importation of tobacco from the English colonies without a license under the great seal and commanding that, when imported, it should be sold to the commissioners appointed for that purpose, from whom alone tobacco might be bought. Not later than the beginning of 1628, however, this contract was dissolved, much to the gratification of the colonists.² Early in 1628 we find Governor West and his council asking that 500,000 pounds be taken annually, and that “ any overplus they may export after paying custom.”

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Although, in 1631, a new board of Virginia commissioners was appointed, no contract was formed with them. But the colonists continued to complain of alleged extortion on the part of individual merchants, and so much tobacco was directly exported to foreign ports, that in 1634 the king resolved again to take the sole preemption of it at fair prices, and appointed another commission to take charge of the business.¹ One John Stoner was sent as an agent to negotiate with the colonists. His death on the outward voyage, together with the uprising against Governor Harvey which occurred soon after, seems to have interrupted this experiment. No further important steps were taken until 1637 and 1638, when the Virginia assembly, acting on a suggestion from the king, made provision for an officer to keep a register of tobacco and of all other² commodities exported, and a contract was again proposed.

George Lord Goring, who was one of the farmers of the customs in England, now offered to take 1,600,000 pounds of tobacco at 6d. per pound in Virginia or 8d. in England. As the price had recently been only 2d. per pound, the governor and council thought that this was an advantageous offer, and urged the burgesses to accept it. Long debates ensued, the assembly, it is said, devoting more than a month to the consideration of the subject. Attention was called to the poverty and other ills which resulted from excessive planting of tobacco and to the declining prices of European goods when estimated in its terms. The contract, it was urged, gave an opportunity for limiting the product, raising its price, and improving its quality. But no effect could be produced. The burgesses saw ruin staring them in the face, if any stint were imposed upon them which was not shared by all the tobacco-producing colonies, in the West Indies as well as elsewhere. Voicing the sentiments of the colonists at large, they declared that it was impossible to fix in advance the amount of the product. This could be done only by stopping the influx of immigrants. But they were arriving steadily and rapidly, and were taking up new land and

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entering upon the culture of the staple. This process could not be checked, and in their opinion it necessitated freedom in the planting of tobacco and free trade with England. They were evidently content with the rude comforts which they enjoyed, and considered it safer to endure the privations which accompanied them than to change the course of settlement to which they had become accustomed. They were therefore opposed to monopoly and restrictions.

This utterance of the burgesses proved decisive.¹ Jerome Hawley wrote that he did not think a contract would ever be agreed to, “if it depends upon the yielding of an assembly,” and if it passed otherwise, without binding all other colonies, the ruin and depopulation of Virginia might be expected. At the same time the outbreak of civil troubles in England made it impossible for the government to further consider contracts or monopolies. The objects which the British government had sought, and toward which the officials in Virginia had to an extent contributed, were not fully attained. The production of tobacco had not been effectually limited, its quality had not been sufficiently improved, while the production of other staples languished. The Dutch had now settled on the Delaware and were therefore more accessible to the ports of Virginia and Maryland than before. This, together with other causes,² made the complete enforcement of the principle of the staple an impossibility, while we continue to hear complaints of the smuggling of Spanish tobacco into the realm and of the imperfect enforcement of the prohibition of raising the product in English gardens.

During the Civil War and until the establishment of the Protectorate no steps were taken to check trade between the Dutch and the American colonies. Being uninterrupted and mutually advantageous, it naturally increased. But the increase of the Dutch carrying trade gradually aroused

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the jealousy of the English merchants, and commercial rivalry in various quarters of the globe became acute. Many occasions of irritation and jealousy arose. The result was that, in 1650, the Rump Parliament introduced into the act already referred to, for the reduction of Virginia and the rebellious Island colonies, a clause forbidding ships of foreign nations to trade with any of the English colonies without a license from parliament or the council of state.¹ No declaration that England intended to monopolize trade with her colonies could well be stronger than this.

But the ordinance of 1650 was essentially a war measure. The following year, however, the much more famous navigation act of the Commonwealth was passed. Though in rigor this fell short of the earlier ordinance, yet it set forth in outline the main features of the old navigation policy, at the same time extending them and casting them in a form which in general they were to retain for more than a century and a half.² It provided that no goods of the growth or manufacture of the outlying continents of Asia, Africa, or America should be imported into England or its dominions except in ships of which the owner, the master, and the major part of the mariners were English; and likewise that no productions of Europe should be imported into England or the dominions except in English ships or in such foreign ships as belonged to the country where the goods were produced or manufactured. Goods of foreign origin must also be brought direct to England from the place of growth or production, or from the places whence alone they could be shipped or whence they were usually first shipped after transportation. The importation of fish by aliens was also prohibited.

This act, more directly than its predecessor of 1650, was aimed at the carrying trade of the Dutch, and it contributed toward the war between the two nations which began in 1652. But in neither act was provision made for additional officials or for other administrative mechanism to aid in its enforcement. There is proof, however, that the navy was used for the

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purpose among the Leeward islands and at Barbadoes.¹ In 1656² a Virginian merchant or planter sought to explain the existing low price of tobacco by the fact that the Dutch were excluded from the trade. It was said that many had been ruined by it. But he also admitted that the trade was still secretly carried on through New Netherland, though this was done at a loss. As British armed vessels scarcely ever visited Virginia waters or the coast farther north during the period in question, it is fair to suppose that trade with the Dutch continued, though probably somewhat reduced in amount. The claim of the Virginians that, by the articles of surrender, they were entitled to freedom of trade with all nations, and the passage by them of acts early in 1660³ forbidding masters of vessels to molest friendly aliens who were trading in the waters of the province, would indicate that the facts corresponded largely with their claims.

Such other fragmentary evidence as exists goes to confirm this view. In 1663, or thereabouts, John Bland, a London merchant who had invested heavily in the Virginia trade, wrote an able protest⁴ against the policy of England as set forth in the first act of trade of Charles II. His argument was based throughout on the admission that after, as well as before, the act of 1651, trade with the Dutch in tobacco was carried on freely by the planters of both provinces on the Chesapeake. English traders, as well as Hollanders, shared in this traffic. He states, it is true, that tobacco was the only commodity which the Dutch carried away from those provinces, and that they selected only the quality which suited the market of Holland; but tobacco was the only commodity of importance which those provinces had to export. He implies that European goods were freely brought in on the return voyages, for he contrasts the prices at which Virginians had recently been able to command them with the higher rates which were being demanded now that the coterie

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of English merchants, whom he charges with having brought about the passage of the new act of trade, were able to monopolize the traffic. A thoroughgoing free trade argument, used for the purpose of showing that under the regime of freedom the wealth and prosperity of all parties concerned would be most enhanced, Bland upheld by this suggestive statement: “I am sure upon the first obtaining the Act in the Long Parliament, our traders to Virginia and Mariland carried the Tobacco from those colonies to those of Holland themselves and neither paid duties in the country nor in England, and so they would do still if permitted; wherein it is apparent its their own interests that is sought after; for the custom, let the Hollanders trade thither or not, will be the same in England, and rather increase than decrease if they be permitted to trade thither; for, as the colonies increase they will grow to better husbandry, and so by the production of better commodities make our customs the greater.” But Bland was speaking to deaf ears. The merchants and statesmen of the period were resolved that, if possible, tobacco should be prevented from reaching continental markets except on English vessels and through English ports.

The policy set forth in the acts of trade which were passed during the period of the Restoration was an expansion and systematizing of the principles which were already accepted. They were the fostering of the navy and the promotion of shipbuilding, combined with the establishment of such a monopoly over colonial trade as could be secured by making England the staple for the colonies. Parliament was also careful to call attention to the fact, that it was “the usage of other nations to keep their plantation trade to themselves.”¹ To the advantages of the legislation, so far as it affected shipping, the colonists were fully admitted.

The navigation act proper, in this group of statutes,² provided that no commodities should be imported into or exported out of any of the dominions or plantations, except in such vessels as were truly owned or built by the people of

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the realm, Ireland, or the plantations, and of which the masters and three-fourths of the mariners were English; that no alien should be a merchant or factor in the said dominions; that no goods, the growth or production of Asia, Africa, or America, should be imported into the realm, into Ireland, or the islands of Jersey and Guernsey, except in vessels which were built, owned, and manned as above described; no goods of the growth or production of the aforementioned continents should be imported unless they came direct from the countries where they were produced or from the places whence they were usually shipped. In contrast with the ordinance of 1651, no special restriction was laid on trade with any of the states of the Continent of Europe except Russia and Turkey.¹ This act comprised all that was directly attempted by this famous group of statutes for the benefit of the shipping interest, but for its purposes the word “English” was so defined as to include the colonists and the Irish.²

For the benefit of the merchants, as distinguished from the ship-owners, the policy of the staple was applied on a large scale. It appears in the provision of the act of 1660 which relates to the commodities of the plantations which, because of their tropical or semi-tropical origin, could not be produced in England. Section 18 of the above act provided that no sugar, tobacco, cotton-wool, ginger, indigo, fustic or other dyeing wood, the growth or manufacture of any of the plantations, should be carried from thence to any place except the other plantations or the realm of England,³ under penalty of forfeiture. These were currently designated as the enumerated commodities, and at a later time the list was considerably increased. With the exception of tobacco, all the commodities which were at first included in the list were products of the island colonies. During the seventeenth century and with the exception of tobacco, the continental

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colonies were not affected by the policy of the enumerated commodities. Subject to the customs and trade laws of European nations and their colonies, they could send their products whither they would, provided they did it in ships legally owned and manned.¹

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Two years later, by the statute of 1663,¹ it was provided that no commodity or manufacture of Europe should be imported into any of the plantations, unless it had been re-shipped in England, Wales, or Berwick on Tweed in ships legally built and manned; and such commodities must be carried directly to the plantations whither they were bound and not to any other place. Certain exceptions were made to its restrictive features. These were, that salt for the fisheries of Newfoundland and New England could be imported directly from ports in Europe; that wine could be imported directly from Madeira and the Azores; that provisions, servants, and horses could be imported from Scotland and Ireland.

In order to secure the execution of the statute of 1660, provision was made that ships sailing from the plantations should give bond, with one surety, to the officers of the customs of the port whence they sailed that, if they should load in the plantations any of the enumerated commodities, they would unload the same in the realm. The amount of the bond was £1000, if the ship was less than one hundred tons burden; £2000, if of greater burden. In the absence of royal customs officers in the colonies, the duty of executing the act was devolved on the governors. They were required not to allow any of the commodities to be loaded until a similar bond had been signed. Twice yearly the governors were required to return to the chief officers of the customs in London lists of the bonds which they had taken, and once yearly lists of the ships which had sailed from colonies with cargoes of enumerated commodities. These provisions were further elaborated in the statute of 1663, and a requirement was added to the effect that within twenty-four hours after his arrival in the colony, the importer should furnish the governor, or such officer as he might designate, a true invoice of his goods, with his own name, the name of the

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master of the vessel, its name and proof that it was built and navigated according to law. The penalty for disobedience was forfeiture of vessel and cargo. The governors were also required to take an oath to obey and execute the acts, under penalty of removal and the forfeiture of £1000, one-half to go to the king and one-half to the informer. Customs officers in England were also forbidden under heavy penalties to allow any of the enumerated commodities to be shipped abroad without being loaded in some port of the realm. The statutes relating to the English customs also provided for the seizure of illegally imported or exported goods.

The passage of these acts, if they were to be enforced, necessitated increased attention to the registry of vessels as colonial or English built. The acts implied the immediate exclusion of all ships which were owned by foreigners from the colonial trade. Upon the governors also, in the chartered colonies as well as in the royal provinces, many additional duties must devolve. These were connected with the registry of vessels, the examination of invoices, the inspection and granting of bonds, and the taking of general precautions against illegal trade in all its possible forms. The activities of the governors as vice admirals were necessarily developed. They were naturally brought into closer relations with the crown through new oaths and instructions for the enforcement of the acts of trade. The customs regulations might necessitate the creation of new offices and tribunals in the colonies. In time of war—and the commercial policy which we are discussing was destined to occasion wars—restrictions must become more severe; under letters of marque armed attack on the merchant ships of the enemy would be authorized; and the system of convoys, which for continental traffic had been in vogue certainly since the beginning of the century, must be applied to colonial trade, and that would lead to the vessels going and coming in fleets. By steps such as these the passage of the acts of trade was destined to affect the administrative relations between England and the colonies, resulting in their development and making them more systematic.

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But these changes came very gradually and never fully corresponded to what the needs of the situation demanded. During the early years of the Restoration a few references appear to an inadequate supply of ships for the transport of colonial goods.¹ Owing to special causes, this was felt in New York after its conquest from the Dutch. Before that time and until the effects of the war of 1665-1667 began to be felt, the Dutch probably retained about their usual share in the trade of the continental colonies.² In 1667, as a result of a petition of Governor Stuyvesant, by order in council, special permission was given for the Dutch to carry on trade with New York and the Delaware region, but to employ in this traffic no more than three ships. This was in the nature of a dispensation setting aside the law in a special case, a practice which was not infrequently applied to the acts of trade as well as to other statutes. It was intended that the privilege should continue for seven years, but such an outcry was soon raised among the merchants that in November, 1668, it was withdrawn.³ The conquest of New Netherland furnishes one of the strongest proofs that the English were committing themselves in earnest to the trade policy which was outlined in the recent acts; while, conversely, the act of conquest itself contributed more powerfully than any of the other measures of the government toward the exclusion of foreigners from the trade of the northern colonies.⁴

The acts and their enforcement also brought to the front the question of the relation of the Scotch to the trade of the colonies. Under the terms of the law they were wholly excluded. But in the summer of 1661 deputies from the Scotch parliament petitioned that the act of navigation might be extended to Scotland, as otherwise its trade and shipping would be ruined. The equality of the kingdoms since 1603 was also urged as an argument. The commissioners

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of the customs, however, reported strongly against the petition, alleging that the Scotch would bring in foreign goods without paying alien duties, and they would then trade with the plantations to the infinite prejudice of his Majesty’s duties and of the Englishmen who had property in America. “The plantations,” said the commissioners, “are his Majesty’s Indies without charge to him raised and supported by English subjects; they employ above two hundred sail of good ships every year, breed abundance of mariners, and begin to grow commodities of great value and esteem, and though some of them continue in tobacco, yet upon the return itt smells well and pays more custom to his Majesty than the East Indies four times over. The Scotch would by this liberty overthrow the essence of the Act of Navigation, and they must not be allowed to trade from port to port, for they are strangers and their bond is not sufficient security.” It seems that on the presentation of the petition, the act, so far as it affected Scotland, had been temporarily suspended. But now a special committee of the council, consisting of the lord treasurer, the Earl of Lauderdale, and five others, was appointed to consider the whole question. They reported that the further suspension of the act, except by parliament, would be impossible, as forfeitures for its violation had been imposed by parliament and these could not be set aside; while by such a measure as the Scots desired the object of the act would be entirely defeated.¹

To this subject no further reference appears until, in 1667 and 1668, the inhabitants of Barbadoes repeatedly complained of the extent to which they suffered through exclusion from the Scotch trade. The supply of servants which they had formerly received from Scotland had been cut off and the loss of this they felt very keenly.² The agitation on this subject in Barbadoes was continued for a decade or more, but apparently without result. It did not extend to any other colony among the islands or on the American continent. For other and special reasons, however, a few Scotch vessels were occasionally licensed to visit the plantations. Such licenses

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were granted in 1663 and 1664 on behalf of Captain John Browne, to whom a patent had been issued for refining sugar in Scotland; and again in 1669, at the instance of the Duke of York, to two vessels which were to carry Scotch settlers to his province and remain there a time for trade.¹ To the grant by the privy council of the last mentioned license the farmers of the customs made strenuous objection, but it was allowed to stand.

When the war of 1665-1667 with the United Provinces began, some of the merchants petitioned that, as it would now be dangerous for English merchantmen to appear on the seas, the acts of trade should be suspended and foreigners be allowed temporarily to become England’s carriers. But the farmers of the customs protested, on the ground that it would result in the French and others obtaining a too intimate knowledge of the trade and colonies of England, and that it would lay up English vessels and tend to attract their mariners into foreign service. The Dutch, they also said, would be quite as likely to seize goods if they were in neutral vessels, as they would if they were in those of England. Because of these very urgent reasons the proposition was dropped, but careful provision was later made by the government for convoys and that the Virginia and Maryland ships should sail in fleets for their common protection. In November, 1665, Secretary Arlington wrote on behalf of the king to Governor Berkeley that, as the previous summer serious losses had been suffered because on the homeward voyage the vessels had not kept together, he was to see to it that the next spring the Virginia and Maryland ships should sail in one fleet, leaving for England as soon after the first of April as the winds would permit.

Following earlier practice, and for the purpose of keeping the fleet in good order and standing together for defence, Governor Berkeley was also commanded to appoint one vessel in the fleet as admiral, another as vice admiral, and a third as rear admiral. The fleet should sail direct for

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Fayal,¹ where they could find advice or a convoy; if not, they should wait eight days and then make for the “Soundings,” where, if they met no English ships, they should touch at the first port that they could make in the west of England. On May 1, 1666, as thirty ships were ready—though among them none of the Londoners—Berkeley issued the license to sail for Cape Clear and wait there for a convoy. The admiral, vice admiral, and rear admiral were duly appointed. The following November the orders were renewed, this time for the Virginia ships to sail homeward in three fleets; but the ocean was so infested by pirates and trade so interrupted by the great London fire that a temporary embargo became necessary both in England and Virginia. A guardship of forty-six guns had also been sent to James river as a protection for the merchant vessels. But it was out of repair and proved wholly inadequate. Early in June, 1667, a small Dutch squadron appeared, destroyed the guardship and five or six merchantmen and captured several others. Berkeley and his councillors tried to induce the captains and crews of the merchant vessels, which were lying in York river, to attack the enemy before they left the capes, but without result.²

At the beginning of the next war (January, 1673) the Duke of York, as lord high admiral, ordered a convoy of two armed vessels for the ships bound for Virginia. When the time came only one vessel, however, was available, and that was the king’s hired ship under Captain Thomas Gardner. After Gardner had reached Virginia with the fleet, Berkeley ordered him to repair to Lynnhaven bay on the Chesapeake and there watch for the enemy. It was while Gardner was watching and the merchantmen were preparing to sail that Evertsen and Binckes appeared with eight Dutch ships of war, and after some resistance sunk five of the English and captured eight. This event, as well as the

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descent of 1667, were excellent reminders of the risk which attended trade in time of war. They afforded proofs also of the need of stronger defences in Virginia and of adequate guardships and convoys. But the war passed without any material change, and during the fourteen years of peace which followed, affairs were allowed to drift in their accustomed course. The system of convoys which was thus inaugurated for the tobacco colonies was later extended and became a permanent feature of their trade with England in time of peace as well as war.

In the British commercial code, as thus far developed, no restriction had been laid upon intercolonial or coastwise trade. But it gradually became evident that violations of the principle of the staple might and did result from neglect in this direction. Enumerated commodities—especially tobacco—were shipped from the places of production to other colonies where they were not raised, and where no precautions were taken to prevent illegal traffic in them, and thence they were sent direct to the continent of Europe. Trade of that nature also furnished ample occasion for the importation into the colonies of European goods which had not passed through English ports. Owing to complaints respecting this traffic, the act of 1673¹ was passed by parliament. It provided that, if any ships should come to the plantations and load with enumerated commodities and should not give the required bonds to land them within the realm, certain specific duties should be collected on the commodities by officers in the plantations. White sugar should pay 5s. per hundred-weight; brown and Muscovado sugar, 1s. 6d. per hundred-weight; tobacco, 1d. per pound; cotton, ½d. per pound; ginger, 1s. per hundred-weight; logwood, £5 per hundred-weight; fustic, 6d. per hundred-weight. Authority to enforce the act was given to the commissioners of the customs in London, and they were authorized to appoint subordinates resident at the ports in the colonies where these duties were to be collected. As the act of 1673 provided for the levy of duties, while its predecessors required the granting of bonds and the examination of registry of vessels,

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collectors of the customs with jurisdiction over all these matters were soon appointed by the London commissioners for Virginia, Maryland, the Carolinas, New York, and Massachusetts. The history of administration under the acts of trade during the next fifteen years can best be illustrated by reference to the more noteworthy experiences of some of these officials.

If we are rightly informed, Edward Digges, the auditor of Virginia, was for a time the collector in that province. But his place was soon taken by Giles Bland, son of John Bland, the London merchant who had written the able memorial against the policy of the acts of trade. Giles Bland soon became involved in a violent personal quarrel with Thomas Ludwell, secretary, into which Governor Berkeley was also drawn. Bland was fined £500 by the council sitting as general court without a jury. An appeal was carried to England, where hearings were held; but before a decision was reached Bacon’s rebellion occurred, in which Bland appeared on the side of the insurgents, and at its close paid the penalty on the scaffold of his opposition to the governor.¹

But of immediate importance in this connection are the statements of Bland concerning customs administration in Virginia in 1675. In a letter to Berkeley, and in other letters to the authorities at home, he states at length that both Ludwell and the governor, acting as he supposed under the influence of parties who were immediately interested, were clearing vessels for other colonies loaded with tobacco which was subject to duty under the act of 1673. He also charges them with entering vessels from other colonies, from Ireland, from the continent of Europe, and from England via continental ports, without proper inspection or sight of their bonds. Seizures attempted by Bland and his deputies were ignored, and the collectors of the Virginia impost on tobacco were assuming to act as royal customs officers. Bland urged the governor to establish a custom house at Jamestown and turn over the business to the properly accredited officers. Whatever the possibilities of the case might have

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been, the quarrel between Bland and Ludwell, followed as it was by the breach with the governor, defeated all chance for the time of establishing a royal customs service in Virginia. After a violent outburst of anger, Berkeley suspended Bland from his office, telling him that, if he ventured to perform its duties longer, he would lay him by the heels.¹ The appointment of Bland was evidently an unwise one, but his statements cannot be dismissed as a mere outburst of anger and prejudice. We know that Berkeley deplored the effect on Virginia of the acts of trade. Evidence, moreover, that he was conniving with merchants and others to defeat the objects of those acts would not be wholly inconsistent with his later attitude in other matters. If Bland’s allegations were true, they indicate that the mere substitution of a royal executive for one selected by the colonists or by a proprietor would not, after all, prevent the colonists from pressing their own interests. Such a result would be in harmony with what, under the circumstances, would naturally be supposed.²

In 1675 attention was prominently drawn to the violations of the acts of trade by knowledge of what was occurring in New England. Enforcement of these laws had borne a part in the earlier correspondence between Massachusetts and the crown. But in May, 1675, the commissioners of the customs reported to the council for foreign plantations, and at the latter’s request,³ that, as they were informed, several ships

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laden with commodities from the Continent of Europe had landed in New England contrary to law. Thus the staple right of England was being defeated. It was also possible that commodities were being sent from the colonies, either direct or through New England, to the Continent. But respecting the extent to which this form of trade existed, the commissioners confessed that they had no definite information. They, however, suggested that the governors should be required to take the oath for executing the law, and be instructed to seize all vessels which were illegally importing European goods and to take bonds with securities that all enumerated commodities should be exported direct to England.

The committee for trade and plantations presently instituted inquiry to ascertain whether all the governors had taken the oath and had made return to the officers in London of the bonds taken to insure the legal exportation of enumerated commodites [sic]. But it took until October to procure, through the lord treasurer, from the commissioners of the customs, a report that they did not know what persons had been appointed to administer the oath to the governors, or what they had done. As to the return of bonds from the continental colonies, the officer in charge had not received any, or any lists of ships, except from Charles Calvert, who at the time was both governor and collector in Maryland: a few¹ during the years 1673 and 1674 from Virginia, and eight, taken during 1674, from Massachusetts. Respecting the oaths, inquiry was continued at the offices of the secretaries of state, but with what result we are not informed.

In January, 1676, the English merchants began seriously to complain of the violation of the acts of trade in New England. They stated that the New Englanders—meaning especially the inhabitants of Massachusetts—traded directly with their own ships to most ports of Europe, and encouraged Europeans to trade with them. By this means all sorts of merchandise were imported from Europe directly into New England and thence carried to all the other colonies

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and sold at cheaper rates than any goods which could be sent direct from England. New England had therefore become a mart and staple for the colonies, and in consequence English trade and navigation were suffering. Twenty-eight signatures were attached to this petition, and we are informed that Robert Mason was concerned in its presentation. The extent to which its statements were true it is impossible exactly to state. That they were exaggerated and too sweeping there is little reason to doubt. In this respect they were similar in tone to the other manifestoes against Massachusetts which Mason and Gorges inspired. But evidence comes from North Carolina a little later than this time, which tends to confirm a part of the allegations of the petitioners. The records of the so-called Culpepper’s rebellion in that province abound in references to a round-about trade in which the inhabitants of North Carolina, of New England, and of Europe were together concerned. Many of the merchants also, as we shall see, gave testimony which closely agreed with the statements of the petition. The disposition of the New Englanders was in no respect averse to violations of the acts of trade, many indeed believing that the colony was not bound by them without its own consent. It is evident that their professions of obedience were formal rather than real, and that they would persistently follow their own interests unless pressure were brought to bear to prevent their doing so.

The petition¹ of the merchants at once attracted official attention. It was handed over by the privy council to the lords of trade, for investigation, by whom it was debated at length. It was seen that the ambiguity in the language of the act of 1673 might be responsible in part for the difficulty. The object of the law was to check intercolonial trade in enumerated commodities because that traffic facilitated smuggling. The imposition of specific duties was the method of regulation that was chosen. The intent of the legislators was to collect the duty from all who failed to give bond that their cargoes would be shipped direct for England; and if such cargoes were found in any colonial ports with the duties

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unpaid, they were to be subject to seizure. This was in the interest of fair traders, and they were rather more likely to be British merchants than colonial. But the merchants, especially those trading to New England, interpreted the act to mean, that if they paid the duties and made the declaration that the goods were bound for some other plantation, they were thereby exempted from the obligation of giving bonds and might carry goods freely to Europe. In 1676 the statute was referred to the attorney general, Sir William Jones, for interpretation. He declared that in case of ships which came from places other than England (meaning the English colonies) the duties must be paid and bond also given to carry goods either to England or to English plantations.¹ This interpretation was confirmed by later instructions, and was established by express provision in the act of 1696.² Under this definition the export duty appeared merely as an additional penalty, by the payment of which it became legally possible to carry enumerated commodities in colonial vessels to plantations other than those in which they were produced. As a matter of fact, however, when these goods reached the northern colonies, especially those of New England, they were likely to be shipped to the Continent of Europe or elsewhere outside the realm.³

Shortly after the attorney general delivered his opinion a ship from New England, laden with tobacco which it was intended to land on the Continent, was discovered at the island of Jersey and its seizure was ordered. Early in April the petition of the merchants was again read, and those who had signed it were ordered to attend and make good their statements. But before further steps were taken, the council for trade and plantations was dissolved and the committee took its place.⁴ As this was accompanied with an increase of the

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number and dignity of the statesmen who were now to devote their attention directly to colonial affairs, the change was followed for a time by an increase of activity.

A circular letter was now sent to the governors and proprietors, accompanied by heads of inquiry concerning the affairs and condition of their colonies. The attorney general was ordered to prepare a commission for administering the oaths required by the acts of trade. The mercers and silk weavers¹ of London added to the petitions of the merchants a statement that New England was supplying the other colonies with silks and cloths which they were bringing direct from France, Italy, and other parts beyond seas. The trade of English producers, they said, was thus being ruined. Brandy, sugar, oil, and other commodities were being imported through New England and distributed among the plantations in the same way. By this trade, according to their estimate, England was losing in customs duties £60,000 per annum. They prayed that the law might be enforced.

On April 24 several merchants who trafficked with New England were called in one by one and questioned in reference to irregularities in the trade of that section. They were asked whether ships had not gone from New England directly to France, Spain, Holland, Germany, Scotland, Ireland, and other parts of Europe, carrying sugar, tobacco, logwood, wool, hides, and other commodities; also whether they had not returned direct to New England with cargoes of brandy, French and Spanish wines, hats, druggets, ribbons, linens, silks, ironware, and other manufactures. Some, when questioned, pleaded ignorance or avoided direct replies. “But² most declared plainly how all sorts of goods growing in other plantations were brought to New England on payment of the duties payable by the Act for going from one plantation to another; that they went with these goods, and many times with ladings of Campeachy wood which they ventured to fetch from the places and to trade to all parts of Europe; that in exchange for those goods they laded what

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each country did afford.” Even now, they said, two or three vessels were loading in Holland. They sailed back to the plantations without touching in Old England, except when they saw fit. The result was that the commodities thus imported were sold in the plantations twenty per cent cheaper than the prices for which English merchants who traded under the act could afford to sell them. If this, they concluded, was not prevented, it “would quite destroy the trade of England there, and have no sort of dependency in that place from hence.”

This statement, though not based on official investigations, was impressive and quite in harmony with the preconceived ideas of the officials who listened to it. They at once resolved that a commission should be sent to all the colonial governors authorizing the administration to them of the oaths to enforce the acts of trade; that customs officers should be appointed in Massachusetts, and in case the colony refused to admit them, the other colonies should be forbidden to trade with them. How this measure was to be enforced was not stated. Finally, it was resolved that the captains of the royal frigates should be commanded to seize offenders against the acts. This is one of the earliest, but by no means the last, proposal that the navy should be employed to enforce the commercial code. The commission for administering the oaths was soon prepared, and probably sent to all the governors, but the appointment of a royal customs officer¹ to reside in Massachusetts was not yet seriously considered by the privy council. Before that was resorted to, Randolph was sent on his first mission to New England. The statements, however, which were made by him, both before and after his return, were, as we shall see, quite in harmony with the testimony of the merchants. But before events proceeded further in New England, the Culpepper rebellion in North Carolina threw light on trade conditions along that coast.

Thomas Miller was appointed, in 1676, royal collector of customs for North Carolina. He entered upon his duties in July, 1677. Timothy Biggs was controller, and Miller

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had a deputy, named Hudson, who served in the lower precincts near the coast. Such was the extent of illegal trade that Miller and his deputy were able in a few months to seize 817 hogsheads of tobacco, and European goods to the value of £500 and more. Other royal dues, partly in the form of bonds forfeited for illegal trading, were also recovered by Miller. The fact that Miller thus disturbed long standing trade relations with New England and Europe doubtless contributed strongly to provoke the outbreak in December, 1677, which resulted in his imprisonment and the assumption of the office of collector by John Culpepper. The commodities and money which had been seized were also taken by the insurgents. After more than a year Miller escaped and returned to England. There he found Culpepper and Zachary Gillam, a New England trader to the North Carolina coast. Both were arrested. The committee of trade and plantations summoned the Carolina proprietors, the various parties to the case, and certain merchants to a hearing in February, 1680. There the testimony was received concerning the rebellion in general and the seizure of the king’s revenue and imprisonment of his collector in particular. Culpepper, who was present, asked that he might be tried in Carolina, but, if that were not possible, he freely acknowledged the truth of the charges against him and asked for pardon on his returning the property which had been seized. Gillam was later able to show that he had not been concerned in Miller’s arrest, though he had sold fire-arms and probably other articles freely to both parties.

The commissioners of the customs urged that Miller be restored to his place as collector and his losses made good, that full inquiry be made in the colony concerning illegal trade and arrears of customs, and that all who had seized the king’s customs or interfered wrongfully with their collection should be obliged to make the losses good. Finally, they would have all who were in authority in the province enjoined to assist in the execution of the laws of trade. So far as we know, however, no one of these things was done. Culpepper, for the part he had borne in the overthrow of the proprietor’s government, was brought to trial

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before the King’s Bench under the act 35 Henry VIII. ch. 2, which provided for the trial before that tribunal of cases of high treason when the offence was committed outside the realm. As has been stated in another connection, by the interposition of the Earl of Shaftesbury and his assertion that North Carolina did not possess a regular government and hence that the accused could have been guilty only of riot, Culpepper was saved; and we are not able to state that Culpepper and his associates were compelled to make restitution, or that Miller was restored to his office, or that¹ a successor was appointed.

In Maryland, soon after 1680, the officials of the royal customs came into conflict² with the proprietor and his officials. In that province the export duty of 2s. per hogshead on tobacco was collected by the officials of the proprietor, while the duties which accrued under the act of trade of 1673 were received by a collector and surveyor who were appointed by the king. The latter officials also guarded the rights of the king under the laws of trade in general. Christopher Rousby and Nicholas Badcock were the royal officials, the former, who was the superior officer, having been recommended for the position some five years before by Charles Calvert himself. But, beginning in April, 1681, Calvert wrote several letters to the Earl of Anglesey, the lord privy seal, in which he bitterly complained of the conduct of Rousby and demanded his removal. He called him knave and devil, and declared that his arbitrary conduct and the heavy fees which he exacted were driving traders from the province. He would show the proprietor neither his commission or instructions and would not allow merchants to submit to the governor the registers of their

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vessels, lists of seamen, and bills of lading, all of which was required by law. The charges, which were reiterated in violent language, implied that Rousby was habitually sacrificing the interests of both king and proprietor to his own profit. Vincent Lowe also charged Rousby with being an exclusionist, an opinion the truth of which is indicated by expressions in Rousby’s letters which reveal his admiration for the Earl of Shaftesbury.

Rousby soon returned to England, where in due time he was called to answer the charges set forth in the letters of Lord Baltimore. After he departed a dispute¹ arose between the proprietor and Badcock, the latter now being the sole customs official of the king in the province. Three vessels were about to sail from Maryland, at least two of which carried tobacco as a part of their cargo. The certificates, however, which they submitted, mentioned Ireland as well as the realm.² Badcock, therefore, though doubtful at first, finally insisted that he should collect the duty of a penny a pound for which, in such cases, provision was made in the act of 1673. Lord Baltimore, however, erroneously claimed that the act by which the name Ireland had been excluded from the bonds had expired, and therefore that the duty should not be collected. High words passed, and the vessels were allowed to depart without paying the duty. Both parties sent complaints to England. Badcock claimed, though with evident exaggeration, that the king had been damaged to the extent of £2000 or £2500.³ This case came before the authorities in England in connection with the charges against Rousby.

Rousby presented to the commissioners of the customs a denial⁴ of all the important charges which Baltimore and his friends had lodged against him. He also advanced the theory in explanation of them that the proprietor desired to secure the two royal customs offices for his relatives and dependents. When the news arrived of the affair with

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Badcock, and especially the charge that in consequence of it the king had lost so heavily, it told in favor of Rousby. The proprietor, moreover, presented no testimony which was more definite than the statements contained in his letters. For this reason the committee of foreign plantations, after a hearing, reported that Rousby should be sent back to Maryland and there continued in the execution of his office. This was confirmed and a letter was sent to Baltimore, in which he was reproved for having wrongfully made such violent charges against the collector without having previously given him an opportunity to reply to them in Maryland.¹ Baltimore was also censured for his conduct toward Badcock, and ordered to make good to the crown the alleged loss of £2500. He was also told that his conduct might justly occasion the issue of a writ of quo warranto against his charter.

When Rousby returned, the lord proprietor had himself gone to England and had left the government of the province in the hands of the council. At its head was Colonel George Talbot, a man of hot Irish blood and a papist, one who had been unpleasantly prominent in efforts to settle the extreme northern part of the province and to extend the sway of Lord Baltimore to Delaware Bay. Late in October, 1684, while the royal ketch Quaker was lying in Patuxent river, Talbot came on board. Rousby was already there, and the two took supper with the captain.² Talbot, while maudlin drunk, provoked an altercation with Rousby. Before it had proceeded far he drew a dagger and inflicted a mortal blow upon the king’s collector. Talbot, though the murder was committed in Maryland waters, was at once detained as a prisoner on board the ketch and taken to Virginia. Lord Howard of Effingham, in view of the fact that Rousby bore the king’s commission and that he was murdered on a royal vessel, declined to surrender Talbot to the Maryland authorities unless ordered to do so by the English government.³ Talbot escaped, but soon gave himself up, and

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in April, 1685, was tried in Virginia and found guilty of murder.¹ Through the influence of Lord Baltimore in England, however, a pardon for Talbot was obtained and he disappears from Maryland history. Nehemiah Blackiston was appointed as Rousby’s successor.²

The first period of Edward Randolph’s residence in Massachusetts as collector, searcher, and surveyor of the customs was between December, 1679, and March, 1681. He was appointed under a commission from the lord treasurer,³ and, like all the royal customs officers who served in the colonies, his salary was paid by the English government. He appointed deputies: one or more in Boston, probably one at Salem, and one, Captain Barefoote, at Piscataqua. Randolph’s duties, like those of other customs officers, were to see that all vessels trading to the colony were manned and navigated according to law, that the bonds and certificates required by the acts of trade were given and exhibited on the departure and arrival of vessels, that enumerated commodities were shipped direct to the realm, that no European goods which had not been reshipped in England should be smuggled into the colony, and that the duties which accrued under the act of 1673 were paid. If possible, he must seize and secure before the courts the condemnation of all vessels which were found engaged in illegal trade. As illegal trade was closely connected with piracy and privateering, his duties extended also to some interference with these chronic evils. In his efforts to accomplish this task Randolph stood almost alone. His previous errand to Massachusetts had made him an object of suspicion and hate. His present errand increased that feeling. As in other colonies, no provision was made for a custom house, with its equipment of officials, or even for a public office where the king’s business could be transacted. During the second visit of Randolph to the colony as collector, we learn that his office was kept in his own house.⁴

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For aid in the performance of his unwelcome duties he had to depend wholly on residents of the colony, and their help would be given at considerable risk to their reputation, if not to their personal safety. If his deputies attempted seizures at night, they might offend against the police laws of the colony, while a seizure in the daytime would usually bring them into conflict with the hostile mob. All suits to which the king was a party must be tried in the courts of the colony, and before juries whose members shared fully the prejudices which were abroad in the community. Juries were sworn to obey the laws of the country. The influence of the clergy was cast wholly against him, and among the magistrates, Bradstreet, who was elected governor in 1679, was the only one to whom Randolph refers as inclined to see that justice was done him. The lords of trade were quite within the truth when they confessed that, under the conditions, little could be expected from the activities of one man.

Randolph at once reported¹ that, notwithstanding the two laws which Massachusetts had passed for the enforcement of the acts of trade, no goods had been seized. No officers had been appointed, or other administrative machinery created, for the purpose. He found the opinion in every man’s mouth, that Massachusetts was not subject to the laws of England until they were put into force by the colony itself. Before the courts of Massachusetts, as was declared by Danforth in the trial of the pink Expectation, Randolph could act as an informer, but of course not as a prosecuting officer. Randolph could not be sure that the oath for the enforcement of the acts of trade had been administered to the governor. The Boston merchants put the colonial interpretation on the law of 1673, to the effect that, if the duty was paid on tobacco, the exporter might carry it to any foreign port he chose. In the absence of courts whose judges were of royal appointment, and in view of the fact that certain privateers had lately gone to the West Indies, whence they were expected to bring prizes, he urged that an admiralty court might be established. This was a

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demand which Randolph never ceased to urge, until, twenty years later, he saw his desire accomplished throughout the colonies. Experience and personal ambition soon convinced him that he ought to be granted a commission under the great seal, and be given authority to build a custom house or office at Boston, where the masters of all vessels should be required to enter and clear and receive their despatches. He also desired that the customs officers, both in the colonies and at the English ports, should be instructed to detain vessels from Massachusetts which did not bring proof of having cleared with Randolph. The only assistance which he received from the officials of Massachusetts was an order from Governor Bradstreet to the marshals and constables of the three counties to give him their aid.

During the first period of his official residence in the colony Randolph prosecuted nine complaints before the county courts for violation of the acts of trade. In all these cases except one the accused was cleared by the jury, and in that one, though the master of the vessel was fined £40 for opposing his Majesty’s officer while in the discharge of his duty, the money was ordered into the treasury of the colony for its use.¹ Since Randolph’s complaints necessitated the holding of special sessions of court, he was forced in each case to pay £10 to meet the extra expense which was thus occasioned. The king was thus forced to pay costs. The charges which Randolph made against the parties in question were for importing goods direct from the Continent of Europe or from Ireland, for unloading goods before entry, for attempting to land Virginia tobacco without entry and also to smuggle the same out of the colony. Thus the result of the first effort to enforce the acts of trade in Massachusetts was negative. Captain Walter Barefoote was appointed by Randolph his deputy on the Piscataqua. In the spring of 1680 a ketch belonging to Portsmouth and bound from Maryland to Ireland was seized by Randolph’s order. But its master by action in a special court recovered damages against Randolph, and the latter for alleged hasty speaking on this occasion had to publicly apologize. Barefoote

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was also fined for his insolence and for presuming to set up a customs office without the consent of the president and council. The conduct of Massachusetts was imitated in every point.¹

When Randolph returned to England, he secured opinions² from Attorney General Sawyer to the effect that cases such as those in which he had been concerned could not be appealed before the privy council, but that the king could not be forced to pay costs, and that if the proprietors recovered, as provided by the acts of trade, one-half should go to the king and one-half to the informer. Sawyer’s opinion in reference to appeals was not accepted by the other crown officials, and, as we shall later see, the obligation to allow appeals, especially in cases relating to the king’s revenue, was enforced. Randolph also assailed the right of Massachusetts to levy taxes, and obtained from the same law officer the opinion that the colony did not possess the right to levy impositions on any but its own freemen. If this were true, it had no right to levy any import duties, or any direct taxes, on non-freemen. This opinion was in harmony with the law of municipal corporations, and the principle on which it was based was made use of in the case of the crown against the charter of the city of London. It was also to be used with telling effect in the case which was already being made up against the charter of Massachusetts. Those who were attempting to develop a corporation into a commonwealth were much more exposed to attack on technical grounds like this than were the inhabitants of a province, for a province was a public legal structure at the outset.

When Randolph returned to New England he went as deputy of William Blathwayt, who had recently been appointed auditor general of all the royal revenue from the plantations except that which came from the customs.³ He also carried with him a commission as customs officer which had passed the great seal. A letter was sent to Massachusetts from the king, in which he expressed himself as very well satisfied

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with Randolph, he having acted “with all fidelity and circumspection.” The magistrates of the colony were therefore ordered to support Randolph, to restore the money which he had been compelled to contribute toward costs of court, to account to the crown for one-half of the forfeitures which had been received, to permit appeals in cases relating to the revenue, and to faithfully execute the laws of trade.¹

When Randolph arrived again in Massachusetts, near the close of 1681, he found that a naval office had been created.² James Russell had been made naval officer at Boston and Benjamin Gerrish at Salem. Upon them had been bestowed full authority to grant entries and clearances to ships, and to receive bonds and certificates as was required by the acts of trade. The object of this measure was to make some definite provision for the execution of the laws, but to do it in such manner as to keep the business in the hands of colonial authorities. Provision was also made in the same act for the publication by beat of drum in the market place at Boston of the acts of trade of 1660 and 1663, but, whether from oversight or intention, no mention was made of the act of 1673. The law also required that caution money should be deposited by the royal collector in advance of all special sessions of court for the trial of revenue cases. This was wholly inconsistent with the command of the king’s letter.³ Randolph at once found the naval office to be an obstacle in the way of his ambition to transact all the king’s business in his own office. Therefore he formally protested against the law. He claimed that it was repugnant to various clauses in the acts of trade and in his own instructions, all of which required that the examination of bonds,

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certificates, and securities, and the granting of entries and clearances, should be under the immediate charge of the governor and of the king’s collector.

Going back to the year 1645, when the first detailed act was passed by Massachusetts for the levy of customs duties, Randolph argued that the law which he was discussing simply provided for an old office with a new name. Richard Russell, the father of the naval officer, had for years been collector of colony customs, and had been succeeded by Captain Hull. Their functions, in Randolph’s opinion, had been much the same as those of the naval officer. In his opinion, the new office was as much a part of the fiscal system of the colony as was its predecessor, and in this he was substantially correct. His practical conclusion was that under the revenue acts of the colony, even with a naval officer, it made no difference where vessels came from. “If I seize any ship,” he wrote, “not legally qualified, her entry at this naval office is sufficient plea.” Masters anchored below the castle, he further stated, until they disposed of prohibited goods, and then entered with the naval officer. At a date, probably in the spring of 1682, Randolph wrote that since his return he had seen only three original certificates and those the governor had retained in order that they might be shown him. As the law for the establishment of the naval office contained no specific provision empowering officers, in their search for smuggled goods, to break open warehouses or other suspected places, Randolph repeatedly found himself balked when he undertook to make searches and seizures.

In any case Randolph was dependent on the will of colony officials when a warrant was to be issued which called for the assistance of a constable in an act of seizure. This he was not sure of obtaining. Randolph also had more than once to listen to insulting words concerning himself; he was threatened with arrest, damages were assessed against him, he was resisted while attempting to make seizures, his deputy was actually put under arrest. The slightest possible recognition was given to his commission.¹ In the cases

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which he brought to trial the collector fared no better than he did on his previous visit. “The Hope of Boston,” says one entry, seized for unlivering before entry. At the Tryall no witnesses were to prove the unlivery after Entry or that the Wines were Shipped at the Maderas as entered. Yet he [Randolph] was cast, [the defense] Insisting that he had no Warrant to seize the Ship. The Governor & Magistrate allowed his [Randolph’s] Patent sufficient Warrant & sent out the Jury 3 times, but they would not alter the Verdict.” When, in August, 1682, the agents stated in England,” There hath yet been noe forfeiture of Ship or Goods,” they set forth with clearness and brevity the failure of Randolph’s efforts. Randolph’s own unsupported statement, that since his coming the customs receipts of Massachusetts had fallen off from £1000 to £400 per annum, is not sufficient to counteract the weight of evidence contained in the simple fact that his attempted seizures had led to no forfeitures.¹

The arrival of Cranfield as governor of New Hampshire, in October, 1682, encouraged Randolph to believe that he might meet with better success on the Piscataqua. Cranfield had been commissioned as vice admiral, and this authority he later desired to have extended over the coast from the Kennebec river to Fairfield in Connecticut. Relying on the assistance of the royal governor, Randolph caused a warrant to be issued for the seizure of the ketch George.¹ This vessel, he found, had arrived in the Piscataqua two months before, but had produced no certificate to show that she was English built. She belonged to Scotch owners, and was manned and commanded by Scotchmen. Cranfield, in support of Randolph’s warrant, wrote to Stileman, the captain of the fort, not to allow the vessel to depart, and called a special court for her trial. But the vessel was allowed to drop down the river and escape. The jury brought in a verdict with costs against the king. Cranfield removed Stileman from command at the fort and from the council, and wrote the governors of various islands in the West Indies to seize the

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ketch, if she came thither. The affair simply revealed the fact that Randolph could no more rely on juries and native colonial officials to second his efforts among the settlements of northeastern New England, than he could in Massachusetts. All that he could now do was to lodge an appeal before the privy council against certain parties by whom he had been defeated before the courts of Massachusetts. When this had been done, events had reached the point in England where resort must be had to the quo warranto. Randolph was therefore resolved to cooperate in that, and efforts to enforce the acts of trade in Massachusetts under the charter of the company came to an end.¹

It is true that we have only the statement of Randolph concerning the cases which were brought to trial, and that the papers relating to them which have been preserved are too few to enable one to form a judgment concerning the evidence which Randolph was able to present against the vessels which he libelled. But from a broad view of the situation, taken in connection with the statements of Randolph as a whole, it seems clear that Massachusetts was nullifying the acts of trade. The process by which this is done has been made familiar at other times and places, and one recognizes its characteristics in the events and conditions which have just been described. The theory which was held by Massachusetts concerning its relations to English authority, whether that authority was expressed through ordinance or statute, was that of compact. It always had been such. It had always held that even the acts of parliament which mentioned the dominions were not in force within the colony until they were in some way accepted by the government of the colony. In its declarations of independence from English law, it had excepted no statutes. It is true that it had now recognized the binding force of two of the acts of trade, but it insisted upon enforcing them, if at all, in its own way and by its own officials. The only competent witness whom we have says that they were very imperfectly enforced, if enforced at all. He cites many cases to confirm his statements,

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and repeats his testimony in communications to many different people and at different times, but always to the same general effect. The Massachusetts authorities knew that the testimony was being given and of what nature it was. They had agents in England, who might have disproved it there if it had been false. It might also have been disproved in the colony itself. But Massachusetts in this matter let her case go by default, and the student is compelled to admit in general, though perhaps not in all its details, the truth of Randolph’s indictment. The course which Massachusetts pursued may have been in the interest of civilization, but loyal it was not. It pushed the claims of the local jurisdiction to such lengths as to amount to practical nullification.

But about the time of the dissolution of the Massachusetts company further steps were taken by the English government toward the extension of its customs administration in the colonies. We are informed¹ that about the beginning of 1683 William Dyer, who had been collector of the customs in New York, was sent to the island colonies and to New England to inspect the customs offices, and that he resided for some time in Boston. But Dyer’s appointment was temporary and of the details of his work apparently no information has been preserved. In 1685, however, the office of surveyor general of his Majesty’s customs in the North American colonies was created and one Patrick Mein was appointed to the position.² His commission had special reference to the collection of the duties imposed on intercolonial trade by the act of 1673, though his obligations also extended to the execution of all the acts. He was empowered to visit and search any places where commodities subject to the duties imposed by the act of 1673 were likely to be found. In order to enable him to do this in Maryland, and to make the seizures which might be necessary, Mein was given a writ of assistance by Lord Baltimore’s government. Instructions were at the same time sent to all the governors, in which the acts of trade as a whole were outlined

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and their enforcement was required.¹ The ketch Deptford was also employed in the service off the Virginia coast,² and if a complaint made before the Maryland council was true, Captain Crofts, the commander of this vessel, proceeded with great arbitrariness toward mariners whom he found it possible to mulct. These measures agreed well with the policy of revoking charters and consolidating the colonies, to which the English government had already committed itself; and in New England, if anywhere, the effects of that policy on trade relations might be expected to appear.

From 1682 until after the establishment of royal government under Andros, Randolph’s energies were chiefly devoted to the prosecution of the suit against the Massachusetts charter and to the inauguration of the system which superseded it. His office of collector and surveyor was, however, retained, and after he ceased the active performance of the duties of secretary and registrar under Andros, his duties as customs officer were again actively resumed. Boston, Salem, Ipswich, and Great island, at the mouth of the Piscataqua river, were declared by Dudley’s council to be the ports of entry for the middle coast line of the enlarged province. Vessels trading to the eastward of Cape Porpoise were permitted to enter at Falmouth. Somewhat later Bristol, Newport, New London, New Haven, Milford, Fairfield, and Stamford were added to the list of the ports of entry. By prohibiting the unloading of any part of cargoes at the Isles of Shoals before the same had been entered with both the collector of the royal customs and the collector of the province duties at one of the specified ports, a blow was aimed at a probable centre of illegal trade. Customs officers were appointed and stationed at the various ports. Coasting vessels were required to make due entries. A large committee of merchants and others, resident in the coast towns, was appointed by the council to consider the condition of trade and how it might be advanced and hindrances removed.

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The records afford evidence of occasional seizures, and we may believe that the existence of a royal government may have had some restraining influence on illegal trade.¹

But Randolph’s correspondence indicates that, as on previous visits, he found his efforts as customs official opposed at nearly every step. Prejudices which had originated in the experiences of past years obstructed his path. He found that some of the members of the council were traders, or were related to those who were such, and they thwarted him when he insisted that the laws of trade should be strictly enforced. Richard Wharton, a councillor, openly declared that the king in appointing Randolph secretary intended to reduce the people to vassalage. Randolph caused five or six ships to be seized, but that again aroused popular opposition. He complains that Dudley refused to assist him. A rival for privileges in the matter of seizures appeared in the person of Captain George of the Rose frigate. While his ship was lying at anchor in the harbor of Boston, the captain was allowed to make seizures or to prosecute as an informer. This was an anticipation of a practice which appears with increasing frequency in the next century, that of the bestowment upon naval officers of the right of search and seizure to be used in the enforcement of the laws of trade. That authority, however, was regularly exercised only while the armed vessel was cruising off the coast. Randolph rightly complained because, in this case, it was employed almost at the wharf itself. The marines also interfered with Randolph’s deputies when they were performing their duties. When Randolph interposed or complained, he was berated by the captain. The council seems also to have had trouble, not only with Captain George, but with the captain of the frigate Dartmouth, on account of disorders committed by their men while on shore in Boston.² When summoned to appear before that body, they replied that, if the president had any orders for them in the king’s service, they would obey him, “but as for the Councill, they had nothing to do

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with them.” Repeatedly and with the greatest formality they were summoned before the council, but they failed to appear though a fine was levied on one of their seamen. Randolph states that he complained of the usage to which he had been subjected, but he found it impossible to secure redress. Captain George seemed to be usurping his functions and, what was an even more serious matter, was taking his fees.¹

Occasionally, after the arrival of Andros, we hear of the seizure of vessels for violations of the acts of trade, while they were also liable to seizure for breach of the customs law of the province. So much irregular trading went on through Newfoundland, that Andros was ordered not to treat it as a plantation, but like Scotland or any foreign state, and not to permit the entry of European goods shipped at its ports.² As the province was enlarged so as to include the middle colonies, Randolph was brought into connection with Matthew Plowman of New York and possibly with other customs officers. Some correspondence ensued, but the connection was too brief to admit of any important results. However much Randolph might have complained of the indifference of Dudley and his council, when the government of Andros fell and he found himself a prisoner, he never tired of asserting that “the bottom and ground of all their complaints” was the enforcement of the acts of trade.³ This interpretation of an issue which was far broader than his language indicated was characteristic of Randolph and of his tiresome insistence on his own deserts.

The review which we have now presented of the commercial policy of England and of the efforts which were made to enforce it prior to 1690, fragmentary though it is, makes clear the fact that the feature of it which related to the staple was naturally viewed by the colonists as inconsistent with their interests. In the case of most of their imports and of an important part of their exports it imposed upon them, if executed, the necessity of making roundabout voyages and, in connection therewith, of paying customs duties in

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England. It also tended to restrict them, both in the case of purchases and sales, to the English market. Owing to the location of the British isles, the burden of the round-about voyages was slight in the case of the northern colonies, though it was serious for those which lay to the south and particularly for the islands. The increase of cost which, resulted from the restriction of their market and the payment of duties was also felt by all, though not in the same degree. In general, and especially among certain classes and in certain sections, the opposition of interests which was occasioned by the adoption of this policy was too great to be overcome by the sentiment of loyalty as it then existed. The policy, therefore, had to be enforced by specific and rigid administrative measures. It thus affords one of the best illustrations of the methods which had to be used in the administration of government from a remote centre and of the obstacles which it was necessary to overcome if the policy was ever to be made really effective.

The English government in its efforts to enforce the trade policy instituted inquiries at home and inquiries through special agents who were sent to the colonies. It called in the authority of parliament to reënforce that of the executive. It imposed additional duties upon the royal governors, and sought to bind these and the governors of the chartered colonies by special oaths and instructions. It appointed royal customs officials to reside in most of the colonies, and provided for their superintendence by a surveyor general of customs in America. The interests of the empire, as represented in this policy, operated as a threat imperilling the existence of every chartered colony. In connection with its enforcement steps were taken to change the chartered colonies into royal provinces and to unite those provinces into ever larger unions. The colonists found themselves being enveloped in a rapidly extending network of imperial relations.

These measures were to an extent calculated to attain the objects intended. But they were at best legal and official, and were subject to the limitations which apply to measures of that kind. Like the system of religious tests, they rested

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for their effectiveness on compulsion. There was nothing in them to elicit the spirit of loyalty, and much which was calculated to positively discourage it. It was always possible that the officials of the home government in England might neglect their duties and for various personal reasons permit the infraction of the law. The temptation to a similar course of action on the part of royal appointees who were resident in the colonies might be still greater—it was indeed likely to be so, if they identified themselves at all closely with the colonists. In the chartered colonies it was almost inevitable that the royal officials should come into conflict with the local authorities. Instances of the way in which this might come about have been given in the cases of North Carolina, Maryland, and Massachusetts. But the experience of Bland in Virginia, and not a few similar cases at later times, indicated that the creation of royal provinces and the appointment of royal officials by no means fully guarantied the execution of the laws or the establishment of harmonious relations. Even if the royal appointees were faithful and efficient—and many of them were not so—their efforts could only partially overcome the great natural and social obstacles which lay in the path of the enforcement of the acts of trade. The fact of the case was that the principle of mercantilism, as applied to the colonies, rested upon a tremendous assumption. The policy presupposed the existence of a high degree of both political and social unity as the condition of its success. In this case the two conditions were very imperfectly realized. The policy itself was therefore in the nature of an experiment and its history reveals a prolonged and only partially successful struggle against heavy odds.

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