Mr. Nisbet’s Legacy, or the Passing of King William’s Act in 1699
Alan CassINTRODUCTION
1 AN ACT TO ENCOURAGE THE TRADE TO NEWFOUNDLAND, 10 & 11 Wm. III, cap. 25, popularly known as King William’s Act, was given royal assent on 4 May 1699.1 This was the only act of Parliament that regulated the English fishery in Newfoundland until the supplementary act 15 Geo. III cap. 31 of 1775, An Act for the Encouragement of the Fisheries ... and for securing the Return of the Fishermen, Sailors and others ... Parliament did not repeal the act of 1699 until the act of 1824, 5 Geo. IV, cap. 51, An Act to repeal several Laws ... This act had been the legislative basis of the regulation of the fishery for 75 years, and its foundation for some 125 years. King William’s Act has also been central to historians’ interpretations of eighteenth-century Newfoundland. Unfortunately, officials such as Governor Hugh Palliser deliberately misrepresented the act in an attempt to have it support the policy they pursued.2 Some of those involved in the fishery represented the act as having been intended to restore the ship fishery and restrain the inhabitant fishery. This point of view was published and made available to bolster this late-eighteenth-century partisan policy. Since a policy favouring the ship fishery was promoted for 50 years from 1775, the misrepresentations of the 1699 act became inseparable from the actual history of the period. Even today, historians, antiquarians, and genealogists cannot rid themselves of the influence of the language and ideas of that policy. Settling inhabitants are sometimes portrayed as "deserters" from fishing ships who "squatted" illegally in distant coves to escape detection by the Royal Navy. Such are the myths of our history.
2 The concerns of later officials who interpreted King William’s Act and the distortion of the historical record by their attempts to suborn the act’s provisions through misrepresentation have hampered our efforts to understand the 1699 act and the Newfoundland fishery in the early eighteenth century. Eighteenth-century Chief Justice and historian John Reeves was concerned with the act’s provisions and perceived omissions. He was mainly concerned with constitutional and judicial history, and so viewed the act as if it were part of those histories.3 The legislators who drafted the act did not consider questions of either the form of government appropriate for Newfoundland or the range of legal regimes in Newfoundland, so the act hardly apprehended these subjects. The power to create these colonial institutions probably still lay within the royal prerogative.4 When the need for greater local policing in Newfoundland became apparent to officials, they could not find the legal basis for it within the act’s provisions. Subsequent commentators condemned the act on this ground even though it had not been intended to restrict local government.5
3 Later historians saw the act as exemplifying the goals of both trade and imperial policies, and judged it as ineffective.6 One of the most important historians of this period, Keith Matthews, described the purposes of King William’s Act as explicitly encouraging the migratory fishery, restraining inhabitancy, and "deliberately refraining from establishing institutions of law and government on the Island."7 After casting the purposes of the act this way, Matthews then considered it ineffective in achieving the goals he thought the act embodied. For all the centrality of the act in our historical narratives, historians have tended to read the intention of Parliament from the text of the act. However, an examination of deliberations leading to the passage of the bill tells a different story. Again, the legislators did not consider questions of trade or empire when passing the bill. They only considered who could fish in Newfoundland, and how they should go about it. The act was limited in the extent of its purview.
4 Did the act actually define a government policy or a merchants’ policy? The act created problems for English officials throughout the eighteenth century when it did not seem consistent with their policy; so they evaded it, ignored it, or re-interpreted it at those times.8 Historians have relied upon the official instructions to convoy commanders, the commanders’ reports, and correspondence in the official archives for much of their understanding of eighteenth-century Newfoundland, and then interpreted the act in light of their understanding of the period, as well as the text of the act.9 I suggest that the official interest in Newfoundland has not been a good basis for judging the effectiveness of the act. The merchants did not want a colonial regime which could interfere with the fishery and cost money, so they judged the act more favourably.10
5 Historians have also noted the influence of the act in the development of political and legal formations in Newfoundland. However, as Patrick O’Flaherty pointed out, "the long-term effects of King William’s Act have not been carefully studied."11 O’Flaherty has given the act and its effects considerable attention.12 He has been joined by historians interested in the legal history of Newfoundland who have studied both the meaning and the effects of the act.13 These studies have moved our knowledge of the effects of the act a long way from those "myths" Peter Pope described as part of the traditional historiography of Newfoundland, although as we have seen they are still coloured by those myths.14 The revisionism Pope sees as a "tall order" could be helped by a closer understanding of the circumstances affecting the drafting of the act. The Thomas Nisbet of the title of this article was influential in shaping the act, and through examining his interventions we can recover the intent of the act. That is a necessary first step before assessing its effectiveness.
THE GENESIS OF THE BILL
6 The genesis and the development of the act of 1699 have been a mystery — no contemporary accounts of the intentions or the participation of any principal law-makers in the process survive.15 Contemporary documents merely note the passage of the bill through the two houses of parliament, without commentary.16 The few surviving records of debates from the 1698-1699 session of parliament are silent on the Newfoundland Trade Act, although Sir Richard Cocks may be alluding to it in his diary as "biassed by private ends" when talking of the fishery.17 No mention of the act appears to exist among the extant correspondence from the period.18 It is mentioned in the minutes of the Board of Trade with respect to Thomas Nisbet, however.19 And four items that concern the Newfoundland Trade Act occur in the papers of William Blathwayt, now held at Colonial Williamsburg.20 One is a copy of a bill presented to the House of Commons, 25 March 1699, for first and second reading. This was delivered to the Board of Trade but removed by Blathwayt.21 The other items are a representation from the merchants of Exeter, giving their reasons for passing the bill that was presented for first and second reading, and two anonymous printed sheets, one favouring and one opposing the bill.22 None of these documents shed light on the origins of the act.
7 This lack of information has given rise to speculation about the authors of the act and their intentions. Historians Matthews and Jerry Bannister see the hand of government or the Board of Trade in the act, while others see it as a result of West Country influence.23 Many see the act as a compromise between the opinions of the government and West Country merchants, and a statutory enactment of the previous charters regulating the Newfoundland trade, with some new additions. It thus fits into a wider set of assumptions and policies about the Newfoundland trade.24 The timing of the act has also been a mystery because no specific stimulus for legislative action on the Newfoundland trade immediately before or during the 1698-1699 sitting of Parliament is apparent.
8 An educated guess about the timing of the act and the reasons for its introduction can be made from circumstantial evidence. In the early months of the session three presentations on the Newfoundland trade came from the Board of Trade, Captain Norris the Newfoundland convoy commander, and some fishing-ships’ captains. Each contained suggestions for a review of the regulation of that trade. These suggestions, together with a chance petition for a bill to give statutory embodiment to the Company of the Royal Fishery of England, were probably enough to prompt the idea of drafting an act for the Newfoundland fishery and trade. That act then became part of the partisan struggle of that session, which itself helps to explain the content of the legislation. Like the act itself, the act’s passage through the House of Commons was problematic.
9 A draft bill on the Newfoundland trade was presented to the House of Commons for first reading on 25 March by Sir Edward Seymour. It was read a second time on 27 March, and then committed to a select committee for further consideration. As noted above, a copy of the draft bill was delivered to the Board of Trade 28 March, and the text of the bill must also have been available to the public. The 29 March minutes read:Mr. Thomas Nisbet with Mr. David Waterhouse and another merchant offered verbally some objections to the Bill for encouraging the trade to Newfoundland. They said they were to be heard before the Committee of the House, and were told the Board could not properly interpose unless required to do so.25Nisbet, a merchant with an interest in the Newfoundland trade, was probably from London. David Waterhouse was a bill acceptor for the Newfoundland trade.26 Neither Nisbet nor Waterhouse were members of the House of Commons, nor were they top-ranking merchants. They may have represented many colleagues from the ranks of middling traders, those making their way up and those most affected by any statutory changes in the conditions of their trade. They had reservations about the contents of Seymour’s draft bill, sufficient to want to intervene before the select committee. The Board of Trade was not involved in drafting the bill, and only if requested would its members have made a representation. No record shows that the Board made any representation on the bill.
10 Why would Seymour present a draft bill that generated objections from London-based Newfoundland traders? How would the House of Commons members view a difference of opinion between Sir Edward and the London merchants? The answer to the first depended as much on Seymour’s current posture in the politics of the house as on the merits of the case for his bill; the answer to the second depended on how a majority of the members viewed Seymour’s position as well as the bill’s merits. It is necessary to make a detour through the history of the House of Commons during the first session of the fourth parliament of William III to answer these questions.
THE HOUSE OF COMMONS,DECEMBER 1698-MAY 1699
11 Under the Triennial Act, the Parliament of 1695-1698 was prorogued 5 July 1698, and then dissolved. The elections of July and August 1698 brought new members to the House of Commons, many of whom were opposed to the current administration of the "Court Party" and to King William’s desire to retain many of his armed forces.27 The opposition often styled the "Country" party, and opposed standing armies in peacetime both on theoretical and financial grounds. They preferred the idea of the militia, that is civilians as arms holders.28 They were also interested in fiscal restraint in general, because the main direct tax, the land tax, fell directly upon the country landholders. The Country party were also against financing war through the raising of loans through such institutions as the Bank of England, which they thought gave the government too much independence of the house in financing its affairs. The leaders of this faction in the House of Commons were Sir Edward Seymour Bt., member for Exeter, Sir Christopher Musgrave, member for Oxford University, both old Tories; and Paul Foley, member for Hereford, and Robert Harley, member for New Radnor, who were "New Country" or "old Whig."29
12 There was no ministry as we know it, as King William III was his own prime minister, and, although earlier he had tried to have a bi-partisan administration, by 1698 he depended upon the leaders of the Court party to support his policies. It was from amongst these men that he appointed the chief officers of state. The most important of these in the House of Commons were Charles Montague, Chancellor of the Exchequer and member for Westminster; Sir John Hawles, Solicitor-General and member for Mitchell and Bere Alston; Lord Coningsby, member for Leominster; Goodwin Wharton, Lord of the Admiralty, member for Buckinghamshire; and Lord Ranelagh, Paymaster-General and member for Marlborough. Montague, Coningsby, and Ranelagh were also members of the Privy Council, in which they were joined by James Vernon, Secretary of State and member for Westminster. The Clerk of the Privy Council, William Blathwayt, was also Secretary at War, member for Bath and a member of the Board of Trade. Vernon and Blathwayt supported the King’s interest, but felt themselves less bound to the parliamentary Court party.
13 At the end of 1698 and beginning of 1699 James Vernon was sole Secretary of State, and the government officer most directly involved in Newfoundland affairs. The Secretary of State was responsible for home, foreign, and colonial affairs, and was also the conduit from the King when he required action by the other departments of state. The other departments were often managed by a board appointed to conduct their affairs. The Commission of Trade and Plantations, or Board of Trade, was not an executive branch, but an overseeing agency. It could, through the Secretary of State, request executive action from boards such as the Admiralty, Treasury, or Ordnance, and often made representations to the King with recommendations for action.
14 The relationship of the various boards and departments to the Houses of Parliament was unclear even to contemporaries. Many, if not most, of the various board members and officers of government were members of one of the two Houses. In their official capacity they could bring forward bills in the House, which they could also do in their private capacity. The failure of a bill brought forward by an officer of the crown did not mean the defeat of the government, nor necessarily the resignation of the officer. The king met with the senior officers of state in a cabinet council most Sundays when he was in England, but the business does not seen to have been parliamentary management except for the money votes.30
15 The Court party in the House of Commons looked to support from the many members who had been given official offices, support the opposition saw as the result of bribery, and which was an unwarranted drain upon the exchequer. The Court party lost much of its support in the votes on the army estimates and seemed unable to recover. Vernon’s letter to the Duke of Shrewsbury of 5 March 1699 notes their plight: "my Lord Chancellor or Mr. Montague, who are still called ministers, though there are none that I see who take upon themselves any management. I hope they will recover out of their consternation; and the other gentlemen do not appear so united as to make a fixed party."31 The Court managers had suffered a serious defeat in the passage of the Disbanding Bill for the land forces, which not only reduced the size of the army far below what William thought necessary, but removed all non-English-born personnel. The ministers were also being hounded on the state of the navy and on the supply bills for the year.32 At the point the Newfoundland bill came up for consideration, the ministry was not promoting any policy other than trying to hold the line on the armed forces and to pass supply bills.
PARLIAMENTARY SESSION TO 25 MARCH 1699
16 The Country interests had been granted leave to bring in several bills that were embarrassing to the ministry. One of these, the Irish Woolen Bill of Sir Edward Seymour, went against the tenor of the policies the ministry was itself pursuing for Ireland.33 H.F. Kearney observed that the passage of that act showed that in the case of commercial bills, passage by Parliament does not prove they were in accordance with ministry policy. The constitutional forms of the acts could give the historian a misleading impression of the state’s role in them.34 We shall find that it was not the state, but commercial interests, that dictated the form of the Newfoundland Trade Bill as well.
17 Seymour’s Irish Woolen Bill was read for a first time 21 December 1698, read a second time 7 January 1698/9, and committed to a committee of the whole House.35 This committee was chaired by Sir Joseph Tredenham, member for St. Mawes in Cornwall, and Seymour’s brother-in-law.36 Another piece of business was put before this Committee of the whole House on 18 January, when it had referred to it for consideration the "Representation of the Commissioners for Trade and Plantations" that had been laid before the House that day by William Blathwayt. This representation had been requested by the House on 7 January so that it could see what papers the commissioners had relating to the encouragement of the woollen manufactures of the kingdom.37
18 The commissioners’ representation was identical to the full text of one they had made to the king on 23 December 1697. This had included, amongst the discussions of many different trades, a discussion of the Newfoundland trade. The Commissioners gave reasons for the decline in the Newfoundland Trade,38 and suggested as one encouragement for the fishery that "there be a due execution of the Western Charter."39 Although the committee of the whole House was studying the Irish Woolen bill, this recommendation was brought to its attention. The Committee completed its work on the Irish bill before 22 February, when the report was made by Tredenham, the amendments voted on, and the bill ordered engrossed.40 Seymour’s work on his bill was done when the report stage was reached.
19 Early in 1698/9 the annual statistical returns and reports from Captain Norris’s sojourn in Newfoundland in the summer of 1698 were coming to hand. (Captain Norris was Commander-in-Chief of the Royal Navy convoy ships and Governor of the Fort and Garrison at Newfoundland.41) Norris reported on his commission to the Council of Trade and Plantations and to the Admiralty, reports received or read in early February 1698/9. These reports contained the returns of the fishery for the 1698 season, as well as a petition of the masters of ships in Newfoundland to Captain Norris.42
20 The 1698 season was the first after the signing of the Treaty of Ryswick ended the Nine Years War. The migratory fishery expanded with the return of peacetime conditions, but because there had been a much smaller fishery during the war years, there were now insufficient experienced workers to provide for all the fishing ships’ complements. The reduced wartime ship fishery together with the French destruction and dislocation of the inhabitants in the winter of 1696/7 had disturbed the regular allotment of fishing rooms in the harbours of Newfoundland.
21 The masters’ petition complained of "the great abuses and encroachments made by the inhabitants and boatkeepers on ships’ fishing rooms in this country and especially in this harbour" (St. John’s), about the boatkeepers ("from our area" — that was South Devon) taking all the able fishermen and shoremen, getting the fastest ships to take them so that they could get the best fishing rooms, making the fishing ships rent rooms, and other complaints. It argued that inhabitants should not take rooms before the fishing ships arrived and that only free ships outfitted and cleared from England should be allowed, and that no second voyages be allowed unless cleared out from England. It also claimed that the New Englanders were constant traders dealing rum to debauch the fishermen. Eleven of the masters signing the petition were, according to the list of fishing ships,43 from Topsham, with two (Arthur Holdsworth, admiral, and Edward Bulley, vice-admiral) from Dartmouth and two from London. Four of the Topsham masters had been fishing out of Petty Harbour, just to the south of St. John’s.
22 The Board of Trade received the report on 6 February 1698/9, and its contents may well have been known within interested government and parliamentary circles within the week.44 Captain Norris was of the opinion that "the merchant adventurers have the preferable encouragement before the planters and boat-keepers," suggesting that "In relation to the trade of Newfoundland, I am humbly of the opinion it cannot be more beneficial to the general good than under its old constitution."
23 On Monday 20 February 1698/9 a Petition from the Company of the Royal Fishery of England was presented to the House of Commons. The petition asked that the company be re-established by Act of Parliament, because under its establishment by Letters Patent (Charles II, 25 September 1678) subscriptions (to its capital) were lacking. It was ordered that leave be given to bring in such a bill "for the Encouragement of the Royal Fishery of England."45 (Seymour had been a subscriber to the Royal Fishing Company of 1664 and to the Company of the Royal Fishery of England of 1677.46) Almost immediately it was recorded in the journal: "Ordered that leave be given to bring in a bill for encouraging the trade to Newfoundland; and that Sir Edward Seymour, Mr. Gwyn, and Mr. Scobell, do prepare, and bring in, the bill."47
24 The establishment of the English trade and fishery to Newfoundland had earlier been made by grants (1610, 1637), commission (1633), charters (1623, 1634, 1661, 1676), orders-in-council (1661, 1663, 1671, 1675, 1677), and laws, rules, and ordinances (1653). This led to conflicting regulations and confusion, and since 1680 there had been no overriding set of regulations, rather a minimal consensus, probably based upon the 1634 Charter.48 The representation from the masters of ships in St. John’s showed that the current situation was not satisfactory for the fishing ships from Topsham (Exeter), so it appears that Seymour, the member for Exeter, saw an opportunity to establish the fishery under a statute. Furthermore he could fashion the statute in ways agreeable to his West Country constituents and perhaps discomfiting to the ministry’s London financier friends.
25 The committee charged with drawing up the bill consisted of Seymour, his nephew Francis Gwyn, member for Sir Edward’s pocket borough of Totnes, and Francis Scobell of Cornwall and the Middle Temple, member for Grampound, who was also on the committee drafting the bill for the Royal Fishery. Seymour had been a member of the Privy Council from 1673 to 1689, so he had been in the council when the Western Charter of 27 January 1675/6 was issued.49 It was this charter from early 1676 that formed the basis for the bill which Seymour presented to the House on 25 March 1699.
26 In the meantime, the question of Newfoundland and its garrison had arisen on 4 March in the committee of the whole House to which the annual supply bill had been referred.50 Seymour opposed the sums proposed for the Newfoundland and West Indies garrisons as new expenditures and too large. He thought that the colonies should maintain the garrisons themselves. He added that it was "not in the interest of England to encourage Planters in Newfoundland, but rather to encourage the fishing ships sent from England." However, there was no governor in Newfoundland while the French had one, and to keep the coast in English hands a small garrison of 40 men was kept in a fort at St. John’s. Charles Montague agreed that the garrison was useful, but believed that if the English government abandoned it, Newfoundland could not afford to pay for it. The balance of trade was against England except in the plantations, which could never raise the money to finance their garrisons.
27 In the same vein, Sir James Houblon, a merchant and a member for London, pointed out that the Portuguese had lost the plantation trade in sugar from Brazil because the cost of maintaining garrisons had been put on the planters (presumably to their financial discomfort). Houblon also pointed out that plantations were being neglected in Barbados (in Barbados a 4.5 percent duty was collected on dead exports, to a total of £15,000 per annum in 1700, part of which was used to pay the governor’s salary, some re-directed to the king’s household expenses).51
28 Arthur Moore, member for Great Grimsby, felt that a garrison was not suited to Newfoundland — the soldiers would exact duties from the fishermen drying their fish there. The island should be defended by the vessels already committed to its de-fence. The debate continued as to whether it was appropriate to have soldiers over-winter in Newfoundland where so many died. It was pointed out that the numbers of inhabitants in Newfoundland had decreased and consequently the possible militia, while no fleet could possibly secure so great a coast. A militia was preferable to regular soldiers because the militiamen were seasoned to the climate.
29 Sir Christopher Musgrave considered a governor unnecessary in Newfoundland, and likely to take advantage of the inhabitants. Montague closed with the observation that governors of plantations should be paid from England, not by assemblies. Only in this way could the true interest of England be maintained, so that if manufacturing in the plantations was contrary to England’s interest then there was a force to keep the planters in order.
30 This round of debate illuminates the thoughts of members on what were general Newfoundland questions — garrisons, governors, militia, duties, stationed ships, and wherein lay the interests of England. The debates were recorded by William Cowper, who sat in the "Mony-Chair" as chairman of the committees of supply and of ways and means, 11 January to 4 April 1699.52 Cowper noted in an aside to Seymour’s first speech that the advantage from Newfoundland to England was £300,000 per annum. This was the figure given in Captain Norris’s abstract of returns received by the Lords Commissioners of Trade 6 February 1698/9.
31 Members of the House were aware of the value of the Newfoundland fishery, particularly its help in maintaining England’s balance of payments, but, with the desire for stricter fiscal economy, they were not willing to extend the obligation to defend the island. In the case of Newfoundland, this meant no governor (the ten shillings a day extra already paid to Captain Norris while in Newfoundland — a rate of £180 p.a. on top of his captain’s salary — compared with the £240 p.a. paid from the exchequer to the Bermuda governor).53 Montague wished to have a larger supply, to help the king keep his troops, and so sought reasons for extending the obligations of the exchequer to the plantation government and defence.
32 The debate over the king’s army came from within the strongly held convictions of both parties. Seymour had been a lord treasurer and in the bipartisan wartime ministry until 1694, when his opposition to a general excise tax had led to his removal from office. Such extra taxes were needed to fund the type of massive loan made when the Bank of England was founded. The Bank was backed by many rich London financiers and merchants, mostly Whigs, giving them an outlet for their capital during a period of trade difficulty.54 Sir James Houblon was a director of the Bank of England, his brother Sir John the first governor. Seymour had a strong dislike of the London financiers and their merchant supporters.
33 The Members of Parliament were right in not wishing to commit themselves to an increase in overseas obligations, because many of the existing obligations could not be met. The Ordnance Office found it difficult to meet the demands for stores in Newfoundland, because the Treasury said they did not have the money to give them, although Council authority had been given.55 The commander of the St. John’s garrison, Colonel Gibson, had had to buy a ship to make a voyage to New England to get victuals on credit for the garrison, and these were expected to be paid for by applying to the agent for Massachussetts, Sir Henry Ashurst, member for Wilton, who had had a bill of credit issued to him for paying extraneous costs.56
34 These considerations dominated Board of Trade thinking on Newfoundland. When the King in Council asked the Board for "a Representation upon the Business of Newfoundland" on 24 March, the Board dealt with its own activities in relation to other government departments rather than upon the issues perplexing the trade.57
SIR EDWARD SEYMOUR’S BILL
35 The bill to encourage the trade to Newfoundland that Seymour presented to the House on 25 March 1699 contained a preamble that later proved to be the only part of the act to survive in the final version.58 The preamble was unexceptionable, as it used the language of many previous trade acts.59 The bill continued with a description of how the Letters Patent of 27 January 1675/6 had been granted, and then decreed that the clauses of those Letters Patent (except as altered by this bill) be continued in force. The force of the bill was exclusionary, aimed at excluding bye-boat keepers (fishermen who kept their boats in Newfoundland but travelled each year to Newfoundland from their homes in England) and at encouraging the inhabitants to leave Newfoundland, and to keep the trade confined to English fishing ships. The description of the granting of the Letters Patent of 1676 said that it was in response to "the humble petition of the merchants, owners and masters of the ships and inhabitants of the Western Ports of this Kingdom adventuring to Newfoundland in fishing voyages." Seymour’s bill favoured this group of adventurers.
36 The tenor of the draft bill was to allow only ship fishermen from England, Wales, and Berwick on Tweed to trade with and fish in Newfoundland, with the exception of inhabitants with families who could remain on the fishing rooms (stretches of shore with buildings for the drying of fish) they were rightfully possessed of before the passing of the act. Nothing was said about the clause in the 1676 Letters Patent that nobody was to plant within six miles of the coast. This had been a de facto ban on planting, as distinct from shore activities accompanying fishing, but had never been observed. The presence of inhabitants was now taken for granted. Over-wintering inhabitants were said to be useful in securing the boats, stages (for landing fish), salt, and supplies left on the island by the migratory outfits. They also helped to maintain the right of English sovereignty by occupation.
37 Seymour’s bill refined the clause from the Letters Patent that prohibited the carrying of passengers to Newfoundland. Now only ships crews, co-owners of ships and sharers of the voyage, together with those families going to settle and their waged servants, but not sharers, would be allowed passage. This would exclude bye-boat keepers, who travelled as passengers from England to fish from their boats laid by in Newfoundland. All the fishing ships were to outfit in England, except for supplies of salt, for the whole season for their whole ship’s company. This section was aimed at restricting the New England supply trade. The bill also included articles prohibiting throwing ballast stones into the harbour and defacing and destroying stages and flakes. It also sanctioned the practice that the captain of the first ship to enter a harbour would be admiral, and he would ensure the proportioning of the fishing rooms, see the rules put in operation, and, at the end of the season, submit an account of their harbour to the Committee of Trade and Plantations. Each of these articles had been included in almost all previous regulations.
38 The bill was read a first time after it had been presented to the House 25 March, and then read a second time 27 March. After that reading, the bill was committed to a select committee of 24 named members, the members who sat for the counties of Cornwall, Devon, and Dorset, for the seaports, and all members who were merchants.60 The named members included Seymour, Sir Bartholomew Shower, member for Exeter, Francis Gwyn, Peter Shakerly, Sir Joseph Tredenham, John Gurdon, and Sir Henry Ashurst. There were slightly more members with an inclination to or adherence to the Court party than there were of Country persuasion included in the committee.61
THE SELECT COMMITTEE ON THE NEWFOUNDLAND BILL
39 The committee met in the Speaker’s Chamber at 5 p.m. on 27 March 1699. We are extremely fortunate to have the minute book of the under-clerk, James Courthope, who took the minutes of the meetings of the Newfoundland Trade Bill committee.62 These minutes give the dates of the meetings and some of what transpired. They do not list the members attending, nor name the members speaking. They do name witnesses and their testimony in several cases. They give a good idea of how the bill was amended.
40 At the meeting 27 March the Committee adjourned until the next morning. On 28 March the Committee met and chose Francis Gwyn as chairman.63 Gwyn may have been put forward by Seymour, in much the same way as Tredenham was chosen chairman of the Irish Woolen Committee, so that Sir Edward had a relative in the chair but could present his own arguments to the committee. Unfortunately for Seymour, a family problem now arose.
41 On 24 March, leave was given "to bring in a Bill to enable Popham Conway esq. and his brothers, to make leases of their estates: and that Mr. Sloan do prepare, and bring in, the Bill."64 Popham Seymour Conway and his brothers Francis and Charles were Sir Edward Seymour’s sons. They had inherited their cousin’s, the Earl of Conway’s, estate upon his death without heirs, while still minors, and took the Conway name. They were now trying to gain access to some of the wealth against their father’s wishes. The bill was presented for first reading on 30 March, on which day Seymour was granted "leave to go into the Country upon Extraordinary Occasions," the formula used when family business called one from the House.65 He did not return to the House this session. The bill would go forward without him.
42 The Newfoundland Trade Bill committee met Thursday 30 March 1699 with Gwyn in the chair. The bill was read over and some merchant witnesses appeared who made their objections to it. One witness, Mr. Nisbet, claimed that "restraining this trade would be a great detriment to England," and that if the six-mile rule were to be put into effect it would be prejudicial to the merchants.66 This was probably the Thomas Nisbett, merchant, who was named as a Commissioner to take Subscriptions to the Land Bank in the list presented to the House 15 February 1698/9.67 A Mr. Manston was a witness who appeared to support the bill, declaring that the "By Boats takes up the ships fishing ground and become planters, and great numbers goe and settle in New England. Navigation is not promoted nor increased by the By Boat men."68 Mr. Manston could have been either Henry Manston or Thomas Manston, masters of ships from Topsham, who signed in St. John’s the petition in late 1698 to Captain Norris about the encroachments of inhabitants and boatkeepers on ships’ fishing rooms.69 The meeting of the Committee was then adjourned to meet again Monday 3 April 1699.
43 At this next meeting several merchants appeared again as witnesses, but before proceeding to testimony the original charter was laid before the committee — presumably to give the members who were less conversant with the trade some background on how the trade had been regulated. Which original charter they read is hard to know because the reading of the first clause could have been from either the Charter of 1634 or that of 1675/6. The clause as quoted was, "If any man shall kill another or if any shall steal the goods of any other to the value of 40s., the offender shall be brought into England," which applied to the first clause of both charters, but continued, "and tryed in any County as his Majesty shall direct," which was in neither charter.
44 No other reading of any other clause from the charter was noted in the minutes, but a totally new clause was brought forward: there should be two green men for each boat, one of whom should have been at sea but one year, and the other who had never been to sea (from an erasure it seems the latter was originally limited to two years at sea, but argued down to being no years at sea).
45 It was then reported that several persons came forward in support of Seymour’s Bill, and read and entered as testimony the printed sheet "Some Reasons humbly offered to the Honourable the House of Commons for passing the Newfoundland Bill," much of which is quoted verbatim in the minutes. The Committee meeting was then adjourned to Saturday 15 April.70
46 On this day "several clauses were offered to be added to the Bill." Who suggested them is not mentioned. Nisbet is noted as taking exception to 1680 as too distant a definitive date, to having vice-admirals as judges, and to taking the stages from planters who had built them. Someone noted that there had been great infringements upon ships’ rooms since 1680, but Nisbet’s opposition to that date found its way into the final act, when 1685 was set as the definitive date for ships’ rooms.71 On the question of vice-admirals, he lost his argument. On the planters’ rooms, the final act established that those rooms that had been built and were subsequently built by planters and others that had not been ships’ rooms since 1685 were to be retained for their use by planters and others.
47 A William Holman and a Thomas Scott, both merchants of London, had on 21 February 1698/9 presented a petition to the House on behalf of the owners of two ships, that a bill be brought in that they be made free.72 The Navigation Act of 1696, 7 & 8 William III, c. 22, had forbidden foreign-built vessels the plantation trade, making them "unfree."73 The petitioners from St. John’s to Captain Norris had proposed that only "free" ships provisioned and cleared from England be allowed in the Newfoundland trade, and Holman may have wished to preclude any such clause in the act, as he was being interested in the Newfoundland trade. The entry in the minute book for Monday, 14 April, merely states that the committee met and proceeded upon the bill.
48 The committee met next day and decided upon a number of clauses. The clause concerning bye-boat keepers had been postponed, but it was now decided that they should take the two green men, one with no experience, the other with one year’s experience. The bye-boat keepers were not to take up ships’ rooms. A proposal was made that the customs collectors in the ports should take bond that the byeboatkeepers had two green men in every six, and that the masters of ships had one green man in every five. (The final act called for the collectors to take oaths and issue certificates of compliance, but not take bonds.)74
49 The committee met next day, Tuesday, 19 April, on which day a clause was proposed to restrain the planters, which, if it followed the previous argument, was one to make planters take two green men in six. Another proposed clause, not adopted, but which led to a different one included in the act as passed, proposed that "in case difference arises about the stages and shipps the Comander of any of his Majesty’s Ships of Warr there present shall determine the right." Had this proposal been accepted, it would have taken much of the authority of the fishing admirals from them, even more than Nisbet had wanted, but the act as passed left the fishing admirals with determination in the first instance, with leave to appeal their decisions with any of the commanders of his majesty’s ships acting as convoys.75
50 The committee adjourned until Friday when it was proposed that encouragement be given to the inhabitants. This may have been against the proposal to restrain the planters put forward the previous meeting. It was proposed that the planters have the "liberty of men that have been in the Sack ships & those that have been formerly in Newfoundland and as many green men as they please which is liberty enough & will sufficiently supply the planters." This would have given the planters two sets of experienced men to hire in Newfoundland, the employment of whom would not have interfered with any English hiring. The sack ship men referred to were part of the North Atlantic maritime labour pool.76 "Those that have been formerly in Newfoundland" probably referred to the winter servants who had also served the inhabitants the previous summer, many of whom had long experience in the fishery. The act as passed though, decreed that the inhabitants take two green men in six.77
51 The final meeting of the committee was on Saturday, 22 April, when several more clauses were presented and the bill ordered reported to the house. The work of the committee was done, and as we shall find, the final form of the act was in place.78
THE PASSING OF THE ACT
52 On Monday, 24 April, in the House of Commons, the Newfoundland trade committee was ordered to report the following morning. Mr. Gwyn then reported the committee had considered the bill and had made several amendments. The report was ordered to be taken into consideration the next morning, but this was postponed to 1 May.79
53 Monday, 1 May, the House divided on the question whether to take the report into consideration. This was decided in the affirmative, there being 83 yeas against 63 nays. The tellers for the yeas were Peter Shakerly (Chester) and James Lowther (Carlisle), and the tellers for the nays were Sir William Coryton, member for Callington (Cornwall) and John Perry, member for New Shoreham.80 Shakerly, Coryton, and Perry generally voted with the Country party, Lowther with the Court. None represented constituencies with other than occasional connections to Newfoundland, but both Shakerly and Lowther were active in promoting commercial navigation in Chester and Whitehaven. Lowther and Perry were active members of the house, often being named to committees and acting as tellers. Lowther, Shakerley, and Coryton were members of the Inns of Court.81 Lowther, Coryton, and Perry had served on the committee of the House that had considered the petitions on Newfoundland received from various towns in late 1696 and early 1697, at the time of the French raids and the loss of the Newfoundland harbours. This committee was of the opinion that "the trade to Newfoundland doth very much promote navigation, increase seamen, and is of great profit to this nation, and of advantage to us in the balance of trade," very much the language of the preamble to the 1699 act.82
54 On 2 May it was reported in the Commons journal that, "An ingrossed bill for encouraging the trade to Newfoundland was read a third time." The bill passed, and was given the title, "An act to encourage the trade to Newfoundland." Francis Gwyn was ordered to carry the bill to the Lords to ask for their approval.83 The Lords read the bill the first time that day.84 The House of Lords read the bill for a second time on Wednesday, 3 May, and then, as a committee of the whole House, studied the bill for a considerable time. Upon resumption of the House, the Earl of Stamford reported that the committee had gone through the bill, and thought it fit to pass without any amendment.85 Next day it had a third reading, was then passed, and the Commons notified.86 The Royal assent was given that day, which was also the day that session of Parliament was prorogued.87
CONSEQUENCES OF THE BILL
55 As we have seen there is no evidence that this was a government bill, coming either from a ministry or from the Council of Trade and Plantations. The evidence strongly suggests that having been given relevant grounds, Seymour realized an opportunity to attack his opponents through a partisan bill. The original Seymour bill was a direct descendent of the anti-bye-boatkeeper proclamations of 1660 and 1675. It came from the opposition of the freemen of Exeter (Plymouth was no longer as important in the Newfoundland trade) to the ventures of nearby villagers in a trade that the freemen thought they should monopolize.88 They wanted to control the entry into the trade, and to have restraints imposed upon the trade, such as restricting the supply of the fishery to old England. But as a restrictive measure it went against the practices of many other merchant groups who gained from an expansive trade.89 When Seymour left for the country the bill was refashioned by merchants and ships’ masters interested in what Patrick O’Flaherty has called "the micro-management of the trade." The proposers of the amending clauses aimed to solve the current irritants of the allotment of rooms and the allotment of experienced servants with as little restraint of trade as possible, and they appear to have succeeded.
56 The "micro-managers" did not try to create some overarching scheme of government for the island. The act was not the effort of officials who wanted a structure of government to control what happened on the island. Most opposition to the act came from officials, with some opposition from merchant groups who wished to restrain what they saw as competitors — usually the New Englanders, but often inter-lopers in general. It is difficult to measure the opposition of officials, for often it was self-serving at the same time as appearing to be unbiased. An interesting example is provided by George Larkin, who provided a report, often quoted, on the efficacy of the act in 1701.90
57 In late 1698 Sir Charles Hedges, Judge of the Court of Admiralty and Member of Parliament for Orford, wrote to William Blathwayt at the Plantation Office recommending a protégé of his for some office of law or admiralty in the plantations. George Larkin had been Hedges’s clerk for five years, then a Deputy Judge Advocate of the fleet, but had been unemployed since the peace.91 Nothing seems to have come of this request, but in 1700 Sir Charles Hedges became a Secretary of State, and so a non-working member of the Board of Trade, and was in a better position to secure some employment for Larkin. Larkin was sent on a roving commission to the North American colonies including Newfoundland. His subsequent report on Newfoundland was full of the oft-repeated horrors of that station’s lack of law, and contained strong hints that it required the seasonal or permanent appointment of a justice like himself. In some of his arguments he anticipated John Reeves, who was appointed the first Chief Justice of Newfoundland in 1791, by 90 years.92
58 Larkin and Reeves both saw the need for a justice system in Newfoundland, but a justice system required and engendered state institutions that seemingly could only be erected at the expense of the fishery. Most venturers to Newfoundland did not want to be obligated to support any institutions of state — as they constantly said, the fishery could not bear the cost. The only two agencies of control that cost the venturers nothing were the naval commanders and the fishing admirals who visited the island each summer. A general court of venturers, principal inhabitants and navy commanders such as met under Captain Crowe in 1711, to hear and decide disputes and make recommendations at the end of the season, together with a commission of peace, would have been a possible cheap solution to keeping order.93
59 Since 1670 (and before) a convoy of warships from England to Newfoundland had provided protection of the fishing ships and the fishing effort during the fishing season. The commanders of the warships had been available to try to ensure a measure of tranquility and dispute resolution in conjunction with the fishing admirals.94 The naval commanders were, however, often critical of the lack of effort on the part of the fishing admirals and also on the capacities of the fishing admirals to do their duties.95
60 The very unsure administrative capacities of the fishing admirals individually were diminished even more by their transience — the first-comer to a harbour may never have been to that harbour or to Newfoundland before.96 The turnover of vessels and masters from year to year in the period 1698 to 1701 was very great — a two-thirds turnover each year. There were one or two vessels and masters who returned year after year to the same harbours, such as Phil Stafford to Petty Harbour, Stephen Tucker to Port de Grave, and Arthur Holdsworth to St. John’s, who gave a semblance of continuity.97 These regular masters of fishing ships ("commonly called kings in that country") and the skilled fishermen that the masters and owners recruited from the villages whose populations had always supplied the fishing crews, were probably the main repository of knowledge of the rooms and the fishing grounds.98 Masters who made occasional voyages to Newfoundland such as Thomas and Henry Manston (there in 1698, but not subsequently) were probably dependent upon the skilled fishermen in their crews for the knowledge of the shores and fishing grounds that was necessary to succeed in the fishing part of the voyage.
61 The lack of intimate knowledge of the various harbours and coves by the fishing admirals was probably of small importance when the admirals could call upon the more expert testimony of experienced fishermen and inhabitants when deciding on the extent and usage of fishing rooms.99 What was also called into question was the fishing admirals’ knowledge of the law and their impartiality. Even Commodore Mitchell, who reported in 1708 that the admirals kept their journals, handed them in, and kept order without reference from him (sufficiently unusual responses from the naval commodore for Reeves not to quote them in his history), thought that the admirals favoured their customers.100 The masters of vessels were involved in a calling that required a fair knowledge of law, and not necessarily just maritime law. The problems of tuum and meum so emphasized by both Larkin and Reeves were faced by masters as both agents of owners and carriers of the goods of others. These, however, were problems of the tuum and meum of chattels, not problems of real property. The Newfoundland Trade Act did not grant real property rights, only chattel property rights, so that the admirals did not need to know the tuum and meum of real property. They would have been competent registrars of protests, and known who was competent to make surveys. They were not empowered to adjudicate cases of debt or wages. They would have been competent to adjudicate those areas, anchorages, nets, marks, and ballast that they were called upon to police by the act. These were the duties of the water bailiff. When they did not do these duties, it was a lack of the profits of justice compared to the profits available from fishing that showed them where their interests lay and made them unavailable as arbitrators. The naval commanders were under no compunction to produce any tangible result with their time, other than to demonstrate that they had fulfilled their instructions, so had time to act as arbitrators. During wartime, when cruises called, the commanders were often also reluctant to spend the time to fulfill their instructions to act as civilian overseers when prizes could be caught.101
62 The Answers to the Heads of Inquiry, the Returns of the Fishery, and the commentaries made by the commodores with these returns, together with the replies of the West Country boroughs to questions posed by the Board of Trade, have provided much of the evidence for the history of the eighteenth-century Newfoundland trade. If the view of the importance of the trade is taken from these documents, we would concur with the conclusion of P.J. Marshall, "For all the attention given to them, furs and fish did not make essential contributions to the British economy."102 The problem of this evidence is the narrowness of its base. The Newfoundland fishery had not been the sole preserve of the West Country since the early seventeenth century, and perhaps earlier. The core crews and regular masters came from the West Country, but there were many other parties interested in the trade who had at times recourse to involve themselves in the fishery. The importance of the fishery was less, in the view of many, than the importance of the trade it engendered. There were merchants and tradesmen in many fields who had a reason to look to the returns of the Newfoundland trade for vital inputs. The Board of Trade did not regularly correspond with these merchants and tradesmen, though it might hear from them on specific issues.
63 The House of Commons, at the time of King William’s Act, was alive to the value of the trade to areas other than the West Country, because it had members who were merchants and financiers knowledgeable about different strands of the atomistic trade. It may well have been that none of them had ever been to Newfoundland, but some had long experience with the importance of the trade.
64 One such merchant was Sir James Houblon. He had started as a dyer. The dyeing tradesmen took their dyestuffs from various sources, mainly the Mediterranean area and the East and West Indies. Houblon was involved in the Mediterranean trade from Newfoundland in the 1650s and 1660s.103 He was one of the two London merchants who wrote to the Lords of Trade in 1675 supporting the residents of Newfoundland.104 Houblon’s main argument appears to have been that inhabitants could operate with less capital ("employ less stock") than could ship fishermen. He was also of the opinion that loss of the fisheries would not only result in the loss of seamen, but also that the "Nation’s stock would be impaired."105 Houblon became involved in maintaining the "Nation’s stock" in 1694, when he became a founding director of the Bank of England, and also went to Europe to found a bank to help with the payment of English troops there.106 He was joined as a Member of Parliament by other merchants with interests in the Newfoundland and Mediterranean trades. Arthur Shallett, member for Weymouth, traded with both Newfoundland and Spain and Portugal.107 William Joliffe, member for Poole, was a Levant merchant. Another dozen members had mercantile business with the Mediterranean area.108
65 Other merchants were interested in the Newfoundland trade and the East India trade. The members for Dartmouth had since the 1660s been associated with the East India trade. Keith Matthews mentioned two members for Dartmouth in the 1670s, Sir John Frederick and Sir Nathaniel Herne, who were Londoners but probably anti-inhabitant.109 Both these merchants were interested in obtaining bullion from Spain for remittance to the East Indies.110 Their relatives Sir Joseph and Nathaniel Herne were the members for Dartmouth in 1698/9. Sir Josiah Child had been a member for Dartmouth in competition with Frederick and Herne, and he was vehemently anti-settlement, as was his fellow pamphleteer Charles Davenant, member for Great Bedwyn in 1698/9.111 The writings of Child and Davenport were important to the Old East India Company interest and to the Country party’s view of mercantile affairs.112 Both Child and Davenant have been quoted expressing the prevailing view of official policy, but theirs was just one side of a partisan argument within the governing circles.113 The merchant John Pollexfen, member of the Board of Trade but not a member of the house in 1698/9, engaged Davenant in a short pamphlet war about the direction trade should take. He was against trading monopolies, especially the East India Company’s monopoly. He thought all the king’s subjects should have the freedom to trade.114 This was also the intent of the king’s instructions when he was asked for them.115
66 The argument about the Newfoundland trade was whether an English-based ship fishery, supplied only from England, was preferable from a national point of view to a promiscuous fishery carried on by inhabitants, bye-boat keepers, New Englanders, as well as by ship fishermen, all supplied by Ireland, New England, and England.116 Both fisheries profited England, but some of those with special interests in a monopoly for the English West Country corporations argued that the ship fishery encouraged English ship-building, ship outfitting and boat-building and other trades. It was also argued, usually when convoys were required, that it trained seamen, who when trained were available to man naval vessels in time of war. These were advantages that were of national consideration, but they were not the reasons why anybody invested in the Newfoundland fishery. They were not good reasons to adopt a restrictive policy, which would profit only a smaller group whose investment potential for expansion was relatively limited.
67 The merchants and others who wished to gain access to saltfish without necessarily being involved in the fishery itself promoted the promiscuous fishery. They needed saltfish as an item of trade, particularly to obtain foreign trade credits from those countries where the fish was marketed — Spain, Portugal, Italy, and the Levant. They favoured an atomisticly capitalized trade, one that was not vertically integrated, so that there were opportunities to buy saltfish in Newfoundland from independent producers. Sir James Houblon calculated that small independent producers required less capital than larger integrated production units, and so a smaller charge for capital was put upon the fish price. The other advantages for the expansive fishery were that it could obtain supplies from the cheapest source — as with items from Ireland or the American colonies, and that the use of ships and ships crews across the Atlantic was economized by not taking fishing ships and their large crews to the markets in southern Europe.
68 The important national advantage of the promiscuous fishery was its capacity to expand effort very quickly when required. The financial demand for foreign credits to re-liquidate the money supply after wartime stringencies after 1697 could be met by the fishery. Dr. Dwyrdd Jones has amply detailed the argument that the Newfoundland saltfish trade was an important part of the financing of both imports and money supply during the years 1698-1701.117 Contemporaries spoke of the fishery’s importance in the "balance of trade," and for most of the time this had been directed at the import of tropical and industrial goods. The East India traders, Frederick, Herne and Child, had become partners with Dartmouth merchant adventurers to access fish for the Iberian markets to exchange for bullion to export to the east.118 The varying fortunes of the fishery were often the result of varying demands for tropical goods or East Indian trade. That the Newfoundland fishery made important contributions to the balance of trade has not been denied. The scale of these contributions has sometimes been ignored because contemporary official figures often left them out of accounts.119 It was not the most valuable contributor to the balance, but it did not have the bottlenecks that slowed expansion of other export items.120
69 The problems that the freemen of Exeter had faced in 1698 were the sort of bottlenecks that followed the quick expansion of the trade after the war. King William’s Act was intended to ameliorate these bottlenecks by providing for the equitable division of rooms and skilled personnel among all the groups of venturers who wished to take part in the fishery. It was intended to allow any of the King’s subjects to take part without any other restraint than was customary. It allowed a free market for labour, supplies, and capital, within the context of the navigation acts and other imperial acts. This allowed expansion, but it could also see dramatic declines in effort when investment was not forthcoming. The atomistic structure of the fishery allowed for declines. Boatkeepers who had outfitted several boats when demand and investment were high, could reduce their outfit to one or two, or even smaller boats, when investment was off. Ship-owners sent their ships on different trades. The system of King William’s Act seems to have worked well for the first 75 years of the eighteenth century, allowing the fishery to rise and fall with demand and investment. The system did not encourage nor discourage settlement, and the inhabitant population grew slowly with a high turnover of people because of the insecurities of the industry.
70 There were unexpected consequences of the act. The titles to rooms set by the act, section seven, were not real property titles, but chattel property titles. This was Nisbet’s legacy — a legal right to occupy and use what you had cleared. The rooms were not held from anyone, incurred no obligation and so did not confer any political identity upon the possessor. This is still the case in many parts of the island. In the cove in which I live there are no legal addresses, land boundaries are a matter of communal memory, and there is no institution of local government.121 Whenever there is a matter of general interest, some principal inhabitants call a meeting of all the householders to discuss the matter. Any decision concerning the matter is made by the consent of all the householders. This seems to be the ancient and immemorial way of doing things. The fact that the earliest rooms were held under socage tenure was forgotten long before King William’s Act, and with it the idea of charter rights of local government.122
71 The lack of real property in Newfoundland made the adoption of civil courts operating under common law academic, and the courts that grew around the courts of sessions and surrogate visits had not followed common law procedures. The property in rooms being a chattel property was also not subject to inheritance laws, and so was partible. This was the meaning of Fane’s opinion in 1728.123 These things were clear, but what was not clear was how much the narrowness of common law procedures were displacing the wider maritime and municipal procedures and practices in official minds.124 Under admiralty law a ship’s crew could sue collectively, under common law this was not possible. Under common law the supplying merchant could sue the boatkeeper for debt, whilst under other practices the merchant was only owed a share or dividend of the voyage. The problems of debt as a residual effect of shared ventures were a constant irritant in Newfoundland, and folk and customary attitudes did not correspond to common law findings.125 As O’Flaherty commented, the consequences of the act have been little studied.126 It is hoped that a revised view of process by which King William’s Act was written, and a view of the act as effective in promoting an open fishery and trade rather than legislation which everyone ignored, will prompt a reassessment.
Appendix
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Notes