Trading Corporations as Constitutional Entities

Despite the famous attempts by jurists—especially Sir Edward Coke—to define a unitary constitution for the English state, the word and the practice “constitutional” evoked profound conceptual instability and ambiguity in seventeenth century England.Footnote ⁵ Its broader meaning as the arrangement of component parts within a governmental system—whether within a person, or within a polity, or a corporation, or empire—was clear enough. Although English judges deployed concrete constitutional motifs at specific moments, the intensity of disagreement about the legitimacy of these motifs meant that seventeenth century England had constitutions as much as it had a constitution and its political and legal culture was particularly polyglot, pluralist, and contestable. Constitutional debate during this period placed discussions of state authority into a broader context that included disputes about consent, resistance, law, governance, commerce, and political economy. It concentrated on the changing relationships, the subjectivity, contests, activities and dialogues between power structures—including different branches of the law and between the legislature and executive—that were both mutable and multivalent. England’s trading corporations and the constitutional privileges they enjoyed structured power at home and abroad, became focal points for constitutional contests, and often proved creative constitutional actors in their own right. In these senses, trading corporations were inherently constitutional entities placing constitutional debate into international contexts.

Corporations received their privileges from higher state authorities. These privileges were temporary and subject to constant re-negotiation. Nonetheless, through a period when the state was a developing conglomeration of institutions, corporations helped states to realise their authority at home and overseas.Footnote ⁶ Corporate charters codified—in constitutional terms—the parameters of corporate subordination to and autonomy from the state. For critics of the corporate form, the emphasis appeared to be on the latter. Thomas Hobbes famously resented municipal corporations as “lesser commonwealths in the bowels of a greater, like wormes in the entrayles of a natural man.”Footnote ⁷ His dismissal records the difficulties that the possibility of corporate autonomy posed for his theory of unitary state authority. But corporations were explicitly subordinate to state authority. They could be governmental but not—according to Crown jurists and writers like Hobbes—sovereign entities.

Trading corporations provided what seventeenth century actors regarded as essential government for international trade. Like all government in this period, corporate government was subject to constitutional provisions. The influential political economist and apologist for the East India and Royal African Companies, Charles Davenant, used the words corporate and constitutional interchangeably. For Davenant, a corporation was “the only constitution” suited to the “nature and peculiar circumstances” of the African trade “so as to preserve and carry it on to a national advantage.”Footnote ⁸ Trade without corporations was unconstitutional, chaotic, uncertain, and, therefore, unlikely to produce benefit for either nation or state. Although arguments for the total deregulation of access to overseas trade appeared more towards the end of the seventeenth century, state regulators rarely approved of such calls because they did not confer the crucial constitutional element onto international trade. Corporations provided the default solution to the problems of governing overseas trade. But they did so in a wide variety of ways producing an unprecedented flood and variety of written constitutions to describe how corporations would govern their various trading hinterlands. In all, trading corporations negotiated forty-three separate charters during the seventeenth century. These sketched a broad outline for a discrete corporate approach to international government but they also exhibited a remarkable diversity of constitutional techniques.Footnote ⁹

The corporation itself was, of course, only one of many constitutional forms to underpin overseas commercial and settlement activity. The proprietary grant was the most important alternative to the corporation. The English state endorsed this method in much of colonial North America, in Maryland, New York, New Jersey, and the Carolinas. There were, however, important constitutional differences between proprietary colonies and corporations. Corporations mixed governmental and commercial agendas and set the two into a creative tension. They raised money from hundreds and sometimes thousands of investors and had to uphold the interests of those investors to endure. This capital -- as well as the corporation’s ability to borrow large sums of money -- provided them with the resources to cultivate and sustain state support. The state renegotiated corporate privileges throughout the century. These renegotiations bound the corporations into the domestic political processes (and constitutional disputes) of the seventeenth century more than their proprietary equivalents. Proprietary colonies participated in trade, but they were primarily conceived as land holdings and mechanisms for settlement. The personal property of a few absentees, proprietary colonies had to satisfy far more narrow concerns than their corporate alternatives. The proprietary colonies often resulted from state payments (to settle debts—as with those to the family of William Penn, the proprietor of Pennsylvania) and did not lend money to the Crown. Becoming largely personal fiefdoms, the state took sporadic interest in these ventures. Corporations brought specific constitutional traditions to the governance of overseas colonies that had to be spelt out for proprietary colonies.Footnote ¹⁰

The other important constitutional alternative to the corporation that provided government to international trade was the direct intercession of the state itself. Trading corporations proved more agile transnational interlocutors than the states who authorised them because of their ability to become willing tributaries to foreign states. The contrasting examples of Tangier and Bombay, acquired by England at the same time, illustrate this. As a monarchical project, the Tangier experiment was limited by the constitutional difficulties intrinsic to a monarch providing tribute to another state—in this case the expanding Moroccan empire of Moulay Ismael. The Tangier experiment failed, in part, because the English Crown lacked the flexibility in its interactions and negotiations with Moulay Ismael that trading companies elsewhere exhibited in their relationships with foreign rulers.Footnote ¹¹ As a subordinate constitutional entity, a corporation was in a position to submit itself to a foreign state and, as with the East India Company at Bombay and the Royal African Company throughout West Africa, could offer obeisance to foreign states in support of its commercial activities and territorial holdings.

Trading corporations negotiated treaties, grants of privileges, and commercial and diplomatic agreements to define the conditions of their fealty to foreign states and the commercial and governmental privileges such fealty brought. These treaties represent early transnational constitutional agreements and were understood to be the unique prerogative of trading corporations. The East India Company director, Thomas Papillon, defended the East India Company’s authority in Asia on the basis that a corporation was essential to enable the English to make “frequent applications to, and Treaties with” the great number of “Kings and Governments” that existed around the Indian Ocean.Footnote ¹² The East India Company devoted great energy to securing farmans from the Mughal state. Together with an array of grants from Asian officials and rulers, these gave the company the right to mint money, to trade without paying customs, and to set-up trading factories and forts, to exercise legal jurisdiction over its employees and a growing range of company subjects, and to establish its rule over towns and settlements. The Levant Company’s trade depended upon the capitulations decreed by the Ottoman Sultan.Footnote ¹³ These constituted an imaginative and flexible device that established the legal status of non-Muslim foreigners within a framework of Islamic jurisprudence and Ottoman administrative practice and that partially incorporated them within the Ottoman legal system.Footnote ¹⁴

These extra-European constitutions helped corporations realise and protect the constitutional privileges they derived from the mother country. For example, the Levant Company’s English charter confirmed its right to adjudicate between English subjects in the Levant. But the exercise of such rights depended on the terms of the ahdname and the berats (deeds of appointment) given to the company’s consuls by the Ottoman government.Footnote ¹⁵ On other occasions, corporations privileged the sovereign from which they obtained their foreign rights alongside or over that, which provided their corporate charters. During a decades-long dispute about whether the fruits of consulage collected from foreign merchants freighting English vessels in the Levant belonged to the English ambassador or the Levant Company, the latter asserted that the “‘Imperial Capitulations’ seconded the power in its charter” and therefore granted the company the consulage fees. Both corporation and ambassador were representatives of the English state, but the corporation argued that it held authority over English trade and subjects in the Levant. In this case, the Levant Company was able to cite its constitutional relationship with the Ottoman Empire to place its financial interests above that of the monarch’s personal representative.Footnote ¹⁶ As a result, one anonymous observer thought that the Company, in its claims to consulage and its relationship to the ambassador, behaved “as if they were a Little Republicque” within the English monarchy.Footnote ¹⁷ Trading corporations therefore integrated the diverse constitutional mechanisms granted to them from the various states they subordinated themselves to.

These transnational corporate constitutions emerged from and within the political cultures of extra-European polities and used jurisprudential language to determine the place of European trading companies within their polities. They created new transnational commercial regimes determining how trade across cultural boundaries occurred. Both charters and grants proved contestable and negotiable and were open to profound misreadings by both parties. But, in so far as both the extra-European grants to English corporations and the corporate charters themselves involved an analogous process of states delegating various degrees of self-government to corporate bodies, charters combined with extra-European grants to provide an integrated corporate constitutional framework for global interaction.Footnote ¹⁸

The English state chartered corporations to prevent new overseas constitutions from exhibiting terms that were “repugnant” to the ill-defined English constitution. But trading corporations often developed constitutional provisions overseas that deviated from constitutional practice at home. The East India Company used its autonomy overseas to develop corporate spaces with constitutional provisions that would have been unthinkably tolerant at home. In 1667, for example, the company sustained the English Crown’s policy of extending subject rights to Portuguese Catholics in Bombay. This constitutional agility also allowed the company’s overseas officials like Gerald Aungier and Streynsham Master to extend Common Law rights to non-Europeans while the company used civil law vice-Admiralty courts to target English interlopers—a process akin to treating Englishmen “worse than Turks.”Footnote ¹⁹ In 1687 the town of Madras was formally incorporated by the East India Company at a time when the City of London had been formally divested of its ancient corporate privileges. This corporation within a corporation enfranchised non-European peoples. Such entities proved the corporations’ ability at once to incorporate non-Europeans within a corporate constitutional framework and to exclude any of their own nation who sought to infringe on the corporation’s constitutional privileges—especially its trading monopoly. As the East India Company wrote to Captain Leon Brown in May 1683 use your “best endavours to suppress all interlopers and especially to defend the natives in India our Allies from any Injury, violence or depredacon that shall be offered or done against them by any interloper.”Footnote ²⁰ The corporate constitution placed corporate inclusion ahead of national affiliation to form a transnational constitutional entity. The creativity of constitutional reflection in international spaces matched the pluralism of constitutional techniques that the English used and the variety of constitutional mechanisms they encountered and often subordinated themselves to overseas.Footnote ²¹

Trading corporations’ distinctively adaptive constitutional arrangements became constitutive of a composite, and pluralist, transoceanic and transnational but recognizably corporate constitutional framework. Trading companies thus contributed to the emergence of what Lauren Benton has described as a “single international legal regime” that linked Europe, Africa, the American colonies, and the Indian Ocean on the basis of the common and mutually understood practice of permitting corporate and communal groups legal authority and autonomy while providing for “under specific and clearly defined circumstances, an appellate or controlling authority for state’s law.”Footnote ²² But within this transnational corporate constitutional framework, remarkable constitutional diversity developed. With transoceanic public, political, legal operations contesting state governance and using it for commercial advantage, the trading corporation could be both the agent of constitutional coherence but also the harbinger of constitutional diversification.

Corporate Constitutionalism Defined

Trading corporations integrated three constitutional settings: the corporate, the state, and the transnational.Footnote ²³ They established byelaws to manage their internal membership. They deployed constitutional authority provided by the state. Their international trading activities depended upon the projection of state power from their domicile nation as well as negotiating privileges from foreign states. Corporate constitutional activity in one setting informed constitutional activity in the other settings from corporate, to state, to transnational and back again. In this way, the corporation projected constitutional privilege, technique, and debate around the globe. Peoples, officials, and polities around the world in turn, mediated, distorted, denied, and reformed these privileges and techniques as part of transnational corporate-constitutional experience. Corporations sustained a defining duality between subjection to and autonomy from higher state authorities at home and abroad.Footnote ²⁴ This paradox delineated a distinctively corporate mode of transnational constitutionalism that I label “corporate constitutionalism.”

Corporate constitutionalism connects constitutional activity at the corporate, state, and transnational levels.Footnote ²⁵ It captures the corporations’ protean commercial, social, artificial, natural, legal, political, and civic characters.Footnote ²⁶ It highlights the creative constitutional tensions that arose from the corporation’s dependency on state authority and the autonomy that state countenance often provided for it.Footnote ²⁷ It juxtaposes plural written and unwritten constitutional authority, power, and creativity. It concentrates on the ways in which corporations structured constitutional debate and provoked constitutional reactions from opposing interests. It indicates the corporate routes of constitutional dialogue from local to global and back again. In this way, corporate constitutionalism aligns non-European agency with domestic constitutional debate, notes the influence of an integrated global and local dialogue upon the theory and practice of a fluid, modular state, and captures the proliferating and differentiating effects of non-European contexts on constitutional thought and practice. Such a comparative and constitutional approach to the international activities of trading corporations helps to place non-European contexts, peoples, and cultures into domestic constitutional narratives and therefore places national constitutional histories within a global constitutional denominator.Footnote ²⁸

The approach to seventeenth century English trading corporations proposed here views the trading corporation as a discrete constitutional entity whose history generated constitutional debate in broader national and international arenas. It portrays the corporations as bodies both reflective and refractive of state constitutional mechanisms as their constitutional provisions were so often re-negotiated at home and abroad. Instead of stressing either the trading corporation’s impervious, state-like features or its business operations, this approach views the corporation’s constitutional apparatus as shifting, porous membranes across and within which various forms of cross-cultural dialogue occurred. Corporate constitutionalism broadens the field of view of corporate history away from a narrow juridical interpretation of corporate activity that views trading corporations as vehicles established solely to further the interests of their owners to a more capacious view that notes the breadth and complexity of corporations’ relationships with constituencies outside their formal membership such as rival merchants, non-European states and hosts. In this light, trading corporations provide means for historians to view cross-cultural interactions, rather than just the exercise of monopoly privilege. In viewing corporations as constitutional actors and brokers, the constitutional determinants of corporate success can be seen, British history can be embedded into global history, the corporate circuitry for intensifying transnational interactions can be observed, and the long history of the modern corporation’s jurisdictional evasiveness can be fully understood.

Corporate history has most often been written with reference to a single corporation. This approach has yielded important results.Footnote ²⁹ Corporate constitutionalism tests some of the insights developed with reference to single corporations—and most often this has meant the East India Company—with reference to all of the English trading corporations of the seventeenth century to assemble a global field of view for corporate history. Contemporaries often referred to trading corporations as a discrete commercial and constitutional type.Footnote ³⁰ Although they sometimes targeted each other’s privileges, corporations often operated together sharing legal foundations, commercial strategies, and courtroom representation, overlapping personnel, and resources of capital.Footnote ³¹ The corporations enjoyed very different fortunes overseas, however. Corporate constitutionalism juxtaposes this apparent domestic constitutional uniformity with the divergent overseas fortunes of the companies to highlight the importance of the distinct non-European environments they worked within to any explanation of their differing commercial histories. Their divergent fortunes were often the result of commercial and constitutional differences in their overseas trading hinterlands. Because corporations integrated local and global settings, overseas divergences sometimes informed the domestic constitutional status and, increasingly as the seventeenth century continued, the public stature of the corporations.

Corporate Constitutionalism: Possible Interpretive Benefits

There are a number of possible interpretive fruits of this constitutional approach to the global activities of English trading corporations. First, corporate constitutionalism enables us to integrate the global and local in ways that deny the teleology of empire in international relations before the eighteenth century. The seventeenth century was distinctive as an era of equilibrium between regions of the globe, of intercultural accommodation after initial contact and before the era of European imperial hegemony.Footnote ³² A focus on corporate constitutionalism captures underappreciated features of this intercultural equilibrium. It highlights some of the ways in which corporations structured sites for transcultural interaction and exchange and how this dialogue could bring the discrete global and local settings for corporate activity into a creative juxtaposition.

At the heart of the integration of the separate global and local settings for corporate activity was the necessary dialogue between the corporation’s defining constitutional privilege at home and abroad and a commercial strategy that carefully calibrated the trading interests of the corporation and its extra-European trading partners. Corporations were exclusive but participatory and deliberative societies or “fellowships.” They were often monopolies. But the governmental and commercial futures of trading companies also depended upon the accommodation and approval of contacts and relationships that extended beyond their privileged membership: including states, customers, suppliers, competitors, as well as the private interests of their “servants” and officials.Footnote ³³ Corporations required political support and constitutional privilege to gather and protect investment. Sustaining this support and privilege depended upon the establishment and maintenance of trade. Durable trading relationships depended upon the countenance of foreigners. Corporations therefore relied upon the agency and initiative of their non-European customers and suppliers.

In bridging corporate, national and supranational contexts, trading corporations appeared to finesse a double standard. At home, company members justified their monopolistic corporate trading privileges with reference to the need to intimidate the non-Europeans they traded with.Footnote ³⁴ Overseas, however, corporate actors learned that non-Europeans provided the “social depths” of their political power and, therefore, the sources of their commercial durability.Footnote ³⁵ At times the need to calibrate corporate interest with the commercial interests of their non-European hosts provoked near desperation among corporate actors. As an East India Company factor in Gujarat, Ralph Preston explained to the company’s directors in 1614, such was the expectation among Indian rulers of the cultural supplication of European merchants to them that those rulers required company factors to be both respectable ambassadors and “banyans” or merchants—who the local rulers regarded as “little better than slaves” to sustain trading relationships—a status Preston suggested his London contacts the company would be well advised to assume.Footnote ³⁶ At other times, corporations took the initiative by promoting their activities to non-Europeans with reference to the mutual benefits that would arise from commercial ties. After the company’s occupation of Bengkulen, the East India Company’s leading official in Madras, Elihu Yale cultivated the local ruler by citing the commercial benefits the English had previously yielded for the ruler of Bantam: “which from a poor Inconsiderable place; wee by our great trade, good advice & friendly assistance rais’d to a rich & powerfull Monarchy.”Footnote ³⁷ Corporate constitutions thus bridged local and global contexts and provided the framework within which their commercial, cultural, and political activities linked—peoples, places and cultures. This circulation and dialogue and mutual engagement complicates the relationship between colonisers and colonised, of indigenous and external actors, of centers and peripheries.

Second, corporate constitutionalism offers historians an alternative explanation for corporate success and some initial reflections on the impressive durability of the corporate model for international trade. Each corporation’s commercial future depended upon its constitutional position at the corporate, state, and transnational levels. As the seventeenth century continued, the corporations’ commercial possibilities depended as much upon thwarting an alliance (sometimes formalised, mostly incidental) between domestic lobbyists, who deployed constitutional argument to challenge corporate privilege, and international merchants whose commercial support for the companies was foundational to their continued operation, as it did upon the backing of the English state. Unable to protect themselves from these alliances, several companies disappeared from view (though not without leaving a lasting constitutional impact—especially the Virginia Company and the Massachusetts Bay Company, which both established strong traditions of corporate, deliberative self-governance on the North American continent).Footnote ³⁸ Others had their constitutional privileges drastically altered by the state. The Royal African Company failed to entrench itself either with West African polities or with its customer base in the English Caribbean and therefore succumbed to a public call for its deregulation in 1698 that pleased a large cohort of independent slave traders and largely followed from the commercial preferences of African merchants.Footnote ³⁹ The East India Company more successfully defended its monopoly privileges at home by merging with its lobbying opponents and erecting a grand “superstructure” for free English trade on the Indian subcontinent that enfranchised the entrepreneurial instincts of its overseas factors and their Indian trading partners.Footnote ⁴⁰ Conversely, the Levant Company’s diffuse corporate structure became a source of institutional and commercial inertia within the Ottoman Empire that appears to have encouraged its eclipse by French competition.Footnote ⁴¹ In each case, constitutional posturing and positioning proved critical to corporate longevity. In re-orienting corporate, constitutional, and global history, corporate constitutionalism offers new means to explain how corporations emerged as organizations with “almost incalculable” power and influence.Footnote ⁴² The modern corporation’s reliance on jurisdictional evasion owes much to the constitutions of the seventeenth-century corporation, which equipped the corporation with a jurisprudential agility that assisted their transnational commerce. The insights that corporate constitutionalism can provide about the corporations that endured and those that did not therefore also provides a means to help explain the roots of commercial efficiency and comparative advantage among trading corporations.

Third, corporate constitutionalism subjects nationalist narratives of constitutional change to international contexts. Trading corporations codified constitutional practices at home—such as the rights of members and the powers these members were subject to—and exported these to non-European contexts where they experimented with and adapted to unusual constitutional techniques. Because corporate activities were often constitutionally contentious and because their privileges were frequently re-negotiated, corporations sometimes placed these international constitutional experiences into the heated constitutional debates about the location of state sovereignty and the relationship between King and Parliament taking place in England throughout the seventeenth century as part of their attempts to sustain their constitutional position. From the altered constitutions of the corporations themselves, to new national constitutional supports for trading privileges and the corporate basis for the national debt, and to the development of a composite, pluralist transoceanic constitution which underpinned England’s expanding global reach, corporate constitutionalism suggests unfamiliar international settings for England’s seventeenth century constitutional broils. This approach also suggests that rather than being caused by the need to subject diverse indigenous peoples, as James Tully has argued, constitutional change—at the corporate, state, and transnational levels—partly depended upon the exegeses of overseas environments and the adaptable and contestable nature of an uncodified constitutional tradition and was often, therefore, the result of non-European engagement.Footnote ⁴³

Fourth, corporate constitutionalism suggests new approaches to constitutional history. It challenges an approach to constitutional history that has focused on the nation state and, as Linda Colley has recently written, presumes the emergence of democratic politics. Corporate constitutionalism offers an account of constitutional development and proliferation that is “multistranded,” contingent, and transnational because it analyses the constitutional activity, debates, and significance of corporations in multiple global settings.Footnote ⁴⁴ Corporate constitutionalism aims to expand the remit of constitutional history to include corporations as well as early modern polities and to challenge the traditional focus on written constitutional authority and the explosion of constitutional writing in the late eighteenth and early nineteenth centuries.Footnote ⁴⁵ Corporate constitutionalism both emphasises the constitutional significance of corporations from the sixteenth century onwards and reveals their role in the development of national, as well as imperial, constitutions. In this way, corporate constitutionalism can begin to direct a transnational, corporate focus towards larger questions about the transition from legal pluralism to an international legal system.

The Anatomy of Corporate Constitutionalism: A Royal African Company Case Study

Founded in 1672, the Royal African Company represented the high water mark of corporate constitutional power and controversy. Like its East Indian predecessor, the African Company enjoyed the right to enforce its monopoly by seizing and forfeiting violators’ ships and goods. But the African Company pushed the boundaries of corporate power by receiving additional constitutional powers from the royal prerogative that enabled it to create its own vice-admiralty courts using company personnel to hear forfeiture and commercial cases. These courts did not allow the right to appeal (unlike traditional Admiralty courts) and provided the company with the right to compel customs officials to assist with the enforcement of its monopoly. The monarchy projected its own contentious constitutional authority over the state onto the Royal African Company. The company’s insistence on its royal prefix advertised its place within a live constitutional debate. Both this projection and this insistence ensured that any legal contest over the company’s corporate power would also ramify back onto the monarchy.Footnote ⁴⁶

The African Company’s enforcement powers were profoundly controversial and placed the Royal African Company’s charter into the constitutional disagreements of the 1660s-90s. These disagreements produced opposition and resistance to the African Company’s enforcement powers that achieved broader constitutional significance. Corporations like the Royal African Company concentrated their political, legal, and ideological energies to galvanise a generalised corporate position. The broader constitutional debates of this period were polarised and when they touched on corporate issues they encouraged the development of an anti-corporate front. This opposition came in many forms: from non-European states and merchants, the European competition, and from interloping English traders, and other domestic commercial and political interests. Just as pro-corporate arguments were deemed transferable to different corporations, so corporate constitutionalism allowed for diverse opposition to corporations—from within England and beyond it—to forge into a strong international platform for anti-corporate ideas, which the corporations needed to respond to. The result was the development of a powerful anti-corporate argument that had broader constitutional traction.

As such, constitutional opposition to the African Company’s enforcement powers derived from precedent developed in the context of Asian trade. An interloper in the East India trade, Thomas Skinner claimed in a petition to the House of Lords in 1668 that the East India Company had illegally seized his house, ship, and goods in Sumatra because the Commonwealth had permitted free trade in the East Indies. Although no enforceable judgment came from these pleadings, the case developed an argument that Common Law rights to trade were property rights and could travel with merchants beyond England.Footnote ⁴⁷ This argument channeled non-European agency through domestic constitutional opinion because it favoured both non-company trade and the Sumatran merchants who supported it. The Skinner case points to the ways in which the transnational commercial settings for corporations began to generate national constitutional shifts.

With its enforcement provisions aligned with the constitutional vitality of the royal prerogative during the 1670s and 80s, the Royal African Company enjoyed much commercial success. Perhaps because of the Skinner case, the African Company sought and received legal support for these powers in the early 1670s. These opinions buttressed corporate power in ways designed to support the specific national constitutional provision that established the corporations in the first place: namely the supremacy of the royal prerogative.Footnote ⁴⁸ They also asserted the constitutional primacy for the royal prerogative in international settings by proposing to limit the efficacy of the Common Law in the absence of prerogative support in these supranational settings. One lawyer, Thomas Turnor supported the African Company’s vice-admiralty courts by arguing that Common Law rights could only be effective in international settings if the King said so: “the superinduction of ye Common Law into conquerd Countries is a Ray or Emanation of ye King’s own free and spontaneous Grace and Favour vouchsaf’d anon to his own very English Subjects....and no Right or Duty.”Footnote ⁴⁹ Such royal grace and favour was unlikely to be extended to encourage interlopers who cited the Common Law as the surest constitutional support for their right to trade and sought to infringe upon a monopoly with intimate connections to the monarchy. Turnor’s arguments helped to standardise the constitutionality of such enforcement mechanisms for other companies. The East India Company received such powers by letters patent in 1683.Footnote ⁵⁰ Individual corporations generated constitutional positions that would prove formative for corporations in general. The African Company’s enforcement powers prompted questions about the transferability of domestic constitutional practice overseas. In so doing, it integrated debate about transnational, corporate, and state constitutional frameworks allowing international settings to influence domestic constitutional thought and practice.

Because of this integrated anatomy of corporate constitutionalism across corporate, state, and supranational settings, alterations in any one setting could have implications for the others. When William of Orange accepted alterations to the state’s constitutional practices in the late 1680s and early 1690s—that subordinated state finance to parliamentary oversight—the constitutional position of trading corporations altered. The prerogative backing for the vice-admiralty forfeiture powers of the Royal African and East India Companies could not endure the increasing tendency of parliament to assume supremacy in state deliberations about the regulation of overseas trade.

The Common Law courts supported this change. Sir John Holt struck down the “vice-admiralty” enforcement power of the Royal African Company in the Court of King’s Bench in 1689. In this case, an African interloper, Jeffrey Nightingale, who had been the victim of a vice-admiralty seizure by the African Company, sued the company for redress. Politically and commercially weakened by its failure to develop a strong commercial foothold on the West African coast and aware that constitutional arguments in favour of the supremacy of the royal prerogative were unlikely to succeed in 1689, the African Company decided not to defend its enforcement powers in court for fear of having its charter eradicated and concerned about what such a broad legal pronouncement would have on the rest of the trading corporations. Holt ruled that access to trade was a portable common law right and could not be limited by the forfeiture powers of vice-admiralty courts.

This decision provided constitutional blessing for the view developed in Skinner’s Case that Common Law rights to trade were internationally portable. In also associated opposition to trading corporations with broader constitutional language. Nightingale’s barrister, Bartholomew Shower, proposed that the African Company’s enforcement power was invalid because it privileged an outmoded version of state authority over the interests of the nation as a whole who would have their commercial interests better advanced in a parliamentary setting.Footnote ⁵¹ In the light of the international activities of the corporations whose enforcement powers Holt wished to moderate, Holt’s decision connected domestic discomfort with monopolistic corporations with widespread African refusal to allow the Royal African Company to acquire durable commercial advantage on the West coast of Africa. Constitutionally formative ideas about free trade and the property and representational rights of Englishmen were created in the context of corporate encounters and engagements with the wider world. From the 1690s, the Royal African Company’s corporate power became further diluted by the new constitutional primacy of parliament in regulatory affairs. Strident anti-company lobbyists accused the constitutions of the African and Indian corporations of acting tyrannically at home and abroad.Footnote ⁵² But the basic pro-corporate argument proved to have enduring appeal as parliamentary debates persistently supported the view that international trade was best managed in the public interest by corporations. The constitutions of these companies would be altered, however. Intra-corporate constitutional dispute informed how this happened. Levant Company lobbyists celebrated the more decentralised governance of the regulated company model of corporations over the joint stocks of the African and Indian companies.Footnote ⁵³ Access to the corporations would be liberated and their internal and external governance practices would be reformed. The 1698 Trade to Africa statute, which provided the first parliamentary support for the Royal African Company, opened access to slave trading on payment of a fee. This statute also forced company factors (and independent traders) to resign any political office they enjoyed in the colonies to prevent the mapping of corporate power onto state power.Footnote ⁵⁴ Opponents of the Royal African Company had resented the ways in which the company’s directors had entrenched themselves within the governments of Barbados, Jamaica and into the English court.Footnote ⁵⁵

Alterations to the national constitutional framework therefore worked to limit the constitutional prowess of trading corporations. But again, the international settings of corporations exposed them to such domestic constitutional challenges. The English state channeled the preferences of West African rulers as well as West Indian merchants by inhibiting the plenipotentiary powers of the Royal African Company. In the Indian subcontinent, where the East India Company’s commercial and constitutional footholds were surer, the extent of constitutional assault on its charter provisions proved milder.Footnote ⁵⁶ The different corporate outcomes of national constitutional pressure confirms the contrasting supranational contexts for the two companies.

The Royal African Company case shows how the anatomy of corporate constitutionalism ensured that the constitutional features of corporate activity flowed through state and transnational constitutional settings. Corporations could be practically (if not theoretically) autonomous entities, but their “embeddedness” in broader constitutional arenas—at local and global levels—ensured that constitutional contention for corporations would be transmitted to those broader arenas.