Historians have convincingly argued that Scottish transatlantic activity in the period of 1660 to 1707 was largely defined by the restrictions of the English Navigation Acts and attempts made by Scots to circumvent them.Footnote 1 What, though, defined the position of Scots in the English Atlantic prior to 1660?Footnote 2
The traditional historiography emphasises that Scotland's official colonial ventures in Nova Scotia and Darien failed.Footnote 3 Historians focused on the eighteenth century often promote the related idea that Scottish transatlantic activity prior to the union of 1707 was insignificant and it was the union that opened the Atlantic to Scots by way of legal commerce with what were English (having become British) colonies.Footnote 4 Recently, some historians have sought to alter these discussions by emphasising what T. M. Devine has called Scottish “imperialism by stealth”—involvement in the empires of more powerful states at the individual level of merchant, soldier, official, investor, and settler.Footnote 5 Recent studies have, for example, examined Scottish involvement in the Dutch empire in the seventeenth century.Footnote 6 Likewise, Scottish activity in the English Atlantic has been examined.Footnote 7 The study of “imperialism by stealth” has led to a re-evaluation of the idea that it was only after 1707 that Scots fruitfully engaged in transatlantic activity. Most notably, Allan Macinnes has argued that Scots were largely successful in circumventing the English Navigation Acts of the Restoration period that sought to exclude them from trade with English colonies. For him, the success of Scottish smugglers through commercial networks on both sides of the Atlantic suggests that legal access to English colonial commerce was not a defining factor in Scottish acceptance of union in 1707.Footnote 8
The position of Scots in the English Atlantic prior to 1660 has been discussed by several historians but has not received the focused attention of the later period. David Armitage has traced some of the ideological considerations at play in Scottish interaction with the broader Atlantic world and how earlier concepts of “Britishness” would impact the British Empire from the eighteenth century onwards.Footnote 9 Importantly, he noted the involvement of Scottish courtiers in American colonisation.Footnote 10 Others, like Keith Brown and Andrew Nicholls, have also pointed out the involvement of Scottish courtiers.Footnote 11 This article seeks to expand upon their work and suggest that, as the Navigation Acts largely defined the position of Scots in the English Atlantic from 1660 to 1707, royal patronage (and the lack thereof) largely defined it from 1603 to 1660.
Another element of the historiography that needs to be addressed is subjecthood. In addition to the sorts of networks emphasised by Macinnes, Esther Mijers has argued that Scots relied on their postnati legal status to operate in the Americas in the seventeenth century.Footnote 12 Postnati subjecthood, established by the ruling of Calvin's Case in 1608, meant that Scots born after James VI's accession to the English throne were to be considered natural-born subjects in England.Footnote 13 How precisely they utilised this status in the Americas is, however, left unanswered. Furthermore, indicating confusion over the question, it has been said that Scots benefitted from the ruling on the postnati in the Nova Scotia venture of 1621–1632.Footnote 14 The majority of those who participated in the venture were antenati and, regardless, the ruling was not relevant to Scots being eligible to participate in a colonial venture chartered under the Great Seal of Scotland.Footnote 15 This article seeks to clear up some of this confusion and, more broadly, update and expand upon the topic of the position of Scots in the English Atlantic from the union of the crowns to the Restoration.
With English parliament not yet legislating against Scottish trade with English colonies, the most important factor in the position of Scots in the English Atlantic during the reigns of James VI and I and Charles I was royal patronage and crown policy.Footnote 16 Under these two monarchs Scottish trade with English colonies was legal, Scots were able to join colonising and trading companies in England, and Scottish courtiers received colonial grants from the crown. Due to the common subjecthood instituted during the Cromwellian period, Scottish colonial commerce remained legal during the 1650s. The period, however, saw the Scots lose the most important factor in the Atlantic opportunities that were opened to them in 1603: royal support. The royal support Scots received was largely based upon the personal relationships that courtiers had with the monarchs, so, with no monarch and no royal court, this avenue to colonial opportunities was lost.
This article also sets the stage for a reassessment of the position of Scots in the English Atlantic from the Restoration to 1707. The loss of royal patronage that took place at the end of the reign of Charles I extended to the reign of Charles II, as the restoration of the Stuarts did not entail the restoration of a substantial contingent of Scottish courtiers who had influence with the monarch. Additionally, the Restoration saw the end of the common subjecthood instituted under Cromwell. It was in this context that Scots came to rely on the transatlantic networks and smuggling tactics discussed by Macinnes and others. Furthermore, the Restoration Navigation Acts revivified the concept of postnati subjecthood: Scots used the ruling of Calvin's Case to argue that they had a right to trade with English colonies in the same manner they could from 1603 to 1660.Footnote 17 Counter to the argument that the 1603 union led to a situation in which Scottish overseas ambitions were consistently sacrificed by the Stuarts in favour of English interests,Footnote 18 this indicates that the union of the crowns initially created Atlantic opportunities for Scots.
Scottish Colonial Opportunities: Patronage, Subjecthood, and the Atlantic World, 1603–1638
The union of the crowns raised a plethora of political, legal, religious, economic, and practical questions for the kingdoms and inhabitants of England and Scotland. One of those questions was that of subjecthood. Now that England and Scotland shared a monarch, would they likewise share subjecthood? This was one of the questions discussed by representatives from both kingdoms in the union commission of 1604. The commission determined that those born after James VI's accession (the postnati) should be considered natural subjects in both kingdoms, but there was disagreement over whether those born before his accession (the antenati) should likewise be considered dual subjects. After debate, and receiving the king's opinion, the commission determined that the antenati should be granted the same rights as natural-born subjects of the kingdom (i.e., naturalised), but with a limitation on the offices to which the king would appoint them in their non-native kingdom.Footnote 19 Relating to status in each kingdom, the final set of proposals for union presented by the commission to the English and Scottish parliaments—the Instrument of Union—included clauses for shared subjecthood, mutual access to trading companies (though Scotland did not yet have any), and that neither English nor Scots would pay alien customs duties in either kingdom.Footnote 20
Though provisionally accepted by Scottish parliament, the Instrument was rejected by the House of Commons after a long series of debates in 1606 and 1607.Footnote 21 One reason for this rejection was concern, especially among London merchants, that if Scottish merchants were not subject to alien customs in England, they would be able to outcompete their English counterparts. They were particularly worried about the advantages that Scots had in trade with France based on their status as naturalised French subjects. There was also concern about loss of customs revenue in England, a concern that would become strongly associated with the English Navigation Acts of the 1660s.Footnote 22 Despite these discussions taking place while English colonisation was in its nascent stage, there were concerns that Scots would gain advantages in the Americas as well. For example, the Spanish ambassador to England, Don Pedro de Zuñiga, reported in October 1607 that English settlers bound for Virginia “are complaining that the King is urging the Scots to go there and that he favours them more than these.”Footnote 23 This concern points to the fact that English restrictions—whether policies of monopoly companies in the early seventeenth century or the Navigation Acts of the second half of the century—were subject to royal intervention.
Within the royal prerogative was the power to endenizen Scots in England (similar to naturalisation but granted by letters patent rather than parliament) and grant them licences, patents, charters, and dispensations. The crown's use of these powers in the arena of colonisation and trade could create tension with English interest groups like those opposed to the Instrument of Union. Indeed, tension is seen in English parliament's rejection of the Instrument as it was supported by James VI and I. The first five years of the union of the crowns saw a coalition of English—especially London—interests opposed to naturalising Scots, granting customs concessions to Scottish merchants, and granting Scots access to trading companies, while also expressing concerns about Scottish involvement in American colonisation. During James's and Charles's reigns, Scots were able to overcome this opposition. It was when these English concerns were reinvigorated at the Restoration and reified in the Navigation Acts and in other institutions that they became a major obstacle in the way of Scottish transatlantic activity.
Another important development in the early years of the regal union sprang from the decision in Calvin's Case. Sir Edward Coke's report on the case and the principles that underpinned the decision were highly influential in shaping later ideas of colonial and American citizenship, but their importance to Scottish involvement in overseas enterprise has not been fully examined.Footnote 24 As mentioned, Esther Mijers's discussion of the topic does not offer a complete view. Charles Andrews, in his seminal work on colonial America, made the point that Scots who permanently resided in England or English colonies could be considered to have the same rights as English subjects.Footnote 25 Macinnes has made a similar point.Footnote 26 This point is certainly relevant to Scots operating in the Atlantic vis-à-vis the Navigation Acts after 1660, but what about the position of Scots vis-à-vis the English Atlantic prior to 1660? As will be shown, the ruling of Calvin's Case was not a significant factor in Scottish Atlantic activity in the earlier period.Footnote 27 There are several reasons for this: many Scots operating in that context were antenati; the scale of Scottish involvement was small; mercantilist thinking was not developed to the extent it would be later in the century; the use of the royal prerogative by James VI and I and Charles I often supported Scots in this area; and the concept of postnati subjecthood was obsolete during the Cromwellian period. With no statutory basis for English opposition to Scots operating in the colonial sphere, their ability to do so, from a legal perspective, largely came down to the question of what powers were within the royal prerogative and how the monarch decided to use it (and the related questions of who convinced, influenced, or advised the monarch's use of it). The assertion of postnati subjecthood was not necessary in this context.
There is a clear difference in the way the royal prerogative was used in support of different interest groups in the first and second halves of the century. Though there were instances of English interests gaining royal support against Scottish interests, such as in the cases of the English East India and Muscovy Companies’ opposition to the creation of Scottish East India Companies in 1617 and 1634, the early Stuarts frequently extended their patronage to Scots.Footnote 28 Scots were, for example, placed in English monopoly companies by royal preferment;Footnote 29 granted colonial charters and patents;Footnote 30 and the royal prerogative was used to confirm their right to trade directly between English colonies and Scotland.Footnote 31 Though James VII and II provided some support, Charles II and William III and II acted in opposition to Scottish colonial endeavours. For example, Charles II had few Scottish intimates to whom he extended patronage and he mostly followed the advice of his English councils and committees of trade and plantations.Footnote 32 In this way, different monarchs’ attitudes, approaches, and policies, as well as the interest groups to which they were sympathetic or beholden, affected how Scots could and did operate in the Atlantic world.
James VI and I himself was the leading proponent of shared Anglo-Scottish subjecthood and, after the proposition of naturalising Scots in England was rejected by the House of Commons, he contrived Calvin's Case and the ruling in favour of postnati subjecthood.Footnote 33 Additionally, James used his power as king of England to endenizen antenati Scots in England from the time of his accession. In 1604, the first English parliament after the regal union also naturalised several prominent Scots. Among those endenizened and naturalised in England in 1603 and 1604 were Ludovick Stewart (2nd duke of Lennox), Sir John Ramsay (later 1st earl of Holderness), and Sir James Hay (later 1st earl of Carlisle), who would each become proprietors of English colonies.Footnote 34
What rights were conveyed to Scots when they were endenizened or naturalised in England and were they necessary to become involved in English colonial projects? When an alien was made a subject in England, they acquired the right to hold land in dominions of the English crown. Most acts of naturalisation included an additional range of privileges, which amounted to the same rights as natural-born English subjects. Among others, these included rights of inheritance, to plead in English courts, and to hold English offices. Endenization by royal letters patent were at the monarch's discretion; they could grant or withhold privileges as desired.Footnote 35
Was it necessary to hold these privileges before acquiring land in or trading with an English colony? Prior to the execution of Charles I in 1649, English colonies were considered personal dominions of the monarch and not annexed to England. This situation was a result of the wording of the colonial patents granted under the Great Seal of England, which granted them as dominions of the person of the monarch (not the crown) equivalent to the manor of East Greenwich or Windsor Castle.Footnote 36 In theory, this meant that it was not necessary to be an English subject to own land in English colonies. It also technically meant that parliament had no formal role in the colonies as acts of parliament were binding on dominions of the crown, but not on the personal dominions of the monarch. James VI and I and Charles I held this position. They believed they possessed exclusive authority over English colonies and, while they delegated that authority to proprietors, companies, and the privy council, it was ultimately held by the person of the monarch.Footnote 37
In this context, the question of aliens owning land in English colonies was not a major issue. The idea that one need not be a subject of England to own land within the colonies because they were not annexed to England may have been accepted. Additionally, many antenati Scots who came to own land in English colonies prior to 1649 had been endenizened or naturalised and those who had not been were partners willingly taken on by Englishmen and, therefore, their rights were not contested. For example, James Hamilton, 2nd marquess of Hamilton, was neither endenizened nor naturalised in England prior to becoming a leading landowner in the English colony of Bermuda between 1615 and 1620.Footnote 38 There also is not evidence that the antenati Scottish ministers Patrick Copland, George Stirke, and George Keith were made subjects of England prior to establishing themselves in Bermuda and Virginia between the 1610s and 1630s.Footnote 39 The same is the case for the Scotsman David Thomson, who was granted six thousand acres of land in New England and moved there in 1623.Footnote 40 These examples, and the fact that the issue does not appear in the colonial records, suggest that the subjecthood of Scots vis-à-vis landholding in English colonies was not a concern during the reigns of James and Charles.
What about trade? The first thing that needs to be noted about Scottish trade with English colonies during the reigns of James VI and I and Charles I is that it was exceedingly rare. The few examples include the Golden Lion of Dundee being chartered by English merchants to trade with Virginia in 1627 and the Scottish merchant David Muirhead joining English merchants in trade with the Hudson River and Chesapeake Bay in the 1630s.Footnote 41 Speaking to the rarity of Scottish colonial commerce at this time is the case of the Aberdeen merchant John Burnett, who was described in 1638 as “the sole Marchant of o[u]r Kingdome of Scotland, that hath supplyed the plantacion of that o[u]r Colony of Virginia & become our tennant there.”Footnote 42 Despite being one of few Scots involved in the Virginia trade at the time, Burnett's case makes it clear that Scots were not prohibited from trade with English colonies during the reign of Charles I. In fact, they were not subject to English trading regulations.
This situation is exemplified by Burnett's response to a 1638 royal proclamation stipulating that all Virginia tobacco must be carried directly to London.Footnote 43 Out of concern that the proclamation would result in English officials interfering with his trade, Burnett petitioned the king. In response, Charles despatched a letter instructing the governor of Virginia and other officials to allow Burnett “a free comerce and traffique from o[u]r Kingdome of Scottland to that o[u]r Colony, and from thence back againe” because the proclamation was an English proclamation that was in “no wayes intended to impeach the freedome of commerce, & traffique into o[u]r Kingdome of Scotland by the Natives thereof.”Footnote 44 Whereas English merchants were required to import Virginia tobacco directly to London, Scots were free to carry it to Scotland.
Burnett is of additional interest because he was likely the 24-year-old John Burnett who sailed to Virginia on the Abraham of London in 1635, meaning he was postnati.Footnote 45 His postnati status raises the question of whether, as a subject of England according to Calvin's Case, he should have been required to transport Virginia tobacco to London in the same manner as English merchants. The proclamation requiring Virginia tobacco to be carried directly to London was aimed at “all Merchants, Masters and Owners of any Ship or Ships, and other persons whatsoever within or under Our obedience.”Footnote 46 As an English proclamation, it is reasonable to think this was referring to two groups: those involved in the Virginia tobacco trade who were based in England and those involved in the trade who were based in Virginia. In this formulation, the proclamation would apply to Virginia tobacco exporters like Burnett. This idea raises a question relating to the nature of Charles's dispensation to the Scotsman. Though extending beyond Burnett to include all Scots, it was most likely granted along the lines of an individual dispensation that should be viewed as a matter of royal patronage. The alternative, that Burnett and other Scots, even the postnati and those living in English colonies, were not considered English subjects and therefore not subject to a royal proclamation made under the English crown appears unlikely. One needs to be careful not to read too much into this case as it is likely that the legal issues at play were not at the top of Charles's mind when he responded to Burnett's petition.Footnote 47 He was likely willing to grant a dispensation to Scots because of the minimal impact they had on the Virginia tobacco trade at the time and, perhaps, as a minor concession in the face of rising resentment of his policies in Scotland.Footnote 48
The charters and letters patent acquired by Scots from the early Stuarts also speak to their access to the Atlantic world and the role royal patronage played in that access. First, individual Scots could acquire personal colonial grants under both the Great Seal of Scotland and the Great Seal of England. Sir William Alexander (later 1st earl of Stirling) was the first to receive such a grant when he acquired a Scottish charter for Nova Scotia in 1621.Footnote 49 One of his partners in that project, Sir Robert Gordon of Lochinvar, received a Scottish charter for Charles Island in 1626.Footnote 50 The following year, James Hay, 1st earl of Carlisle, was granted an English patent for the Caribbean islands.Footnote 51 In 1637, James Hamilton, 3rd marquess of Hamilton (later 1st duke of Hamilton), was one of four partners granted an English patent for Newfoundland.Footnote 52 Additionally, Alexander was able to acquire a Scottish licence under the Scottish privy signet in 1631 that was used to justify settling Kent Island in Chesapeake Bay.Footnote 53
Each of these men had access to the king because they held positions at court and had a personal relationship with him. These factors were key to their ability to obtain royal support for their projects. Alexander served as a gentleman in the privy chambers of both of James VI and I's sons and as master of requests for Scotland (a position based at court that necessitated direct access to the king) prior to receiving his charter for Nova Scotia.Footnote 54 Gordon was well positioned at court for his Charles Island grant because he had been a favourite of Prince Henry and was a gentleman of James's bedchamber.Footnote 55 Similarly, Hay had a personal relationship with James and Charles I and had been a member of the royal bedchamber before receiving his patent for the Caribbean islands.Footnote 56 Hamilton likewise had a personal relationship with Charles and held many important positions at court, including master of the horse and gentleman of the king's bedchamber, prior to receiving the Newfoundland patent.Footnote 57
Receiving personal grants from the crown was not the only way for Scots to become involved at the highest levels of colonial efforts under the early Stuarts. They could also become members of English companies and proprietors of English colonies. For example, Alexander obtained land in Newfoundland;Footnote 58 George Hay, Ludovick Stewart (2nd duke of Lennox), and James Hamilton (2nd marquess of Hamilton) were members of the Amazon Company;Footnote 59 Hamilton became a leading landowner in Bermuda;Footnote 60 Hamilton, James Hay (Viscount Doncaster, later 1st earl of Carlisle), Patrick Copland, and Thomas Bruce, Lord Bruce of Kinloss (later 1st earl of Elgin), were members of the Virginia Company of London;Footnote 61 and Hay was a member of the Guiana Company.Footnote 62
Furthermore, three of the forty charter members of the Council for New England in 1620 were Scots: Hamilton, Stewart, and John Ramsay, viscount of Haddington (later 1st earl of Holderness).Footnote 63 Whereas most of the English patentees were not active in the New England venture, the Scots were. For example, Ramsay was made vice-president of the council in 1623 at a meeting where three of the seven attendees were Scots.Footnote 64 The heirs of Hamilton and Stewart became members of the council in 1634 or 1635 along with Hay, Alexander (by this time earl of Stirling), and his son Sir William Alexander the younger.Footnote 65 Significantly, when the New England patent was surrendered and the territory was to be re-granted to eight proprietors in 1635, four of them were to be Scots: Hay, Alexander the younger, James Hamilton (3rd marquess of Hamilton), and James Stewart (4th duke of Lennox).Footnote 66 The importance of the Scots is also demonstrated in the surrender itself. It noted the negative impact the deaths of Hamilton and Stewart had on the project and that the council was relying on “the Duke's Grace [James Stewart, 4th duke of Lennox], the Marques Hamilton, the Earl Marchall, the Earl of Carlisle & the Earl of Sterlin[g]” to ensure that the eight proprietary grants be obtained from Charles I.Footnote 67
These examples demonstrate that Scots, especially courtiers, had an abundance of opportunities to become involved in colonisation during the reigns of James VI and I and Charles I. Their involvement in English colonisation was not prohibited by the fact they were Scottish. Though the involvement of Scots had been a concern of some English interest groups during the union negotiations of 1604–1607, the rejection of the Instrument of Union by English parliament did not prevent those close to the Stuarts from participating in English colonisation or even obtaining English colonial patents and becoming leaders of the ventures. Additionally, as the case of John Burnett shows, Scots could freely trade with English colonies and conduct that trade directly to and from Scotland.
These examples also demonstrate that the issue of subjecthood in the Atlantic world was not of prime significance in the first half of the seventeenth century. In part this had to do with the fact that English companies had discretion over who joined. For example, the Virginia Company's revised patent of 1612 included the specific power to “elect, choose, and admit into their Company, and Society, any Person or Persons, as well Strangers and Aliens [. . .] as our natural Liege Subjects born in any our Realms and Dominions.”Footnote 68 More important for Scots was the royal support they received. As some of the examples demonstrate, the opposition to Scottish involvement in colonial affairs was episodic and narrow in this period.
The situation of royal support for Scots and limited English opposition flipped by the Restoration. The former was due to Charles II's attitude towards Scotland and most Scots, which ranged from apathy to antipathy.Footnote 69 The latter to the institutional basis created for opposition to Scottish trade with English colonies in the Restoration Navigation Acts, which were an extension of the 1651 Navigation Act. Additionally, new issues arose as more Scots participated in transatlantic trade and resided in English colonies. Along with these new developments came the renewed importance of the question of subjecthood as Scots tried to use it to their advantage in response to English opposition. That point, however, was only reached after the Wars of the Three Kingdoms, the Commonwealth, and the Protectorate, which changed the relationship that had developed between England and Scotland from 1603 to 1638.
Fractured Allegiance, the Commonwealth, and the Atlantic World, 1639–1660
The Wars of the Three Kingdoms deprioritised overseas ventures as events at home were the priority from 1639 to 1651. Then, after the conflicts, and with Charles I executed and Charles II in exile, the Scots were left without royal patronage, which had been their greatest asset in the colonial sphere. The conflicts also disrupted the concept of postnati subjecthood and it came to be replaced with the idea of Commonwealth subjecthood. Though a common subjecthood was in place de facto from 1651 and de jure from 1654, the fracturing of the concept of postnati subjecthood had long-term ramifications as the English view of it remained ambivalent into the Restoration period. Because of these long-term consequences, especially in relation to the Restoration Navigation Acts labelling Scots as aliens with no consideration of Calvin's Case, it is worth tracing developments related to postnati subjecthood in this period.
Because the ruling of Calvin's Case was based on the allegiance that subjects owed to a shared monarch, postnati subjecthood was fractured from the onset of the First Bishops’ War in the same way obedience and allegiance to Charles I was fractured. Without allegiance to that monarch, there was no basis for postnati subjecthood.Footnote 70 During the Wars of the Three Kingdoms, tracts written by Robert Austin and Edward Buckler engaged with ideas from Calvin's Case relating to allegiance. Operating from the parliamentarian point of view, they argued, contrary to Coke's report on the case, that allegiance to the monarch had limitations. While this argument did have a Scottish connection insofar as it was used to justify the Solemn League and Covenant, it focused on the underpinnings of the case and not the issue of postnati subjecthood.Footnote 71 Austin's and Buckler's arguments did, however, have the potential to undermine the concept of shared allegiance and therefore that of shared English-Scottish subjecthood, which was based on that allegiance.
Notwithstanding Austin's and Buckler's discussions of Calvin's Case, the concept of postnati subjecthood was largely subject to ignorance, confusion, and ambivalence in the 1640s. One example is the council of Edinburgh's response to the Royalist garrison of English soldiers in Edinburgh Castle under Patrick Ruthven, Lord Ettrick (later 1st earl of Forth and Brentford), in 1640. The council complained to Charles that “it was against the lawes of the kyngdome that castells, which are the keyes of the kyngdome, should be garrisond by straungers.”Footnote 72 In his response, the king reminded the council of the ruling on postnati Scots and claimed that “by the same ressoun oure subjects of England borne since the unioun ar of richt to be compted natives of oure realme of Scotland.”Footnote 73 Leaving aside the possibility that some of the English soldiers may have been antenati, this royal interpretation of Calvin's Case made the dubious move of extending a ruling made in an English court relating to the status of Scots in England to the status of Englishmen in Scotland.
Another example comes from negotiations for the 1641 Treaty of London after the Covenanters’ success in the Second Bishops’ War. The Scottish commissioners’ demands included that there be a general naturalisation “declaring ye capacity and mutuall previledges of ye subjects of both kingdomes.”Footnote 74 With the common law precedent of Calvin's Case already existing, it is unclear why this demand was made. The intention may have been to go beyond the ruling of Calvin's Case by extending naturalisation to the antenati, or it could have been a result of ignorance about Calvin's Case. Or perhaps it reflected a desire to establish a statutory basis for mutual naturalisation that did not rely on the concept of allegiance to a shared monarch.
A third example relates to James Hamilton, 1st duke of Hamilton, who was born in 1606 and was one of the first postnati to become a colonial proprietor. First, the Long Parliament framed, but did not pass, an act for his naturalisation despite the fact that he was born after 1603 and therefore, according to the ruling of Calvin's Case, already considered a subject in England. Second, Hamilton argued in 1649 that he was not triable for treason in English courts because he was an alien in England. This argument failed, but the fact that parliament considered an act for his naturalisation could suggest ambivalence or confusion regarding Calvin's Case.Footnote 75 Parliament's approach to Hamilton and his execution could also signal a conscious rejection of the concept of postnati subjecthood based on loyalty to a shared monarch as, after all, it was the parliament that executed Charles I and abolished monarchy. Notably, the warrant for Hamilton's execution made use of his rarely used English title, earl of Cambridge.Footnote 76 Prior to the events leading to his execution, parliament exclusively referred to him as the marquess or duke of Hamilton.Footnote 77 A couple of entries in the journal of the House of Commons suggest that the use of his English title was a deliberate decision to demonstrate that he was an English subject and, therefore, triable for treason in England. These entries refer to “James Duke of Hamilton, sentenced to die by the High Court under the Name of the Earl of Cambridge.”Footnote 78 In this formulation, he was considered an English subject because he had an English title, not because he was postnati.Footnote 79
Among many others, the question of subjecthood continued to be fraught after Charles I was executed and Charles II was named king in Scotland. In the arena of overseas enterprise, this saw Charles II, as king of Great Britain and Ireland (as he had been crowned by the Scots), make grants relating to Virginia.Footnote 80 It also saw concern from the English East India Company that agents of “the Scotts King” would disrupt their trade in Persia.Footnote 81 The antagonism was such that, in 1650, English parliament forbade correspondence with Scotland and ordered Scots to leave England unless they received official dispensation to stay.Footnote 82 Furthermore, after Charles II's loss at the Battle of Worcester in 1651, Scotland was militarily subjugated by England. At that point, English parliament viewed Scotland as a conquered territory to be annexed as an English province. Oliver Cromwell instead sought a parliamentary union between England and Scotland and, though Scotland was under English military control, negotiations to that end were conducted in 1652 and 1653. The negotiations were, however, one-sided as the Scottish commissioners were not treated as equals by their English counterparts.Footnote 83 Ultimately, the Scots had little say in the union created by ordinance in 1654 and the loss of Scottish sovereignty that it entailed.Footnote 84
The English tender of union, composed in October 1651, envisioned a political union between England and Scotland and included that Scots would “enjoy the liberties and estates as the other free people of the common-wealth of England.”Footnote 85 From the transatlantic perspective, this is important in light of the 1651 Commonwealth Navigation Act, which was put into law at the same time. The act required trade with Commonwealth colonies to be exclusively conducted in ships belonging “to the People of this Commonwealth, or the Plantations therof” with the masters and majority of mariners likewise being “People of this Commonwealth.”Footnote 86 In 1652, perhaps in response to the act, the Scottish burghs sought an ordinance confirming that Scots could “enjoye their full Liberties and freedomes of trade by sea and Land in all things as free as those in England doe.”Footnote 87 By the terms of the 1651 tender of union and then the ordinance of 1654, Scots were full members of the Commonwealth and Protectorate and, therefore, not excluded from colonial trade by the 1651 Navigation Act.Footnote 88 The fact that this situation came by way of conquest and forced annexation, however, cast a shadow over Anglo-Scottish relations. For example, Scots served in the Royal Navy during the Cromwellian period, but they were “forbidden from serving more than six to a ship, because of the threat of unrest or mutiny against those who had both pressed them (on a personal level) and occupied their country (on a political level).”Footnote 89 It also needs to be noted that not being excluded by the 1651 act was not an innovation that allowed Scots to participate in colonial commerce. They were free to trade with English colonies from 1603.
Though limited, there was some Scottish colonial trade in the 1650s and no evidence that it was contested.Footnote 90 In fact, other Europeans may have begun to attempt to make use of the status of Scots as members of the Commonwealth and Protectorate who were not subject to the 1651 act. For example, when a vessel bound for Newfoundland from France was captured by the English naval officer Robert Sansum in 1655, he was told that it was owned by a Scottish merchant. The convoluted history of the vessel and the fact that there were only two Scottish crew members (the rest being French) suggests that it was truly a French vessel attempting to avoid harassment from Cromwellian vessels patrolling the Channel.Footnote 91
The 1651 Navigation Act, though it did not prohibit Scots from colonial trade at the time, is important to the history of Scots in the English Atlantic because it laid the groundwork for the Navigation Acts of Restoration England, which did exclude Scots from direct trade with English colonies. Likewise, the fracturing of the concept of postnati subjecthood is important in this regard because the Scottish argument that postnati status meant they could not be excluded by the terms of the Restoration acts was rejected by English parliament as well as English treasury and customs officials.Footnote 92
In terms of direct transatlantic impact upon Scots in the 1650s, the forced migration of Scottish prisoners to the colonies stands out. While thousands of Scottish prisoners captured at the Battles of Dunbar and Worcester were initially ordered to be transported to the colonies, the number sent is uncertain. At least four hundred were likely transported and they ended up in the Caribbean, Virginia, Bermuda, and New England.Footnote 93 The transportation of these prisoners also had bearing on the question of subjecthood and shows more ambivalence on the topic. When concerns about the legality of selling Englishmen as servants in the colonies was raised in 1659, Major Ralph Knight, an Englishman serving as a Scottish MP, raised the issue of Scots in similar circumstances. It appears that he believed Scots possessed the same rights as the English in this context, but it is unclear if his position was accepted.Footnote 94
A key point about the period of 1639 to 1660 is that Scots did not figure prominently in colonial ventures and did not receive any long-distance commercial or colonial grants in those years. This situation can be explained for the period from 1639 to 1651 by the fact that the efforts of the elites of Scotland were focused on the conflicts and upheavals taking place across the three kingdoms. For example, Hamilton was unable to pursue his interest in Newfoundland after 1640 due to his duties as Charles I's chief adviser in Scottish affairs.Footnote 95 Two plans for establishing Scottish East India Companies were considered by Scottish parliament in 1645, but, by and large, domestic events were too pressing for transoceanic ventures to be pursued.Footnote 96 After the Battle of Worcester, and as Cromwellian garrisons moved across Scotland, domestic issues remained the priority as the status of Scotland needed to be determined and rebuilding needed to begin.
Even after the Cromwellian settlement became official, there was no prominent involvement of Scots in colonial affairs. In part this can be attributed to financial reasons as the Scottish economy was in shambles as a result of the Wars of the Three Kingdoms and the cess Scots were forced to pay to maintain Cromwellian garrisons was a massive burden. Indeed, the inability of the Scots to pay even half of the originally prescribed cess indicates the poor state of affairs in Scotland at the time. Little capital was available to invest in commercial or colonial projects. Though there was some economic recovery in the mid and late 1650s, many of Scotland's ships had also been destroyed and the First Anglo-Dutch War (1652–1654) negatively impacted Scottish commerce.Footnote 97
Furthermore, the way the Commonwealth and Protectorate governments operated was, of course, different than royal government. Private proprietary structures and grants to individual noblemen were no longer the preferred system for pursuing overseas projects. As demonstrated by the Western Design, the government itself (parliament, the Council of State, and the Council of Trade) came to the fore in the colonial arena.Footnote 98 This development affected former English courtiers with colonial interests as well as Scots, but the difference was that whereas nearly all of the Scottish activity in American colonisation came from courtiers, in England, merchants and city elites were also deeply involved.Footnote 99 Therefore, “Commonwealth” transatlantic activity was primarily a continuation of that English activity as those merchant and city interests were largely allied with the government.Footnote 100 Whereas a plethora of Scots became involved in commercial and colonising companies, became proprietors of English colonies, and received colonial grants during the reigns of James and Charles, there was no such activity during the Cromwellian period. Scots were instead viewed as settlers and servants by the government, which thought transporting them to the colonies could help maintain control of Scotland.Footnote 101 With the king in exile and no Scots close to the central orbit of the Cromwellian government, there were no Scots in a position to receive the kinds of patronage and preferment they received under the early Stuarts.
Even if the financial strains on Scotland's elite would have rendered them unable to pursue new colonial ventures, the lack of patronage also had an effect. This can be observed in the cases of Nova Scotia and the Caribbean islands. Neither the heirs of Sir William Alexander nor the earl of Carlisle had ties with the Cromwellian government like their forebears had with the Stuarts and, therefore, they were unable to prevent their colonial claims from being taken out of their families’ hands. After Nova Scotia was taken from the French by the Protectorate in 1654, it was granted to the Englishmen Sir Thomas Temple and William Crowne with no concern shown for the claim of the Alexanders, which was incorrectly said to have been signed over to Claude and Charles de Saint-Étienne de La Tour in 1630.Footnote 102 After the government of Barbados declared its recognition of Charles II as king in 1650, the Commonwealth government sent a naval expedition to bring the island into obedience. After successfully doing so, control of Barbados and the other Caribbean islands that had been granted to James Hay, 1st earl of Carlisle, in 1627 was given to Sir George Ayscue and then Daniel Searle.Footnote 103 Finding himself dispossessed of any authority over the islands, James Hay, 2nd earl of Carlisle, petitioned Cromwell to “reestablish him in his inheritance according to lawe and justice.”Footnote 104 With no personal connection or influence with Cromwell and his government, Hay's petition went ignored. Though other factors played a role in the loss of the claims to Nova Scotia and the Caribbean islands, Scottish courtiers with access to royal patronage would have had a better chance of maintaining them.
Conclusion
In the years following the union of the crowns, London interest groups expressed concern about Scottish involvement in Atlantic trade and colonisation and the House of Commons rejected closer union between England and Scotland. This opposition was overcome by Scottish courtiers who, through the favour of James VI and I and Charles I, were able to join and lead colonial ventures. Their involvement included becoming members and leaders of commercial and colonial companies in England, receiving colonial grants under the English crown, and receiving colonial grants under the Scottish crown. Despite the fact they were not all endenizened or naturalised in England, they were not excluded from access to the English Atlantic because they were Scottish. Indeed, there were no legal barriers in the way of Scottish ministers, planters, and merchants settling in and engaging with English colonies in the period. As seen in the case of John Burnett, Scots could freely trade with English colonies.
Royal patronage and policy rendered 1603 to 1638 a period of Atlantic opportunities for Scots. While the policy that allowed Scots access to the English Atlantic remained intact through the Cromwellian period in the form of Commonwealth subjecthood, they were deprived of the critical factor of patronage. In combination with economic issues, the lack of patronage not only resulted in Scots being unable to pursue new colonial ventures in the 1650s, but in the loss of some of their interests that had been established during the reigns of James and Charles. Additionally, the tumults of the Wars of the Three Kingdoms and the concept of Commonwealth subjecthood damaged the concept of postnati subjecthood, which, in the absence of royal favour, could have been advantageously used by Scots in the Atlantic context of the Restoration period.
The economic and political logic of the English interest groups that supported the Navigation Act of 1651 remained intact upon the Restoration.Footnote 105 That meant the act was to be renewed under the Restoration government and—with Scotland regaining its status as a sovereign kingdom—the question of whether Scots were to be regarded as aliens had to be decided. Would Charles II intervene on the behalf of his Scottish subjects to ensure they retained their access to English colonies? Would Calvin's Case be considered now that English people and Scots once again owed allegiance to the same monarch? Both questions were answered in the negative. Scots received very little support from the crown for their colonial ambitions during the reign of Charles II and the Navigation Acts, which Charles supported, labelled Scots as aliens to be excluded from traffic with English colonies.
This article contextualises the long-standing idea that the Restoration Navigation Acts defined the position of Scots in the English Atlantic from 1660 to 1707 and demonstrates that patronage largely defined it under the early Stuarts. With this understanding, the question of patronage in the later period requires more attention. For, if Charles II had extended his patronage to more of his Scottish subjects and used the royal prerogative to their advantage in the Atlantic world like his father and grandfather, Anglo-Scottish relations and the question of union would have developed differently. Furthermore, the question of postnati subjecthood and its use in arguments against the exclusion of Scots by the terms of the Navigation Acts deserves more attention. An understanding of how the concept developed from 1603 to 1660 serves as a starting point for an analysis of the topic.
Acknowledgements
The author thanks Steve Murdoch for reading a previous version of this article and the two anonymous reviewers for their comments and suggestions for improvement.
