MacMillan, Sovereignty and Possession in the New World

READING NOTES
Introduction
English got to the New World late: John Cabots voyage to America,
1497
Columbus (1492)
Papal bull Inter caetera (1493)
Treaty of Tordesillas (1494)
English New World, 1576 1640
Martin Frobishers 3 voyages to the North Atlantic b/w 1576 and
1578
- Original intent was to find Northwest Passage to China, but found
gold (which was actually rock) on Baffin Island instead
- Elizabeth lost money
Sir Humphrey Gilberts failed attempt to set up colony at
Newfoundland, 1583
Sir Walter Raleighs colony at Roanoke, 1584-87
Anglo-Spanish War 1585-1604
After Anglo-Spanish War
James I used the joint-stock model which allowed for colonization of
North America w/ no cost and little oversight by the monarch
Jamestown, Virginia founded in 1607 by the Plymouth merchants
but it came under royal control in 1625
Settlement of Newfoundland, 1610-1638
Settlement of Bermuda, 1612
New England Company founded Plymouth colony in 1620
Massachusetts Bay Company founded colonies in CT, NH, and RI in
1629
Maryland, 1632 refuge for Catholics
West Indies, e.g. Barbados, and Amazon region of S. America, 1625
1640
Did England really have an empire around this time?
Richard Koebner thinks that during the whole Tudor and Stuart
periodsrealm of England was not imposing enough to qualify as an
empire.
1680 England became a legit sea empire
The crown didnt just sit back and let the private companies do all the
work.
It did care to assert its imperium (independent and absolute
sovereignty) and its dominium (right to possess and rule territory
under its jurisdiction).

No British Empire existed during late-Tudor and early-Stuart

England, but exercise of sovereign authority and the subsequent
power relationships it created between the monarch and the
colonies were important
Imperium = sovereignty; dominium = possession
Natives were dispossessed of their land on the grounds that they
violated natural law e.g. not letting the Europeans use their rivers
and harbors and not being open to trade and friendship
Also even if they were allowed to use their land despite their
incivility and savagery, their inability to put the land to productive
agriculture use meant they were going against both God and
nature.
Using the Bible, the natives didnt have possession of the land
because they didnt cultivate it
Focus of this book Assertion of sovereignty and possession over
English subjects and other European colonial powers
Spain and Portugals claim to territory based on a preemptive
code discovery, papal approval, treaty
England, France, and the Netherlands used a dominative code
physical occupation of the land
Legal charters of the English subjects stipulated to build and fortify
implying improvement of the land
The English adhered to common law, based on improvement of
land, rather than Roman law
But MacMillan argues that the main legal foundations of the English
New World were based on the crowns imperial sovereignty and on
the system underlying this imperial sovereignty Roman law

Chapter 1 Sovereignty, empire, and law in a New World context

Sovereignty and empire in England and Europe
Treaty of Westphalia
Ended the Thirty Years War in 1648
Led to independent, sovereign states not bound to the Pope and the
Holy Roman Emperor
Most historians disagree with the Westphalian myth the treaty
was simply the culmination of a long process that began in the 12th
century
- Pope Innocent IIIs decretal a king is emperor over his own
domain
- Most important to the establishment of modern nation-states was
the Protestant Reformation

In England, Henry VIIIs schism with Rome, in particular an act

passed in 1534, made the king the the ultimate ruler of both
church and state
Ideas about sovereignty in Bodins Six Livres de la Rpublique (Six
Books of the Republic), 1576 reigned supreme until the Treaty of
Westphalia
- Absolutist theory of sovereignty: Sovereignty is the supreme
and absolute power over citizens and subjects Bodin
Imperium internal AND external sovereignty
Legal pluralism and royal prerogative in England
Common law was the dominant legal code at home, but historians are
too quick to dismiss the role of Roman law and its derivatives on
England
Derivatives of Roman law civil law, natural law, law of nations
were taught to law students at Cambridge and Oxford
Common law had its limits, so sometimes it became necessary to
use Roman laws, e.g. of natural equity
The royal prerogative
Limited prerogatives
Absolute prerogatives
Legal authority in the English New World
Claiming, settling, and governing territories in the New World relied on
absolute prerogative and Roman law
Newly discovered lands fell outside the jurisdiction of common law and
ordinary prerogative
Common law courts could not be used by settlers of Ireland, Scotland,
and Wales, if their suits did not pertain to land and property located in
England
Although laws in Ireland were respected based on the precedent that
native laws should be maintained in conquered areas, native laws in
America were not, because these were infidel laws part of infidel
realms
The colonies in America and the West Indies were not subject to British
law until the king declared English laws to be valid there, but the
colonists would still keep their personal liberties since they were born
in England
These personal liberties were first guaranteed by William the
Conqueror, and then reaffirmed by the Magna Carta and included the
rights to not be unfairly deprived of life, liberty, or property
House of Commons debates show that it did not feel that it had the
right to make laws for the colonies

 John Adams drew upon the fact that parliament didnt have any
authority over America when he argued against taxation without
representation
The law of nations and the supranational community
Lack of a supranational legal system or supranational laws throughout
much of this period (1576-1640) until either Hugo Grotiuss De Iure
Beeli ac Pacis (The Laws of War and Peace) of 1625 or Westphalia
(1648)
Before Grotius and Westphalia, European powers had relied on ius
commune based on Roman law and its derivatives (civil law, natural
law, the law of nations) since the late medieval period to resolve
issues in the European community
English crown wanted to ensure that it would secure acquiescence or
recognition of its colonies in the New World
Acquiescence legally viable acknowledgement acquired over time
through the lack of protest or through implicit acceptance of a given
activity
Recognition formal acknowledgement of claims to imperium and
dominium made by a sovereign state, usually through treaty or
other written agreements
Conclusion
Chapter 2 Defining the Elizabethan empire in America
Introduction
Tensions between Protestant England and Catholic Europe, between
England and Spain
Frobishers attempt to settle Baffin Island occurred six years after Pope
Pius V had excommunicated Queen Elizabeth
Elizabeth had been holding Mary Queen of Scots prisoner since English
and European Catholics wanted Mary on the throne instead of
Elizabeth
Hakluyts Discourse of Western Planting was essential to Tudor
expansion since it showed the potential of the New World empire under
Elizabeth
John Dee (1527-1608)
Coined/popularized the term British Empire
In his writings, especially The Limits of the British Empire, Dee
defined the boundaries of the Elizabethan empire and her legal right
to sovereignty and possession over these lands
- His argument made logical sense in a supranational context
- Pointed to the stipulation in Roman law that based possession on
both occupation and discovery

Geography, history, and law

For Dee, Estotiland Baffin Island was the key to controlling North
America north of Florida
It was a civilized island where the natives spoke many languages,
had advanced agriculture and Latin texts, and traded with the
British in the past
Thus, Frobisher could carry out his attempt to settle Baffin Island
Limits was different from Dees other works in that he was more
restrained and only concerned with providing good, solid advice in
Limits rather than appealing to nationalistic and Protestant fervor
The limits of the British Empire
Dee gave the last part of The Limits of the British Empire to Queen
Elizabeth on August 16, 1578
Dees argument relied on appealing to the crowns imperium and its
right to sovereignty and possession rather than any economic gain
Dee believed the British had claims to various lands based on
ancient historical records and the Arthurian legends e.g.
Scandinavia and most of Europe
Dees argument against the Iberian claims was a response to the
papal bull Inter caetera, which led to Tordesillas, which gave Spain
and Portugal exclusive rights to all unknown lands in the world
The bull stated that only grace gave dominium, or possession,
rights to a nation
Dee believed that Pope Alexanders bull was meant to be one of
limitation rather than a super generous gift of all unknown lands
to Spain and Portugal, to keep Spains power in the New World in
check
Dee concluded his analysis of the papal bull by arguing that
Elizabeth was the legitimate heir to the Spanish and Portuguese
crowns
Conclusion
Dees claims in The Limits of the British Empire, especially the fourth
document, were too ridiculous
After Frobisher, the crown was hesitant to invest in risky ventures
overseas
Mendoza-Drake affair required Dees expertise to resolve a territorial
dispute between Spain and England (Drake claimed Nova Albion
California or Oregon for Queen Elizabeth)
John Dees works, especially The Limits of the British Empire, were very
important

Chapter 3 Letters patent and the acquest of dominion

Introduction
Letters patent were open letters issued under the direct authority of
the imperial crown, sealed by the Great Seal of England, and had the
force of law.
Petitions, foreign policy, and writing the patent
Before a letter patent was awarded, writers usually sent in petitions or
other documents to the crown; e.g. Dees Memorials and Memorials
Frobishers instructions, and Gilberts patent; Hakluyts Discourse of
Western Planting Sir Walter Raleighs patent
The petitioning process was not just formalities but were serious
matters
The Spanish werent happy with the English settlements in the New
World but they werent too concerned because they expected the
colonies to fail eventually
Patents could be canceled if the person to whom the patent was
originally issued had pissed off the king e.g. Captain Roger North left
for Guyana from Plymouth without permission from the king
The crown played a crucial role in authorizing overseas endeavors
Internal sovereignty: Land tenure and crown authority
Land held by the kind could either be in capite or ut de manore
Patents awarded to Sir Gilbert and Sir Raleigh were based on manorial
socage or ut de manore makes sense since a colony isnt expected
to be profitable in its early years and lands granted in capite would
have placed undue financial burdens on the patentees and deterred
people from venturing overseas
The proprietary colonies were based on in capite or ut de corona
because of the potential profits to be made from growing cash crops
like tobacco and sugar which would enrich both the patentees
themselves and the king
Unlike normal in capite tenure, the settlers of these lands did not
have to pay taxes to the king, so less financial burden
The patentees were granted more power in governance had
palatine and regalian powers
A third type of land tenure was based on a combination of in capite and
ut de manore
Lord Baltimore and Lord Montgomery could basically rule as
monarchs in their colonies while giving little back to the king
- Why did they get these extremely liberal grants? Perhaps it was
because of their political connections and their knowledge of
colonial affairs (they knew which patent would be most
advantageous to them)

 Historians usually believe that the crown wasnt interested in colonial

affairs and its support of the colonies was irregular but MacMillan
argues that this seeming apathy and disinterest was actually
calculated and intentional
Virginias transition from a trading company to a royal colony great
example of crown exercising internal sovereignty and absolute
prerogative
Patent was revoked after reports by Nathaniel Butler that the
settlers were starving and subject to slave-like treatment under laws
going against the colonists natural rights
- Trade and commercial affairs still under the companys
jurisdiction, but government of the colony was now placed under
the king
External sovereignty: Roman law and the law of nations
Elizabeth and early Stuarts borrowed the language of the papal bulls
and other documents by European colonial powers to ensure that their
letters patent would have the same legal authority.
Justinian: if you are holding land and nevertheless intend not to
possess it, you will at once lose possession. Possession can therefore
be lost by mere mental act, although it cannot be so acquired.
Argument used by the British to claim Spanish territory
Possession depended on occupation
Virginia Company patent: claim lands that were not now actually
possessed
Similarly, Bermuda was mentally possessed by the Spanish but without
actual physical occupation, the English were free to take control of it
Discovery of Bermuda by the English in 1609 and issuance of a royal
patent
Thus, possession, as viewed by the English, drawing on Roman law,
had two components: Physical and mental
Ironically, Gilbert and Columbus and other Spanish/Portuguese
claimants all performed the same ceremony of possession
The English themselves viewed ceremonial aspects surrounding
possession e.g. sticking an English flag in a pile of stones upon
discovering land as fulfilling the mental aspect of possession but not
implying physical possession
The influence of Roman law on the acquisition of territories 1. Follow
Justinians laws regarding new territories; 2. Ensure that the territories
would abide by the law of nations, nature, war and peace, and prizes
Chapter 4 Defending sovereignty and possession in the New World
Introduction

 Upon colonists arrival in America, crown and colonial administrators

were mainly concerned with fortification and defense
For good reason:
- The Powhatan attacked Jamestown shortly after arrival of settlers
- Pequot was a threat in New England
- West Indian Caribs prevented settlement by colonists
Fortifications also necessary to prevent against attacks by other
European colonial powers e.g. Spain
According to Justinian, a person who flees from an attack on his land
and doesnt defend it gives up his rights to the land
The beginnings of empire and the Spanish threat, 1578-1614
The Spanish were clearly interested in the English colonies
Roanoke Island strategically located with natural defenses (situated
between mainland North Carolina and the Outer Banks); exact location
had to be kept on the DL to protect it against the Spanish
Guiana could have been another strategic settlement but the queen
did not want to spend money and resources on conquering Guiana in
the midst of the Anglo-Spanish War
Treaty ending the Anglo-Spanish War in 1604 was intentionally vague
on English rights in the Americas
Nevertheless, the Spanish threat to the colonies was more based on
perception than any real danger faced by the English
The Spanish threat faced by the Virginia colony
A lot of talk but very little action rumor-spreading and paranoia by
the English
The Spanish threat faced by Bermuda
Defending the early-Stuart empire in America, 1604-1640
Bermuda had natural defense fearful rocks and shoals
It also protected itself by building eight or nine forts under the
governorship of Richard Moore (Bermudas first governor)
So much time and energy was devoted to the construction of these
forts that there was no time left to fish/plant food shortage
Newfoundland had strong winds during the non-summer months
Because of the Spanish and Powhatan threats, Virginia government
was placed under martial law when the Virginia Companys charter was
reissued in 1609
Fortification and safety were the top priorities for the colony those
who broke the law for the third time were put to death
Plymouth colony
So much vigor in building the 2700-feet fort that colonists didnt
have time to plant enough crops for the winter
Beginnings of militias

Colonists in Virginia and Bermuda were exercising their military

skills regularly and were trained in using military weaponry
Tensions with Spain resumed in the West Indies in the 1630s after
Spain attacked the island of St. Kitts in 1629
Conclusion
Fortifications and defense systems were necessary both from a
practical and a legal point of view helping to secure the claims to
sovereignty and possession which the English so fervently desired
People frequently overlook the threat posed by other European colonial
powers and only focus on the natives
Defensive triangle formed by Bermuda to the east, Newfoundland to
the north, and Virginia to the south
Made the English appear stronger and more united than they
actually were
Chapter 5 Mapping the English empire in North America
Introduction
English maps of the New World were generally inaccurate and inferior
to Dutch maps
On maps - simultaneously needed to protect the whereabouts of
English discoveries in the New World and proclaim sovereignty and
possession over those discoveries
Manuscript maps and the policy of secrecy
Dees map was one of the most comprehensive and accurate at the
time, since he, unlike Gilbert and Best, was actually trained in
mapmaking by Frisius, Mercator, and Ortelius
Printed maps of the English New World
By early 1590s, some foreign mapmakers recognized English territories
in the New World; maps of North America would usually include
Virginia as a place name
Whites map (geographically accurate and mostly free of propaganda)
vs. De Brys map
De Brys map was reprinted many times and also reproduced in
books
Whites map remained unpublished, in manuscript form
Conclusion
The maps were important and fairly successful at projecting an image
of English colonies in the New World that was stronger than they
actually were to assert English sovereignty and possession in the

region to other European powers, without revealing secret information

regarding the actual territories
Important to note that the maps never mentioned the joint-stock
companies to whom the initial patents/charters to start a colony were
granted Virginia was a territory of the crown, not of the Virginia
Company; similar Newfoundland was not part of the Newfoundland
Company
Chapter 6 Negotiating the early-Stuart empire in America
Introduction
Two main negotiations between English crown and other European
powers
1. Negotiations to end the Anglo-Spanish War (1585-1604) Treaty of
London
2. Anglo-French negotiations b/w 1613 and 1632 Treaty of St.
Germain-en-Laye
Anglo-Iberian negotiations, 1604 30
Purpose of the Treaty of London was to establish friendly trade
relations b/w Spain and Britain and England wanted freedom of
commerce in all Iberian territories
Again the English brought up the papal bull and argued that the Church
could only decide on matters of religious conversion; if the papal bull
were to be enforced, it would only apply to the Greater Antilles, the
only lands actually discovered by Columbus, and not lands the pope
didnt know existed
The wording of the Treaty of London was very vague neither
prohibited nor approved of English colonization in America
King Philip wanted to restrict English trade and commercial activity in
the Indies, because, as he argued, the Iberian kings had spent a lot of
money on ventures that led to the discovery of those lands, it was only
fair that those regions should benefit the Iberian powers
Anglo-French negotiations, 1613-32
Legally, empire was based on the tenets of animus and corpus
The French colony of Port Royal was south of 45 and within the
parameters stated in the Virginia Companys charter
Conclusion: Toward acquiescence and recognition
Linguistic differences did not really hinder negotiations since a lot of
the legal language came from Roman law and was written in French
and Latin
By the time Locke and others were writing about the importance of
discovery and physical occupation as key to gaining rights to unknown

land, their ideas were no longer original and had already been
discussed in the early years of empire-building (as demonstrated by
the Elizabethan and early-Stuart documents and negotiations)
Epilogue