The Juridical Status of NonChristian Polities To The End of The Eighteenth Century

2
The Juridical Status of Non-Christian Polities

(to the End of the Eighteenth Century)
Overview
This chapter looks at the manner in which the Crown established political authority in
territory inhabited by non-Christian people in the seventeenth and eighteenth centuries.
In that first burst of sustained encounter, the main theatres of imperial activity were the
East Indies and North America. The notion of sovereignty then evident in British prac-
tice remained a substantially feudal one, conceiving Crown imperium (right of govern-
ance) in a jurisdictional rather than the absolutist and territorialized sense that emerged
in British practice and legal thought of the nineteenth century. In this early period treaties
and quasi-diplomatic engagement with non-Christian polities were not regarded as
problematic. These relations (and their ritualism) established protocols and structures for
the management of relations between non-Christian polity and the British. They were
used regularly and frequently as the foundation for British relations with the indigenous
polities of both America and the Asian subcontinent, especially once the nature of British
imperialism changed after the military victories of the late 1750s. By the early nineteenth
century and driven by the gathering forces of modernism, British imperial practice began
forming a new, more deliberative view of sovereignty and relations with tribal societies.
***
1. Introduction
A history of sovereignty is a history of the constituted and constituting self. As a
political body this self will have a changing and fluid membership, but its sense of itself
as distinct from its membership is the heart of its claim to sovereign identity. All political
communities carry an awareness of themselves existing in time and place, a sense of
coherence as a political body exercising authority that western political thought has
termed sovereignty. This sovereignty, unlike the individuals who constitute it, is not
a fact. It is a concept that people in certain circumstances have applieda quality they
have attributed to or a claim they have made againstthe political power that they or
other people have been exercising.1
1
FH Hinsley, Sovereignty (London: Watts, 1966) 1.
Aboriginal Societies and the Common Law. P.G. McHugh.

Oxford University Press 2004. Published 2004 by Oxford University Press.
62 Aboriginal Societies and the Common Law
Like all selves this sovereign will have an awareness of itself as a beingan inward,
self-reflecting gaze. It will also have a perception of its relations with others. It will
know itself and it will see others. In modern Anglo-American jurisprudence those
different aspects are usually embodied in the distinction between constitutional and
international law. The constitutional law of a political society gazes inwards. It describes
the conditions for the exercise of public authority within the polity. International law
peers outwards. It describes the politys relations with other sovereigns. Histories of
sovereignty are usually histories within those respective spheres. The histories either
describe the arrangements of governance that a distinct people has contested and
reconfigured within itself through time, or they describe the ways in which sovereign
societies have transacted in time, by war, treaty, commerce, and otherwise.
A history of the conception of sovereignty as it has occurred in relations between
aboriginal peoples and the common law is not, however, a neat division between
constitutional and international law. As the judgments of Chief Justice Marshall in the
American Supreme Court during the 1830s made plain, common law attempts to
explain the situation of aboriginal peoples have incorporated elements of constitutional
and international law. That is, an organic view of its sovereign Self as well as perception
of the aboriginal Other have shaped common law responses to aboriginal societies
distinctiveness. Those responses have included the sometime fiction that they were not
there (legally speaking). The constitutional construction (and destruction) of the
aboriginal polity by the common law has said as much, if not more, of the settler-states
view of itself as it has of the tribal.
Aboriginal peoples have their own histories and in as much as these are accounts of
their own political coherence as well as relations with other (tribal and colonial) pol-
ities, these may also be regarded as histories of sovereignty. Just as the common law
inside each jurisdiction has produced its own account (and history) of its sovereignty,
so have the aboriginal communities. If sovereignty is an intellectual contrivance of
western culture it is a concept that aboriginal peoples have adopted and applied to
their own condition, some with ambivalence, others willingly. It is a concept equip-
ping a political community with a sense of its own organization and endurance in
time and place as a society or people against that of arriviste or antagonist forces with
a coherence (and threat) of their own. That engagement between different sovereign-
ties, particularly the tribal and the colonial, has been mostly an oppositional though
not wholly immiscible one. The encounter between separate communities wasand
remainsnegotiated through treaty, compact, war, resistance, and the interaction of
the communities law-ways. Unavoidably, aboriginal communities have woven the
experience of engagement into their own histories. These histories of tribal sover-
eignty have been grim but proud tales of adaptation, resilience, and survival. They are
not the direct concern of this book although they mostly validate the claim that a
distinct aboriginal sovereignty survived and reconfigured against yet also inside the
colonialism of the settler-state. Even in the teeth of dispossession and extreme mar-
ginalization, tribal communities have retained a sense of their distinctiveness as a
political community. Important as they are, relating those histories is the task of those
with access to the indigenous record. The history given here is within the Anglo-
American paradigm and reports the notions of sovereignty that the arriviste common
The Juridical Status of Non-Christian Polities 63
law polity has constructed and applied in time. However the endurance as well as
viability and vitality of those aboriginal histories is axiomatic. Through them abori-
ginal peoples have insisted upon their separate-ness, an apart-ness from the settler-
state that is validated historically and in their contemporary situation. This forms the
basis of their claiman increasingly strong one in the last quarter of the twentieth
centuryto aboriginal sovereignty.
This chapter looks at the earliest common law responses to that political distinct-
iveness. This chapter considers the initial period of British imperialism when a
personalized, jurisdictionally-oriented approach was taken. By the early mid-nineteenth
century more absolutist notions of sovereignty appeared in British practice which was
now beginning to think more consciously and protractedly about the legal foundations
of its relations with non-Christian societies. The modern approach to sovereignty that
emerged during the mid-nineteenth century is considered in the next chapter.
Tribal communities in North America and Australasia say they have never shed their
aboriginal sovereignty. It has been exercised historically and it has continued uninter-
rupted (if, in past times, severely besieged) into the present day. That historically
validated, contemporary sovereignty has usually been regarded by them as autonomous
and unaccountable in character. In that regard they have given their own sense of political
organization and endurance key attributes of the western concept.
First, it has been imbued with an inherent quality, arising independently of state
recognition. Aboriginal peoples insist that their patterns of conduct over time, if not
protestation, show that that their mechanisms of self-regulation and means of cultural
integrity have not depended upon the formal recognition of the settler-state. Rather,
they hold that these tribal institutions and practices derived legitimacy from the
political organization and forms of native society itself. Further they have rejected any
association of their claims with that of other minority or ethnic groups within the
state. They believe their historical continuity with the pre-colonial and post-colonial
societies that developed on their territory has made them a distinct, non-dominant
sector of national society.2 In that regard the adjective aboriginal has become
particularly key.
Secondly and relatedly, aboriginal peoples have considered this claim to a separate
autonomous status as all-pervasive and lying beneath virtually all their claims. For
example, during the last decade of the twentieth century many tribal groups resisted
attempts by the state to sever resolution of self-government from the land and property
claims processes. Many native groups, in Canada particularly, were reluctant to distin-
guish issues of imperium from those of dominium. Aboriginal groups saw (and in the
new century still see) this sovereignty as validated by the historical pattern of settler-
state relations with them and by their own persistent and enduring retention of group
identity even in the teeth of aggressive policies of assimilation.
At the end of the twentieth century, tribal peoples of North America and
Australasia almost uniformly saw their aboriginal sovereignty as incorporating several
2
This is an adaptation from the working definition by the United Nations Special Rapporteur,
Jose Martinez Cobo, Study of the Problem of Discrimination against indigenous populations UN Doc E/CN.4/
Sub.2/1986/7/Add.4, paras 379380. This is not to say that the norms of international law applicable to
ethnic minorities are inapplicable to aboriginal peoples (see below ch 5).
elements. The inherent powers of the aboriginal polity consisted, it was said, of the
powers to:
(a) determine the form of governance;
(b) define the conditions for membership in their group/nation;
(c) regulate the domestic relations of its members;
(d) levy and collect taxes and administer their assets freely;
(e) administer and enforce laws.3
These powers, aboriginal groups and leaders asserted, arose from their inherent,
unextinguished sovereignty.
In the final quarter of the twentieth century and faced with these claims, the North
America and Australasian jurisdictions became preparedalbeit awkwardlyto
recognize more fully and sympathetically the distinct status of aboriginal peoples.
However, as remarked already, the capacity of these common law jurisdictions to
accommodate that claim was affected considerably by the way in which each saw its own
sovereign identity. Since aboriginal sovereignty represented a claim to an imperia in
imperio, any provision for it necessarily had consequences for the settler-states view of its
own authority. The claim to aboriginal sovereignty thus raised important constitutional
questions for each jurisdiction.
Attention turns here to a central historical theme of the common law conception
of sovereignty as it has shaped encounter with aboriginal societies. Over time there has
been an enduring tension between, on the one hand, the treatment of tribal polities
(and individuals) as distinct and special beings and, on the other, the solipsism of the
Anglo-American sovereign in which that distinctiveness has been subsumed into
smothered byits own all-encompassing identity. In other words, it is a history
where sovereignty tends towards both pluralistic and monolithic forms. The ascend-
ance of either tendency has been as much an intellectual outcome of the actual state
of relations between tribal peoples and the colonialist authority as the internal logic of
a changing concept itself. As a concept with a history of its own, sovereignty both
shaped the character of relations with aboriginal societies and was shaped by those
relations. It has not been a static concept. The dialectic has been one where aboriginal
societies were simultaneously apart from yet part of the settler-sovereign identity.
Plainly the problem of reconciling the tribes status with the political authority of the
settler polity did not occur at the outset of contact and white settlement. Historically
in their early stages most settler communities were dependent upon tribal support and
plenishment. At this stage there were clearly two distinct communities. But as white
presence and dominance grew, the arriviste polity perforce had to develop a more
refined sense of itself as a constitutional being in relation to its aboriginal neighbour.
That consciousness was, of course, a subject of debate within each settler polity
and changed over time, driven by the exigencies and disposition of each. It incorpor-
ated religious, economic, and cultural aspects and the profound influence of those
should never be forgotten. This and the next chapter are concerned with how that
3
Adapted from Indian Government, Statement by the Federation of Saskatchewan Indians,
June 1977, 55.
consciousness of tribal political distinctiveness, proximity and contact with the settler
polity took legal form.
This legal form, it will be seen, appeared in the rhythm of imperial and colonial
practice although it took an increasingly deliberative aspect from the mid-eighteenth
century. For more than a century and a half from first settlement of the New World, the
common laws position on aboriginal status was less the expression of conscious rules
than in the heartbeat of what was being done by imperial and colonial officials. By the
early nineteenth century a more distinct awareness was emerging in imperial and colo-
nial legalism. From that time the apparatus of the settler state started articulating a
common law position that reflected that inside-outside dialectic. For example a New
Zealand case (1872) treated Maori tribes as incorporated into the Crowns sovereignty
yet also remaining beyond it.4 At much the same time American courts were develop-
ing the plenary doctrine allowing Congress to override the tribes residual sovereignty,
so also putting the tribes simultaneously outside the usual political authority of the
nation but subject also to it. Once the settler-state was secure enough physically to
claim (at least as against other European nations) its hegemony in relations with indigen-
ous peoples, this inside-outside dialectic became embedded in its constitutional
discourse. It was evident in all historical phases of the encounter but its manifestation
naturally varied with time and setting.
The singular/plural dialectic has been an historical motor for the concept of
sovereignty. In the late twentieth century aboriginal peoples put themselves at its plur-
alistic end through claims to rights of self-determination. Those sympathetic to their
claims were disposed likewise. However constitutional lawyers and courts cleaving
intellectually to the unitary common law model of sovereigntyitself (it will be seen)
largely a nineteenth-century modelwere unable to recognize a shared or multiple
version. During the nineteenth century the proper treatment of aboriginal peoples had
required application of the unitary and absolutist view of settler-state sovereignty. By
that view, aboriginal peoples were treated as absorbedassimilatedwholly into the
legal system of the settler-state. This desideratum of the indigenous person becoming
an individual citizen or subject, their tribal community and association dissolved, was
put into laws already contemplating that result. They were predicated upon the
ultimate overriding sovereignty of the arriviste white polity. At the Colonial Office
James Stephen explicitly rejected a pluralistic model, thinking Crown sovereignty over
native peoples their best protection. To repeat, the dialectic has been an historical one,
both shaping and being shaped by the encounter with aboriginal peoples.
A similar historical dialectic between an all-encompassing single sovereignty and a
multiple form also occurred in other sites of Anglo-American political discourse. British
settlers themselves were subject to imperial authority and over time, be the colony Puritan
or penal, their sense of apart-ness or autochthony also sharpened. Inevitably settler
communities formed over time a sense of their own legitimacy apart from that of Britain.
The American Revolution represented a violent outburst of the tension contained in
that other dialectic, as more peacefully did the mid-nineteenth century devolution to
colonial legislatures of constitutional authority through responsible government. A single
4
Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 85.
ever-expanding empire under the one sovereign, the imperial Crown learnt from
experience, was not an everlasting condition. Londons relations with its own settler
communities were as ridden with tension as those with the indigenous population. Its
own imperial sovereignty was itself capable of fission and then into new sovereignties
which themselves generated their own fresh senses of singularity. Just as the imperial
Crown harboured a sense of its own unity and ultimate authority, so also moved the
political communities of what became the settler-states of North America and
Australasia to a similar view of their own sovereignty.
The American Civil War and the Maori Wars of the mid-nineteenth century were
graphic illustrations of how sovereignty has seemed destined always to contain that
genetically imprinted dialectic between dispersing and centralizing political authority.
At the end of the twentieth century courts, politicians, and political philosophers in the
individualist liberal tradition sought to accommodate multicultural pluralism within
the context of settler-state sovereignty and common law constitutionalism.
Any history of sovereignty must, therefore, also accommodate the constitutional
story of the settler polity itselfthe means by which it has disengaged from the
imperial condition and formed its distinct constitutional identity. Indeed the bitterest
experience of aboriginal peoples occurred at a time when the settler polities were most
sharply and consciously developing their own sense of distinct constitutional identity.
This was the nation-building period in the late nineteenth and early twentieth
centuries when the United States was following its Manifest Destiny and the Canadian
and Australasian colonies were moving beyond responsible to self-government.
Emergent, headstrong settler nationalism flexed its coltish muscle by turning most
harshly on the aboriginal. This internal conversation within the settler polity about the
character of its own sovereign identity had a direct impact upon the aboriginal.
Eurocentric nationalism not only swept the Old World but flourished in the New.
The purpose of this and the next chapter is to provide an historical account of the
concept of sovereignty as it developed in relation to aboriginal societies. These chapters
will consider the means by which the Crown acquired and erected a right of govern-
ment or an imperium in territory beyond the realm, more particularly land inhabited
by non-Christian societies. This was the historical phase in which these societies were
the external Other on the verge of incorporation into the imperial fold. The next two
chapters describe that process of legal incorporation. It will be seen that the character
of the royal imperium varied in particular contexts and with the character of British
interests in a region. Nonetheless certain themes remained constant in this practice.
First, the Crown recognized the juridical capacity of non-Christian rulers to license a
British imperium in their territory. Relatedly the Crown proceeded on the basis that
any governance or imperium over the non-Christian societies of those territories was
directly related to their consent. The time, geography, the character of the aboriginal
people themselves, and the changing nature of English (then British) design affected
the application of those guiding principles. These two chapters describe the history of
that practice and the evolving notions of sovereignty in British imperial practice.
British imperial practice displayed a distinct difference in the conception of
sovereignty between the First and Second British Empires. During the First Empire
it is difficult to speak of sovereignty as any clearly formed or crystallized concept.
There was certainly a distinct pattern of dealing by which the British Crown recognized
the juridical capacity of tribal societies and refused to exercise any governance over
them without their consent. In that sense British practice was certainly jurisdictionally-
aware, but it was not based upon the strict territorial and extra-territorial models
emerging in the late eighteenth and in place by the mid-nineteenth century. One
might speak more of the jurisdictionalism revealed by British practice than a devel-
oped notion or doctrine of sovereignty applicable to relations with non-Christian
peoples. By the mid-nineteenth century the British had developed a more deliberative
position on the question of Crown sovereignty over territory, but even by the late
eighteenth century that was far from being reached. However, by then the awareness
was dawning as more particular attention came to be paid to the mechanics of acquir-
ing an imperium over non-Christian people. To later eyes immersed in the new imper-
ial mentality of the Victorian era, the practice of the First Empire had clouded or
confused the question of sovereign status by not adhering to the models established by
the mid-nineteenth century. By the beginning of that century that messiness was
being replaced gradually by a much more considered and calculated approach, oiled
by the bureaucracy of the newly-instituted Colonial Office. This produced a growing
legalism that stiffened and eventually strait-jacketed British practice in Africa and the
Pacific. The change in the Crowns formal practice from First to Second Empire was
also, of course, an expression of the change in the nature of imperial design. British
imperial activity in the First Empire was not particularly interested in acquiring sov-
ereign authority over native peoples and British practice was generally content to leave
these polities be, or at least not to seek actively any jurisdictional hold over them. In
that context the question of imperium was not particularly pressing. In those areas
where it was, such as in the marginal reaches of the thirteen colonies and into the great
American interior where settler and Indian clashed, treaties of jurisdiction and impro-
vised agreements with the Indians largely sufficed. The complexion of British imperial-
ism changed in the second half of the eighteenth century after the Seven Years War.
For the first time, the Crown acquired sovereignty over large native populations. As
this new phase in British imperialism began, the legal status of these non-Christian
people became a matter of more specific concern. The anti-slavery movement had
contributed significantly to that, but there was also a growing acceptanceor, more
aptly, realizationof Britains imperial destiny to rule over large numbers of tribal
(and non-Christian) people. The jurisdictional mess in Canada and the East Indies
at the end of the eighteenth century, largely an inheritance of the old imperial prac-
tices, disclosed the need for a more principled, less pragmatic approach. The concept
of sovereignty developed as part of that realization; the shape of its development was
a direct outcome of Britains changing imperial experience. As British imperial ambi-
tion ballooned in the nineteenth century, so did the legalism (and bureaucracy) that
accompanied it.
This chapter will explore the formal character of British relations with aboriginal
societies during the First British Empire. In this period the British did not apply a
mature notion of sovereignty but accepted the capacity of non-Christian societies to
enter into political relations with the Crown. In true common law style the recognition
of that capacity was a consequence of sustained practice carried over from theatre
(Christian Europe) to theatre (the East) to theatre (the New World). It was not until
the middle of the eighteenth century that sustained deliberation about international
personality appeared. In hindsight one might see that practice as already and implicitly
carrying recognition of the sovereignty of the non-Christian polities. It should be
borne in mind, however, that for the most part during this period the purpose of
British relations with non-Christian societies was not so much to clarify the latters sta-
tus as to spell out the scope of British authority over its own subjects. Imperial practice
was largely oriented about defining the position of British people in foreign territory.
The practice of the seventeenth and eighteenth century will seem inexplicable if a
latter-day notion of sovereignty is used to interpret that activity. We might begin this
Second Empire from the period of territorial aggrandisement that began effectively in
the late 1750s with the victories at Plassey (1757) and the capture of Quebec (1759),
but which was not in full train until the next century. These victories signalled the
triumph of British over French imperialism. This new phase of British territorial acqui-
sition required an ideology to support and order it; it was in and from that context that
a doctrinaire modernist sense of sovereignty emerged in British practice and the
imperial common law.
2. Sovereignty as a personal relation between ruler and subject

Political conditions during the fifteenth and sixteenth centuries were preparing Europe
for the modern doctrine of sovereignty. The continent was still working through the
dying hold of the Holy Roman Empire and the increasingly frail status of the papacy,
in which regard the Peace of Westphalia (1648) is usually seen as setting the basis for a
modern secularized system of international relations. The notion of the sovereign as an
independent and exclusive territorial authority was first articulated by Bodin in his
highly influential Six livres de la republique (1576). This works explanation of the
secular sovereign state was eagerly studied in England, where a translated edition was
published in 1606. Political conditions within the country were by then highly recep-
tive to this development. This favourable climate had long existed, but the technical
language, still largely medieval in character, had been wanting.5
The late Tudors had spurned the notion then still lingering on the continent that
Christian kings might be subject, even in a limited sphere, to supervening papal
jurisdiction. By the late fifteenth century the Tudors style as emperor showed their
rejection of any superior jurisdiction over their throne. This status conferred an
imperium or governance that gave them territorial and independent superiority over
their own subjects free from any outside jurisdictional interference. From the late four-
teenth century English kings had been wearing, and depicted in, the closed crown of
a circlet topped by two crossed bands. By the early fifteenth century their newly minted
imperial crown did not seek to usurp the status of the Holy Roman Emperor. Rather,
it asserted the equivalence of the kings claim to independence and superiority within
England with that of the emperor within his own. Henry VIII was comforted by his
advisors over his ineligibility for emperor with the soothing words that the Crown of
5
See Hinsley, Sovereignty, 119.
England is an Empire of itself, mych better then now the Empire of Rome: for which
cause your Grace werith a close crown.6 Famously, the preamble to the Act of Appeals
1553 declared that this realm of England is an empire.
The notions of sovereignty forming in England from the end of the sixteenth
century were directed, therefore, towards English state-building. It was essentially an
inward-looking exercise concerned with the nature of political authority within the
realm. It would be some while before empire-formation became a matter of distinct
ideological and in consequence legal concern. So far as the status of Englishmen abroad
and the nature of the Crowns rights over them and in foreign territory were concerned,
recourse to medieval language and practice remained. The manners of proceeding
established in earlier times were recycled and applied to the newer theatres of British
activity in the East Indies and New World. The imperium erected by the royal instru-
ments remained fundamentally medieval, asserting a particular jurisdiction rather
than absolute territorial sovereignty over those parts.
The common law first spoke of the relation between ruler and subject in terms of a
personal bond. This came from the feudal character of personal relations, the same
approach from which English kings in their relations with the papacy were struggling
to escape. This personal, essentially medieval notion was the basis for constituting the
Crowns imperium in territory outside the realm that it had won by war or cession.
Indeed at the beginning of the seventeenth century the common law conceived of
those as the only two means by which the Crown might acquire sovereign title over for-
eign land. It was not until Blankard v Galdy (1693)7 that the common law recognized
settlement as another legal mode of territorial acquisition.
Cokes report of Calvins Case (1608) gave a classic description of the personal bond
between ruler and subject, for as a subject owes this allegiance so the Sovereign is to
govern and protect his subjects.8 The Report spoke of four types of ligeance owed a
monarch, these being ligeantia naturalis (by nature and birthright), ligeantia acquisita
(by acquisition or denisization), ligentia localis (by presence in the Crowns territory)
and legal obedience (because the municipal laws of this realm have prescribed the
order and form of it). Ligeance thus required obedience to ones sovereign wherever
one ventured. It travelled with the individual beyond the realm. It obliged any visitor
to the realm.9
From Tudor times the Crown made English subjects abroad liable for the commission
of certain crimes in territory whereover the Crown held no sovereign claim.
Admiralty jurisdiction on the high seas excepted, the amenability to trial for major
crimes abroad derived from Act of Parliament. It was based upon this ongoing allegi-
ance a subject owed the Crown wherever he ventured, a bond not severed by
departure from British shores.10 This continuing subjection was asserted as early as
6
Quoted in D Armitage, The Ideological Origins of the British Empire (Cambridge: Cambridge
7
University Press) 34. (1693) Holt 341, 90 ER 1089.
8
(1608) 7 Co Rep 1a at 5b.
9
For a full contextualization of the influence of Calvins Case on imperial activity see D Hulsebosch,
The English Constitution and the Expanding Empire: Sir Edward Cokes British Jurisprudence (2003) 21
Law and History Rev 439.
10
For instance, opinion of A-G Yorke (1731) in Forsyth Opinions, 427429; JF Stephen, A History of the
Criminal Law of England (3 vols, London: Macmillan, 1883) II, 58; The Griefswald (1859) Swab Admir 434.
the Acts 33 Henry VIII cap 23 (15412) and 35 Henry VIII cap 2 (15434). These
statutes allowed a commission to issue for the trial on British soil of any person found
guilty of or acting as accessory to any offence of treason, murder or manslaughter com-
mitted inside or outside British territory. A statute of 169911 made any theft, robbery,
murder or other felony upon land in Newfoundland capable of being tried as if com-
mitted within England. An amendment to the Mutiny Act provided for the trial on
British soil of any person committing a criminal offence at forts or trading posts within
his Majestys Dominions in America outside the limits or jurisdiction of any colonial
Government.12 Eventually this form of jurisdiction by legislation was put on a more
thoroughgoing basis with the Murders Abroad Act 181713 and the Imperial Act 9
George IV, cap 31.14
This legislative practice did not involve the claim to any British sovereign right over
the territory where the British subject had committed the crime. It merely established
the liability of the alleged offender to trial on British soil. That still required the indi-
vidual to come onto British soil for trial according to all the rules of proof and evidence.
In practice this was often an extremely difficult and cumbersome business. It was
founded upon the old common law conception of the subjects ligeance accompanying
him wherever he travelled, an expression of the indestructible personal relation
between ruler and subject.
At the beginning of the seventeenth century, as England stood poised on the brink of
colonization of the New World, its notions of sovereignty or constitutional authority
remained substantially medieval and personal, conceived along the lines set out in
Calvins Case. Indeed at that time the word itself had only been recently minted. The
problems that British administrators faced early in the nineteenth century about the legal
character of the Crowns authority over the indigenous peoples of India and Canada were
a direct legacy of the medieval principles underlying formal Crown practice.
3. British relations with non-Christian societies

(a) The barbaric Irish
At the beginning of the seventeenth century, the English were commencing settlement
of the New World with more than four hundred years of colonial experience already
behind them. The real first Empire was not that which was about to be acquired, but
a medieval one of multiple kingdoms that included Scotland and Ireland.15 During the
mid-sixteenth century there emerged an incipient sense of this English Empire, a
Protestant vision fostered at the centurys close by the likes of famous pamphleteers and
11 12
10 Will III cap 25. 5 Geo III cap 33 (UK), sections 2526.
13
57 Geo III cap 53. Note other examples of this practice 9 Geo IV cap 83 (crimes in Pacific to be tried in
Australia); 6 & 7 Will IV cap 57 (Cape of Good Hope Punishment Act repealed and re-enacted in 26 & 27
Vict cap 35, also 53 & 54 Vict cap 37); 24 & 25 Vict cap 31 (Sierra Leone, also 53 & 54 Vict cap 37);
3 & 4 Will III cap 93 (China, see also 6 & 7 Vict cap 80). See generally W Johnston, Sovereignty and
Protection: a study of British jurisdictional imperialism in the late nineteenth century (Durham, NC, published
for the Duke University Commonwealth-Studies Center [by] Duke University Press, 1973) ch 2.
14
Cases under this jurisdiction are discussed in George Cornwall Lewis, On foreign jurisdiction and the
extradition of criminals (London: Parker, 1859) 1727; also Queen v Most (1881) LR 7QB 244.
15
Armitage, Ideological Origins of the British Empire, 2460.
advocates of adventure such as Peckham, the Hakluyts, and Purchas. The English deal-
ings with Ireland in that centurythe last half in particularwere a bridge from the
medieval experience to the New World. The English depicted the Irish clans and their
chieftains as barbarous and savage.16 Imagery and vocabulary were used that later
would also be applied to the Amerindian.17 The imperialist lawyer Sir John Davies por-
trayed the Irish as little better than Canniballes, who doe eat one another, and hee that
hath most strength and swiftnes doth eat and devoures all his fellowes.18 This descrip-
tion, fed by the civic humanist tradition of the intelligentsia, licensed a call for the
colonization of Ireland and the expropriation of the clans lands. Sir Thomas More had
used the Roman model of colonization for his Utopians (1516). He permitted them to
settle colonies on the adjacent mainland because the native population had left their
lands wild and uncultivated, neglect that might even justify war against them.19 Here
the Irish analogy was clear. However, only after the Desmond Rebellion of the 1570s
did wholesale plantation win widespread acceptance.20 By 1585, after some false starts
in the years before, an ambitious plan began on the confiscated Munster estates of the
Earl of Desmond. Grants of land were made on a feudal model to 35 English lords (and
some 20,000 English colonists).21 By the end of the century the English plantations
and the anglicization of the Irish landscape had truly commenced. Plantation of the
New World soon followed.
Early in the thirteenth century King John had attempted to use the common law to
rule Ireland when he introduced it by (since lost) charter (1210). That legal step was
the first of a chain of formal royal measures declaring the royal authority and currency
of the common law in Ireland.22 This was mere gesture for the wild Irish clans who
refused to buckle to the English Crown and whose submission required more than
mere royal decree. In fact, although the King had decreed the thoroughgoing applica-
bility of the common law, the English had continued to deal with the Gaelic chiefs.
Actual English policy had been to recognize the integrity of the clan-based polities
who remained under their customary ways. Even before landing on American soil
English imperialists had extensive experience of negotiating and making pacts with
barbarous chieftains and of establishing procedures and justifications for acquiring
or seizing their land. The English plantations thus co-existed with native districts. This
meant there were English and Gaelic districts where different laws were applied, the
latter controlled by chieftains apt to rise against the Crown, and frequently doing so.
16
See KW Nicholls, Land, Law and Society in Sixteenth Century Ireland (Cork: ODonnell Lecture,
University College, 1976), describing a clan-based society consisting of patrilineages functioning through a
complex of rights, duties and exactions imposed by one group over others, as independent or autonomous
political units.
17
N Canny, Kingdom and Colony: Ireland in the Atlantic World 15601800 (Baltimore: Johns Hopkins
University Press, 1988), and The Ideology of English Colonization: From Ireland to America (1973) 30
William & Mary Quarterly, 3rd ser at 575598.
18
A Discovery of the Tyrue Causes why Ireland was never entirely subdued (1612) in Andrew Hadfield and
John McVeagh (eds), Strangers to that Land: British Perceptions of Ireland from the Reformation to the Famine
19
(Gerrards Cross, Bucks: Colin Smythe, 1994) 47. Armitage, Ideological Origins, 4951.
20
Jane A Ohlmeyer, Civilizinge of those rude parts: Colonization within Britain and Ireland,
21
1580s1640s in Oxford History of the British Empire, I, 124 at 135. Ibid.
22
Paul Brand, Ireland and the Literature of the Early Common Law in The Making of the Common Law
(London: Hambledon Press, 1992) 445463.
The repeated assertion of the applicability of the common law demonstrated that the
political authority of the Crown did not run merely by royal say-so.
Sir John Davies, Solicitor- and later Attorney-General for Ireland (16031619) rode
numerous assizes in Gaelic districts. He thought the Gaelic chieftains treated their
people horrendously, as though they were hereditary serfs bound to the land as a mere
chattel or appurtenance.23 His works, including his reports of Irish casesmost
notably the Case of Tanistry (1608)explored the legal status of the Gaelic native
polities and individuals. Early in the seventeenth centuryand, indeed, for nearly two
more afterwardsthey represented the fullest attempt by a common lawyer to explain
directly the effect of Crown sovereignty over a colony upon aboriginal structures and
individuals. The usual means during the early modern period through which the com-
mon law articulated the position of aboriginal peoples was less by the Davies method
(direct consideration) than through actual practice and usage. Davies had his own self-
aggrandizing and cynical agenda,24 but his reports disclosed that like Sir Matthew Hale
he regarded British colonization as founded upon the Roman model which recognized
and worked through the indigenous polities and laws.
Sir Matthew Hale described the title of a conqueror of territory as having a Right
of Dominion, as well as a Property over the Things and Persons that are fully conquered.25
Accordingly the conqueror gaind a Power of abolishing or changing their Laws and
Customs, and of giving New, or of imposing the Law of the Victors Country. He added:
But although this the Conqueror might do, yet a Change of the Laws of the conquered Country
was rarely universally made, especially by the Romans: Who, though in their own particular
Colonies planted in conquered Countries, they observed the Roman Law, which possible might
by Degrees, without any rigorous Imposition, gain and insinuate themselves into the conquered
People, and so gradually obtain, and insensibly conform them, at least so many of them as were
coterminous to the Colonies and Garrisons to the Roman Laws; yet they rarely made a rigorous
and universal Change of the Laws of the conquered Country, unless they were such as were
foreign and barbarous, or altogether inconsistent with the Victors Government.26
Hale later explained the numerous attempts by English kings to introduce the common
law into Ireland, their lack of success being attributable (that old English prejudice) to
the Instability of the Irish. The partial effect of the common law was also a consequence
of brehon law being used by the great Men (English lords in Ireland). Hale observed that
it gave them more power and yet did not restrain the Common People to so strict and
regular a Discipline as the Laws of England did.27 He acknowledged the continuity of
Irish customary law, notwithstanding the expressions of royal will otherwise. His was
very much the classical, common law recognition of law, one that set store by actual
practice rather than a series of royal diktats that had failed in fact to achieve its purport.
As illustrative, he referred to the case in Davies report concerning tanistry.28
The judgment in The Case of Tanistry (1608) was given in law French. It drew a distinc-
tion between conquest Monarchy Royall and Monarchy Seignoriall, ou tyranny.29
23
Hans Pawlisch, Sir John Davies and the conquest of Irelanda study in legal imperialism (Cambridge:
24
Cambridge University Press, 1985) 59. Ibid.
25 26 27 28
History of the Common Law, 49. Ibid 52. Ibid 115. Ibid 117.
29
(1608) Davies 28 (KB), 40.
With the former, the local inhabitants laws and property rights were respected (ont
property en lour beins & frantenement & inheritance en lour terres). That was
contrasted with a conquest Monarchy Seignoriall whereby all the local inhabitants
became villeins, their lives and property at the arbitrary disposal of a tyrannical
conqueror (son touts come villeins ou esclaves, and proprietors de rien . . . come en
Turkey & Muscovie . . . ). The court observed that the English Crowns conquests had
always been made Monarchy Royall and proceeded to explain the principles affecting
such conquests.30
The custom of tanistry was long part of Irish customary law (brehon). It provided
for the descent of land upon the eldest and worthiest male relative of the blood and
name of the deceased. The criterion of worth required potential male heirs to engage
in frequently bloody physical confrontation. The court held that the custom was void
and abolished when the common law was introduced to Ireland. The court proceeded
on the basis that the common law now had application throughout Ireland, a suppo-
sition that might not have been possible in earlier times. The court proceeded on the
basis, however, that certain parts of brehon law might still apply to Irish property.
Neither Crown sovereignty nor even royal charter had extinguished brehon law com-
pletely. The court found that in order to be recognized as enjoying some continuity
the aboriginal customary law should have four unseperable propertys. It should be
reasonable, unambiguous, have continued without interruption from a time beyond
the memory of the court, and, finally, it ought not lift itself above or challenge but
submit to the Crowns prerogative. The court found that the inherent characteristics
of tanistry failed at least three of those criteria and, further, even were that not so, it
had not been continuously applied in respect of the land in question whereover
English rules of descent had frequently been adopted. The customs requirement of
physical valour was the veray cause del barbarisme & desolation. It was a law encour-
aging bloodletting. That made it both unreasonable and disruptive to the royal peace
or, in other words, prejudicall al profit & del Royincompatible with the sovereign
prerogative of the Crown. Tanistry was also void for uncertainty since by its nature the
identity of the person who as heir was to succeed to an estate was uncertain.
The English experience with the Irish represented an early consideration of the
effect of Crown assertion of sovereign title over foreign territory occupied by bar-
barous people. So much as the common law took a position, it was founded upon the
realities of the situation. The continued integrity of aboriginal forms of governance
and customary law was accepted. There was no pretence that the subjection of the Irish
clans had been achieved by merely legal means.
(b) British practice in the Ottoman Empire and the European precedents
Formal post-Crusade British relations with the infidel societies of the east began with
the Capitulations of the Porte (1580) by which trading and certain judicial privileges in
internal matters were granted to English merchants in the Ottoman Empire. These
privileges obtained by treaty, or capitulation as it was known, were formally constituted
30
Also FH Newark, The Case of Tanistry (195052) 9 Northern Ireland LQ 215221; The Bringing
of English Law to Ireland (1972) 23 Northern Ireland LQ 315.
by Elizabeth I through a licence to trade (1581)31 and royal commission (1582),32 the
latter instrument appointing a consul with judicial powers according to the terms of the
Ottoman grant. The merchants became incorporated as the Levant Company and its
privileges were renewed in later years,33 eventually being made perpetual in 1605.34 This
charter recited how the English merchants had there peaceable and safe traffique against
the Turkes Galleyes by reason of the capitulacion of intercourse holden by us with the
Grand Signior and by the residence of our Ambassador within his Domynions.35 The
charter proceeded to authorize the Governor and his assembled Deputies to make
ordaine and establishe statutes lawes orders constitucions and ordinances as well for the
good rule and government of the said Governor and company of merchants of England
trading into the levant seas and their successors as of all and singular other subjects of us
our heirs and successors entermeddling or by anie means exercising merchandize in anie
part of the Signorie of Venice or the Domynions of the Grand Signior. The Companys
legislative power extended over all English traders in the Levant irrespective of mem-
bership of the Company. To that extent the power was more than the mere capacity to
pass by-laws that usually came with royal incorporation. Moreover the Companys
exercise of its judicial and legislative powers was not to be contrarie repugnant or
derogatorie to anie treatie league capitulacions or covenants betwene us . . . and anye
Prince or Potentate made or to be made . . .36 Further capitulations were granted in
1641 and 1675.37 A virtually identical capitulatory regime was later established for
Morocco.38 The Ottoman made numerous Capitulations with European countries into
the nineteenth century, by which time they were longstanding relics of the regime
(Ottoman as well as English) of personal laws. The Ottoman Empire was not a secular
state holding a territorial conception of its authority so much as a religious one of
Muslims.39 Capitulations therefore enabled the grantee a measure of tolerated religious
diversity as well as a form of separate governance.
Certain features of this practice can be noted from the imperial English perspective.
First, there was an explicit recognition of the capacity of the Ottoman authorities to make
a grant of jurisdiction. The authority or imperium erected by the Crown over its subjects
was explicitly limited by the terms of such grants. Secondly the jurisdiction spelt out
carefully the identity of those who would be subject to it, doing so in the personal terms
typical of what became known in the nineteenth century as extra-territorial jurisdiction.
The Capitulations were concessions from the Ottoman and regarded exactly as such.
They reflected a highly personalized notion of governmental authority, or at least a
pre-territorialized one.
31 32
Hakluyt, Principall Navigations, II, 57. Ibid 64.
33
Ibid 370 (1592) and C T Carr (ed), Select Charters of Trading Companies 15301707 (London: Selden
Society, 1913), 30 (1600).
34
Text in M Epstein, The Early History of the Levant Company (London: Routledge, 1908). This charter
remained the basis for the Crowns jurisdiction in the Levant until 1825: Hope Scott Memorandum, 248.
35 36 37
Ibid 156. Ibid 188. 13 Colonial Treaty Series 429.
38
Articles of Peace and Commerce (14 January 1728) in 33 Colonial Treaty Series 79. Additional Articles
(10 July 1729) ibid 217. Also Bullard, Reader William, Large and loving privileges; the capitulations in the
Middle East and North Africa (Glasgow: Jackson, 1960) 2425.
39
See AWB Simpson, Human Rights at the End of Empire (Oxford: Oxford University Press, 2001) 108
et seq. Simpson notes, for example, that until 1869 there were no arrangements by which the Ottoman
Empire extended the same level of protection to non-Muslim as Muslim members.
The Crown gave effect to the Capitulations along the lines already being used for the
communities of English merchants in Europe under Christian monarchs. During the
late medieval period English merchants in Europe had sought constituent instruments
from the Crown much like those being given within the realm for guilds and boroughs.
Royal permission and constitution were solicited for a number of reasons. First, the
Crown held the prerogative power to license overseas trade.40 Secondly, it held the
power of incorporation from which the authority to pass by-laws was derived.41 No
Englishmen could exercise a lawful authority, judicial or legislative, over another
without royal licence. In addition the Crown held the power to forbid passage out of
the kingdom. Together those constraints made any trading enterprise seeking to do
business beyond the realm without royal constitution virtually impossible.
From earliest times the British Crown was happy to grant and formally constitute its
royal permission. Important grants of privileges were made to English merchants in
Pisa (1391 and 1485),42 the Hanse (1404),43 Netherlands (1407),44 and Norway
(1408).45 These royal instruments established a local jurisdiction amongst the com-
munity of English merchants through a royal functionary exercising a judicial and
limited legislative rule styled on English law. Since the Crown was erecting a local
jurisdiction which excepted (though but partially) her subjects from the lex loci, the
permission of the local ruler was treated from the first as a necessary precondition to the
Crowns grant. All the late medieval grants were made on that basis.46
The Tudor and Stuart monarchs continued this practice of constituting bodies of
merchants in order they might trade in Europe. In the late Tudor period formal Crown
licences were granted to the Merchant Adventurers (1564),47 the Muscovy Company
(1566),48 and Eastland Merchants (1579).49 James I, to give more examples continuing
into the Stuart period, granted charters to merchants trading to Spain (1605) and
40
YB 40 Ed III, 17, 18; Coke, Notes of Prerogative SP Dom Elizabeth 1, cclxxvi, 81. The power was
affirmed in East India Company v Sandys (16831685) 10 St Tr 371, 571 and in the opinions of Sawyer,
(1681) and West (1718), Forsyth, Opinions, 422 and 423. The power was no longer claimed after the late
seventeenth century: Baker, An Introduction to English Legal History (2nd edn, London: Butterworths, 1979)
379 and by the end of the eighteenth century this claim to a prerogative was unlawful (Comyns Digest, tit
Trade, D1; J Chitty, Prerogatives of the Crown (London: Butterworth, 1820) 163; Forsyth, Opinions, 421,
433435. All such monopolies required statutory authority (for example Nicholl v Verelst (1778) 2 Blac 1277
(CP) and Camden v Anderson (1796) 6 TR 723 (KB)).
41
1 Blackstones Comm 475; CT Carr (ed), Introduction Select Charters, xilxxxvii. The power to pass by-
laws was an inherent attribute of incorporation: Norris v Staps (1617) Hobart 211, 80 ER 357, 358.
Occasionally licences of trade were given without any incorporation: grant to the Barbary merchants (1585),
Principall Navigations IV, 268; grant to merchants between the Senegal and Gambia (1588), ibid 285;
merchants of the Seralen region, Select Charters, xliv.
42 43 44
Rymers Foedera . . . (170435), vii, 693 and xii, 389. Ibid, viii, 360. Ibid 464.
45
Rymers Foedera, vii, 693 and xii, 389.
46
Hope Scott, Memorandum, 247; W Hall, A Treatise on the Foreign Powers and Jurisdiction of the
British Crown (Oxford: Clarendon Press, 1894) 132133. These writers claimed the 1485 letters patent were
exceptional as not based upon the local sovereigns consent, but see Rymers Foedera, xii, 389.
47
Text in George Cawston and AH Keane, The Early Chartered Companies AD 12961858 (1896) 254.
See also Rymers Foedera (charter of 1407) and Cawston and Keane, above, 249 (charter of 1505).
48
Principall Navigations, I, 313 (first grant of privileges from Russia); ibid (first charter, 1554); ibid, II,
73, 85, 279, 355 (subsequent Russian grants); 8 Eliz I, cap 27 (1566) and 10 & 11 Will III cap 66 (1698)
(Parliamentary re-incorporation)
49
Text in M Sellars (ed), The Acts and Ordinances of the Eastland Company (London: Camden Soc, 3rd
ser 11, 1906), 142; confirmed by Proclamation of Charles 1 (1629), text in Cawston and Keane, Early
France (1611).50 Like the late medieval charters, these erected a local jurisdiction spelt
out in personal terms and based upon the permission of the local ruler. The charter to
the Merchant Adventurers (1564), for example, made it clear that the jurisdiction it
was constituting arose also by force of any privileges, Powers, Liberties, Graunts, pre-
heminences or Authorities hereafter to be granted or made to the said Fellowship . . . by
any the Lord or Lords, Govr or Govrs of the said Foreign Countries or Townes.51 The
Fellowships power extended over any English subject coming within its sphere of opera-
tion, an indication its powers were not limited to its own members and so went beyond
mere incorporation.
The Crowns formal response to the Capitulations of the Ottoman Empire was, then,
a direct carry-over from its established European practice. Although in practice this juris-
diction was initially applied rather imperfectly,52 it was nonetheless predicated upon
recognition of the juridical status and capacity of the non-Christian Ottoman author-
ities. The Crown did not erect an imperium in this territory without their consent.
(c) British practice in the East Indies

The Crown chartered the East India Company in 1600, enabling it to exploit the trading
privileges obtained in the East from the Mughal authorities. The Company was incorpor-
ated and given exclusive trading privileges in those parts of the East Indies not in the law-
ful and actual possession of any such Christian prince or state, as this present is, or at any
time hereafter shall be in league or amity with us.53 The charter was renewed in 1609 and
made permanent in 1612.54 These charters neither contemplated nor made provision for
territorial acquisition, presupposing that the powers of rule exercised by the Company
were to be limited to its own members and servants. The laws and ordinances passed by
the Company were to be for the good government of the same Company, and of all fac-
tors, masters, mariners, and other officers, employed or to be employed in any of their
voyages.55 Thus whatever authority the British Crown formally established in the region
was limited to British persons and rested upon Mughal consent.
The format of British trade in the East Indies differed from Europe and the non-
Christian regions of the Capitulations. In those parts the English merchants mostly
lived, traded and mingled with the local population far more than in the East Indies
where forts or factories were established. These factory sites were purchased and estab-
lished with Mughal permission upon the understanding that the East India Company
would supervise and regulate its own affairs within these compounds.56 The charter to
Chartered Companies, 63. See also Principall Navigations, I, 170 and Rymers Foedera, vii, 511 (earlier
charters) and Principall Navigations, I, 122, 139 (first grant of privileges without incorporation).
50 51
Select Charters, 62. Cawston and Keane, Early Chartered Companies, 269.
52
Bullard, Large and Loving Privileges, 20.
53
Text in P Mukherji (ed), Indian Constitutional Documents (16001698), (2 vols, Calcutta: Thacker,
Spink, 1918) I, 1 13.
54
Select Charters, xlviii; W A J Archbold, Outlines of Indian Constitutional History (London: PS King and
55
Son, 1926) 1314. Indian Constitutional Documents, I, 13.
56
The first factory was established at Surat on this basis (1612): JW Kaye, The Administration of the East
India Company: a History of Indian Progress (London: R Bentley, 1853) 65; MP Jain, Outlines of Indian Legal
History (2nd edn, Bombay: NM Tripathi, 1966) 1214; MC Setalvad, The Common Law in India (London:
Stevens, 1960) 5.
the East India Company of 1661 responded to the factory format and gave the
Companys officials authority to Judge all Persons belonging to the said Governor and
Company or that shall live under them in all Causes whether Civil or Criminal
according to the Laws of this Kingdom and to execute judgment accordingly.57 The
Companys power now extended over all persons living under the Company within
and beyond the factory towns.
Throughout the seventeenth century the Company consolidated its control of the
factory towns. Letters patent of 1726 gave the Company authority over all British
subjects and Company employees within the East Indies. Significantly, the same
charter gave the Company authority over all persons within the Presidency Towns (as
they had become called) of Bombay, Madras, and Calcutta. Whilst the continuation
of the Companys authority over its servants and British subjects was in line with
Mughal permission, the claim to exclusive authority within the Presidency Towns
was a new step. The Crown was now establishing territorial rights, but was that
deliberate?
Portugal had ceded Bombay to the Crown in 166058 so the Crowns territorial
entitlement was indisputable; however Madras and Calcutta had been established
within the framework of and subject to Mughal sovereignty.59 Prior to 1726 the East
India Company had justified what authority it had exerted over the non-British inhabit-
ants of the latter two towns by reference to Mughal permission. In Madras English
magistrates had exercised a jurisdiction since 1654 in place of the native Adijar in
choultry courts.60 In Calcutta jurisdiction over the non-British population and those
of the surrounding towns was exercised in zemindary courts established under Mughal
authority in 1698 and 1717.61 Despite appearing to extend English law to all inhabit-
ants of the town the 1726 letters patent were not treated as disrupting the operation of
those courts. Indeed letters patent of 1753 declared the applicability of Muslim and
Hindu law to the native inhabitants of the Presidency Towns.62
What is apparent from the above is that whilst more modern eyes would see the
1726 letters patent as declarations of territorial sovereignty, actual British practice at
the time was not being conducted on those terms. Although by the middle of the
nineteenth century British practice was to regard factories as enclaves of British terri-
torial sovereignty,63 that way of seeing the character of British authority did not occur
in the pre-Plassey period. British imperium in the Presidency Towns was an inspecific
combination of Mughal permission and royal constitution. British practice was not
57 58
Text in East India Co, Tracts, np. Hertslets Commercial Treaties, II, 21.
59
M Kemal, The Evolution of British Sovereignty in India [1957] Indian Yearbook of International Law,
143; Jain, Outlines of Indian Legal History, 1718 (Madras), 4549 (Calcutta).
60
C Fawcett, The First Century of British Justice in India (Oxford: Clarendon Press, 1934) 208.
61
Ibid 209.
62
Text in East India Co, Tracts. In Bombay the 1726 letters patent extension of English law to all inhab-
itants had been taken literally, a result corrected in 1753: Fawcett, British Justice in India, 224225.
63
Advocate-General of Bengal v Ranee Surnomoye Dosee (1863), 9 Moo Ind App 427, 19 ER 786:
The laws and usages of Eastern countries where Christianity does not prevail are so at variance with the
principles, feelings, and habits of European Christians that they have usually been allowed by the indulgence
and weakness of the Potentates of those countries to retain the use of their own laws, and their Factories
have for many purposes been treated as part of the territory of the Sovereign from whose dominions they come.
operating to the less accommodating model of sovereignty that developed in the

mid-nineteenth century. The attempt retrospectively to apply such a model can be seen
in these comments of Lord Brougham in The Mayor of the City of Lyons v East India
Company (1836):
. . . enough has been said to show that the settlement of the Company in Bengal was effected by
leave of a regularly established Government in possession of the country, invested with the rights
of sovereignty, and exercising its powers: that by permission of that Government, Calcutta was
founded, and the factory fortified, and a district purchased from the owners of the soil, by per-
mission of that Government, and held under it by the Company, as subjects owing obedience, as
tenants rendering rent, and even as officers exercising by delegation a part of its administrative
authority. At what precise time, and by what steps, they exchanged the character of subjects for
that of Sovereign, or, rather, acquired by themselves, or with the help of the Crown, and for the
Crown, the rights of sovereignty, cannot be ascertained; the sovereignty has long since been
vested in the Crown.64
This passage bristles with typical nineteenth-century concerns about sovereignty,
particularly its moment and mode of acquisition. These were questions in respect of
which British practice in the East Indies throughout most of the eighteenth century
was unconcerned. It was not until the late eighteenth century that British imperial
practice turned to address such matters directly and began to distinguish more cleanly
territorial sovereignty from extra-territorial jurisdiction. Through most of the eigh-
teenth century British practice was thinking jurisdictionally about the Crowns author-
ity over its own subjects but not territorially. This was an approach that left room for
the legal distinctiveness and continuity of the Mughal political structures, whatever the
character of Crown imperium. Legal diversity and sufficient clarity were achieved with-
out dissecting the character of the British imperium. That forensis was the preoccupation
of the Victorian rather the Hanoverian imperialists.
During the eighteenth century the East India Company was exercising some judi-
cial and administrative functions under Mughal authority over the native population
not only within but surrounding the Presidency Towns. The zemindary of Calcutta, in
particular, had grown to cover approximately 800 square miles of the Bengal by
1757.65 The Companys exercise of these powers received no formal authorization from
the Crown until near the end of the century,66 and so took effect simply as a delegation
from Mughal law. Clives famous victory at Plassey (1757) brought a large area of the
subcontinent under British control. Formally the Company did not seek to enforce
any rights as conqueror for the Crown, but obtained a grant of diwani (1765)67 from
the defeated Emperor. This gave the company extensive functions of government over
the population of Bengal, Bihar, and Orissa (the Mofussil). The diwan was held under
the ostensible umbrella of Mughal sovereignty and, crucially, gave importantand
lucrativerights of revenue collection.68
64
(1836) 1 Moo PC 175, 18 ER 66 at 103104.
65
Archbold, Outlines of Indian Constitutional History, 44.
66
The Act of Settlement 1781, 21 Geo III cap 63. This Act authorized the enactment of Regulations for
67
the administration of justice in the region. Text in 43 Colonial Treaty Series 217, 219.
68
H Cowell, History and Constitution of the Courts and Legislative Authorities in India (Calcutta: Thacker,
Spink, 1872) 2425; Jain, Outlines of Indian Legal History, 8284.
Although the Mughals sovereignty was in reality a fiction, the Companys officers
initially maintained that the grant of diwani had done no more than give the
Company certain powers under the Mughal, so securing it from interference by the
British government.69 Ever conscious of the national debt swollen by war with
France, the ministries of Lord Chatham (William Pitt) and Lord North sought a
healthy slice of that revenue. Soon after learning of the grant and within weeks of
coming to power, Pitt referred the matter of the Companys right to a Parliamentary
Committee (1767). The official position was that the diwani had come by right of
conquest and therefore vested in the Crown. The Company, however, argued they
held their possessions in India, not as an absolute property, but as a farm granted
them by the Great Mogul, and according to the constitution of the [Mughal] Empire
subject to an annual rent.70 In their view the diwani was a property right taken
under Mughal law.
These arguments were confounded by an indeterminate Law Officers opinion of
1757 given by Attorney- and Solicitor-Generals Charles Yorke and Charles Pratt. The
opinion was the outcome of disputes between the Company and some of the regular
army officers recently arrived in India to help against the French. The directors of the
Company petitioned the Crown for a grant to enable the Company to hold all plunder
as well as the right to hold and dispose of territories in their region gained from the
enemy, subject to the Crowns right over lands acquired by conquest.71 The Law
Officers stated that it was not possible either by precedent or policy considerations to
grant a trading company future conquests won from a European or Indian prince.
They affirmed the ancient principle that conquests vested in the Crown, but added
that territories and possessions taken by treaty or negotiation vested in the grantees by
dint of such grant and without the need of any confirmation from the Crown.72 The
opinion therefore helped both parties: if the right of diwani derived from conquest it
belonged to the Crown, whereas if taken by Mughal grant it was the possession of the
Company. As it was, the matter was left unresolved once the Company negotiated an
annual payment to the Crown. However it might be noted that the squabble between
Crown and Company essentially related to status as diwan. Whoever it was that held
the right, it was acceptedand remained so for many decadesthat the character of
the British imperium was determined by the Mughal grant itself. It was only in the next
69
Cowell, History and Constitution, 19; Archbold, Outlines of Indian Constitutional History, 44, 66;
WK Firminger (ed), Fifth Report from the Select Committee of the House of Commons on the Affairs of the East
India Company, 28 July 1812 (New York, AM Kelley, 1969) viixiii. Warren Hastings initially believed that
sovereignty remained in the Mughal. His Regulations of 1772 for the administration of Justice in the
Mofussil (establishing the adalat courts) were based on that belief: letter from the President and Council to
the Directors of the East India Company, 3 November 1772, text in Archbold, above, 5359. His position
modified after the Regulating Act 1773: Firminger, above, xiii, xxi.
70
D Macpherson, The history of the European commerce with India: to which is subjoined a review of the
arguments for and against the trade with India, and the management of it by a chartered company (London:
Longman, Hurst, Rees, Orme, and Brown, 1818) 193.
71
HV Bowen, Revenue and reform: the Indian problem in British politics 17571773 (Cambridge:
Cambridge University Press, 1991) 5354.
72
Soon after the opinion had an interesting and high-profile afterlife in colonial America, where abridged
copies of it circulated and were used to justify settlers direct land purchases from Amerindian chiefs: see
Williams, The American Indian in Western Legal Thought (1990) 275277.
century that the British became more attentive to and particular about the content of
status as sovereign.
By the time of the Regulating Act (1773),73 however, it was difficult if not imposs-
ible to deny the exclusivity of British authority in the region with the native forms
being thin shells. Nonetheless no clear assertion of sovereignty was made until the
Charter Act of 1813 declared the undoubted sovereignty of the Crown.74 In 1885
James Fitzjames Stephen, his clan well-versed and bred in imperial constitutional law,
criticized the authors of the Regulating Act. He commented tersely that they wished
that the King . . . should act as sovereign of Bengal, but they did not wish to proclaim
him to be so.75 In both the Mofussil and British North America of the late eighteenth
century the status of British sovereignty over the indigenous polities was indetermi-
nate, and only resolved firmly early in the next century.
There is no doubt that the military victories of the late 1750s brought a dramatic
change in the character of British imperial activity, feeding a more territorial ambition
and consciousness. In the East Indiesand as the formal grant of diwani itself demon-
stratedthe form of this imperialism was very much oriented about treaty relations
between the East India Company (as the Crowns delegated sovereign) and the
princely polities in the Mughal network. Those relations were further complicated by
the relationship between the Mughal and nawabs. The Mughal Empires power dimin-
ished markedly during the late eighteenth century, so accentuating the relations
between the nawabs and the Company. It was through that network, by-passing the
Mughal, that British imperialism now began to work, using treaty and compact as well
as the show of friendship and the fearful, to co-opt, integrate, and subordinate the
indigenous princes. By that means the Company consolidated its position on the
subcontinent.
The web of treaty relations established in the second half of the eighteenth century
in this region matched what was then also happening in British North America after
the Seven Years War. In both regions British authority was established and consolid-
ated through treaty-making and quasi-diplomatic relations between the Crown and
native polities. In both regions this use of the traditional political structures of the
indigenous polities was a means of enhancing British interests and co-opting if not
supplanting the indigenous. Thus treaty relations between the East India Company
and the princely states frequently ended in cession of sovereignty and formal annexa-
tion. The declaration of sovereignty over the Mofussil in 1813 was an outcome de jure
reflecting what had already occurred de facto. It will be seen that there were historical
reasons why in British North America of the same period the similar formal practices
of treaty-making to found and enhance British authority (and weakening of the
indigenous) did not lead to formal British annexation. Although never subject to that
process, the Amerindians nonetheless became recognized as under British sovereignty
early in the nineteenth century at the same time as serial annexation was occurring on
the subcontinent.
73
13 Geo III cap 63. This Act spoke of the territorial acquisitions and revenues of the East India
74
Company. The Charter Act 1813, 53 Geo III cap 155.
75
James Fitzjames Stephen, The Story of Nuncomar and the Impeachment of Sir Elijah Impey (2 vols,
London: Macmillan and Co, 1885) II, 129.
Sustained treaty relations between the East India Company and the Indian princely
states really began after Clives victory in 1757.76 Trade, friendship, and alliance were
mostly the concerns of the earlier treaties, but, as the Company became more powerful
and its interests more vested, revenue and protection became newer themes. Pitts India
Act (1784) frustrated Warren Hastings ambition with this policy of restraint. The
preamble declared:77
. . . [T]o pursue schemes of conquest and extension of dominion in India are measures repugnant
to the wish, the honour and policy of this nation . . . it shall not be lawful for the Governor-
General and Council without the express command of the Court of Directors or the Secret
Committee, in any case . . . either to declare war or commence hostilities or enter into any treaty
for making war, against any of the country Princes or States in India, or any treaty for guaranteeing
the possessions of any Country, Princes, or States . . .
That policy and the largely non-interventionist policies of Hastings successors meant
that there were few treaties of cession before 1792.78 After that, however, the pace
quickened considerably, especially during the period of Governor-General Richard
Wellesley (17981805), elder brother of Arthur Wellesley, later Duke of Wellington.
Indeed during this period treaty-making activity intensified considerably, not only by
way of cessions, but also treaties of protection, indemnity, revenue rights, payment of
debts, and governance. This showed the varied means and extent to which the British
were consolidating their power on the subcontinent through the indigenous structures
of authority. Annexation was thus the frequent culmination of a variety, and usually
tightening series, of jurisdictional holds gained by the Company through treaty and
related co-option of native structures and individuals. But where annexation had not
occurredand sometimes even where it hadthe precise status of the Company in
relation to the Mughal and nawabs remained vague and fuzzy. In retrospect it is clear
the British attitude towards its sovereign rights was hardening as its interests and
authority consolidated. That change was not matched by a growing sense of submis-
sion on the indigenous polities side, the nawab princes especially. The continuity of
the native laws and political forms through which the Company and Crown worked
accentuated that uneasy situation and clouded the Crowns status, notwithstanding its
protestation (at least in London) of sovereignty. Indeed it seemed as though the two
sovereignties were co-existing, the British right supervening but accommodating the
native. The mutiny of 1857 was a bloodstained expression of that tension and its
sourcea different attitude towards the character of treaty relations and basis of
British authoritywas a hallmark of British relations with indigenous polities at large
from the end of the eighteenth century. In the decades after Plassey, the British did not
interfere with but worked collaboratively through the native polities. British sover-
eignty had yet to express itself in the absolute and exclusive (positivized) form it would
move into during the mid-nineteenth century.
76
The treaty Clive concluded after victory was reprinted in Aitchison (II, 197) and Martens (II, first edi-
77
tion, supp 87). Aitchison reprinted only four treaties predating 1757. 24 Geo III, sess 2, cap 25.
78
These included the cession of Surat Castle 1758 (VIII Aitchison 374); Cession of Masulipatam (IX
Aitchison 21); and Cherical Cession 1765 (43 CTS 159). Also the cessions of Rajah of Tanjore (1778) in X
Aitchison 87; Treaty of Mahrattas, Bombay (cession) in VII Aitchison 32.
The East India Companys first important annexation was made in 1766 when the
Nizam of Hyderabad transferred the Norther Sakars to the Company. These were lands
that had been held by the French but, with the eclipse of the French company, the
Nizam allowed the British Company to annex them in exchange for military support.79
Other examples can be given of the disordered and incremental process by which British
authority was established in the East Indies in the century after Clives victory. By 1765
the Nawab of the Carnatic had fallen under the Companys de facto rule, which became
de jure with his formal resignation of sovereignty in 1801.80 His treatment showed how
gradual, unintentional, and imprecise the process of annexation and nature of British
sovereignty could be: the British did not declare the dynasty to be finally rejected until
1862 having waxed and waned on the Nawabs sovereign status for nearly a century.81
This pattern of de facto authority becoming de jure was also followed in Benaras, where
the Company had militarily established its control in 1764 but did not formally estab-
lish its authority until 1801 when the deposed rulers nephew was installed as Company
zemindar. Wellesley, to jump to another example, compelled the Awadh ruler to cede
half his territories (the Ganges-Jumna doab) in 1801,82 and also annexed territory taken
from Mysore83 after victory in 1799 but previously allotted to the Companys ally the
Nizam of Hyderabad. Far from bringing a stable frontier this step brought the Company
into direct confrontation with the Maratha rulers of western and central India and led
to a series of wars (180305, 181719).84 Each sequential Maratha defeat resulted in
cession of territory and substantial annexations by the Company in 1803,85 1816, and
1817.86 Wellesley was eventually recalled in 1805 but, after a lull in military campaigns,
the company re-embarked upon an aggressive course under Lord Hastings (also known
as Lord Moira, Governor-General 181323). Annexations followed the Nepal War
(181416),87 Pindari War (181719),88 and Maratha War (181719). Hastings suc-
cessor, Lord Amherst (182328), continued this policy, extensive annexations in the
north-east and Burma following his Burma War (182428). The next Governor-
General, Bentinck (182835), was more conciliatory and inclined towards working
through rather than militarily quietening the indigenous structures. Nonetheless he
annexed Cachar in the north-east in 1839 because it lacked heirs whom the Company
was prepared to recognize, applying the notorious doctrine of lapse.89 In 1831
Bentinck set aside the ruler of Mysore and placed the administration in British hands,
although the ruler remained nominally sovereign until being returned to power fifty
years later in 1881 when British policy reversed.90
79
M Fisher (ed), Introduction to The Politics of the British Annexation of India 17571857 (Delhi:
Oxford University Press, 1993) 12.
80
Text in 56 CTS 173. On the inconsistency of the British recognition of the sovereign status of the
Nawab of the Carnatic see CS Srinivasachari, The Inwardness of British Annexations in India (Madras:
University of Madras, 1951) 7187 (also reprinted in Fisher (ed), The Politics of the British Annexation of
81
India, 98120). M Fisher in The Politics of the British Annexation of India at 9495.
82 83
Text in II Aitchison 130. Text in IX Aitchison 240 and 55 CTS 7.
84
M Fisher, Introduction to The Politics of the British Annexation of India, 19.
85
Text in III Martens 1st, supp 600 and II Aitchison 509.
86
Text in VII Aitchison 62 and 67 CTS 239.
87
Treaty of 2 December 1815, cession memorandum and letter annexed in XIV Aitchison 62 and 65
88
CTS 351. Text in 69 CTS 487.
89 90
Fisher, Introduction to The Politics of the British Annexation of India, 19. Ibid 20.
These treaty relations, including the various cessions of territory and sovereignty,
were complex and varied as the abbreviated account above would indicate. Britain con-
tinually justified its acquisition of territory by treaty following war, by reference to the
rights acquired by the Company through the Indian potentates. Thus Wellesleys Chief
Secretary wrote in 1805 that British territorial acquisitions over recent years had
originated in the prosecution of just and necessary wars or, of positive right under
established treaties.91 The ostensible principle, raised repeatedly whenever the
Company contemplated annexation, was the British obligation to shield the people
of that state from the alleged unjust misgovernment of their ruler.92 Thus Bentinck
threatened the Awadh ruler with regime change to British sovereignty unless he
reformed his administration:93
There are parallel cases to the present state of things in Oudh to be found in the History of India
from which your Majesty may take example . . . [W]herever the country of rulers bound to the
British Government by Treaty has been taken possession by act of aggression on our part has
always been justified upon the ground of the disorders which prevailed and the unfitness of the
native Government to conduct affairs and their failure to establish a proper systematic
Government that should be a source of happiness and contentment to the people. The stories of
Bengal and Benaras, of Arcot and Tanjore are all of this description. May God arrest that this
Kingdom of Oudh . . . during the lifetime of your Majesty come to such a state . . . which I have
hinted above.
In 1856 a later Governor-General, Lord Dalhousie (184856), used exactly those
grounds of misgovernment to justify the unilateral assumption of British sovereignty
over Awadh (Oudh). He explained the seizure of sovereignty this way:94
. . . the British government, influenced by a regard for its reputation among nations, and still
more by the obligations which many years ago it took upon itself in relation to the people of
Oudh, can no longer lend its countenance and support to a government, whose existence is the
fruitful source of misrule, oppression, and misery to all who live under its control.
Lord Dalhousie aggressively extended British sovereignty in a sequence of acts following
war, de-recognition of dynasties and the doctrine of lapse by which native sovereignty
were deemed by him to have lapsed upon the exhaustion of the sovereigns dynasty, a
doctrine which he applied unevenly and intrusively. By his time the network of treaty-
relations was extensive. However his own gubernatorial period was notable for the
comparative lack of treaty-making, there being only eight treaties concluded in that
time. Of those, only one, the Treaty of Lahore (1849) was a cession, this being the
cession of the Punjab.95
By the middle of the nineteenth century Lord Dalhousies conduct showed how the
British attitude towards the sovereignty of the Indian princely states was cavalier and
self-serving. Initially there had been a willingness to recognize and operate through the
indigenous political structures and forms, particularly in matters of revenue collection.
91 92
Secretary to Resident at Delhi, 13 January 1805, quoted ibid 18. Fisher, ibid 20.
93
Report of Meeting between Governor-General Bentinck and the King of Oudh, 20 January 1831,
quoted ibid 20.
94
Lord Dalhousie, Governor-General, to the King of Oudh, 6 June 1856, quoted ibid 24.
95
Text in I Aitchison 59 and 103 CTS 17.
Once British authority had consolidated itself by co-option and integration, the Indian
princes became puppet and nominal sovereigns dependent upon British favour, their
territory considerably reduced until, eventually, their sovereignty was extinguished.
The Indian potentates were easily marginalized as corrupt, tyrannical, and despotic
the classic British (and European) image of the oriental ruler. Nonetheless the sover-
eign status of those potentates was still recognized even if that recognition petered into
tokenism. It was the basis of British policy in the Raj. In the subcontinental arena
British sovereignty was not seen as entailing the thoroughgoing amenability of the
indigenous population to English law.
The bloody events of 1857, notably the role of the sepoy troops, graphically illustrated
the extent to which British rule depended upon native support and co-operation. They
revealed starkly a complex indigenous core to the outward and spreading shell of
British sovereignty. In other words, the indigenous histories of sovereignty continued
notwithstanding the growing claim of the British one to dominance and virtual exclu-
sivity. The reassertion of those histories would become the theme of Indian history in
the early twentieth century, culminating in 1947 when India acquired full nationhood.
If the outward constitutional form was the imperialist vision of an ascendant Crown
sovereignty, the reality was that the indigenous forms it had displaced de jure were
supporting it de facto. Their history did not end (as the British told themselves it had)
with the British declaration of a change in sovereign identity.
By the end of the nineteenth century, Company rule long since disbanded, the
British had returned to an active policy of restoring and recognizing the sovereignty
of the princely states which by one estimate numbered over five hundred.96 The
sovereign-to-sovereign relationship impaired through the century now returned, but
by British imperial law it was a non-justiciable one. This relation, being an exercise of
the prerogative foreign affairs power, was one into the exercise and practice of which the
courts could not enquire. The act of state doctrine developed by the common law in
response to the natural litigiousness of the angry, frustrated, and frequently mistreated
nawabs shielded the Crowns conduct from judicial inquiry. By the mid-twentieth
century those polities and their international status were being described this way:97
The native states of India . . . vary greatly in every respect, ranging from large and important
political communities such as Hyderabad and Mysore to minute units which are really small
country estates. Their relationship with the Crown has been formed at various times by a large
number of treaties and other agreements. The details of these vary greatly, but they all have one
common feature in that they conceded to the Crown a complete control of all external affairs.
The practice rests partly upon the treaties and partly upon a more general doctrine of para-
mountcy, the precise application of which has been a matter of some dispute between the Indian
government and the native rulers . . . The principle that the complete control of external
relations is vested in the Crown is fully admitted by the princes, but they do not admit the
claim . . . that their relations with the government of India are not governed by the principles of
international law.
Some concluding observations can be made about British practice in the East Indies
from the early seventeenth century. First, this practice was premised upon the recognition
96
HA Smith (ed), Great Britain and the Law of Nations (2 vols, London: PS King and Son Ltd, 193235)
97
I, 40. Ibid 40 and 43.
of the sovereignty of the Mughal Emperor and the nawab states. The East India
Companys interests consolidated after the victory at Plassey (1757) and grant of
diwani (1765), becoming more territorial in ambition, especially after 1792. A com-
plex set of treaty relations with the Mughal and nawabs developed and was the foothold
of the Companys jurisdiction and later that of the Crown. These treaties worked
through the indigenous structures and often culminated in a cession of territory or
sovereignty or both. The subcontinent was subject to a jurisdictional patchwork that
did not always make plain the status of the Crowns imperium. Nonetheless British
practice had adopted formal annexation as a measure proclaiming its unqualified para-
mountcy, and where this was made the Crown held (in its own eyes and by its own
law) the status of territorial sovereign. Crown sovereignty was not seen as displacing
the indigenous laws and structures of political authority, the maintenance of which was
indispensable to its practical effectiveness. British practice followed a principle of
non-interference and co-option, fixing the Crowns imperium by reference to treaties
and de facto control. Never was a model applied that supposed Crown sovereignty
rendered the Indian population thoroughly subject to English law. That was a model
formulated by the early Victorian generation of imperialists and applied in other
theatres and to other indigenous polities and peoples.
(d) Early British practice in Africa

Although the Levant and the East Indies were the major regions of early British activity
in the eastern parts of the non-Christian world, prior to the mid-eighteenth century
the Crown also issued some constituent instruments affecting Africa. Like those for
the Levant and East Indies, these were mainly licences for trade and constitution of
merchant groups. The early charters made no provision for territorial acquisition98
but recognized the authority of the African chiefs in these regions. The grant to the
African Company (1618) authorized trade in any territory being under the obedi-
ence of any King, State, or Potentate of any region dominions or county in Gynney or
Brynney . . . .99 By the Restoration the Crown was granting letters patent for Africa on
the basis that the factories built on sites obtained from the chiefs would be subject to
exclusive English rule. The charters of the Royal Adventurers into Africa (1660 and
1662) stipulated that the Company shall have the ordering rule and government of all
such forts factories and plantations as now are or shall be at any time hereafter
settled.100 As in the East Indies this practice was not founded upon the rigid distinc-
tion between a territorial and extra-territorial imperium. It also recognized the juridical
capacity of the African chiefs.
4. The legal status of infidels

Before the upheaval following the military victories of the mid-eighteenth century,
British practice in the non-Christian east followed the style that had already been set in
98
Grant to the Exeter merchants (1588), Principall Navigations, IV, 285291; grant to Gregory and
others (1592), ibid V, 5455 (extracts); grant to the African Company (1618), Select Charters, 99.
99
n 98 above, 103.
100
Texts in Select Charters, 172. Also charter to the Royal African Company, ibid 186.
British relations with Christian princes. Initially British interests in those regions were
predominantly trading, and certainly not territorial. Where the royal instruments
claimed territorial rightsand hence for later eyes, the sovereigntyover a region it
was limited to factory sites in which the Crowns grantees had full jurisdiction. The
mode of thought was jurisdictional and still some distance from a conscious apprehen-
sion that the claim to full jurisdiction was also a claim to sovereign title. Territorial
ambition was not integral to those charters. Nonetheless this charter-issuing supposed
that non-Christian rulers held a juridical capacity that was sufficient and lawful
foundation for the erection of a British jurisdiction or imperium in their territory.
Those suppositions of British practice were made explicit in work of the publicists
and lawyers of this period. To give a list, continental writers such as Bodin (1577),101
Cacheranus (1566),102 Grotius (1604103 and 1625104), Suarez (1621),105 de Freitas
(1625),106 Lyserus (1676),107 and Pufendorf (1688)108 found Christian princes might
enter into treaty relations with non-Christian powers. In the main that treaty-making
was limited to trade and commerce. Grotius work, in particular, enjoyed some influ-
ence in England. Ironically, it was used against him and in support of English claims
against the Dutch to exclusive rights of trade in the East Indies by reason of Mughal
grant.109 De Freitas apart, these writers stressed the secular aspect of relations between
Christian monarchs and heathen potentates of the East. The Christian duty to spread
the gospel seemed to have a more westward than eastward gaze.
Within England various writers and lawyers took a virtually identical tack. The
Protestant refugee and reader in civil law at Oxford, Gentili (1589),110 Zouche
(1650),111 and Pott (1682)112 found it was lawful for Christian Kings to enter into
treaty relations with infidel rulers. Coke appeared to contradict this position in Calvins
Case (1608)113 when he pronounced all infidels to be perpetual enemies of the Crown
with whom no relations were possible. However, this was inconsistent with what by
then was an established pattern of Crown conduct wherein the treaty-making practised
with Christian princes had been carried over seamlessly to non-Christian. Much of that
treaty-making activity has been outlined already. Also, Cokes view did not mesh with
101
Les Six Livres de la Republique (1577) l-VI-ii, and see CH Alexandrowicz, Law of Nations in the East
102
Indies, 3031. Disputatio an Principe Christiano (1566). See Alexandrowicz, above, 8687.
103
De Jure Praedae Commentarius (1604) (Trsl edn, 2 volumes, Oxford: Clarendon Press, 1950) 220.
104
De Jure Belli ac Pacis Libri Tres (1604) (Trsl edn, Oxford: Clarendon Press, 1925) 397.
105
De Triplici virtute theologica (1621) in JB Scott (ed), Selections from Three Works (2 volumes, Oxford:
Clarendon Press, 1944), section VI.
106
De Just imperio lusitanorum Asiatico (1625), discussed in Alexandrowicz, above, ch 3.
107
Disputatio Politica de Foederibus cum Infidelious (1676), discussed in Alexandrowicz, above, 88.
108
De Jure Naturae et Gentium Libri Octo (1688) (Trsl edn, Oxford: Clarendon Press, 1934) esp 233,
340341. Pufendorf did not distinguish Christian from non-Christian societies other than to state their
equal subjection to the jus gentium.
109
GN Clark, Grotiuss East India Mission to England (1934) 20 Transactions Grotius Society 45. The
Dutch had a long tradition of treaty relations with the polities of Asia: see the many treaties of the Dutch East
India Company in volumes 227231 Colonial Treaty Series. The treaty-making practices of the European
nations in this part of the world are described in Alexandrowicz, above.
110
De Jure Belli Libri Tres (1589) (Trsl edn, Oxford: Clarendon Press, 1933), lib 3, cap 19.
111
Iuris et Iudicii, sive, Iuris Inter Gentes (1650) (Trsl edn, Washington: Carnegie Institution, 1911) 101.
112
De Foederibus Fidelium cum infidelibus (1686), discussed in Alexandrowciz, above, 87.
113
(1608) 7 Co Rep 1a at 17b, 77 ER 377.
his position elsewhere.114 An Anonymous case (1640) dismissed Cokes comments on

infidel status as residual crusading zeal.115 Molloys De Jure Maritimo (1682), identified
by the renowned legal compiler and writer Chalmers116 as the first text on colonial law
and in its fourth edition by 1688, indicated that treaty relations with infidels were
lawful.117 By then this point appeared settled,118 Cokes maverick comments in Calvins
Case having become forgotten.
By the middle of the eighteenth century, Vattel certainly regarded treaty relations
with non-Christian states as permissible and argued that Christian states had no right
of interference with the former by reason of faith alone. In the early nineteenth century
the British believed that the law of nations applied as much to non-Christian as
Christian states. That can be seen, for example, in a series of judgments of Lord Stowell,
although he regarded the application as being necessarily tempered with a somewhat
wider measure of discretion.119 Cokes wrong-headed statement in Calvins Case was
never the common law position.
***
British practice in the east has been reviewed. Attention turns now towards the first two
centuries of British relations with the tribal societies of the New World. It will be seen
that these relations were conducted on similar premises to those that had been applied
in the East Indies. The Crown recognized the authority of the tribal leaders and entered
into formal treaty relations with the Indian chiefs. There was no unilateral assumption
of an imperium over the tribal people of the New World where, again, the Crown
proceeded by way of treaty-making.
5. The earliest royal authorizations of adventure into the New World

At the same time as British trading interests were being extended in the East Indies,
westwards across the Atlantic Columbus discovery of the New World had prompted
unprecedented excitement amongst the European nations. The Papal Bull Inter
Caetera (1493) divided the non-Christian world between Spain and Portugal.120
114
Michelborne v Michelborne (1609) 2 Brownl & Golds 296, 123 ER 952 (CP) and 4 Institutes 155.
115
(circa 1640), 1 Salk 46, 91 ER 46 (CP).
116
History of the Revolt of the American Colonies (1782) (reprint edn, 1972) I, 173.
117
De Jure Maritimo et Navali (3rd edn, 1682) 113114. The first edition appeared in 1677.
118
East India Company v Sandys (168285) 10 St Tr 371 proceeded on the supposition of the effective-
ness of rights derived from the Mogul, a position taken also in the opinion of Attorney-General and
Solicitor-General (1757), above.
119
HA Smith (ed), Great Britain and the Law of Nations, 15. The cases are The Hurtige Hane (1801) 3 C
Rob 324; The Helena (1801) 4 C Rob 5; The Madonna del Burso (1802) 4 C Rob 169.
120
Text in FG Davenport (ed), European Treaties bearing on the history of the United States (4 vols,
Washington DC: Carnegie Institution of Washington, 191737) 61. The Bull of May 1493 purported to
give, grant and assign forever to you and your heirs and successors, Kings of Castile and Leon, all and
singular the aforesaid countries and islands thus unknown and hitherto discovered by your envoys and to be
discovered hereafter, provided however they at no time have been in the actual temporal possession of any
Christian owner, together with all their dominions, cities, camps, places and villages, and all rights, jurisdic-
tions and appurtenances of the same. The grant was clarified in the Bull Dudum Sequidem (26 September
1493) and modified by agreement of Spain and Portugal in the Treaty of Tordesillas (2 July 1494),
subsequently confirmed by Julius II in the Bull Ea Quae (1505).
Protestant Europe subsequently condemned Alexander VIs donation as beyond his

authority. It appears to have been intended not so much as a grant of title to these
lands as a demarcation of zones in which the Iberian powers were to have exclusive
responsibility for conversion of the heathen.121
Soon after this Bull and commencing in 1496, Henry VII granted a series of formal
instruments authorizing British adventure into and acquisition of territory in the New
World. There was some token deference to papal authority in that the grants of 1501
and 1502 were to a joint Anglo-Portuguese enterprise. However the instruments pro-
claimed the right of all Christian princes to find, discover and investigate whatsoever
islands, countries, regions or provinces of heathens and infidels, in whatsoever part of
the world placed, which before this time were unknown to all Christians.122
The first patent was issued in 1496 to the Venetian adventurer John Cabot.
Somehow Cabot had made his way to England in the early 1490s and excited the mer-
chants of Bristol with the prospect of locating the islands of Brasil or that of the Seven
Cities. Most medieval maps had placed these to the west of Ireland. Cabot had sailed
from Bristol in 1491 and 1492, but to no purpose. However in the summer of 1493
news of Columbus discovery reached England and generated interest in Cabots
plans. On 5 March 1496 royal letters patent issued to Cabot,123 whose ships later
reached what seems to have been Cape Breton Island. Cabot took possession of the
country in the name of Henry VII and returned to England. The delighted Henry
issued a second charter in February 1498124 promising Cabot a larger fleet.
In format and terminology, these two patents were virtually identical. Underlining
the refutation of papal dominion, the grantees were authorized to set up the Crowns
ensign in any town, city, castle, island or mainland whatsoever, newly found by them.
Further, the Cabots were to . . . conquer, occupy and possess, as our vassals and gover-
nors, lieutenants and deputies therein, acquiring for us the dominion, title and
jurisdiction of the same towns, castles, cities, islands and mainland so discovered. The
grantees would then govern this conquered territory as vassal lords of the Crown.
The patents saw any Crown claim as derivative in as much as it was to derive not
from the mere fact of discovery but from the conquest of the native population and
subsequent occupation and possession of their lands.
If these two patents were bare on any point it was on the question of the establishment
and governance of English outposts and colonies in the newly found parts. This short-
coming was corrected in letters patent of 19 March 1501 to a joint Anglo-Portuguese
121
Initially the Bulls were treated as a grant of title over these lands: Pagden The fall of natural man (1982)
2830. However during the early sixteenth century Spanish jurists and theologians cast doubt upon the tem-
poral authority of the Pope and limited the Bulls to the spiritual sphere: Las Casas, Brevissma Relacion de la
destruycion de las Indias (Trsl edn, 1583 [The Spanish Colony or brief chronicle]) fol C 1 v; Vitoria, De Indis et
de iure belli relectiones (1539) (Trsl edn, Washington: Carnegie Institution, 1917) lib 3, cap 10; Suarez, De
triplici virtute theologica (1621) (Trsl edn, 1944) 744. Also see James Muldoon, Papal Responsibility for the
Infidel: Another look at Alexander VIs Inter Caeter (1978) LXIV Catholic Historical Review 168; Donelan,
Spain and the Indies in Bull and Watson (eds), The Expansion of International Society (1984) 75; Batlori,
The Papal Division of the World and its Consequences in Chiapelli (ed), First Images of America (Berkeley:
University of California Press, 1976) 211.
122
Letters patent to Warde (1501), text in HP Biggar (ed), The Precursors of Jacques Cartier 14971534
(Publications of the Canadian Archives, no 5. Ottawa: Government Printing Bureau, 1911) 41, 51.
123 124
Text in Biggar (ed), The Precursors of Jacques Cartier, 7. Text ibid 22.
enterprise. Unlike the comparatively crude Cabot patents, the 1501 patent and its
successor instrument of 9 December 1502 dealt with this question of governance of a
community abroad by being modelled on previous patents to chartered companies and
boroughs.125 In that respect the pattern of formal Crown authorization of British
governance in the New World commenced with these charters modelled on the
English form. The patents conferred power . . . to make, set up, ordain and appoint
laws, ordinances, statutes and proclamations for the good and peaceful government of
the said men, masters, sailors, and other persons aforesaid.
The first two Cabot patents with their novel, unprecedented format were a false start.
Thereafter royal patents authorizing colonization were directly modelled on those that
had issued in England for chartered companies and boroughs. But the 1501 and 1502
letters patent were not written on a clean slate, for the provisions relating to the raising
of the ensign and the conquest of the indigenous infidel population remained. The
law-making power conferred by the instrument was specifically directed towards all and
singular the men, sailors and other persons removing and making their way. . . [to the]
islands, countries, lands and provinces . . . acquired, recovered and found. The charter
thus set up a system of governance for British persons going to and colonizing the New
World, but its terminology did not contemplate this governance as extending over the
native heathen except by conquest.
6. The Salamanca Divines

The letters patent to the Cabots and Anglo-Portuguese enterprise issued in the giddy days
of first discovery of the New World. Sustained English adventure and colonization were
then still some decades away. Meanwhile through the sixteenth century the debates and
lectures of the Dominican Spanish theologians, the Salamanca Divines as they became
known, pondered the legality of adventure into and conquest of the native inhabitants of
the New World. The Spanish Crown had consistentlyand, given the atrocities
committed in its name, aptlyworried about the manner of its subjection of the native
societies of Meso-America. The Spaniards attempted to bring some colour of law to
conduct that even by the standards of their bloody time was murderously extreme.
In 1514 to salve the Spanish Kings conscience, for example, the procedure of the
Requirement was adopted. This was a document to be announced to the Indians by
interpreters before the commencement of hostilities. It began with a brief account of
the world since creation, including the establishment of the papacy and the donation
of Alexander VI. The middle section gave the document its name by requiring the
Indians hearing it to accept two obligations. The first requirement was to acknowledge
the Church as the Ruler and Superior of the whole world and the high priest called the
Pope, and in his name the King and Queen Juana in his stead as superiors, lords, and
kings of these island and this Tierra Firma by virtue of said donation.126 The second
requirement was to allow the faith to be preached to them.
125
For instance the patent to the Merchant Adventurers in Calais (1505), text in G Cawston and
AH Keane, The Early Chartered Companies (AD 12961858) (London: Edward Arnold, 1896) 250.
126
See Lewis Hanke, The Spanish struggle for justice in the conquest of America (Philadelphia: University of
Pennsylvania Press, 1949) 33.
The performance of the Requirement almost immediately degenerated into farcical

genocide:
. . . for the Requirement was read to trees and empty huts when no Indians were to be found.
Captains muttered its theological phrases into their beards on the edge of sleeping Indian settle-
ments, or even a league away before starting the formal attack, and at times some leather-lunged
Spanish notary hurled its sonorous phrases after the Indians as they fled into the mountains.
Once it was read in camp before the soldiers to the beat of the drum. Ship captains would some-
times have the document read from the deck as they approached an island, and at night would
send out enslaving expeditions, whose leaders shout the traditional Castilian war cry Santiago!
rather than read the Requirement before they attacked the near-by villages. Sometimes Indian
messengers were sent to require other Indians.127
The Salamanca Divines, most famously Vitoria and Las Casas, explained the grounds
upon which it was lawful for a Christian prince to rule over Indians and their lands.
Vitoria was undoubtedly the most sophisticated and influential thinker from the
Spanish school. He argued that Spanish title over the Indians derived lawfulness from
one of six and possibly seven grounds. Those involved either the forcible conquest of
the Indians or their voluntary submission to Spanish rule. Conquest, he said, must
derive from a just cause. Such causes arose upon the Indians breach of the jus gentium,
the law of nations and nature, and were either secular or religious in character. Thus the
Indians refusal to allow Spain to exercise its rights of trade and commerce in their ter-
ritory gave a just, non-religious cause to engage them in a defensive war. Propagation
of Christianity gave the Spanish another possible title over the Indians, a religious right
which arose if the Indians prevented the Spanish from preaching the Gospel:
. . . if there is no other way to carry on the work of religion, this furnishes the Spaniards with another
justification for seizing the lands and territory of the natives and for setting up new lords there and
putting down the old lords and doing in right of war everything which is permitted in other just wars,
but always with a regard for moderation and proportion, so as to go no further than necessity
demands . . . and with an intent directed more to the welfare of the aborigines than their own gain.
The Spanish debates about the rights of American Indians were well known in
Elizabethan England.128 Las Casas Brevissma Relacion (1542) was translated into
English in 1583 with extracts soon being included in Hakluyts Discourse of Western
Planting (1584). Purchas included an account of the Valladolid Disputation in his
Hakluytus Posthumus (1625), which, like Hakluyts publications, enjoyed great popu-
larity in its day. The Spanish influence was evident in the work of Bacon,129 Gentili,130
and other tracts of the day,131 including George Peckhams True Reporte (1583). In this
127
See Lewis Hanke, The Spanish struggle for justice in the conquest of America (Philadelphia: University of
Pennsylvania Press, 1949) 34.
128
Generally H Porter, The Inconstant Savage (London: Duckworth, 1979) 153182.
129
Francis Bacon, An Advertisement Touching an Holy War (1622) in Spedding, Ellis and Heath (eds),
The Works of Francis Bacon (1859 edn) VII, 10, and Of Plantations, ibid VI, 457.
130
De Jure Belli Libri Tres (1589).
131
Lawrence Keymis, A Relation of the Second Voyage to Guiana (London: T Dawson, 1596); Anon, Nova
Britannia: Offering Most Excellent Fruites By Planting in Virgina (1609) in Forces Tracts I, 6; R Hakluyt,
The Discovery and Conquest of Terra Florida by Don Ferdinando de Soto translated out of Portuguese (1611). See
generally Porter, The Inconstant Savage, ch 8.
anonymous pamphlet Peckham, a Catholic recusant hoping to establish a haven

across the Atlantic, described the legality of English adventure to the New World in
true common law style. This was, he said, in true common law fashion, a thing so
commonly and generally practised, both in these our days, and in times past, beyonde
the memory of man, both by Christians and Infidels, that it needeth no further
proof.132 Indeed, one finds constant reference to the Spanish cruelties throughout
the subsequent history of British colonialism as a kind of lawless low-point and
contrast to its own higher-minded conduct. Throughout that history of colonialist
propaganda there recurred the consistent intermingling themes of English imperialism
set out by Peckham and Hakluyt at its New World beginnings: religion, law, and
commerce.
The Spanish had made relations with the native inhabitants of the New World an
issue of legality. The English, disgusted by the Spanish behaviour, did likewise. From
the re-commencement of their adventure into the New World in late Elizabethan
times, the English aspired to put their relations on a less impugnable basis. This con-
cern with lawfulness was demonstrated by the issuing of royal charters authorizing
adventure into the New World, the term that from the reign of Henry VIII was being
used to designate those letters patent granting liberties, privileges, immunities, and
exemptions, or which conferred extensive land grants.133 These charters showed
English concern to broadcast the lawfulness and legal basis of this activity across the
Atlantic. In true common law fashion they were based on the continuation of practices
that (we have seen) had already been applied in Europe and merchant communities
elsewhere. The English had the experience of the Protestant Reformation under their
belt and part of the bulwark of the Protestant state was the common law. They did not
need the philosophizing of Catholic Spain. Law was embedded in their practice and
they simply had to adapt that for the new circumstances of the Americas.
7. The late Elizabethan and Stuart charters for America

As the English became more serious participants in overseas trading and colonial activity
from the 1570s, charter-issuing necessarily became a more regular feature of royal
activity. It has been seen already that Elizabeth I and the early Stuarts continued the
practice of constituting bodies of merchants in order they might trade in Europe.
These instruments, based on the guild and borough charters, became in turn the
models for the colonial charters. British practice had straddled the realm, Europe, the
Levant, the East Indies, and, eventually, North America in a virtually seamless manner.
So far as the American colonies were concerned, this charter issuing was to last most of
the seventeenth century, although it tailed off in the last quarter.
132
A True Reporte Of the late discoveries, and possession, taken in the right of the Crowne of Englande, of the
New Founde Landes: By that valiaunt and worthye Gentleman, Sir Humfrey Gilbert Knight. Wherein is also
breefly sette downe, her highnesse lawfull Tytle thereunto, and the great and manifolde Commodities, that is likely
to grow thereby, to the Realme in generall, and to the Adventurers in particular. Text in DB Quinn (ed), The
Voyages and Colonising Enterprises of Sir Humphrey Gilbert (2 vols, London: Hakluyt Society, 1940) II, 435.
The tract was also included in edited form in Hakluyts popular Principall Navigations Voyages Traffiques and
Discoveries of the English Nation (1600) III, 165181.
133
MEE Parker (ed), The Colonial Records of North Carolina (Raleigh, North Carolina: 1963) xv.
Elizabeth issued two charters for adventure into the New World, the first to Sir
Humphrey Gilbert (1578) and the second to Sir Walter Raleigh (1584). These charters
contained a similar protestation as those earlier, avowing the right of Englishmen to
venture into lands not occupied by any Christian prince.134 Papal pretension remained
firmly rejected. Any sovereign title over land in the Americas came instead from dis-
covering, subduing and possessing the lands, the very activity that the Crown was
licensing. The charter did not specify what constituted possession, although the
English condemnation of Spanish conduct plainly intimated their distaste for violent
dispossession. Significantly, the reach of powers of governance constituted by these
charters was defined in wholly personal terms, indicating its scope was British subjects
abroad. The charters never claimed any jurisdictional hold over the native tribes by
mere sweep of royal pen. The jurisdiction of the constituted authorities was expressed
as being:
. . . full and mere power and authority to correct, punish, pardon, and rule, by their, and every or
any of their, good discretions and policies, as well in causes Capitall or criminal as civil, both
marine and other, all such, our subjects and others, as shall, from time to time hereafter, adven-
ture themselves in the said journeys or voyages, habitative or possessive, or that shall, at any time
hereafter, inhabit any such lands, Countries, or territories as aforesaid, or that shall abide within
two hundred leagues . . . 135
Both charters contained a Bishop of Durham clause. Durham was one of three
English counties palatine over which the feudal lords once possessed what was virtually
regal power. Whilst the power of the palatine lords had been greatly eroded by the
seventeenth century, this decrease in power was not acknowledged in the two charters.
This feudal lordship included title to the land appropriated in the Americas in chief
(in capite), or as a feudal tenant in chief in knights service as of our manor of East
Greenwich. Further to this feudal title combining the imperium (governance) and
dominium (land ownership), the grantees were given the power to create land titles
from the land taken by them. Thus the patent to Gilbert provided that he:
. . . shall have, hold, occupy and enjoy, to him . . . forever, all the soil of such lands, Countries, and
Territories so to be discovered or possessed as aforesaid; and of all Cities, Castles, Towns, villages,
and places in the same . . . to be had or used with full power to dispose thereof, and of every part
thereof, in fee simple or otherwise according to the order of the laws of England, as near as the
same may conveniently be . . . to any person then being . . . within the allegiance of is, our heirs
and successors; reserving always to us, . . . for all services, duties and demands, the fifth part of all
the ore of gold and silver that, from time to time . . . after such discovery, subduing, and possessing,
shall be there gotten.136
The feudal power of governance granted was:
. . . full and mere power and authority to correct, punish, pardon, and rule, by their, and every or
any of their, good discretions and policies, as well in causes Capital or criminal as civil, both
marine and other, all such, our subjects and others, as shall, from time to time hereafter, adven-
ture themselves in the said journeys or voyages, habitative or possessive, or that shall at any time
134
Text in Parker (ed), Colonial Records of North Carolina I, 5 (Gilbert) and 13 (Raleigh).
135 136
Ibid 8 (Gilbert) and 15 (Raleigh). Ibid 6.
hereafter inhabit any such lands, Countries, or territories as aforesaid, or that shall abide within
two hundred leagues . . . So always, that the said statutes, laws, and ordinances may be, as near as
conveniently may, agreeable to the form of the laws and policy of England.137
Those features were maintained in subsequent Stuart charters. The charters became
more geographically specific and limited in coverage whilst also erecting fuller powers
of government. However they maintained the rejection of papal donation in the insist-
ence upon the Crowns entitlement to authorize its subjects to venture and settle in
those parts either appertaining unto us or which are not nowe actually possessed by
anie Christian prince or people.138 This stipulation eventually disappeared once the
Crown considered its rights in North America secure.139 The charters became less the
speculative licences to explore of before, and took on more of the character of authoriza-
tions to colonize.
Initially the Stuarts preferred the corporate charter. The second Virginia charter
(1609) set a new colonialist and corporatist tone by giving the company the entire
range of royal and private rights of exploitation, a promise as much as anything else of
royal non-interference in the riches the company might gain. Thus this charter
purported to
. . . give, grannte and confirme unto the said Tresorer and Companie . . . under the reservations,
limitacions and declaracions hereafter expressed, all those lands, countries and territories scituat,
lieinge and beinge in that place of America called Virginia . . . togeather with all the soiles,
groundes, havens and portes, mynes, as well as royal mines of gold and silver as other mineralls,
pearles and precious stones, quarries, woods, rivers, waters, fishings, comodities, jurisdictions,
royalties, priviledges, franchises and preheminences within the said territorie and precincts of
whatsoever.140
As with earlier charters, title was given as of the manor of East Greenwich at Kent. That
style of grant was followed in most later charters141 although Pennsylvania and
137
Ibid.
138
Samuel M Bemiss (ed), Three Charters of the Virginia Company of London (Williamsburg, Va: Virginia
350th Celebration Corporation, 1957).
139
See, for example, letters patent to the Newfoundland Company (1610), Select Charters, 51; New
England charter (1620), Francis N Thorpe (ed), The Federal and State Constitutions, Colonial Charters and
Other Organic Laws of the United States (7 vols, Washington DC: Government Printing Office, 1909) III,
1827; grant to the province of Maine (1622), ibid III, 1621; charter of Avalon, text in DW Prowse, A History
of Newfoundland from the English, Colonial and Foreign Records (2nd edn, London: Eyre and Spottiswoode,
1896) 131; charter for Carolina (1629) Colonial Records of North Carolina, 64; charter of Massachusetts Bay
(1629), Thorpe (ed), above, III, 1846; charter of Maryland, Thorpe (ed), above, iii, 1679; grant to the
province of Maine (1639), ibid 1625; charter of Connecticut, ibid I, 529; charter of Carolina (1663),
Colonial Records of North Carolina, 78; charter of the Hudson Bay Company (1670), text in Martin, The
Hudsons Bay Companys Land Tenures (London: W Clowes and Sons, 1898) 163; commission for New
Hampshire (1680) Thorpe (ed), above, IV, 2446; commission for New England (1688), ibid III, 1863;
140
charter for Georgia (1732), ibid II, 765. Ibid 43.
141
For example: all three Virginia charters, texts in Samuel M Bemiss, The Three Charters of the Virginia
Company, 1 at 10 (1606); 27 at 42 (1609); 76 at 79 (1612); charter of New England (1620) in Colonial
Charters, 1827 at 1834; charter of Massachusetts Bay (1629), ibid 1846 at 1851; charter of Connecticut
(1662), ibid I, 529 at 535; charter of the Lords Proprietor of Carolina (1663), text in Colonial Records of
North Carolina 78; charter of the Hudsons Bay Company (1670), text in A Martin, The Hudsons Bay
Companys Land Tenures and the Occupation of Assiniboia by Lord Selkirks Settlers (London: William Clowes
and Sons, 1898) 163, 168.
Maryland were granted as of our castle of Windsor . . . in free and common socage by
fealty only.142 The grant of title in the second Virginia charter was made only as full as
that which wee by our lettres patent maie or cann grante, a saving provision for Indian
rights.143 The first Virginia charter had expressed the hope that the true knowledge and
worshippe of God . . . may in tyme bring the infidels and salvages living in those parts to
humane civilities and to a setled and quiet governmente.144 Instructions from the
Virginia Council under the second charter suggested the establishment of a tributary
system with the Indians through a careful league of amity.145
Like the late Tudor charters, then, the early Stuart grants contained no assertion of
jurisdiction over the Indian tribes, the powers of corporate governance they consti-
tuted being expressed in the personal terms already described. The charters constant
references to Barbarous Nations indicated a class outside the ordinary scope of their
constituted governance. This exclusion was plainly deliberate as the supplementary
instructions and proceedings of the Virginia and Massachusetts companies made
plain.146 The grant of Nova Scotia (1621) was seen in the last chapter as being unusu-
ally specific. It gave Sir William Alexander free and absolute power of arranging and
securing peace, alliance, friendship, mutual conferences, assistance, and intercourse
with those savage aborigines and their chiefs.147 This demonstrated explicitly the belief
that the tribes were not within the ordinary jurisdictional ambit of the charters, except
in the sense that war could be waged against them or treaties made (as acknowledged
in the 1621 instrument).
After the Restoration, royal charters for British North America were fewer. Those
that issued maintained that sense of the Indian tribes as jurisdictionally separate. Some
occasionally noted the Indian presence but, again, it was still as though they were apart
from the colony itself. The charter for Connecticut (1662) noted that the colony, or the
greatest part thereof, was Purchased and obtained for great and valuable Considerations,
and some other Part thereof gained by Conquest, thereby adding to His Majestys
dominions in America.148 The charter for Rhode Island (1663) recited how the peti-
tioners, having landed in America, settled amidst certain Indians who, as wee are
infformed, are the most potent princes and people of all that country. The petitioners
were now seized and possessed, by purchase and consent of the said natives, to their
142
Charter of Maryland (1632), text in Thorpe (ed), Colonial Charters, III, 1677 (English version), 1679;
Charter of the Province of Pennsylvania (1681), text in Minutes of the Provincial Council of Pennsylvania from
the Organization to the Termination of the Proprietary Government (Philadelphia: Severns & Co, 1852) 17, 18.
143
J Juricek, English Territorial Claims in North America under Elizabeth and the Early Stuarts (1975)
144
7 Terra Incognit 7, 18. Bemiss, Three Charters, 1 (emphasis added).
145
Instructions of Virginia Council to Sir Thomas Gates, May 1609, ibid 55, paras 1921.
146
SM Kingsbury, The records of the Virginia company of London (4 vols, Washington: Govt Printing
Office, 190635) III at 93 (laws of 18 May 1618 against trucking with Savages or trade with ye perfidious
Savages), and John Pory, A Reporte of the Manner of Proceeding in the General Assembly convened at
James City (1619 laws) 153, 164, and 170; Massachusetts Bay laws and proceedings of 1629 in Nathaniel B
Shurtleff (ed), Records of the Governor and Company of the Massachusetts Bay in New England (5 vols, Boston:
William White, 18534) I at 386; also laws of 1646, ibid II, 166; laws of 1650, ibid III, 189; laws of 1651,
ibid III, 233; law of General Court 1652, ibid III, 282 and IV, 102.
147
Translated text in Edmund Slafter, Sir William Alexander and American colonization, including three
royal charters; a tract on colonization (New York: Burt Franklin, 1966) 127, 129130.
148
Text in Thorpe (ed), Colonial Charters, I, 529536.
ffull content, of certain lands there, and moreover have, by neare neighbourhoode to
and friendlie societie with the greate bodie of the Narragansett Indians, given them
encouragement, of theire owne accorde, to subject themselves, theire people and
landes, unto us.149 Nonetheless the charter also noted how the Narragansett Indians
had agreed of their own acorde, to subject themselves, theire people and landes, unto
us. Unlike royal instrumentation after the American Revolution, which reserved this
power for London, the instrument authorized the provinces assembly to dispose of all
matters relating to the makinge of purchases of the native Indians, as to them shall
seeme meete.150
Where the Crown intended to constitute an imperium or governance over the
natives of a particular region it said so. The example of the charter of Rhode Island and
Providence Plantions (1663) has just been noted. Similarly the letters patent to
Merifield for the islands of St Christopher, Nevis, Barbadoes, and Montserrat (1625)
gave the grantees full power and authority for us . . . to order and dispose of any Lands
or other things . . . and to governe rule and order all and singular persons . . . as well our
natural borne subjects as the Natives and Savages of the said Islands.151
Plainly these royal charters claimed some sovereign right in North America by the
act of discovery, subduing, and possessing the land, but their language demonstrated
that they were not unilaterally claiming any jurisdictional hold over the Indian tribes.
Thus the type of sovereign right they set out fitted neither rigid category of territorial
sovereignty and extra-territorial jurisdiction as understood from the mid-nineteenth
century. The charters were the product of their own time. They had elements of each,
setting out jurisdictional competences that were simultaneously territorial and per-
sonal. Judged by those later categories, formed as they were around a modern doctrine
of sovereignty, the charters might seem confusing. When later generations came to
consider their scope they emphasized the territorial rather than personal aspect. That
modernist tendency ignored the charters subtlety and medieval basis, trying whig-
gishly to fit seventeenth-century practice into a latter-day scheme. But the consistency
and duration of this charter-making practice over a century indicates they were not
regarded in their time as inconsistent or ambivalent. It was just that those rigid cat-
egories had not developed. In the next chapter we will see Chief Justice Marshall of the
Supreme Court of America detecting the nuances of these charters and reconciling
them with modern American notions of sovereignty.
These instruments issued under the royal prerogative (the constituent power)
contemplated the establishment of distinct settler communities. Prospectively they
legitimated those by the constitution of systems of governance with executive, legislat-
ive, and judicial authority. Initially the model of chartered companies was used, as
with the Virginia Company and later the Massachusetts Bay Company. Later grants
also took the form of proprietorial grants, conferring a lordship based upon (and
returning to) the palatine model. The model of the provincial royal colony headed by
a Governor was also used and from the mid-eighteenth century became the most
149 150
Text ibid VI, 32113222. Text ibid VI, 3211, 3212.
151
Text in A Burns, History of the British West Indies (London: George Allen & Unwin, 1954)
Appendix E, 768.
favoured form.152 Although the type of grant varied, there was, nonetheless, a great
deal of overall consistency in terminology and detail, the instinctive recycling typical
of the common law mind. Above all, the instruments demonstrated the preoccupa-
tion with ensuring the legality of the various enterprises. Indeed, from the first legal-
ity became the habitual and opportunistic resort of the settlers ever anxious (in all
times and locations of British colonialism) to press what advantage they could from
those who governed them in the Crowns name and under its authority. In these royal
instruments the focus of that legality was less outward in the sense of being directed
towards the Christian princes and savages, terms and classes that made occasional
appearances in these instruments. The phraseology made plain the view of the legal
position of those classes, interloping Christian princes in particular, but that was not
their primary orientation. Mostly they were concerned with the legality of the govern-
ance of the British subjects. The Massachusetts Bay charter (1629) ended emphati-
cally. It stated that theis ours Letters-patent shalbe firme, good, effectuall, and
available in all Things, and to all Intents and Construccions of Lawe.153 In taking
such care to put colonization on a firm and thorough legal foundation they projected
an utter Englishness of design.
Through all of those instruments, whether the addressee was a chartered company,
proprietor, or governor, the foundational principle remained the feudal one. The sec-
ond Virginia charter (1609) showed how typically and exhaustively that title was elabor-
ated, the company taking:
. . . all those landes, countries and territories scituat, lieinge and beinge in that place of America
called Virginia . . . togeather with all the soiles, groundes, havens and portes, mynes, as well roy-
all mynes of golde and silvber as other mineralls, pearles and precious stones, quarries, woods,
rivers, waters, fishings, comodities, jurisdictions, royalties, priviledges, franchises and prehemi-
nences within the said territories and the precincts there of whatsoever.154
This formula, with its exhaustive terminology, disappeared from the later Stuart
instruments that constituted royal government through a governor, this being the
provincial form that gradually superseded the corporate and proprietary models.155
Nonetheless the power to make grants of land, bound in as it was to the royal prerogat-
ive, still remained a key governmental function, and was uniformly included in the
152
Colonial polities established by the Crown developed during the eighteenth century into two types
those with a representative assembly and those with a Governor acting through non-representative councils.
The first type was used in Nova Scotia (1758), Prince Edward Island (1773), New Brunswick (1784), and
for the Canadas after 1791. The latter type was used for colonial settings where representative government
was regarded as unsuitable: Quebec (before 1791); Malta; the Cape and Mauritius; the penal colony of New
South Wales and countries with indigenous peoples for whom the British felt special responsibility, in
Trinidad, Ceylon, and later New Zealand (until 1852): see Peter Burroughs, Imperial Institutions and the
Government of Empire in Oxford History of the British Empire, III (The Nineteenth Century) 170, 185. The
choice was complicated by the judgment of Lord Mansfield in Campbell v Hall (1774) Lofft 655, 98 ER 848
(KB) which was regarded by colonial administrators as establishing that non-representative governance of
settled colonies required permissive legislation. In those colonies it was believed (after Campbell v Hall) that
Englishmen took a common law right to a representative assembly.
153
Text in Thorpe (ed), Colonial Charters, III, 1854, 1857.
154
Text in Bemiss (ed), Three Charters, 27, 4243.
155
The formula appeared in the Georgia grant (1732), Colonial Charters, II, 765.
royal instruments under the Great Seal and instructions to governors under the royal
sign manual. Indeed, through all the history of British colonization and of all the royal
powers contained in such instruments, the grant and exercise of that power was the one
that consistently proved the most contentious. Disputation about settlers land titles
was a consistent thread in the histories of the settlement colonies across more than
three centuries. Nonetheless the foundation of the American coloniesas, later, the
Australasian oneswas essentially feudal. Carolina, to give an example, was a propri-
etary colony granted in 1665. The proprietors adopted a fundamental constitution in
1669, their apparently experimental model accentuating rather than abandoning
feudalism.156 The Lords Proprietors divided the province into counties, each of the
latter consisting of eight signories, eight baronies, and four precincts (comprising six
colonies):
Each signory, barony and colony shall consist of twelve thousand acres; the eight signories being
the share of the eight proprietors, and the eight baronies of the nobility; both which shares, being
each one of them one-fifth of the whole, are to be perpetually annexed, the one to the propri-
etors, the other to the hereditary nobility, leaving the colonies, being three-fifths, amongst the
people, so that in setting out and planting the lands, the balance of the government may be
preserved.157
Here feudalism and idealism fused into the perfect form of governance, a careful and
formal disposition of land-ownership balancing the constitution.
The Stuart instruments for the American colonies covered every dimension of sov-
ereign authority under the royal prerogative, encompassing legislative, judicial, mili-
tary, and revenue-gathering functions.158 The Massachusetts charter (1629), as typical,
gave full and Absolute Power and Authoritie to correct, punishe, pardon, governe, and
rule all such the Subjects of Us, our Heires and Successors, as shall from Tyme to Tyme
adventure themselves in any Voyadge thither or from thence.159 The charter author-
ized the making of Laws and Ordinances for the Good and Welfare of the saide
Company and for the Government and ordering of the saide Landes and Plantacion,
and the People inhabiting and to inhabite the same. To that was added the rider that
such Lawes and Ordinances be not contrarie or repugnant to the Laws and Statuts of
this our Realme of Englande.160 That non-repugnancy provision was common to all
colonial charters that followed; however some also referred to the laws enacted as being
consonant with Reason or reasonable.161 This stipulation adverted to the early modern
156
Shaftesbury and Locke were amongst the authors of this Constitution. Its system of high rents and
absentee landlords outraged the settlers of Carolina who overthrew it in 1719.
157
The fundamental constitutions of Carolina 1669, ibid 2272.
158
The charters did not, however, delegate the royal prerogative of incorporation, a power that was
reserved to the Crown and not generally possessed by corporations. The important exception was London
which had created lesser corporations as guilds. The General Court of Massachusetts voted funds for
Harvard College in 1636 but was only bold enough to confer corporate status on it during the Interregnum:
David Knig, Law and society in Puritan Massachusetts: Essex County, 16291692 (Chapel Hill: University of
North Carolina Press, 1979) 25.
159
Massachusetts charter (1629) in Colonial Charters, III, 1846 at 1858.
160
Ibid 1853.
161
Charter of the East India Company (1600), text in P Mukerhji (ed), Indian Constitutional Documents
(16001918) (Calcutta: Thacker, Spink and Co, 1918) I, 1; Charter of the Levant Company (1600) in Select
notion of law as the expression of reason and suggested some anxiety that the laws of
the new colony not abandon the established English forms. However it did not appear
regularly and was not considered as carrying any consequences beyond declaring the
general supposition of law as the expression of a natural, reasonable order.
The judicial power was as important as the legislative and was also set out carefully
in these instruments. Judicial and legal officers would be appointed and authorized to
take oaths and give judgment in civil as well as criminal matters. The New England
charter (1620), for example, empowered the taking of oaths as well unto any Person or
Persons imployed or to be imployed in for or touching the said Plantations, for their
honest, faithfull, and just Discharge of their Service . . . or clearing of the Truth in any
Cause whatsoever, concerning the said Plantation, or any Business from thence pro-
ceeding . . . .162 Royal prerogatives in the administration of justice, such as the power of
pardon, were routinely delegated to colonial authorities. Likewise the instruments also
set out carefully the military power, authorizing whatever steps would be necessary to
secure the enterprise and safety of the Crowns subjects under the aegis of its grantees.
These royal instruments allowed projectors to define and pursue territorial claims
formulated, necessarily, in abstract; they provided a medium in which to declare, with
precision, the order of things and people that would desirably eventuate; and they pro-
vided means by which that order and the specific socio-legal structures in which it was
embodied could be projected into unmapped transatlantic landscapes.163 They carried
a distinctly English idea of law and legal institutions and impressed those upon the
American continent.
8. Colonial relations with the Indians: jurisdiction and treaty-making

in the thirteen colonies
The jurisdictional pattern of colonial relations with the Indian tribes during the pre-
Revolutionary period revealed three general categories.164 The first category was the
Indian tribes who lived either outside the colony or within the colonial boundary
Charters 30, 34; charter to the African Company (1618), ibid, 99, at 102103; charter to Sir Robert Heath
et al for Carolina, Colonial Records of North Carolina, I, 64 at 67; charter of Maryland (1629), Colonial
Charters, III, 1677 at 1679; charter for Connecticut (1662), ibid, I, 530 at 533; grant of Carolina (1663),
Colonial Records of North Carolina, 77; Hudsons Bay Company charter (1670), text in A Martin, The
Hudsons Bay Companys Land Tenures and the Occupation of Assiniboia by Lord Selkirks Settlers (London:
William Clowes and Sons, 1898) 163, 168; grant of Pennsylvania (1681) text in State of Pennsylvania,
Minutes of the Provincial Council of Pennsylvania from the Organization to the Termination of the Proprietary
Government (Philadelphia: Jo Severns & Co, 1852) I, 17 at 20.
162
Charter for New England (1620), Colonial Charters, III, 1827 at 18371838.
163
Christopher Tomlins, Laws empire: chartering English colonies on the American mainland in the
seventeenth century in D Kirkby and C Coleborne (eds), Law, history, colonialism: the reach of Empire
(Manchester: Manchester University Press, 2001) 26, 27. Also The legal cartography of colonization, the
legal polyphony of settlement: English intrusions on the American mainland in the seventeenth century
(2001) 26 Law and Social Inquiry 315.
164
See W Stitt Robinson, The Legal Status of the Indian in Colonial Virginia (1953) 61 Virginia
Magazine of History and Biography 247; AT Vaughan, New England Frontier: Puritans and Indians,
16201675 (Boston: Little, Brown, & Co, 1965) 188190; Y Kawashima, Puritan Justice and the Indian:
White Mans Law in Massachusetts, 16301763 (1986) 2441.
whilst still maintaining political independence. The second group consisted of the
plantation Indians who lived within the colony as groupssometimes tribal, some-
times notclearly under the colonial authorities yet retaining their political coherence
and customary forms in their internal affairs. The individual praying Indians who
lived within the English colonies often as servants and without tribal ties represented a
third category.
These categories were not actually and rigidly formed in the minds and practice of
the colonial authorities although they did recognize jurisdictional differences. Rather
they represented an implicit pattern disclosed by colonial practice over more than one
hundred and fifty years of engagement with the Indian nations. This practice itself was
not always consistent, but negotiable and affected by context with particular Indian
polities apt to slip from one category to another. The position of the Mohegan Indians
after the Pequot War (1637) was an example. The Mohegan leader Uncas (decd 1683)
appointed Major John Mason (160072) as protector of his people and their lands.
Uncas deeded land in trust to Mason in 1659 and reaffirmed the grant in 1661 and
1665. In 1659 Mason ceded jurisdiction of the Mohegan lands to the colony of
Massachusetts, whilst retaining rights of sale as guardian. Since Uncas maintained his
authority over his people, and was regarded by colonial authorities as their leader albeit
protected by his guardian and spokesman John Mason, this suggested the second cate-
gory (subjection to colonial authority as plantation Indians). Yet in 1681 the colony
renewed its covenant of peace with the United Colonies, recognizing the tribe as a
separate and independent nation whilst also depicting them as proprietors within the
colony. This arrangement therefore slid between the two categories, at times resem-
bling a protection and tributary arrangement with the colony (though frequently the
colonies paid quitrents to Indian tribes, suggesting the oppositethe colony as
tributary to tribe). The difficulty of applying these categories indicates that one might
regard them as useful analytically rather than actual and fixed rigidly in the minds of
officials and colonists. It warns also against the tendency to superimpose essentially
English legal forms over relations in which the native forms might be more determin-
ing: Masons guardian role conformed almost exactly to that of a customary squirrel
king, a warrior king who promoted his adoptive kins interests amongst his own
people.165
Colonial relations with the first two groups were mostly based upon treaty or com-
pact with the Indian groups. It was these agreements that were usually the first recourse
to a colonys determination of its jurisdictional relation with particular Indian groups.
From the start the nature of the colonys authority over Indian groups was linked to the
nature of their consent. The Quinnipiac Indians of New Haven, for example, entered
into this deed in 1638:
Secondly ye sd sachem, his counsell & company, amongst which there was a squaw sachem called
Shampishuh sister to ye sachem, who either had or prtended some interest in some part of ye
land, remembering and acknowledging the heavy taxes & eminent dangers wch they lately felt &
feared from ye Pequotts, Mohauks & other Indians, in regard of which they durst not stay in
165
Wendy B St Jean, Inventing Guardianship: The Mohegan Indians and Their Protectors (1999) 72
New England Q 362.
their country, but were forced to flie, & to seeke shelter under the English at Conecticutt, and
observing ye safety & ease yt other Indians enjoy neare ye English, of which benefitt they have
had a comforatable tast already since the English began to build & plant at Quinopiocke, which
wth all thankfullnes they now acknowledged.
In consideration of wll which, they desire from ye English that if at any time hereafter they be
affrighted in their dwellings assigned by the English unto y m as before, they may repayre to the
English plantation for shelter, & that ye English will there in a just cause endeavor to defend y m
from wronge. But in any quarrell or warres which they shall undertake, or have wth other
Indyans, upon any occasion wtsoever, they will manage their affayres by ym themselves without
expecting any ayd from the English.166
In colonial New England war and sheer weariness had reduced the southern tribes to
client status by the end of the seventeenth century. The Pequot War had been fought
on the basis that the laws of war applied, but by the time of the next major outbreak
of hostilities in King Philips War (167576) the tribes of New England were regarded
as rebels.167 The Abenaki people however lay east of the colonies and controlled most
of the north-eastern frontier. The expansionist activity of frontier settlers and traders
generated tensions that exploded in King Philips War, which continued fitfully until
April 1678 when a treaty was signed acknowledging Abenaki control of the territory
with Massachusetts agreeing to pay the tribes an annual quitrent.168 Unlike the tribes
within the colony, they were still then regarded as independent and beyond colonial
jurisdiction. The eastern and northern Indians, agreed, however, to submit to English
law in a series of treaties and conferences from 1693, though still displaying signs
indicating they regarded themselves as retaining independence. The fall of French
power in the north finally settled the matter. New Englands relations with the west-
ern tribes was complicated by land questions and an inter-colonial dispute with New
York which, because of its proximity, had a much more vital interest in the Five
Nations of Iroquois who certainly represented a most important and powerful inde-
pendent confederation of nations.169 The intensity of the colonys relations with its
tributary plantation tribes was very much a function of proximity. However, the rela-
tion was expressed and maintained less through a once-and-for-all submission than
by a sustained series of submissions and re-affirmations of the relationship between
colony and tribe in formal Indian conferences. Thus the colonies recognized that
even though a tribe might have submitted itself to the colonys protection, the tribe
nonetheless retained a distinct identity founded upon the maintenance of relations
through conferences and present-giving.
Given this jurisdictional pattern, in particular the fluid distinction between the
independent and the tributary plantation tribes, it is no surprise to find that colonial
166
Charles J Hoadley (ed), Records of the Colony and Plantation of New Haven, from 1638 to 1649
(Hartford: Case, Tiffany and Co, 1857) 12, 4. Other examples of Indian submissions to colonial jurisdic-
tion see Shurtleff (ed), Records of . . . Massachusetts Bay in New England, I, 133; II, 4041, 55, 73; III,
198199, 299; IV, 2526; V, 7680; David Pulsifer (ed), Records of the Colony of New Plymouth in New
England (12 vols, Boston: William White, 18551861) V, 6667, 7072.
167
James Drake, Restraining Atrocity: The Conduct of King Philips War (1997) 70 New England
Q 33, 3637.
168
Kenneth M Morrison, The Bias of Colonial Law: English Paranoia and the Abenaki Arena of King
169
Philips War, 167578 (1999) 53 New England Q 363. Kawashima, Puritan Justice, 2223.
legislative practice used a variety of terms to describe the Indian polities that
surrounded them. Indian nations were described as being at peace or in amity with,
tributary to, allied to, under the protection of, or subjected to particular colonial
governments. The members of these nations were either subjects of the Crown or alien
friends. Some Indian nations were referred to as strange, foreign, remote, or as
enemies.170 What seemed central to colonial practice was not the technical status of
particular groups, which (as the range of nomenclature showed) could vary between
the categories and degrees of independence and dependence, so much as the treaty-
relation itself. In other words, the colonies recognized the juridical capacity of the
tribes and the importance of treaties in determining the jurisdictional relation and
reach of the colony.
Numerous examples of that practice might be given. Legislation passed by the
colony of Virginia in 1646 enacted a treaty by which King Necotowance acknow-
ledged himself to hold his kingdome from the Kings Matie of England.171 This was
more of a feudal relation by which a vassal lord held a fief from his monarch. Similarly
in the late 1630s a sachem of the Indians of the River in the Massachusetts Bay colony,
one Sequin, granted land to a Connecticut town so that he might settle among them.
However when he came to Wethersfield and set down his wigwam, they drave him
away by force. Sequin responded to this ingratitude by procuring a retaliatory raid.
When the Governor John Winthrop and his council considered the matter they con-
cluded that Sequin was justified to right himself by force or fraud, and that by the law
of nations. He had been wronged and was acting in point of a just war. The
Connecticut settlers who had suffered Sequins righteous wrath followed that advice
and entered into a treaty with him to resolve the matter.172
In 1665 the Commissioners of New England declared that no colony had the right
to dispose of any lands conquered from the natives, unless both the cause of the con-
quest be just & the land lye wthin the bounds which the king by his charter hath given
it, nor yet to exercise any authority beyond their bounds.173 The requirements for
colonial jurisdiction were twofold: there had to be submission of the natives (by
conquest) as well as the territory being within the colonys chartered limits.
In 1677 the colony of Virginia entered into a treaty with the Queen of Pamunkey,
the King of the Nottoways, and various other Indian rulers. The treaty was concluded
by virtue of Royal Instructions sent to the Virginian authorities directing them to make
peace with the neighbouring Indians, and in managing and concluding a treaty with
them to make use of special Royal Commissioners sent from England to the colony,
including Lt-Governor, Herbert Jeffreys.174 For the Indians, it confirmed their just
170
Taken from M Walters, Mohegan Indians v Connecticut, above 793794.
171
Text in WW Hening (ed), The statutes at large: being a collection of all the laws of Virginia, from the
first session of the Legislature in the year 1619 (13 vols, reprint of 181923 edn, Charlottesville: University
Press of Virginia, 1969) I, 323326.
172
James K Hosmer (ed), John Winthrops Journal, 16301649 (2 vols, New York: Charles Scribners sons,
1908) I, 256257. The incident is reported in Karen Kupperman, Settling with the Indians: The Meeting of
English and Indian Cultures, 15801640 (London: Dent, 1980) 184185.
173
Shurtleff (ed), Records . . . of Massachusetts Bay, IV(2) 176.
174
Text in Leonard W Labaree, Royal Instructions to British Colonial Governors, 16701776 (two vols,
New York: D Appleton-Century Company, 1935) II, 470471.
rights acknowledging that the recent Indian disturbances were occasioned by the
violent Intrusions of divers English into their Lands. Thus it stipulated that hence-
forth no English people should settle or plant nearer than three miles of any Indian
town, and promised that any encroachment of Indian land would result in action by
the governor. The Indians were to be secured and defended in their Persons; Goods;
and Propertyes against English wrong-doing and to take their grievances to the gover-
nor who would punish transgressing settlers according to English law. By the treaty the
Indian rulers accepted they would henceforth acknowledge to have their imediate
Dependency on, and owne all Subjection to the Great King of England. In return they
and their subjects would hold their lands, having their title confirmed by patent under
the colonys seal in as free and firme manner as others his Majestys subjects have and
enjoy their lands and possessions, with an annual rent of three arrows. Despite accept-
ing subjection to the English King the treaty allowed each Indian King and
Queene . . . equall Power to Governe their own People. It stipulated that none was to
have greater power than the other, except the Queen of Pamunkey. It noted that several
scattered nations had renewed their ancient subjection to her. The treaty was regarded
as extending to those nations who were to observe peace towards the said Indian Queen
as her Subjects, as well as towards the English.175 Those nations were, it would seem,
subjects of both the Indian Queen and the Great King of England.
The status of the Mohegan nation might be revisited. In 1681 the colony of
Connecticut had entered into a treaty with the Mohegans who were within its char-
tered limits. The treaty promised Equal Justice to them as our own people if they
before hand declared subjection to our Laws.176 The Royal Commission to Dudley of
3 April 1704 recognized the authority of the Principal Sachems, observing that the
nation had cultivated a firm friendship by League with Our said Subjects of
Connecticut, and have always assisted them when they have been attacked by their
Enemies. Yet it also stated that the Mohegans were Proprietors of Land in our
Colony of Connecticut, as well as assuming royal jurisdiction to settle their dispute
with the colony. Earlier the Board of Trade had described the Mohegans as
under . . . [her] Majestys Dominion. Walters sees this evidence as mixed but concludes
that the Mohegans were not subjects of the Crown, a conclusion that supposes that at
this time the royal officials were already subscribing to a territorialized model of sover-
eignty though confused in their application of it.177 However, the model in use at that
time was a jurisdictional one defined by treaty-relations rather than a modernist notion
of sovereignty. The bilateral state of affairs rather than the unilateral gesture of the
English monarch determined the tribes status. Whether subject to Crown sovereignty
or not, the colony still recognized the endurance of their political integrity and
customary authority within their own affairs.
These examples show the related hallmarks of the approach taken in the eighteenth
century towards the Crowns imperium over native peoples. First, there was a general
indifference to the Crowns status as paramount sovereign, the question being more
175
Text in WL Grant and James Munro (eds), Acts of the Privy Council of England. Colonial Series (6 vols,
Hereford: printed for HMSO, by Anthony Brothers, 190812) I, no 1169, at 733739.
176
Articles of Agreement, 18 May 1681, CO5/1269: 9394.
177
Walters, Mohegan Indians, above.
one of jurisdiction as defined by treaty ormuch less usuallywon by conquest.

Secondly, whether classified as independent or under protection (and the Queen of
Pamunkey and the Mohegans illustrated separately the slipperiness of each category),
Crown and colonial officials recognized the viability and continuance of the custom-
ary political forms. That was a pattern that the charters and Stuart grants themselves
had contemplated or, at least, did not purport to disturb. The Crown and its officers
worked through these indigenous polities collaboratively whatever claim to sovereign
title over their territory it pretended, never conceiving this pattern of dealing as incom-
patible with those pretensions and protestations. This early model, a pluralistic one,
resembled the approach in the East Indies. The next chapter will show how it was
eclipsed in the mid-nineteenth century by British practice taking a more aggressive, less
accommodating territorial notion of Crown sovereignty.
Colonial practice in North America varied with the different contexts but the treaty-
making pattern was fixed very early in the seventeenth century, indicating that what-
ever imperium was asserted over Indians rested on their agreement rather than the fact
of their forced submission. British practice strove here, as in Ireland and the East
Indies, to base any governance over non-British people on their consent or (less usually,
conquest). However, the acquisition of such rights of governance was a consequence
rather than a goal of colonial activity in this period. The designs of the colonies along
the Atlantic seaboard had become increasingly acquisitive after the Restoration as the
pace of settlement increased significantly. Inevitably this led to an increase in land dis-
putes with the Indian tribes. Such events as Bacons Rebellion in Virginia (1675) and
King Philips War in New England (1675) demonstrated how from this period the
push for land was becoming a central element in colonial relations with the Indians. It
was that hunger for land that more than anything generated the extension and intensi-
fication of colonial jurisdiction over the plantation Indians especially during the
eighteenth century. It was also pressure for land that produced increasing pressure and
strain on colonial relations with the independent western Indian nations of the great
interior, particularly after the Seven Years War.
It is not possible to speak of any uniform Indian policy in the American colonies
before the mid-eighteenth century. Although one can identify (as here) broad patterns
of similarityparticularly where land was concernedIndian policy was largely
unco-ordinated from colony to colony. Those inconsistencies certainly did not help
relations between the colonies and Indians, especially as settlement (the westward push
most especially) increased. The Albany Congress (1754) was an unsuccessful attempt
by the imperial authorities to persuade the colonies to take a more integrated approach
to Indian policy. During that decade, Indian hostility to English settlement, aggravated
considerably by land-hungry disorder at the frontier, grew alongside French ambition.
The English authorities realized that a centrally directed strategy was needed, includ-
ing an integrated and uniform Indian policy. British security on the American conti-
nent was seen as dependent upon good relations and alliances with the Indians,
especially the powerful confederacies of the interior. This new, more coherent
approach included the creation of an imperial Indian Department that operated apart
from the colonies and reported to the British military commanders. In 1756, on the
eve of the Seven Years War, this Indian Department was established with Sir William
Johnson commissioned in 1756178 and 1761179 as the northern superintendent180 and

John Stuart, the southern. The superintendents were commissioned to take orders
from the Commander-in-Chief, and, once the Seven Years War was over, the Governor.
The Indian Department in British North America was thus based upon imperial
Commissions and Instructions issued through the Crowns paramount officer. By that
time each colony was too used to making its own way in this field and so the system was
not especially successful in achieving the containment and rationalization it sought.181
The British expelled the French from North America with General Wolfes victory
at Quebec (1759). This war had been won with the crucial assistance of the Indian
nations for whose alliance France and Britain had vied. That victory, sealed by the
Treaty of Paris (1763), ensured British hegemony in North America. It resulted in an
unprecedented increase in migration, bringing with it greater westward pressure for
land. The great interior, including the huge Mississippi basin, became seen less as the
preserve of the lucrative fur trade as potential territory for settlement. The westward
drive of the American frontier moved up a gear.
George III, however, was determined to protect the interests of his Indian allies and
issued a famous Proclamation (1763) designed to put Indian policy on a more uniform
and regular basis. The Proclamation set a westward boundary for the Indian territory
into which settlement was prohibited. This Proclamation referred to the several
Nations or Tribes of Indians with whom We are connected, and who live under our
Protection.182 The Proclamation further declared the royal pleasure to reserve under
our Sovereignty, Protection, and Dominion, for the use of the said Indians, all
the Lands and Territories not included within the limits of Our said Three new
Governments . . . Thus the Proclamation, like the commission to Sir William Johnson,183
simultaneously described the Indian nations as being subject and independent (allies),
a not untypical feature of British practice as noted earlier.
This royal restriction of westward settlement corked colonial aspirations and con-
tributed to the disaffection that brewed and which in the space of a decade had the
loyal, pro-imperial colonists of 1763 exploding into outright rebellion. During this
period the British conducted relations with the independent Indian tribes through a
series of treaties designed to encourage and foster their alliance. Far from rendering
the tribes of the great interior subjects of the Crown, the superintendents established
a diplomatic system that affirmed their independence even in the face of the pressure
of settlement that was ultimately to compromise it. In the period before the American
178
Royal Commission to Sir William Johnson, 17 February 1756 in The Papers of Sir William Johnson
(14 volumes, Albany: The University of the state of New York, 192165) II, 434435.
179
Royal Commission to Sir William Johnson, 11 March 1761, in EB OCallaghan, Documents relative
to the colonial history of the State of New-York (11 vols, Albany: Weed, Parsons, 185361) VII, 458459.
180
The northern superintendency became something of a family business. After Johnson retired in 1768
his nephew Colonel Guy Johnson replaced him from 176882 (Commission to G Johnson, 28 November
1774, The Papers of Sir William Johnson, XIII, 697698) and then his son, Sir John Johnson from 17821828.
181
Daniel Richter, Native Peoples of North America and the Eighteenth Century British Empire in
Oxford History of the British Empire II (The Eighteenth Century) 346, 364365.
182
Text in RSC 1985, Appendix 2.
183
Above, describing him as Colonel of our Faithfull Subjects, and Allies, the Six united Nations of
Indians, & their Confederates in the Northern Parts of North America.
Revolution, Johnson and Stuart oversaw numerous treaties that were attended with
great ceremony and that affirmed the relation between Crown and tribe. These
treaties were regarded as so important that some of them made their way into the
Martens treaty series184 that began in the late eighteenth century and continued
throughout the nineteenth. Barbarous, perhaps, but the Indian nations were viewed
as polities whose goodwill and alliance were to be formally cultivated through treaty
and concordat.
A draft Bill had been prepared in 1764 to supplement the Royal Proclamation 1763
but was not enacted in the face of the Stamp Act crisis of 1765. The plan had contem-
plated Indian Department officers being commissioned to resolve minor disputes
among traders and between traders and Indians, although no jurisdiction over Indian
affairs inter se was contemplated.185 Superintendents Johnson and Stuart used the
Royal Proclamation and Plan of 1764 to appoint commissaries186 until control of the
Indian trade was returned to the colonies in 1768.187 However even once the Quebec
Act (1774) superseded the Royal Proclamation, the Plan of 1764 was used as the basis
for formal instructions. Royal Instructions to Governor Carleton (1775) attached the
Plan, which referred to the several Tribes of Indians in North America under the pro-
tection of His Majesty.188 The Royal Commissions to Sir John Johnson, the son of Sir
William and his fathers successor in office as Superintendent General, referred like
those to his father, to our faithful Subjects and Allies the Six Nations of Indians . . . and
also of our Faithful Allies the Indians inhabiting Our Province of Quebec.189
Instructions issued to Johnson190 and other officials191 maintained the principles of the
Plan of 1764. The Instructions to Sir John Johnson referred to all the Indian
Nations, to whom he was to assure The Kings paternal Care and regard as long as they
continue to merit them, by acting as good and obedient Children ought to do. The
184
Georg Friedrich von Martens (17561821) was a German writer on international law, b Hamburg.
He was professor of international law at Gttingen (178389), a state councillor of Westphalia
(180813), and the representative of the king of Hanover in the diet of Frankfurt (181621). His two
great works (written in French) were a comparative study of European law, Prcis du droit des gens mod-
ernes de lEurope (2 vols, 1789, tr Summary of the Law of Nations, 1795; a revision of an earlier work in
Latin), and an enormous collection of treaties signed after 1761, Recueil des principaux traits . . . [collec-
tion of treaties] (7 vols, 17911801), which was continually brought up to date until the end of World
War II (3d series, 41 vols, 190844).
185
Board of Trade to Sir William Johnson, 10 July 1764, CO 324/17:409.
186
Johnson Papers, XII, 4952, 8385; J Russell Snapp, John Stuart and the Struggle for Empire on the
Southern Frontier (Baton Rouge: Louisiana State University Press, 1996) 102 et seq.
187
Hillsborough to the several Governors, 15 April 1768, Illinois Hist Coll 245.
188
Instructions to Governor Carleton, 3 January 1775, in Shortt and Doughty, Documents relating to the
Constitutional History of Canada 17591791 (2nd edn, Ottawa: Historical Documents Publications Board,
1918) 594, 614.
189
Commission of 14 March 1782, NAC RG 10, vol 625, 182298; Commission of 16 June 1791, CO
42/316: 65.
190
Instructions from General Haldimand (Comm-in-Chief ) to Sir John Johnson, 6 February 1783, CO
42/44: 95; Instructions for the Good Government of the Indian Department, Lord Dorchester to Sir John
Johnson, 27 March 1787, NAC RG 10, vol 789, 67596765; Instructions for the Good Government of the
Indian Department, George Provost (Commander of Forces) to Sir John Johnson, 1 May 1812, NAC RG8,
vol 271, 2839. The Additional Instructions relating to the Indian Department, 15 December 1796, sim-
ply referred to the Indian Nations within Our Province of Upper Canada, DCHC, 189.
191
Haldimand to Lieu-Gov Hay, 26 April 1784, NAC MFM Reel C1478, RG 10, Vol 4.
Instructions noted that as these people consider themselves free and independent . . .
they are alone to be governed by address and persuasion.
These words hardly amounted to an unequivocal assertion of full sovereignty over
the Indian nations, many of whom had helped the Crown against the French and its
rebellious American subjects. It was never asserted, for example, that the Indian
nations were subject to English law in their internal affairs. The Indian superintend-
ents, Stuart in the southern department (which disappeared after the American
Revolution) and the Johnson clan in the northern, were instructed and acknowledged
that English criminal law did not extend to Indian matters inter se within Indian
territory.192 Sir William Johnson, influenced perhaps by his Scottish background,
considered the Indian tribes to be distinct political bodies bound by a treaty relation-
ship but not otherwise subject to the Crown.193 His son, who stepped into his fathers
boots and became chief superintendent in Canada (17821828), as well as the first
Lieutenant-Governor of Upper Canada, John Graves Simcoe, shared that view.194 In
1797 Justice WD Powell of Upper Canada gave two extra-judicial opinions195 on the
status of the Six Nations who had requested a patent confirming their title to the
Grand River land. This land extended for six miles on both sides of the Grand River.
It had been purchased by the British from the Mississauga and granted to the Six
Nations by General Haldimand in 1784 after the American Revolution in recogni-
tion of their loyalty and services. Under the charismatic leadership of the war chief
Joseph Brant (Thayendanegea) the Six Nations maintained from the time of
Haldimands grant that they were awarded the land to govern themselves by their own
law.196 Powells opinion concerned the status of the Haldimand Grant, a matter to
which we will return in a later chapter. It has been seen that the Commissions to the
northern superintendents had described the Six Nations as faithful Subjects and
Allies, yet Powell described the position of the Six Nations this way:
The manners of the Indians required that the Tract assigned them should be in common
inalienable and kept out of the view of our Municipal Laws, at least so long as they affected to
192
Lord Hillsborough to Johnson, 4 May 1771, CRNY, VIII, 270; Johnson to Lord Dartmouth,
16 December 1773, ibid 421; Stuart to Board of Trade, 9 March 1764, CO 323/17(2): 263; Governor James
Wright to Board of Trade, 1764, CO 323/20: 78. Also W Claus (Dep Supt) to Sir J Johnson, 25 November
193
1820, NAC RG 10, vol 14, 1149111492. Hulsebosch, Imperia in Imperio, above.
194
JG Simcoe to Alured Clarke, 20 August 1792 in EA Cruikshank (ed), Correspondence of Lieutenant
Governor John Graves Simcoe (Toronto: Ontario Historical Society, 192326) I, 199204; Simcoes address
to the Indian nations at the Wyandot village, 13 October 1794, ibid III, 121125; Simcoe to Henry Dundas,
5 July 1794, ibid II, 303305. Johnsons influence on Simcoe can be seen in Simcoe to George Hammond,
23 May 1792, ibid I, 158; Simcoe to Alexander McKee, 30 August 1792, ibid, I, 207209; Simcoe to George
Hammond, 21 January 1793, ibid I, 277278.
195
These opinions and the issue of criminal jurisdiction in Upper Canada in the early nineteenth century
are discussed thoroughly in Mark Walters, The extension of colonial criminal jurisdiction over the aborigi-
nal peoples of Upper Canada: Reconsidering the Shawanakiskie Case (182226) (1996) 46 University of
Toronto LJ 273.
196
William L Stone, Life of Joseph Brant-Thayendanegea: including the border wars of the American revolu-
tion, and sketches of the Indian campaigns of General Harmar, St Clair, and Wayne (2 vols, New York: AV Blake,
1838) I, 399403 (extracts from a speech in which Brant explains his view of the agreement and relationship
with the British). On the history of Six Nations claims to independent sovereignty see Darlene Johnston,
The Quest of the Six Nations Confederacy for Self-Determination (1986) 44 University of Toronto
Faculty of Law Rev 1.
consider themselves independent Allies, for this purpose a Council, a Treaty, a [wampum] belt,
was adequate; it was a Compact of one nation with another, to be governed by general rules and
not by the provisions of the common law of England.197
Powell referred to Britains equivocal Dominion over the Six Nations and in the above
passage described Indian territory, including the lands of the Grand River tract, as a
jurisdictional enclave. As Walters notes, this foreshadowed the approach to be taken by
the American Supreme Court twenty to thirty years later.198 More crucially though, it
reflected the notion of sovereignty that then prevailed, one that could simultaneously
claim Crown sovereignty whilst also recognizing the continuity of the indigenous
polity and the exemption of indigenous peoples from English law in their dealings
inter se.
Whilst this belief in Indian political distinctness was tenable at the end of the
eighteenth century, it was impossible to maintain as the 1820s progressed when the
then Attorney-General (and later Chief Justice of Upper Canada) John Beverly
Robinson and Governor Maitland rejected any notion of aboriginal exemption from
colonial law.199 By then the orientation of British relations had changed from military
and strategic considerationsconditions requiring careful solicitation of Indian good-
will and tribal organisationto land, a condition requiring the legal wherewithal to
obtain it for settlement. This was a change that the British evidently appreciated, but
may not have been immediately grasped by the Indians who still insisted upon their
own laws in internal matters. The Indian nations had gone from Allies with a measure
of recognized autonomy to Subjects amenable to English law. The notion of British
sovereignty as being exhaustive and leaving no formal room for tribal law and custom
had taken hold. As in the East Indies, the indigenous polities had undergone a trans-
formation in status of which they were unaware. There, as in the East Indies, the
change in status was as much a reflection of their growing incorporation into and
dependence upon the economics of Empire as simply an outcome of a sharper sense of
the constitutional reach of the Crown. The flourish of treaty-making in the mid- to late
eighteenth century, spurred as it was by European rivalries, signified an increasing
diminishment rather than consolidation of the tribes political autonomy.200 The
transformation in the status of tribal nations in British North America was not driven
simply by a changed conception of the nature of Crown sovereignty. It happened
because it fitted officialdoms view of their condition. As always, law served Empire.
The legal status of the Australian aborigine also became an issue early in the nine-
teenth century. As officials in the colony of New South Wales considered the question
a pattern similar to the Canadian was replayed: an initial official recognition of tribal
197
Memoir of the Claim of the Six Nations Indians, enclosure in Powell to Peter Russell (Admin Upper
Can), 3 January 1797, CO42/321:5764, enclosed in Russell to Duke of Portland, 28 January 1797,
198
ibid 4348. Mark Walters, Reconsidering the Shawanakiskie Case, 292.
199
Walters, Reconsidering the Shawanakiskie Case, 305. See Governor Maitland to Bathurst,
1 November 1823, CO 42/370: 247; JB Robinson (A-G) to J Givens (Supt Ind Dept), 9 July 1827, NAC,
RG 10, vol 5, 2349.
200
Daniel Richter, Native Peoples of North America in the Eighteenth-Century British Empire, Oxford
History of the British Empire, II, 347 at 370: From the 1760s to the 1810s . . . Indians increasingly based their
struggles for political autonomy less on balance-of-power diplomacy than on the indigenous resources of the
religious nativism preached by Neolin and Pontiac, Tenskwatawa and Tecumseh.
distinctiveness and vaguely-formulated exemption from English law and Crown

sovereignty gave way to official insistence on the thoroughgoing character of that
sovereignty. A few years later a similar argument was also made in New Zealand but, as in
Australia, imperial officials immediately dismissed the suggestion of an incomplete Crown
sovereignty. By that time in the 1830s and 1840s the template had become the judgments
of the American Supreme Court in the Cherokee Cases. The Australian and New Zealand
episodes, as well as the tightening jurisdictional noose of Crown sovereignty in Upper
Canada and a description of the American case-law will be examined in the next chapter.
In the meantime it may be noted that the late eighteenth-century notion of British
imperium over the non-Christian populations of British North America and in the East
Indies was one that did not press Crown sovereignty to the extent of denying the polit-
ical and legal distinctiveness of the native polities. In this period the nature of the
British Empire was such that its sustenance relied upon collaboration with such
indigenous structures. Legal diversity was something upon which the eighteenth cen-
tury British Empire prided itself 201 and was reflected in this accommodative notion of
imperium. That tolerant model was one that would disappear by the mid-1840s when
there emerged a more thoroughgoing model of the character of Crown sovereignty and
applicability of English law. Like the earlier permissive approach, this more aggressive
model of sovereignty was also cut to the imperial design of its time.
9. Sovereignty from the late eighteenth century

The Royal Proclamation of 1763 was a pivotal moment in the history of imperial
Britains relations with aboriginal peoples. It was an instrument that simultaneously
recognized the past that had gone and the future ahead. It looked to a past wherein rela-
tions with native peoples were cast in a form which recognized the integrity and status
of their traditional institutions, recognition signified by the then established practice
of treaty-making. The Proclamation contemplated the continuation of that pattern.
Also, it reined the several colonies various approaches into an integrated, centralized
(that is, London-based) approach towards aboriginal policy. The centralization of
policy towards tribal peoples effectively inaugurated in 1763 and its resistance by land-
hungry settlers would be a theme of imperial relations for the next century. Although
that policy ultimately failed in the thirteen colonies, after the Revolution it was
pursued in the Canadas until the mid-nineteenth century. By attempting to control the
push of settlement towards the tribal nations lands of the great interior, the
Proclamation also anticipated the future of the continent itself and the re-orientation
of relations with the tribes of the Indian Territory from trade and alliance to land. It
was at this time mid-century, as in the East Indies, that the pattern of British imperial-
ism turned more markedly territorial. In Britain the Jacobite threat had been seen off
conclusively in 1745 and the victories at Quebec and Plassey in the next decade estab-
lished Britain as the indisputable European authority in North America, the Caribbean,
and India. If previously the incremental scale of imperial activity had meant that
201
PJ Marshall, Britain and the World in the Eighteenth Century: IV, The Turning Outwards of Britain
(2001) XI Transactions of the Royal Historical Society (6th ser) 1, 57.
Britain did not have to consider seriously its relation with non-Christian societies, all
that changed from this time. During the last three decades of the eighteenth century it
became plain that Britain had sovereign rights over large continents inhabited by non-
Christian people. To later eyes the precise character of those rights might have been
shrouded in imprecision, but clarification of the character of British imperium did not
become pressing until the early nineteenth century. At that time and as the new wave
of British imperialism gathered, there came with it a more considered and calculated
position about the nature of sovereign authority, how it was acquired, and how it was
to be wielded. As the cloudiness of Crown sovereignty in North America and the East
Indies revealed, that more careful consciousness did not develop overnight. It was,
however, certainly coming into place in 1813 when statute declared the Crowns
undoubted sovereignty over the Mofussil and in the early 1820s as Canadian officials
clarified the amenability of Indian nations to colonial criminal law jurisdiction. As
British imperialism took a more territorial and encompassing turn, the notion of
Crown sovereignty also took a more exclusive and less accommodating form. That too
became the pattern in the jurisprudence of the American republic later in the century
after the Marshall cases of the 1830s set out the status of the tribes.
The emergence of a more deliberative procedure in the proclamation and erection
of territorial sovereignty was an important sign of that awareness. Instead of the messi-
ness of North America and some of the East Indies, in the newer theatres of British
imperialism of the late eighteenth and early nineteenth centuries a more careful two-
step procedure became followed.202 The Crown would formally annex the new terri-
tory and, having made this proclamation of sovereignty, it would follow this with the
formal constitution of the government for the new colony. The first step, that of formal
annexation, followed the East Indies pattern, although there that apparently definitive
step had often been compromised by the subsequent continuity of the indigenous
structures of governance. Given the charter and statutory constitution of the East India
Company, the second step was problematic since the constituent power over acquired
territory was a prerogative one not given to the Company. In this context the fact that
the indigenous institutions were not supplanted or modified confounded the question
of sovereign status. It showed the continued subscription to a model of Crown sover-
eignty that did not require the thoroughgoing application of English law and which
was prepared to accept the continued status of indigenous political authorities and law.
In other regionsAustralia,203 West Africa,204 and New Zealand205the two-step
procedure operated more clearly as the form of governance erected over the territory
was distinctly English. Still English courts were required on at least two occasions to
adjudicate on the Crowns acquisition of territorial sovereignty during the nineteenth
century and did so by reference to the imprecise conduct of the Crown.206
202
Herstlet, Memorandum on formalities necessary for effective annexation, 18 October 1884 FO
203
84/1813: 246. HRA, I, 1, 9 (New South Wales) and III, 6, 600 (Western Australia).
204
(1821) 1 & 2 Geo IV, cap 28 and Roberts-Wray, Commonwealth and Colonial Law 783 and 785
(Gambia and the Gold Coast).
205
McHugh, Aboriginal rights of the New Zealand Maori at common law, 8596.
206
Darmodhar Gordhan v Deoram Kanji (decd) (1876) LR 1 App Cas 332; Attorney-General (British
Honduras) v Bristowe (1880) 6 App Cas 143 (PC).
This sharper awareness of the territorial character of sovereignty revealed the final
disappearance of the old feudal notions of the personal relationship between ruler and
subject. It was a product of the more modern, secularizing notion of independent state
sovereignty that had been emerging through the seventeenth century and which might
be seen as firmly in place by the end of the Seven Years War. Previously the theory of
international relations had been explicitly underpinned (albeit with diminishing intens-
ity) by Christian doctrine. The tidemark of this secularizing process was Vattels Le droit
de gens (1758) which was published at the height of imperial competition between Britain
and France. This work was largely a synthesis of Wolff s (vastly more philosophical207)
work and contained a descriptive exposition of the law of nations soon accepted in
England, as elsewhere, as definitive. This secularization of the theory of international
relations matched the actual state of European relations where the medieval notion of a
single society of Christendom had finally broken down into that of the independent
nation state. Vattels work, the first to adopt this view of the international system208
became the handbook of the Foreign Office and relied upon by legal practitioners in
England simply because it brought theory and practice together so effectively.209
The essence of Vattels theory of international relations lay in the conception of
independent and equal state sovereignty. Nations or states, the subjects of the Law of
Nations (the science of rights which exist between Nations or States210), he defined as
political bodies, societies of men who have united together and combined their forces,
in order to procure their mutual welfare and security.211 Clearly this definition was
wide enough to encompass non-Christian societiessuch as the princely states of the
East Indiesand most tribal societies as well as the more sophisticated states of
Europe. Indeed Vattel recognized those differences when he equated the sovereignty of
the dwarf state with that of the most powerful kingdom.212 Vattel indicated that a
weaker state might place itself under one stronger for purposes of protection without,
however, divesting itself of its right to self-government and of its sovereignty.213 This
right to self-government he identified as the most important214 hallmark of a state. It
meant a foreign state had no right of interference or governance over it, as by some
claim to a right to send missionaries without the permission of the host sovereign.215
The lawfulness of the assumption of any such right depended upon the consent of the
grantee state, no matter how dwarf-like its stature.216 Vattel thus supplied a model that
207
Wolff, Jus naturae methodo scientifica pertractatum (1749). Vattels debt to Wolff, see de Lapradelle,
Introduction to Vattel, Le droit de gens (1758, trsl edn, 1916) viiviii; Mackintosh, A Discourse on the Study
of the law of Nature and Nations (1799) 31; Amos S Hershey, History of International Law since the Peace
of Westphalia (1912) 6 American Journal of Intl L 30, 37.
208
Hinsley, Sovereignty at 193195.
209
Charles G Fenwick, The Authority of Vattel (1913) VII and (1914) VIII American Political Science
Review 395 and 375. Jesse Siddall Reeves, The influence of the law of nature upon international law in the
United States (1909) 3 American J Intl L 574. And see A Nussbaum, A Concise History of the Law of Nations
210
(New York: Macmillan, 1954) 160164. Le droit de gens (1758), introduction.
211 212 213
Ibid I, 1, para 1. Ibid I, 1, paras 56; Introduction, para 18. Ibid I, ch 16.
214
It clearly follows from the liberty and independence of Nations that each has the right to govern itself
as it thinks proper, and that no one of them has the least right to interfere in the government of another: ibid.
215
Ibid 4, para 54.
216
It is therefore certain that no one may interfere, against a Nations will, in its religious affairs, without
violating its rights and doing it an injury.: ibid II, 4, para 59.
affirmed British practice in the East Indies and with the independent tribes of the
American interior. They were under British protection, sovereign yet subject, dwarfs
voluntarily sheltered beneath the shield of the imperial Crown.
After the Seven Years War Britains imperial and naval dominance was clear to all
European nations, the truculent French especially. As British imperial interests spread,
the conduct of her relations with non-European polities took a format explicable on no
basis other than subscription to something approaching Vattels theory of independent
and equal state sovereignty. That position was demonstrated by the greatly increased
regularity with which the Crown, pumping with its imperial second wind, entered into
treaty relations with non-Christian polities. Although the increased pace and growth
of British imperial interests during this period inevitably meant more frequent contact
between the Crown and non-European societies, the formality which this took signi-
fied Britains willingness to recognize the juridical capacity of these societies: they were
sovereign according to the criteria provided by Vattel.
Britain willingly treated as sovereign any non-Christian polity enjoying a percepti-
ble degree of political organization, this recognition requiring the presence of rulers
and leaders with whom it could negotiate.217 The large increase in British treaty-making
activity in the East Indies after the Battle of Plassey (1757) has been described already.
We have also seen the treaty relations established by the Crown in North America and
the marked increase in this formal activity in the period after the Seven Years War and
immediately before the Revolution.218 After Independence the United States contin-
ued this pattern of treaty-making with the independent tribes for nearly a century, a
practice explored further in the next chapter.219 In Africa British treaty-making with
the tribes of the western coast commenced in 1788 with the establishment of trading
posts.220 In the period 17881845 over one hundred treaties and formal agreements
were entered into with African tribes.221 In southern Africa treaty-making was central
to the format of British relations with the tribal nations, as Herman Merivale acknow-
ledged in a lengthy memorandum written for Cabinet in April 1851.222 Further east,
beyond the sphere of the East India Company, formal treaty relations began with the
cession of Prince of Wales Island or Penang in 1786223 with over two dozen treaties
being concluded with the Malaysian polities in the period 17981845. In the same
period the Crown entered into forty treaties with the polities of Arabia and the Persian
Gulf. In 1840 the Treaty of Waitangi was made with the New Zealand Maori chiefs
whose sovereignty the Crown had continually and carefully acknowledged, though, by
this treaty, extinguished.
217
See the discussion and tables in DV Jones on English and French treaty-making with non-European
polities in the period after the Seven Years War to the end of the eighteenth century, in License for Empire
Colonialism by Treaty in Early America (Chicago: University of Chicago Press, 1982) 820. Jones notes that
Britain was in this period of all the European nations the leading treaty-maker with non-European polities.
218
Ibid.
219
See Francis Paul Prucha, American Indian TreatiesThe History of a Political Anomaly (Berkeley:
University of Cailfornia Press, 1994).
220
The treaty of cession by the United Chiefs of Sierra Leone, August 1788 is the first given by Hertslet,
221
MAT, 3rd, 26. SCI, 84102.
222
Herman Merivale, Under-Secretary, Memorandum for Cabinet Summary of Correspondence rela-
tive to the Policy pursued towards the Native Tribes on the Eastern Frontier of the Colony of the Cape of
223
Good Hope, including the Wars of 1835 and 1846 CO 879/1:xx. 49 CTS 447.
The only significant departure from this treaty-making pattern, and this the
proverbial exception that proved the rule, was the Australian Aborigine. The social
organization of these peoples appeared so backward to late eighteenth- and early
mid-nineteenth-century eyes that the British had difficulty perceiving them human let
alone holding any semblance of political organization. The Select Committee on
Aborigines (1837) described them as [s]o destitute are they even of the rudest forms of
civil polity, that their claims, whether as sovereigns or as proprietors of the soil have
been utterly disregarded.224 In short, the British did not regard the Australian
Aborigine as possessing the political structure necessary for the recognition of
sovereignty.
The proliferation of treaty-making activity between Britain and non-European
(and non-Christian) polities in the century after the Seven Years War signalled not
only British imperial dominance, though that undoubtedly had much to do with it.
Where non-Christian societies were concerned the pattern of formal engagement was
usually a prelude to the undermining or removal of the sovereignty it purported to
acknowledge. However, for all the imperial ends it served and outcomes it produced,
the pattern was there. It was unmistakably founded on subscription to something
resembling Vattels approach towards sovereign capacity. For example, Martens (in its
fourth edition by 1829) and Hertslet225 reprinted many of these North American and
eastern treaties in their important, respective series of treaty compilations. That shows
how this manner of conducting British foreign policy did not in its time and of itself
excite controversy. Such treaty-making practice, it must be stressed, hardly acted as a
brake upon British imperial designs, so much as prescribe a certain form which gave
the appearance of consent by the indigenous sovereign to whatever treaty relation was
involved, multifarious as those were. The reality of such formalism may have revealed
the gross imbalance between the powerful British and the less powerful indigenous
leader, and hence, on occasions, the artificiality of the recognition of sovereignty. To
take an example, King Burungai Sonko of Barra, reportedly an habitual drunkard,
entered into the Ceded Mile Treaty (1826).226 He surrendered a mile-wide band of
land along the Gambia after a convincingand probably soberingdisplay of
British gunboat diplomacy.227 If in reality the sovereignty of the lesser, unpowerful
states was easily manipulated to British ends, that did not alter the fact that the recogni-
tion had been made.
The change in the character of British imperialism from the mid-eighteenth
century, in particular sustained warfare with France, generated litigation before
English courts. From the final quarter of the eighteenth century numerous cases were
224
British Parliamentary Papers (1837), Vol 7, no 425 at 82.
225
Lewis Hertslet (ed), A complete collection of the treaties and conventions, and reciprocal regulations, at
present subsisting between Great Britain & foreign powers, and of the laws, decrees and Orders in Council, con-
cerning the same; so far as they relate to commerce and navigation, to the repression and abolition of the slave trade;
and to the privileges and interests of the subjects of the high contracting parties. London: Henry Butterworth
(James Bigg), 1827 (45). Hertslet (17871870) was Librarian and Keeper of the Foreign Papers of the UK
Foreign Office from 181057. The series he began became known as Hertslets Commercial Treaties,
18271925, with later volumes being compiled by others: 31 original vols (18271925) in 10 reprinted vols,
226
Johnson Reprint Corp, 1970. Text in Hertslet, MAT, 367 and 76 CTS 281.
227
JM Gray, A History of the Gambia (Cambridge: Cambridge University Press, 1940) 341.
brought concerning matters of international law and for the first time English courts
took a closer look at the law of nations of which Vattel and other early publicists like
Bynkershoek had written. This litigation can be seen as a juridical response to the new,
more aggressive, and modernizing thrust of British imperialism. The secular states sys-
tem of international law had truly arrived. A more modern, litigious era was dawning.
An unprecedented wave of litigation hit the Admiralty jurisdiction early in the nine-
teenth century, in the face of which Lord Stowell (who happened also to be the brother
of the Chancellor, Lord Eldon) fashioned a substantial jurisprudence founded on the
law of nations.228 For instance he was called upon to determine the operation and
implementation of treaties, 229 usually in the context of deciding the status of particu-
lar vessels, and also to apply the international law of prize on the fate of captured enemy
ships. 230 Lord Stowells judgments consistently emphasized the actual and established
practice of nations as setting the relevant international rules for decision rather than the
theoretical outlines given by writers such as Vattel.231 Although a civil lawyer, one can
detect more than a trace of common law method in that perception of the norm-setting
character of the repeated and sustained practice of nations.
Other matters demonstrated the breadth of this new phenomenon of judges articul-
ating rules of imperial conduct and relations. Some of the issues reaching the courts
included the status of the newly independent South American republics232 and the
Crowns constituent powers in the ceded colonies acquired by the Treaty of Paris.233
British courts also considered the indemnification of British subjects for seizures by the
French revolutionary government (after 1792) agreed by the Treaty of Paris (1814)234
and the criminal and tortious liability of a governor.235 This novel phenomenon thus
covered a wide range of international and imperial issues. Yet far from being
interventive, the profile of this case-law was essentially reactive and highly deferential
to the prerogative of the Crown. The decisions on the rights of the nawabs graphically
228
H Bourguignon, Sir William Scott Lord Stowell. Judge of the High Court of Admiralty, 17981826
(Cambridge: Cambridge University Press, 1987) is an intellectual history of Lord Stowell. Note the table of
cases tried in the Admiralty court at p 61 especially in the years 17951814 (the height of the British-French
wars).
229
The Endraught (Bonkins, Master) (1798) 1 C Rob 21; The Neptunus (Bachman, Master) (1807) 6
C Rob 403; Manilla, Barret (1808) Edw 1 Adm; The Eliza Ann and others (1813) 1 Dods 244.
230
In Lindo v Rodney (1782) 2 Doug KB 613n at 614 Lord Mansfield noted that the system of litigation
and jurisprudence in the Prize Court, is peculiar to itself; it is no more like the Court of Admiralty, than it is
to any Court in Westminster Hall.; Foltina, Julins (1814) 1 Dods 450 (Adm).
231
Flad Oyen (Martenson) (1799) 1 Rob 135. Bourguignon, Sir William Scott at 257262.
232
Woolly and others v Herring and others, The Times, 13 July 1820 (2 BILC 9) (KB); Henderson v Bere,
The Times, 1 November 1822 (2 BILC 10) (KB); [In re] Columbian Bonds, The Times, 21 January 1823
(2 BILC) 12 (Ch); [In re] The Government of Peru, The Times, 13 February 1823 (2 BILC 12) (Ch); Jones
v Garcia del Rio (1823) T & R 297 (2 BILC 13) (Ch); Kinder v Everett, The Times, 22 December 1823
(2 BILC 15) (KB); Thompson v Byree, The Times, 31 May 1824 (2 BILC 20) (Ch); Thompson v Powles (1828)
2 Sim 194 (2 BILC 20) (Ch); Thompson v Barclay (1831) 9 LJ (OS) Ch 215 (this case is the fullest judicial
233
analysis). Campbell v Hall (1774) Lofft 655, 98 ER 848 (KB).
234
Special Commissioners had been appointed under the Treaty of Paris between Britain and France
(1814), subsequent conventions and the statute 59 Geo III cap 31. Hill v Reardon (1825) 2 Sim & St 431
(Ch); Hill v Reardon (1827) 2 Russ 608 (Ch); Lloyd v Lord Trimblestown (1831) 4 Sim 296 (Ch).
235
Mostyn v Fabrigas (1774) 1 Cowp 161. This case and those that followed are discussed in the next
chapter.
illustrated that tendency. The courts were extremely careful not to encroach upon the
prerogative of the Crown to conduct freely the countrys foreign policy and relations.
Although the formation of a court-based jurisprudence was a new experience for
British imperialism (and a sign of its increasing commercialization), its outcome was
not doctrinaire or restrictive of Crown prerogative. The legalism that increasingly sur-
rounded the conduct of imperial affairs from the late eighteenth century was a bridle
rather than a brake.
The nawabs of the East Indies were frequently unhappy with their treatment by the
East India Company and brought cases in protest before the Supreme Courts of the
Presidency Towns, English courts and by appeal to the Privy Council. By the early
nineteenth century this case-law had taken a distinct profile, maintaining the defer-
ential attitude towards the Crowns conduct (through its delegate the East India
Company) of foreign relations. Nonetheless the courts explicitly recognized and
accepted the sovereignty of the East Indian princely states. In 1791 Lord Thurlow,
LC spoke of treaty relations between the Nawab of the Carnatic and East India
Company arising between two persons acting as sovereigns, quasi sovereigns, respect-
ing the public interest represented by them.236 That case turned on jurisdictional
grounds but two years later the substantive issue returned to the Court of Chancery.
It was held that treaty relations between a foreign state and subjects of the Crown act-
ing by charter and under legislation as an independent state (ie the East India
Company) were not subject to municipal jurisdiction. The treaty between the Nawab
and the Company was not mercantile in its nature, but political and being of a
foederal character no court could assume jurisdiction on the enforcement of its
terms and conditions.237
The litigation from the East Indies usually arose from the Companys seizure of
property, which the Indian parties alleged was privately owned. In East India Company v
Syed Ally (1827) the court considered the Companys resumption of a jaghire (found
by the court to be a personal privilege attached to the sovereignty of its grantee the
former nawab) and re-grant to another. It held that to have been such an act of the
sovereign power as precluded the court from taking cognizance of the suit. This refusal
by English courts to intervene to enforce treaty undertakings and the property rights
that attached under Mughal law to the sovereignty of the nawabs gave birth to the com-
mon law act of state doctrine. In a long line of cases through the nineteenth century,
English courts recognized the sovereign right of the Company and Crown to take as its
own the property of the previous sovereign free from any judicial accountability.238
This case-law was premised, often explicitly, on the sovereign status of the Indian
236
Nabob of Arcot v East India Company (1791) 3 Bro CC 292 (Ch), 306.
237
The Nabob of the Carnatic v The East India Company (1793) 2 Ves Jun 56 (Ch), 59 and 56.
238
The Advocate General of Bombay v Amerchund (1829) 1 Knapp PC 329n; Elphinstone v Bedreechund
(1830) 1 Knapp 316; Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 7 Moo Ind App
489 (PC); The Ex-Rajah of Coorg (Veer Rajundur Wadeer) v East India Company (1860) 29 Beav 300 (Ch);
Rajah Salig Ram and others v Secretary of State for India in Council (1872) LR Ind App, Sup Vol 119 (affirm-
ing the sovereign status of the unfortunate representative of the house of Timour at p 129 per Sir Barnes
Peacock); cf Forester v Secretary of State for India in Council (1872) LR Ind App Sup Vol 10 (PC). Also Sirdar
Bhagwan Singh v Secretary of State for India in Council (1874) LR Ind App 38 (PC); Doss v Secretary of State
for India in Council (1875) 19 Eq 509 (Ch).
princely states, as well as the sovereign discretion of the Crown. This deference to the
sovereignty of the Crown in this area extended as far as the pension rights of a retired
military officer who had served under the East India Company. Not being issued under
the Companys great seal the pension grant was a sovereign act beyond municipal
courts reach:239
The grant in question, therefore, appears to us to range itself under that class of obligations
which is described by jurists as imperfect obligations; obligations which want the vinculum
juris, although binding in moral equity and conscience; to be a grant which the East India
Company, as governors, are bound in foro conscientae to make good, but of which the
performance is to be sought for by petition, memorial or remonstrance, not by action in a court
of law.
The Crowns recognition of the sovereignty of the Indian princely states thus became a
juridical means of denying the authority of the common law to intervene. The doctrine
gestated from this period in response to these claims by litigants from the East Indies
re-surfaced and reconfigured itself in other spheres of British imperialism. This act of
state doctrine re-appeared later in the nineteenth century to deny justiciability to
Maori claims associated with the Treaty of Waitangi and the Crowns management of
its African protectorates.
By the end of the eighteenth century, then, the Crown was entering into a vast range
of treaty relations with a wide variety of non-Christian polities. This practice was pred-
icated upon the recognition of their sovereign identity as described by Vattel. That
result was too much for some commentators of a later English school of thought who
distinguished civilized from uncivilized nations, a distinction returned to in the next
chapter. Butler and Maccoby (1928), for example, found it difficult to imagine a
closer-packed bundle of fallacies as Vattels undiluted theory of state equality, com-
menting that its application was to go ludicrously far in the naturalistic direction.240
Yet in the century after the Seven Years War when Britain dominated European impe-
rialism, Crown officials entered into that vast range of treaty relations with a diverse set
of non-Christian polities. Many of these treaties ceded territory or sovereignty (or
both) or jurisdictional authority to the Crown. There was no doubting the formal
recognition of sovereign capacity accompanying those relations, but for aboriginal
peopleand as the next chapter showsthe pressing question was not so much the
recognition of their original sovereignty. Rather the issue had become that of the status
of their political structures and organization once Crown sovereignty was in (common)
law and fact incontrovertible. Throughout the seventeenth and eighteenth centuries
the British position was essentially and consistently one that recognized and worked
through the indigenous polities. These might be independent or tributaryor hold a
status sliding between either positionbut, whatever, the continuity of these polities
and their laws was recognized and not regarded as problematic. Indeed indigenous
collaboration was essential to the brand of British imperialism in the last half of the
eighteenth century. Yet that accommodating and (to Victorian eyes) casual view of
239
Gibson v East India Company (1839) 5 Bing NC 262, 274.
240
GGG Butler and S Maccoby, The Development of International Law (London: Longmans & Co,
1928) 253.
sovereignty was to disappear in the next to be replaced by a less capacious version. The
statutory declaration of Crown sovereignty over the Indian subcontinent in 1813 and
position taken in relation to Upper Canada in the 1820s were the shape of sovereignty
to come. The Americans meanwhile (and as the next chapter shows) formed a view that
reflected their own recent experience. As a juridical phenomenon, sovereignty moved
with its time. The religious, cultural, economic, and political forces around it shaped
and were shaped by its imperial form.

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The Juridical Status of Non-Christian Polities

Aboriginal Societies and the Common Law. P.G. McHugh.

2. Sovereignty as a personal relation between ruler and subject

3. British relations with non-Christian societies

(c) British practice in the East Indies

operating to the less accommodating model of sovereignty that developed in the

(d) Early British practice in Africa

4. The legal status of infidels

his position elsewhere.114 An Anonymous case (1640) dismissed Cokes comments on

5. The earliest royal authorizations of adventure into the New World

Protestant Europe subsequently condemned Alexander VIs donation as beyond his

6. The Salamanca Divines

The performance of the Requirement almost immediately degenerated into farcical

anonymous pamphlet Peckham, a Catholic recusant hoping to establish a haven

7. The late Elizabethan and Stuart charters for America

8. Colonial relations with the Indians: jurisdiction and treaty-making

one of jurisdiction as defined by treaty ormuch less usuallywon by conquest.

Johnson commissioned in 1756178 and 1761179 as the northern superintendent180 and

distinctiveness and vaguely-formulated exemption from English law and Crown

9. Sovereignty from the late eighteenth century

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