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Colonial Charters: Possessory or Regulatory?

Published online by Cambridge University Press:  10 May 2018

Abstract

Historians have argued that sixteenth and seventeenth century English colonial charters claimed the lands of indigenous people on the basis of their discovery by Europeans. Examination of these charters, however, demonstrates that a charter authorized acquiring land from the indigenous population in a specific region, not seizing indigenous it, and regulating the entry of other potential settlers. Charters also regulated overseas relations among the European nations to reduce or prevent international conflict by recognizing similar claims to monopoly of access to lands claimed by other developing empires. Charters were rooted in a medieval legal tradition that included canon law commentaries that recognized the legitimacy of infidel dominium and papal bulls that sought to regulate fifteenth-century Iberian expansion in the Atlantic. English charters built on this legal tradition and were a stage in the creation of a European legal order for overseas expansion. The fundamental issue was regulation of the sea and sea routes to Asia and to the New World, not the acquisition and possession of indigenous land. The English charters should be understood as elements of the long-running debate about whether access to the sea was open to all or could be closed to outsiders.

Type
Original Article
Copyright
Copyright © the American Society for Legal History, Inc. 2018 

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Footnotes

He thanks Jack P. Greene, Gordon Wood, Jeannine Olson, Edward Peters, and the John Carter Brown Library and its staff and fellows for encouraging and supporting this project. He also wishes to thank the three anonymous reviewers whose insightful comments greatly improved this article.

References

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9. Adams, Novanglus VIII, 241. Adams also used this argument to prove that the English Parliament had no role in the establishment of colonies.

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15. Pagden, “Law, Colonization,” 19–24. For a discussion of terra nullius in Spanish legal thought: see Benton and Straumann, 5–12.

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19. Thorpe, Francis Newton, ed. The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, 7 vols. (Washington, DC: Government Printing Office, 1909)Google Scholar, 3:1846.

20. Ibid., 3:1828.

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22. This was similar to the purpose of Inter caetera and related documents; that is, “to limit future rivalry between Castile and Portugal,” not to grant possession of the land of the New World: Pagden, Lords of the World, 46. On the other hand, according to William H. Scott, Inter caetera was designed “to prevent war between Spain and Portugal,” and is a “myth” promulgated in Philippine textbooks. See his Demythologizing the papal bull Inter Caetera,” Philippine Studies 35 (1987): 348–56Google Scholar, at 356. According to Christopher Tomlins, “Inter caetera included no explicit acknowledgement of Spanish right to possess new-discovered islands and mainlands by conquest”: Tomlins, Christopher, Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America (Cambridge: Cambridge University Press, 2010), 102Google Scholar.

23. Thorpe, Federal and State Constitutions, 3:1846.

24. Ibid., 3:1828.

25. Such regulation was difficult because of what Lauren Benton termed the “fundamental indeterminacy” associated with asserted boundary lines such as the papal line of demarcation and the Treaty of Tordesillas that  adjusted it. That can be said of the boundary lines asserted in the English charters as well.  See Benton, Lauren, “Spatial Histories of  Empire,” Itinerario 30 (2006): 1934Google Scholar, at  25.

26. The Spanish debate about the legitimacy of the conquest of the Americas generated a great deal of scholarly literature. The best starting point for studying it is: Hanke, Lewis, The Spanish Struggle for Justice in the Conquest of America (Philadelphia: University of Pennsylvania Press, 1949; reprinted ed. Dallas: Southern Methodist University Press, 2002)Google Scholar. The reprint has an introduction bringing the discussion up to date.

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28. It has been disputed that Asia was the primary goal of the first voyage. For a recent evaluation of the major opinions on this issue: see Gómez, Nicolás Wey, The Tropics of Empire (Cambridge: MIT Press, 2008), 356–66Google Scholar.

29. As with the later English documents, the contracting parties and their legal draftsmen were attempting to place the discoveries within their own legal framework.

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33. Ibid., 1: 62–63.

34. Elliott, John H., Empires of the Atlantic World: Britain and Spain in America 1492–1830 (New Haven: Yale University Press, 2006), 68Google Scholar. See also Haring, The Spanish Empire, 167–76.

35. Alexander VI, Inter Caetera (May 3, 1493) in Davenport, European Treaties, 1:62. This reflects the words of Nicholas V in his important bull Romanus Pontifex (January 8, 1455), in which he settled an earlier disagreement between the Portuguese and the Castilians. In this case, the Portuguese had encountered peoples previously unknown to Europeans, and had anticipated “that the sea might become navigable as far as to the Indians who are said to worship the name of Christ, and that thus he [the Portuguese Infante] might be able to enter into relations with them” in a crusade against the Muslims: Nicholas V, Romanus Pontifex (January 8, 1455), in Davenport, European Treaties, 1:9–26 at 22.

36. There was a good deal of medieval interest in both contacting Christians and their rulers in Asia, reconnecting with schismatic eastern Christians, and in converting non-Christians. For a selection of important recent articles on these topics: see Ryan, James D., ed. The Spiritual Expansion of Medieval Latin Christendom: The Latin Missions (Burlington: Ashgate, 2013)Google Scholar.

37. Davenport, European Treaties, 1:63. It is worth noting that the Atlantic islands claimed by the Portuguese, Madeira, the Azores, and Cape Verde, were uninhabited when the Portuguese arrived. See also, Jacques, Roland, Des nations à évangéliser: Genese de la mission catholique pour l'Extrême-Orient (Paris: Cerf, 2013)Google Scholar.

38. Alexander VI, Inter Caetera (May 4, 1493), in Davenport, European Treaties, 1:71–78, at 77.

39. Treaty of Tordesillas, in Davenport, European Treaties, 1:84–100, at 95.

40. See Morison, Samuel Eliot, The European Discovery of America: The Northern Voyages A. D. 500–1600 (New York: Oxford University Press, 1971), 435Google Scholar. Knecht, Robert J., Francis I (Cambridge: Cambridge University Press, 1984), 340Google Scholar. Other English and French monarchs dismissed the claims that Alexander VI made, or sought to evade them: see Anthony Pagden, Lords of All the World, 33, 46, 64.

41. Grewe, Wilhelm Georg, The Epochs of International Law, trans. and rev. Byers, Michael (Berlin and New York: De Gruyter, 2000), 236Google Scholar.

42. There were strong links between the Tudors and the Spanish monarchs. Catherine of Aragon (1485–1536), daughter of Ferdinand and Isabella, married Prince Arthur, son of Henry VII in 1501, and after his death married Henry VIII. John Cabot, an Italian seaman, had lived in Spain and had sought Spanish assistance for an Atlantic voyage.

43. On Cabot's voyages: see Parry, John H., The Discovery of the Sea (Berkeley: University of California Press, 1981), 219–21; 258Google Scholar. Rouse, Alfred L., The Elizabethans and America (New York: Harper, 1959), 159–60Google Scholar.

44. “Letters Patent to John Cabot,” Thorpe, Federal and State Constitutions, 1:46–47, at 46.

45. Ibid., 1:46.

46. Earlier, Gilbert had been deeply involved in the Elizabethan campaign to conquer Ireland. According to Robert A. Williams, Jr., Gilbert was an “Elizabethan terrorist” who had learned his trade in the Irish campaigns: see Williams, Jr., 151.

47. “Letters Patent to Sir Humfrey Gylberte,” Thorpe, Federal and State Constitutions, 1:49–52, at 49–50.

48. Ibid., 1:52.

49. Ibid., 1:51.

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52. Richard Hakluyt noted the importance of the eastward voyages in his collection of voyage records: the voyages to the East “returne home most richly laden with the commodities of China, as the subjects of this now flourishing monarchy have done” in recent years. Hakluyt, Richard, The Principal Navigations Voyages Traffiques & Discoveries of the English Nation, 12 vols. (New York: Macmillan, 1903–1905)Google Scholar, 1:xx.

53. Canny, Nicholas, The Elizabethan Conquest of Ireland: A Pattern Established 1565–76 (New York: Barnes and Noble, 1976)Google Scholar.

54. When the Puritans arrived at what was to become Boston, they found the Reverend William Blackstone (1595–1675) already situated on Beacon Hill. He had come in 1623 with the failed Gorges expedition. On Blackstone, see “William Blackstone,” in American National Biography, ed. John A. Garraty and Mark C. Carnes, 24 vols. (New York: Oxford University Press, 1999), 2:884–85; for Gorges, see “Fernando Gorges,” ibid., 9:303–4.

55. “The First Charter of Virginia–1606,” Thorpe, Federal and State Constitutions, 7:3783–3789, at 3783.

56. Ibid., 7:3783.

57. MacMillan, Sovereignty and Possession, 107, 120.

58. Thorpe, Federal and State Constitutions, 7:3784.

59. Ibid., 1:3784.

60. Ibid., 7:3785–86.

61. Ibid., 7:3786–87.

62. Ibid., 7:3789. It is clear from the text that if the colonists acquired land and surrendered it to the king, then they would hold it in free socage. The king did not claim in advance that the land was his and did not grant it as free socage. Pagden is wrong to assert that most of “the lands in America had originally been granted” as socage: see Pagden, “Law, Colonization,” 9. Macmillan, Sovereignty and Possession, 89–90, makes the same mistake as does Mary Jane Bilder, “English Settlement and Local Governance,” Law and Colonization, 63–103, at 66.

63. Thorpe, Federal and State Constitutions, 7:3788.

64. MacDonald, William, Select Charters and Other Documents Illustrative of American History 1606–1775 (New York: Macmillan, 1899), 11Google Scholar.

65. “The Charter of New England–1620,” Thorpe, Federal and State Constitutions, 3:1827–40, at 1828.

66. Ibid., 3:1828.

67. Ibid., 3:1828. Sir Charles Trevelyan made a similar statement about the Irish Famine of the 1840s in a letter to a friend: see Foster, Robert F., Modern Ireland 1600–1972  (New York: Penguin, 1989), 326Google Scholar, n.ii.

68. Thorpe, Federal and State Constitutions, 3:1829.

69. Ibid., 3:1829, 1831.

70. Ibid., 3:1834.

71. Ibid., 3:1833, 1836.

72. Ibid., 3:1839. On outlawry: see Plucknett, Theodore F. T., A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956), 385, 420–31Google Scholar.

73. Thorpe, Federal and State Constitutions, 3:1839.

74. “The Charter of Massachusetts Bay–1629,” Thorpe, Federal and State Constitutions,  3:1846–60 at 1846.

75. Ibid., 3:1852.

76. Ibid., 3:1857.

77. Ibid., 3:1857.

78. The most significant exception to this was the work of John Eliot in Massachusetts: see Parker, Annie, “Conversion in Theory and Practice: John Eliot's Mission to the Indians,” in The Spiritual Conversion of the Americas, ed. Muldoon, James (Gainesville: University of Florida Press, 2004): 7898Google Scholar.

79. Thorpe, Federal and State Constitutions, 3:1858.

80. Ibid., 3:1858.

81. Ibid., 3:1859.

82. When Hernan Cortes transformed his followers into a municipality in Yucatan as a prelude to conquering Mexico in 1519 he was following in the long-standing tradition of the Castilian frontier of using organized communities as the means for leading the offensive against the Muslims. See Cortes, Hernan, Letters from Mexico, trans. Pagden, Anthony R. (New York: Grossman, 1971), xvii–xix, 2428Google Scholar. See also Powers, James F., A Society Organized for War (Berkeley: University of California Press, 1988), 93111Google Scholar.

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84. Adams, Novanglus VIII, 238. In this he exaggerated the situation. Failure to adhere to the terms of the charter would mean that the king would not protect the rights of the colonists and authorize other potential colonists to settle there.

85. Ibid., 240.

86. Ibid., 239, 241.

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88. Grotius, Hugo, The Free Sea, ed. Armitage, David, trans. Hakluyt, Richard (Indianapolis: Liberty Fund, 2004)Google Scholar.

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90. David Larter, “Navy will challenge Chinese territorial claims in South China Sea,” Navy Times, October 7, 2015.

91. Muldoon, James, “Inter caetera and outer space: some rules of engagement,” in Humans in Outer Space – Interdisciplinary Odysseys, ed. Codignola, Luca and Schrogl, Kai-Uwe (Vienna: Springer-Verlag Wien, 2009), 5968Google Scholar.