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Colonial Charters: Possessory or Regulatory?

  • James Muldoon
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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.

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1. McIlwain, Charles H., “The Transfer of the Charter to New England and its Significance in American Constitutional History,” Proceedings of the Massachusetts Historical Society 63 (1929): 5364, at 54; reprinted in Constitutionalism and the Changing World (Cambridge: Cambridge University Press, 1939, 1969), 231–43, at 232. McIlwain's position on constitutional development has been both praised and rejected. For a forceful presentation of his views and those of his critics: see Black, Barbara, “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157–211.

2. McIlwain, Proceedings, 63; Constitutionalism and the Changing World, 241. Strictly speaking, the earliest documents dealing with discovery and colonization were letters patent not charters, but it is common practice to use the terms interchangeably. For a discussion of this issue: see Bilder, Mary Sarah, “English Settlement and Local Governance,” in The Cambridge History of Law in America, Vol.1, Early America (1580–1815), ed. Grossberg, Michael and Tomlins, Christopher (Cambridge: Cambridge University Press, 2008), 63103, at 66. Cambridge Histories online (accessed August 27, 2015).

3. McIlwain,  Proceedings, 64; Constitutionalism and Changing World, 243.

4. Campisi, Jack, The Mashpee Indians: Tribe on Trial (Syracuse: Syracuse University Press, 1991); and Brodeur, Paul, Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England (Boston: Northeastern University Press, 1985).

5. For the French polities in Canada: see Morin, Michel, “Des nations libres sans territoire? Les Autochtones et la colonisation de l'Amérique française du XVIe au XVIIIe siècle,” Journal of the History of International Law 12 (2010): 170. For a comparative approach to these issues: see Knafla, Louis A. and Westra, Haijo, eds. Aboriginal Title and Indigenous Peoples: Canada, Australia, and New Zealand (Vancouver: UBC Press, 2010).

6. The meaning of the term terra nullius and its development has been a matter of extensive debate in recent years, especially with regard to the English settlement of Australia: see Fitzmaurice, Andrew, “The Genealogy of Terra Nullius,” Australian Historical Studies 38 (2007): 115; Banner, Stuart, “Why Terra Nullius? Anthropology and Property Law in Early Australia,” Law and History Review 23 (2005): 95131; and his How the Indians Lost Their Land (Cambridge, MA: Harvard University Press, 2005); and Buchan, Bruce and Heath, Mary, “Savagery and Civilization: From Terra Nullius to ‘The Tide of History,’Ethnicities 6 (2006): 526.

7. Adams, John, The Revolutionary Writings, ed. Thompson, C. Bradley (Indianapolis: Liberty Fund, 2000), Novanglus, VIII, 237. On the role of the charters in revolutionary polemics see: Nelson, Eric, The Royalist Revolution: Monarchy and the American Founding (Cambridge, MA: Harvard University Press, 2014), 4654. The crucial point was that the charters made no mention of Parliament and, therefore, there was no basis for a parliamentary claim to jurisdiction over the North American colonies.

8. Adams, Novanglus VIII, 241. Anthony Pagden argued that “neither Henry [VIII] nor Elizabeth were pontiffs … [so] neither could make the least claim to exercise jurisdiction beyond their realms.” Anthony Pagden, “Law, Colonization, Legitimation, and the European Background,” in The Cambridge History of Law, 1–31, at 5. They obviously thought that they did, however, as a consequence of being the Supreme Head of the Church in England. They possessed the equivalent of papal jurisdiction within the region claimed by the English.

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

10. Ibid. Samuel Wharton (1738–1800) made the same point in his Plain Facts: Being an Examination into the Rights of the Indian Nations of America (Philadelphia: R. Aitkin, 1781), 5: cited in Muldoon, James, “John Marshall and the Rights of the Indians,” in Latin America and the Atlantic World, ed. Pieper, Renate and Schmidt, Peer (Cologne: Böhlau Verlag, 2005), 6782, at 74.

11. A number of modern historians have made the same claim. Robert A. Williams, Jr. in the most extensive discussion of the legal status of non-Christians argued that “by Inter caetera, Spain took title to all territory west” of the line of demarcation, but is not correct. He was more accurate when he described the papacy as placing the inhabitants of the islands Columbus discovered “under the tutelage and guardianship of the first Christian nation discovering their lands.” See his The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford: Oxford University Press, 1990), 80. See also: Pagden, Anthony, Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500–c.1800 (New Haven: Yale University Press, 1995), 4647. Alexander VI did not, however, make such a claim: see Muldoon, James, “Papal Responsibility for the Infidel: Another Look at Alexander VI's Inter caetera,” The Catholic Historical Review 64 (1978): 168–84; reprinted in Muldoon, James, Canon Law, The Expansion of Europe, and World Order (Aldershot: Ashgate/Variorum, 1998), no. IV.

12. See MacMillan, Ken, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640 (Cambridge: Cambridge University Press, 2006):107–8.

13. In discussing the use of concepts from Roman law, specifically the concept of terra nullius, Lauren Benton and Benjamin Straumann pointed out that “imperial agents… encouraged an inclusive, not to say scattershot, approach to legal rationales.” See their Acquiring Empire by Law: From Roman Doctrine to Early Modern European Practice,” Law and History Review 28 (2010): 138, at 3. The same could be said of the early modern use of legal traditions in general in the search for a language that would regulate relations among the imperial states.

14. Seed, Patricia, Ceremonies of Possession in Europe's Conquest of the New World 1492–1640 (New York: Cambridge University Press, 1995), 1718.

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

16. Miller, Robert J. and D'Angelis, Micheline, “Brazil, Indigenous Peoples, and the International Law of Discovery,” Brooklyn Journal of International Law 37 (2011): 163, at 1. See also Miller, Robert J., Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark, and Manifest Destiny (Westport: Praeger, 2006), xvii, 1–8;  also Williams, Jr., The American Indian in Western Legal Thought, 99–100, 325–28; Newcomb, Steven T., Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Golden: Fulcrum Publishers, 2008), xxi–xxii, 127–30; and Pagden, “Law, Colonization,” 18–19. On the concept of discovery, see Washburn, Wilcomb E., “The Meaning of ‘Discovery’ in the Fifteenth and Sixteenth Centuries,” American Historical Review 68 (1962): 121.

17. Pagden, “Law, Colonization,” 8. In support of this argument, Pagden only cites a fifteenth century critic of the Puritans. Although one can find elements of Wyclif's theology in the English Calvinists, the notion that legitimate authority was based on being in the state of grace is not one of them. I thank Professor Jeannine Olson of Rhode Island College for explaining this to me. On the debate about grace, dominium, and Wyclif: see Muldoon, James, “John Wyclif and the Rights of the Infidels: The Requerimiento  Re-Examined,” The Americas 36 (1980): 301–16; reprinted in Muldoon, Canon Law, The Expansion, no. VI.

18. MacMillan, Sovereignty and Possession, 79.

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

20. Ibid., 3:1828.

21. Macmillan, Ken with Abeles, Jennifer, eds. John Dee: The Limits of the British Empire (Westport: Praeger, 2004), 1718. See also MacMillan's Sovereignty and Possession, 66–73; and Pagden, “Law, Colonization,” 5.

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): 348–56, 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), 102.

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): 1934, 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). The reprint has an introduction bringing the discussion up to date.

27. Nader, Helen and Formisano, Luciano, “Capitulations of Santa Fe,” in The Book of Privileges Issued to Christopher Columbus by King Fernando and Queen Isabel, 1492–1502 (Berkeley: University of California Press, 1996), 6366. The various titles granted to Columbus gave him broad jurisdiction over questions involving trade, the appointment of lesser officials, and a share in the profits that his discoveries generated. Clarence H. Haring observed that “these extended powers and privileges had been granted rather hastily to still the importunities of a visionary sailor.” See Haring, Clarence H., The Spanish Empire in America (New York: Oxford University Press, 1952; reprinted ed. New York: Harcourt, Brace & World, 1963), 8. These “powers and privileges” generated three centuries of litigation: see Otto Schoenrich, The Legacy of Christopher Columbus, 2 vols. (Glendale: Arthur H. Clark, 1949–1950).

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), 356–66.

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.

30. Muldoon, James, “Columbus's First Voyage and the Medieval Legal Tradition,” Medievalia et Humanistica 19 (1992): 1126.

31. Witte, Charles-Martial de, “Les bulles pontificales et l'expansion portugaise au XVe siècle,” Revue d'histoire  ecclesiastique 48 (1953): 683718; 49 (1954): 438–61; 51 (1956): 413–53, 809–36; 53 (1958): 5–46, 443–71. See also Weckmann, Luis, Las Bulas Alejandrinas de 1493 y la Teoría Política del Papado Medieval (Mexico City: Editorial Jus, 1949); and his The Alexandrine Bulls of 1493: Pseudo-Asiatic Documents,” First Images of  America, 2 vols., ed. Chiappelli, Fredi (Berkeley: University of California Press, 1976), 1:201–9.

32. Davenport, Frances G., ed. European Treaties Bearing on the History of the United States and Its Dependencies to 1648, 4 vols. (Washington, DC: Carnegie Institution of Washington, 1917; reprinted ed. Gloucester, MA: Peter Smith, 1967), 1:61–63, at 61–62.

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), 68. 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).

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).

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), 435. Knecht, Robert J., Francis I (Cambridge: Cambridge University Press, 1984), 340. 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), 236.

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; 258. Rouse, Alfred L., The Elizabethans and America (New York: Harper, 1959), 159–60.

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.

50. Taylor, Alan, American Colonies: The Settling of North America (New York: Penguin, 2001), 94, 118–23. Gilbert and Raleigh had also been involved in the efforts to subdue the Irish.

51. On fishing rights and settlements: see Andrews, Charles M., The Colonial Period of American History, 4 vols. (New Haven: Yale University Press, 1934–38), 1:320–43; and Osgood, Herbert, The American Colonies in the Seventeenth Century, 3 vols. (New York: Columbia University Press, 1904; reprinted ed. Gloucester MA: Peter Smith, 1957), 1:99. Donald W. Meinig has stressed the long-term importance of the Atlantic fishery, which he labels “the Great Fishery” for the British Atlantic colonies: see his The Shaping of America, 5 vols., Vol. 1, Atlantic America, 1492–1800 (New Haven: Yale University Press, 1986–2004), 1:25, 56–58, 90.

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), 1:xx.

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

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), 11.

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), 326, 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, 420–31.

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): 7898.

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, 2428. See also Powers, James F., A Society Organized for War (Berkeley: University of California Press, 1988), 93111.

83. On Laudabiliter: see Watt, J. A., The Church and the Two Nations in Medieval Ireland (Cambridge: Cambridge University Press, 1970), 3640. Weckmann, Las Bulas Alejandrinas, 45–64, 268–69. Laudabiliter did, however, come up in the early seventeenth century in the debates over the right of the pope to authorize Christian rulers to enter and occupy the New World. If the pope had no authority to grant the Americas to the Spanish and Portuguese, then his predecessor had no authority to grant responsibility for the spiritual reform of the Irish Church to Henry II: see Muldoon, James, “Spiritual Conquests Compared: Laudabiliter and the Conquest of the Americas,” in In Iure Veritas: Studies in Canon Law in Memory of Schafer Williams, ed. Bowman, Steven B. and Cody, Blanche E. (Cincinnati: University of Cincinnati School of Law, 1991): 174–86; reprinted in Muldoon, Canon Law, Expansion of Europe, X.

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.

87. Ullmann, Walter, The Growth of Papal Government in the Middle Ages, 2nd ed. (London: Methuen, 1962), 448.

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

89. This also links the debate about discovery to the great debate about ownership and regulation of the sea. Could a nation claim possession of a route to the New World or to Asia or the possession of fisheries such as the Grand banks? See Muldoon, James, “Who Owns the Sea?” in Fictions of the Sea, Critical Perspectives on the Ocean in British Literature and Culture, ed. Klein, Bernard (Aldershot: Ashgate, 2002), 1327. For the importance of creating a legal regime for the developing global order: see Benton, Lauren, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (Cambridge: Cambridge University Press, 2002).

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), 5968.

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.

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