Sunday, July 8, 2007

Muir reviews MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire

Ken MacMillan, Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576-1640 (Cambridge University Press, 2006) is reviewed for H-Law by James Muir, Faculty of Law and Department of History and Classics, University of Alberta. Muir writes:

A European monarch's claim to sovereignty over lands overseas in the fifteenth and sixteenth centuries was aimed at several audiences: her or his own subjects, those being colonized, and imperial rivals. In Sovereignty and Possession in the English New World, Ken MacMillan is particularly interested in the third of these, and he offers several interesting arguments about the ways sovereignty was asserted by Elizabeth I, James I, Charles I, and their subordinates. His key premise is that the legal foundations for the claims to American colonies lay in Roman law, not the local and (for Europe) peculiar common law of England. To demonstrate this he draws attention to legal documents, such as letters patent, and apparently non-legal things, such as maps. MacMillan presents his often fascinating and largely persuasive argument in this short, well-presented book.
MacMillan begins the substantive part of his book with the assertion that legal pluralism characterized English law in the Tudor-Stuart era. This is not a surprising claim, but his emphasis is different from that of other legal historians of empire. He is not interested in the legal pluralism of colonies as Lauren Benton was in Law and Colonial Cultures (2002). Drawing attention to legal pluralism in England, he seeks to overturn the pride of place given to the common law in the legal history of empire formation. By contrast, he asserts, "new found lands were outside of the realm of England and, therefore,outside the jurisdiction of the common law and the ordinary prerogative....Another legal system was, therefore, required to legitimize and oversee[colonization], one that would enable the crown to govern its foreign territories in a manner consistent with natural laws and liberties, and that would also enable it to gain the recognition of the supranational community"(p. 33). The last part is particularly important: England's claims had to be made to and legitimated before their European Imperial rivals. The Spanish crown, even if it rejected the claim, could at least understand one based on Roman law, while it would neither understand nor accept a common law argument.Tied to Roman law but separate was the royal prerogative. The monarch's prerogative powers were limited domestically, but were absolute in areas where the common law was silent or where foreign affairs were involved. For MacMillan, Roman law and the royal prerogative were parts of English legal pluralism central to the creation of empire.
Having established this thesis, he then proffers several related but distinct examples of the confluence of Roman law and the prerogative: the writings of John Dee, letters patent, fortifying and protecting settlements in the colonies, and maps of the world and North America. He concludes with an analysis of how these helped in negotiations with Spain and France in the 1600s over English claims to North American colonies. Interestingly, most of these topics appear, at first glance, to have little to do with legal history. The one obviously legal topic, the letters patent, explains how they were written,by whom, and how they were enforced internationally. It is a nice study of pre-Westphalian international law and builds particularly on the combination of the royal prerogative, exercised in the issuing of the letters, and Roman law, as the letters were typically drafted by civilian-trained lawyers at court.
One of the key figures in MacMillan's analysis is John Dee (1527-1608). Between 1577 and 1578, Dee produced a four-part manuscript, Brytanici Imperii Limites or The Limits of the British Empire that provided a geographical, historical,and legal analysis of the North Atlantic world and England's claim to it. The merging of historical and geographical knowledge with legal arguments reflected Dee's own broad interests and were a precursor to the later, more famous writings of Richard Hakluyt. MacMillan discusses Dee's use of contemporary English histories that described the empires established out of England by Brutus, King Arthur, and others. Using these and the rules of discovery and possession in Justinian's Digests, Dee asserted English claims for much of the North Atlantic. More influential, especially for Hakluyt, was Dee's argument about the Iberian misreading and failure to meet the requirements of the Papal Bull on which the Spanish and Portugese founded their claim to all of the Americas.
The focus on Roman law and the extensive analysis of John Dee do offer some new perspectives on the relationship between law and empire formation in England. To this point MacMillan's book is solid but not exciting. The chapter on fortifications, while related to the Roman law requirements of possession,seems almost out of place within the rest of the book, focusing, as the chapter does,on the experience in North America. The real innovation in the book begins with MacMillan's chapter on maps and empire. Describing in detail both manuscript and published maps, he shows the extent of geographical knowledge in England in the sixteenth and seventeenth centuries. He shows how the published maps were constructed deliberately to support the English crown's assertions of possession over the territories and to minimize the claims of its European counterparts. The languages of text; the orientation of the maps; the design and location of the cartouche; and the placement of other images on the map,among other aspects, are analyzed by MacMillan in relation to the ideological and legal arguments they could make. He underscores this argument by contrasting the published and manuscript maps drawn for broad and limited consumption.
MacMillan's discussion of maps, and his book as a whole, make a nice pairing with Brian Lockey's Law and Empire in English Renaissance Literature (2006). Both MacMillan and Lockey make convincing arguments for texts and documents not directly associated to law as being of significant importance in prompting and supporting the legal arguments upon which the empire had to be built, both at home and in relation to the other courts of Europe.
Ken MacMillan is a good writer: his arguments are clear, even while he engages and debates with an extensive historiography. The book as a whole often feels like a set of linked essays on a particular theme. The argument builds throughout, but individual chapters can often be read profitably on their own once the basic outlines of his thesis are understood. This book will be of use to those interested in the early political, intellectual, and legal history of the British Empire and provocative for those looking to expand the sources and framework of legal history research.
The original review is here.

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