“'According to such lawes': How the construction of sovereignty in English legalism was transformed by the practices of interaction with the indigenous peoples of North America during the early Stuart period."

Dr. Seán Patrick Eudaily

Associate Professor of Politics
Department of History, Philosophy, and Social Sciences
University of Montana Western
710 S. Atlantic St., Dillon, MT 59725
Email: s_eudaily@umwestern.edu

Abstract:

Scholars of political thought have spent the better part of the last 200 years fighting anew the bloody religious and political conflicts of the seventeenth century labeled recently as “England’s troubles” (Scott 2000). This same period of time is also of crucial interest to post/colonial historians who study the British colonization of North America, and to international historians who locate the creation of the modern states-system to the Peace of Westphalia in 1648. It has been rare that these three groups have engaged one another’s work. Glenn Burgess has argued that while political thought in early Stuart England was characterized by a diversity of discourses – common law, civil law, theology (1992) – no divide exists between “constitutionalism” and absolutism” (1996).  A comparison of sovereignty in the context of the colony of Virginia during the Jacobean period reveals that while the general contours of English legalism prevail, the practices of interaction with indigenous peoples are associated with increasing deviations from English domestic norms. Finally, these “innovations” in the discourse and practice of sovereignty in the colonial sphere not only prefigure later developments during the English Civil War and Interregnum, but also provide a critical resource in contemporary debates over native title and sovereignty under America law, as well as adding weight to revisionist arguments that question whether state sovereignty uniquely characterizes the pattern of modern world order (Keene 2002).

Introduction

As we reach the four-hundredth anniversary of the founding of the Jamestown colony in 1607, it is appropriate that we reexamine the role played by the colonial settlement of North America in our hegemonic political, legal, and cultural discourses. This paper is part of a larger work in progress involving an interdisciplinary reevaluation of the nature of sovereignty in the seventeenth century English culture of politics. The limited task at hand here is to identify developments in English law stemming from the colonial settlement of North America that are distinguished temporally from constitutional changes in England, and spatially from European norms of inter-sovereign diplomacy. In this, my arguments are directed primarily at conceptual and jurisprudential concerns within the history of English political thought, and only instrumentally with the role which indigenous peoples played during this time period.  Following James Axtell’s usage, I am concerned with the “reactive changes” of English legalism to the practical situation of coexistence with native peoples in America. Axtell writes:

I conclude that colonial culture underwent two kinds of change: adaptive change consisting of the temporary adoption of Indian means to predetermined English ends, and reactive changes spurred by the ubiquitous presence of Indians as military foes and cultural foils. [1]

However, it should be noted (and may be seen by the conclusion to this paper and my earlier work on indigenous legal activism) that I firmly hold to the view that understanding the period of early contact is essential to contemporary legal struggles over native title and sovereignty in the successor white settler states of the former British Empire. [2] Thus, while this paper’s author, primary subject matter, and much of its audience are settlers rather than indigenous people(s), I hope that it may contribute to that essential and never-ending process of “unsettling” settler ways of thinking about their political power over indigenous homelands. [3]

This paper will proceed by means of surveying conventional accounts of the various legal frameworks that underlie early English colonialism, and engaging Glenn Burgess’s description of a Jacobean “consensus” political culture to help understand how these differing streams of justification were intertwined into English colonial law. Next, I will analyze the foundational documents of the first permanent English settler colony in America – Jamestown, Virginia – up to its being put into direct crown control in 1624. Finally, I conclude with assessments of how this early episode of colonialism might impact our understanding of seventeenth century English legalism more generally, the colonial legacy that continues in current American Indian law, and a discussion of some possible directions for further research.


Accounts of the Legal Framework of Colonial Anglo-America
Settlement under Common Law

Many have argued that an understanding of the common law is essential to decoding the manner in which English settlers went about staking their claims to the colonial territories in America. As Donald C. Lutz puts it, “The phrase ‘all liberties, franchises and immunities’ [in the first Virginia Charter of 1606] conveyed to the citizens of the new world the English common law, including the provisions of Magna Carta.” [4] No one has done more to substantiate this view than Patricia Seed. [5]

Seed argues that the common law practices for establishing one’s right to dominion over property were exported to the colonies as deeply ingrained cultural practices. She distinguishes her approach from those that would look to possible theoretical justifications of English colonialism by explicating what the colonists themselves did instead of what their patrons and apologists said. [6] Seed draws our attention to the fact that under the common law it was neither a ceremony nor a document that provided the most secure form of title, but rather the object of a house, fences or hedgerows, and/or cultivated land. [7] She writes:

Hence, by the start of English colonization overseas, enclosing land by fences or hedges meant establishing specifically individual ownership. With few exceptions, the English created private property in the Americas. [Emphasis added] [8]

Seed backs this assertion up with the evidence that one of the first laws passed by the Virginia House of Burgesses was a requirement that “every freeman shall fence a quarter acre of ground before Whitsuntide.” [9] This practice is only to be found in the English colonies, and suggests a unique cultural adaptation to the common law. [10] In addition to permanent domiciles and enclosure, the common law also recognized the process of improving land through human toil as a means to establish ownership.

The common law doctrine of improvement has lines of ancestry in both Biblical verse (Genesis 1:28) and (as will be discussed subsequently) in the Roman civil law. However, it is the particularly English form that such notions take that interests Seed. She writes that, “In the seventeenth and eighteenth centuries, improvement […] referred to two activities repeatedly carried out on the same land: grazing (domestic animals) and planting.” [11] Although these practices of possession were considered universal and “ancient” by many English writers, Seed argues that in fact they are rather specific to the English and the feudal developments in the common law. [12] Indeed, in his “introduction to the volume on property in the Commentaries of the Laws of England […] William Blackstone invokes Genesis 1:28 to justify the principles of occupation of land by Englishmen in the New World and elsewhere” while reiterating the unique requirement for such possession to take place under the common law. [13]  

One of the most important conclusions that Seed takes from these cultural practices was that the English colonization was undertaken in an extremely culturally specific manner. She writes:

None of these understandings existed among citizens or subjects of any other European power. Yet they were widely believed by Englishmen to have granted them the right to possess the New World. As culturally specific as the understanding of these actions were, their absence was used to deny the indigenous peoples of the New World possession of their lands. [14]

Although Seed is here dealing with a set of common law prescriptions that only exclude native practices by implication, there were more explicit common law arguments for their dispossession as well.

Indeed, Chief Justice Sir Edward Coke was to propagate a common law doctrine of just war against infidels as “perpetual enemies” in Calvin’s Case:

But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get anything within this realm. All infidels are in law perpetui inimaici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility), for between them, as with devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace. [15]

As Roger A. Williams points out, such a declaration was simultaneously an assertion of the King’s absolute prerogative rights over any conquered infidel territory. [16] The implication of this theory for English claims in America was to convert those claims into well-recognized English forms. As Glen Burgess writes, “The king has imperium; the subject dominium. The neat formula sums up a crucial theme of English common-law thought.” [17]

Such arguments are probably most familiar to contemporary audiences through John Locke’s doctrine of the acquisition of property in the state of nature; for as Locke himself insists, the state of nature can be seen in the case of seventeenth century America. [18] Although Locke’s theory of property is often interpreted is providing the clearest philosophical statement of the creation of dominium out of the individual exercise of enclosure and improvement per the common law, it was rather, in fact, heavily indebted to the Roman civil law argument about res nullis or “empty things” (terra nullis where applied to land). [19] It is therefore to a discussion of the civil law I now turn.

Just War under the Law of Nations

Alberto Gentili is often considered one of the more influential persons in extending civil law arguments to an English audience, despite being an Italian immigrant. [20] He was named Regius Professor of Civil Law at Oxford in 1587, under the patronage of Sir Francis Walsingham. [21] As Robert A. Williams writes, “Gentili’s De jure belli represented the first comprehensive treatment by an English jurist of the law of war in the new style – that is, in the style known today as the Law of Nations.” [22]   Although the doctrine of the civil law as propounded in the seventeenth century was deeply influenced by centuries of Catholic legal thought (indeed, the teaching of the civil law rather seamlessly replaced that of Canon law in the English university after the Tudor Reformation), Gentili endeavored to distinguish a civil law doctrine of proper conduct towards infidels from the Catholic/crusading version popularized by Spanish jurists. He writes:

It is true . . . that these principles justifying wars based on religions are said to be the invention of the most greedy of men and to be cloaks for their dishonesty; and that there is no religion so wicked as to order an attack upon men of a different belief. In this way King Ferdinand, who was called the Catholic, covered almost all his excesses with a respectable mantle of religion. [23]

That is not to say that Gentili did not produce his own version of a Christian cant of conquest. Rather, in a manner both practical and politically convenient, he distinguished between the just war conducted against those infidels who reject true faith and the unjust subjugation by the Spanish of those who merely “follow the rules and superstitions of their forefathers.” [24]

Gentili was not alone is spreading civil law as a means to justify England’s colonial pursuits. Sir Thomas Smith, Secretary to Queen Elizabeth and a former Professor of civil law, drew upon Roman allusions and his civilian training to justify the efforts at plantations in Ulster in which he was involved. [25]

In this line of argument the English civilians were moving in a similar path as was the most influential Dutch civil law theorist, Hugo Grotius.  One of Grotius’ most important legacies is his definition that, as Edward Keene writes, the “law of nations was not […] exclusively a law for nations” but rather a comprehensive system that also provided the means for establishing individual property in case outside the determination of any form of national law. [26] Grotius advanced such a distinction most clearly with his analysis of the relationship between private occupatio of land and the public sovereignty over land. [27] Anthony Pagden notes that this distinction was to be crucial for civil law understandings of European claims to America:

In order to be rights, claims had to both property and sovereignty (dominium) have to be exercised. The “agriculturalist” arguments which provided the basis for all English claims to land-rights in America rested precisely on this claim that the Europeans, unlike the Native Americans, had exercised dominium in the form of mingling their labour with the land. [28]

Thus arguments from the civil law about the possession of land could be used to much the same ends as the common law practices described by Seed and others.

Despite the forgoing discussion, the use of civil law justification did not have nearly the cultural resonance to English ears, as did arguments from the common law. Roger Williams famously (if also self-interestedly) offered refutation of the “uncultivated” status of Indian land by pointing to their use of evidence of forest-clearing and slash-and-burn agriculture. [29]   Others, such as republican James Harrington, although influenced by natural law doctrines, denied that English colonialism was an exercise of imperium at all, favoring rather allusions to protection or federation than empire. [30]

Protestant Providentialism

No language provided higher (if not uncomplicated) moral grounds for the colonial project than did theology. In particular, many of the earliest propagandists for England’s entry into the “contest” for control of America – such as the two Richard Hakluyts - were providentialist Protestants.

“The Principle and main ends” [of this plantanation], declared the author of A True and Sincere Declaration of the Purpose and Ends of the Planatantion begun in Virginia, “were first to preach and baptize into Christian Religion, and by propagation of that Gospel to recover out of the arms of the Devil, a number of poor and miserable souls, wrapped up unto death, in almost invincible ignorance. [31]

Despite this provenance, however, the earliest letters patently showed little divergence from the model of Pope Alexander VI’s Bull of Donation. [32] Although the so-called Calvinist theory of revolution was in many ways developed precisely to counter Spanish claims to imperial right under civil and natural law, it (like its target) was fundamentally arraigned so as to address rights of rule over people, not the more pressing English concern to exercise dominion over land. [33] This may be taken as another example of the tendency noted by Vine Deloria, Jr. and David E. Wilkins for “commerce rather than Christianity [to have] dominated English colonial concerns.” [34] James Axtell echoes this skepticism of the piety inherent in the colonizing endeavor in saying “the operative English goals rather quickly shifted to give paramount importance to pacification of the natives, sometimes by Bible and blanket, more often by statute and sword.” [35] This skepticism is substantiated especially in the case at hand (Virginia, 1606-1624), in as Francis Jennings notes, “The hard fact is that the Virginia Company never transported a single missionary to America.” [36]

However, many scholars have seen the Puritan/Protestant/Calvinist heritage of the early English settlers as decisive in explaining colonial institutions of law and government. Donald S. Lutz, in his detailed study The Origins of American Constitutionalism, argues that it was not so much the Puritan Protestant “of the hotter sort” in New England but the shared Calvinism of settlers throughout the colonies that is “central to any explanation of surprising similarity in the Americans’ state constitutions and colonial documents.” [37] Lutz argues that this Calvinist tradition brought to America with both a stand of “moralistic communitarianism” and a stand of commercial individualism. [38]

The later “Western Design” under the Cromwellian Protectorate is ample evidence that this sense of Protestant destiny could motivate concrete government policy; although it is ironic that these very policies lead to the reorientation of Dutch foreign policy away from religious line and toward their eventual confrontations with the English republic. [39]

Reevaluation and Extension

Where does the forgoing discussion of the numerous, often conflicting justifications for English colonialism leave one? Before offering my own interpretation of that question, I want to distinguish my analysis from two other possible lines of inquiry. First, some may desire to bridge the gap between the official record and the intentions of those individuals involved in the colonial project.  One the one hand, I find such attempts to enter the heads and hearts of long-dead historical figures difficult at best and quixotical in general, and, on the other, unnecessary. Once arguments are made to wider publics, or are committed to paper in official pronouncements, they take on a life of their own. It is not that legal documents substitute for the subjective intentions of those who wrote or approved them; instead it is that the law, through its operative force in the English culture of politics, is a personality (or maybe multiple personalities) in its own right. Second, one may ask, “Well, which discourse of justification was the real one used to underlie English colonialism?” Such formulations would be far too simplistic. What is needed, rather, is to gain an understanding of how these various languages of politics could be mutually accepted and combined in such a way that their direct contradictions were rendered unproblematic. Glenn Burgess provides just such a conceptualization in his arguments concerning the Jacobean consensus of how the languages of the common law, civil law, and theology were conventionally applied in the discourse of the early Stuart period. It is this argument the next section addresses.

English Legalism: the Jacobean “Consensus”
The Common Law

Burgess argues that there existed an unspoken consensus position in Jacobean politics that three different languages of politics – common law, civil law, and theology – were acceptable, so long as they were employed in their “proper” context and in the specified relation to one another. [40] Of these languages, Burgess finds that not only was the common law the primary language, but also that it was hegemonic as well, in that it functioned as a controlling discourse to govern the application of the other two. [41] It was this dual aspect of the “common law mind” that allowed the unproblematic use of civil law justifications of imperium and theological dictates of a providential mission to coexist with the very practical erection of the physical signs of English possession of American lands.

Civil Law

The civil law founds its role in those situations the common law was least able to accommodate – those involving an “international dimension” (such as diplomacy, international trade, and the courts of admiralty), but most importantly in Jacobean England those situations involving James’ “Imperiall Crowne.” [42]

Maybe the most important contribution of the civil law was to define abstractly the concept of sovereignty, as opposed to the customary definitions of the existence and exercise of sovereign prerogatives provided by the common law. [43] Now, while this may have been an important development in English legalism’s ability to deal with the fact of imperial authority, the language of sovereignty did not always set well with the common law mind. During the debates over the Petition of Right in 1628, Coke stated:

I know that prerogative is part of the laws, but “Sovereign Power” is no parliamentary word. In my opinion it weakens Magna Carta, and all the statutes, for they are absolute, without and saving of “Sovereign Power”; and should we now add it, we shall weaken the foundation of law, and then the building must needs fall […]. [44]

John Pym struck the same chord in saying “I know how to add sovereign to the king’s person, but not to his power.” [45] This is a good example of the English usage of “sovereign” to refer to a quality or status of the monarch’s person, not a definition of an artificial political subjectivity as it would later become in the work of Hobbes and others from the mid-seventeenth century.

Theology

As Burgess writes:

Theology was in many ways as important and fundamental a language in political discussion as the common law during the early-seventeenth century, but the two usually operated in quite separate fields. [46]

Theology was unproblematic to the extent that it remained focused on a high level of abstraction (even higher than that of the civil law). It was only in later cases where religious arguments about divine right and irresistibility came to be used in the Caroline era to justify specific acts of royal prerogative that they began to conflict with the dominance of the common law in the balance of the Jacobean consensus. Therefore, “it is only by taking theological statements […] as if they were statements designed to answer legal questions that one can make a case for absolutism by divine right existing in the political thought of the period.” [47] The same could be said to be true in the colonial context as well; so long as high religious injunctions to convert the unfaithful to “true religion” did not impede either the expression of sovereign rights against the possible encroachment of foreign powers, and the common law practices of land appropriation by habitation, enclosure, and improvement, there was no need to select one legal frame of reference over another.

A Question of Prerogative

The manner in which the concept of sovereignty was expressed in characteristically common-law form was the doctrine of the king’s twin prerogatives. The Royal Prerogative – variously called absolute, free, extraordinary, or natural – was contrasted with the ordinary prerogative of the king which signified his ability to work through the established legal channels such as parliament and other courts. [48] It is through the exercise of the former that principles of natural or civil law, and the theologically defined rights and responsibilities of a Christian prince, were thought to directly apply. Thus, the consensus allowed the mediation of seemingly incompatible legal principles. As Burgess writes, “[T]he king of England was accountable only to God, and therefore irresistible; [yet] that he was bound, to govern legally, at least in certain matters.” [49]

One example of this difficulty can be seen in the issue of the rights derived from conquest. Under the common law, conquest (especially the Norman Conquest) could be accommodated, but only if it was assumed that conquest did not interrupt the continuity of the customary law. [50] Charles I would frequently exacerbate such problems by attempting to use his absolute prerogative to shield actions that, while they had a common law means of exercise, Charles did not want subjected to a judgment of legality. [51] The difference lies in the acceptance of a sphere of absolute prerogative in the Jacobean consensus precisely because it was not well-defined in law and thus stood in transcendent relationship to the legal system. However, in the arguments of Charles during the personal rule, and later in the position of parliament itself in the 1640s, we see a transformation of exceptional and emergency power being rendered immanent to a set of well defined ends; such ends then could be and were used to direct the use of law as well, rather than the rule of law being an end in itself. [52]

Although the Jacobean consensus served to connect these otherwise disparate and contradictory languages of politics together, there were certain instances where the gaps became too wide to cover over. Take, for example, the incompatibility between the civil law maxim of prescription (præscripto longi temporis) which hold that de facto possession of land may eventually result in de jure dominium, versus the denial (both legally and historically) of rights from conquest in common law ancient constitutionalism. [53] Thus, the durability of this consensus (as England itself would discover in the reign of Charles I) was located not in its premises so much as in its skillful application to circumstance. It is for that reason that one’s attention may be drawn to an examination of how the Jacobean consensus was extended and later transformed in its application to the first permanent English colonial settlement in Virginia.

Discursive Analyses of Acts of Colonization
Constituting Jacobean Virginia

Having now examined the patterns set in England itself, one may now move into a consideration of change and continuity within the colonial acts of the early Stuart era. James I’s reign brings about the first permanent English settlement in North America – Virginia.

An analysis of the Charters of the colony of Virginia highlights the continuance of the models established in English legal usage at the time under study. The requisite genuflection towards the civil law claims of other European sovereigns is present in its familiar formulation of purpose:

[T]to make Habitation, Plantation, and to deduce a colony of sundry of our People into that part of America commonly called VIRGINIA, and other parts and Territories in America, either appertaining unto us, or which are not now actually possessed by any Christian Prince or People […]. [54]

This is accompanied by the provisions for the erection of fortifications and defense, to further satisfy the prerequisites of occupation under the civil law; “And shall and may inhabit and remain there; and shall and may also build and fortify within any the same, for their better Safeguard and Defense […].” [55] Finally, the charter included the qualification against injuries committed against allied sovereigns, and the provisions thereof to make restitution or offer up the offending parties, from anyone in the colony who would “rob or spoil, by Sea or Land, or do any Act of unjust and unlawful Hostility […].” [56] Thus the civil law expectations required for the international audience of the charter were satisfied.

Also present is a statement of purpose defined in the language of theology:

[T]he Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government […]. [57]

All of this is to be expected based upon both the earlier precedents set, and by the overall contours of the Jacobean consensus.

Of greater interest is the formulation given to the creation of two Councils (one in Virginia and one in England) to govern the colony. What is most striking is the clear delineation of authority from the King to the colony, without any reference to the King-in-Parliament of the common law. It is worth quoting this section at length:

And we do also ordain, establish, and agree, for Us, our Heirs, and Successors, that each of the said Colonies shall have a Council, which shall govern and order all Matters-and Causes, which shall arise, grow, or happen, to or within the same several Colonies, according to such Laws, Ordinances, and Instructions, as shall be, in that behalf, given and signed with Our Hand or Sign Manual, and pass under the Privy Seal of our Realm of England; Each of which Councils shall consist of thirteen Persons, to be ordained, made, and removed, from time to time, according as shall be directed and comprised in the same instructions; And shall have a several Seal, for all Matters that shall pass or concern the same several Councils; Each of which Seals, shall have the King's Arms engraver on the one Side thereof, and his Portraiture on the other; And that the Seal for the Council of the said first Colony shall have engraver round about, on the one Side, these Words; Sigillum Regis Magne Britanniae, Franciae, & Hiberniae; on the other Side this Inscription round about; Pro Concilio primae Coloniae Virginiae. And the Seal for the Council of the said second Colony shall also have engraven, round about the one Side thereof, the aforesaid Words; Sigillum Regis Magne Britanniae, Franciae, & Hiberniae; and on the other Side; Pro Concilio primae Coloniae Virginiae:

And that also there shall be a Council, established here in England, which shall, in like manner, consist of thirteen Persons, to be for that Purpose, appointed by Us, our Heirs and Successors, which shall be called our Council of Virginia; And shall, from time to time, have the superior Managing and Direction, only of and for all Matters that shall or may concern the Government, as well of the said several Colonies, as of and for any other Part or Place, within the aforesaid Precincts of four and thirty and five and forty Degrees abovementioned; Which Council shall, in like manner, have a Seal, for matters concerning the Council or Colonies, with the like Arms and Portraiture, as aforesaid, with this inscription, engraver round about on the one Side; Sigillum Regis Magne Britanniae, Franciae, & Hiberniae; and round about on the other Side, Pro Concilio fuo Virginiae. [58]

From the description of the seals of the Councils to be made, one may identify the basic roots of the colonial argument that their governments existed as parallel structures under the sovereignty of the King, and thus were not directly subject to the authority of Parliamentary statute. [59]

On this view, the charter may be said to appear most strongly as an exercise of James’ absolute prerogatives. This is reinforced by the further conveyance of the powers to coin money – “And that they shall, or lawfully may, establish and cause to be made a Coin,” – and a reiteration of the authority of the colony to use force to maintain the colony against any and all who “shall attempt to inhabit within the said several Precincts and Limits of the said several Colonies and Plantations, or any of them, or that shall enterprise or attempt, at any time hereafter, the Hurt, Detriment, or Annoyance, of the said several Colonies or Plantations.” [60] Both of these provisions extend powers clearly defined as “marks of sovereignty” classified as absolute/intrinsic/royal. Therefore, this initial charter has the tone of not only of being primarily directed at an international audience who did not participate in the language of the common law, but also of the exercise of royal prerogative neither restrained nor directed by common law strictures. Even the provision most likely to carry with it the ring of the common law – that guaranteeing to the colonists the selfsame “Liberties, Franchises, and Immunities,” enjoyed by those “within this our Realm of England” – is made equivocal by its blurring of the liberties of Englishmen under the common law with those held by a subject “within any of our other Dominions.” [61] This slippage from the “Realm of England” to “other Dominions” is important for the reason that it homogenizes the liberties of Englishmen with those of subjects in those of James’ dominions (particularly Ireland) beyond the writ of the common law. The effect of this is to render inoperative any of the aspects of the common law which were thought to grant unique liberties not enjoyed under the civil law or non-English customary laws.

There is, however, one crucial deviation from this generality. In discussing the manner in which the grantees would hold and dispense the property to be acquired in the colony, the charter takes a very specific common law stance:

We, our Heirs and Successors, upon Petition in that Behalf to be made, shall, by Letters Patent under the Great Seal of England, GIVE and GRANT unto such Persons, their Heirs and Assigns, as the Council of that Colony, or the most part of then, shall, for that Purpose, nominate and assign all the lands, Tenements, and Hereditaments, which shall be within the Precincts limited for that Colony, as is aforesaid, To BE HOLDEN of Us, our heirs and Successors, as of our Manor at East-Greenwich, in the County of Kent, in free and common Soccage only, and not in Capite. [62]

As Edward Keene suggests, this reference to tenure of “the Manor of East Greenwich” is of crucial significance, for it shows the desire to create a land tenure in the new World free of feudal obligations which may detract from the desired incentive for settlers to undertake the “risks and hardships involved” in the colonial project. [63] This is the clearest example of how the possession of private property as individual dominion was to be transported to North America in a document much more focused on rather the extension of James’ powers of ­imperium through the new colonies.

The Second Charter of Virginia was granted on 23 May 1609, and, in addition to specifying in exquisite detail the enlarged extend of the Virginia Company and naming directly those to make up the council of the colony, it contains a variety of provisions strengthening the imperial character of the colony in ways unique to the experience of England itself. [64] The Second Charter contains a grant of imperium that far exceeds the ability of the Council to govern “according to such Laws, Ordinances, and Instructions, as shall be, in that behalf, given and signed with Our Hand or Sign Manual,” listed in the Charter of 1606. [65] Instead, the new council is given the grant:

[…] to make, ordain, and establish all Manner of Orders, Laws, Directions, Instructions, Forms and Ceremonies of Government and Magistracy, fit and necessary for and concerning the Government of the said Colony and Plantation; And the same, at all Times hereafter, to abrogate, revoke, or change, not only within the Precincts of the said Colony, but also upon the Seas, in going and coming to and from the said Colony, as they in their good Discretion, shall think to be fittest for the Good of the Adventurers and inhabitants there. [66]

This expansion of the power of the colonial council is further extended in two additional ways. The first is (alluded to already in the aforementioned provision of the Second Charter) the ability to simply revoke and replace any existing laws or authorities previously established in the colony. “[A]ll Laws and Constitutions by them formerly made shall utterly cease and be determined; And all Officers, Governors, and Ministers formerly constituted and appointed, shall be discharged […].” [67] The second is the explicit grant to the colonial governor of the power to declare and discharge martial law.

AND we do further of our special Grace, certain Knowledge, and mere Motion, GRANT, DECLARE, and ORDAIN, that such principal Governor, as from Time to Time shall duly and lawfully be authorized and appointed in Manner and Form in these Presents heretofore expressed, shall have full Power and Authority, to use and exercise Martial Law in Cases of Rebellion or Mutiny, in as large and ample Manner as our Lieutenants in our Counties within this our Realm of England have or ought to have, by Force of their Commissions of Lieutenancy. [68]

Taken together these provisions amplify the political powers of the colony considerably, and in ways that further distinguish it from the exercise of the King’s ordinary prerogatives through the form and manner of the common law. Indeed, The colonial company is at once empowered to “have full and absolute Power and Authority to correct, punish, pardon, govern, and rule,” and yet those powers need only “as near as conveniently may be, be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England.” [69] The reduction of the authority of the common law and statues made by King-in-Parliament to a convenience over the King’s subject in Virginia suggests again that there was little priority placed upon conducting such endeavors within the framework of consensus at play in the metropole.

Likewise, the religious provisions of the Second Charter stand out both for their minimalism and ultimate subordination to the articulation of directly political concerns. The Second Charter does allude to the need for both the Christian character of the settlements erected in Virginia, “all such our loving Subject as shall inhabit within the said Precincts of Virginia aforesaid, to determine to live together in the Fear and true Worship of Almighty God, Christian Peace and Civil Quietness,” and the underlying motive of Christianizing the native population, “the principal Effect which eve can desire or expect of this Action, is the Conversion and Reduction of the People in those Parts unto the true Worship of God and Christian Religion […].” [70] However, it is illustrative that each of these passages is followed by operative provisions that relate directly to the political concern of order within the colonies, and submission and allegiance to the King’s sovereign authority (in the form of requiring the Oath of Supremacy to be administered to any Catholics admitted to the colonies), respectively. [71]

The Third Charter of Virginia granted 12 March 1611 dealt primarily with two subjects that need not consume too much attention here. [72] The first was the extension territorially of the first colony to a number of islands which had been identified in the process of settlement and exploration of the existing colony. The other is the question of how to deal with those settlers who had rebelled, refused payment or service, returned without permission to England, or otherwise “have showed little Respect and Reverence either to the Place or Authority in which we have placed and appointed them,” both in the colony itself and in England. [73]

However, two aspects of the Third Charter are worth noting here. This first is that the language relating to the relationship between colonial laws made under the authority of the charter and the common laws of England is considerable strengthened as compared to the previous charters. After establishing the procedures to assemble throughout the calendar four “Great and General Courts of the Council and Company of Adventurers of Virginia,” the charter goes on the reaffirm the grant of imperium as follows:

And shall likewise have full Power and Authority, to ordain and make such Laws and Ordinances, for the Good and Welfare of the said Plantation, as to them from Time to Time, shall be thought requisite and meet: So always, as the same be not contrary to the Laws and Statutes of this our Realm of England. [74]

The change from a language of “as near as conveniently may be, be agreeable to the Laws, Statutes, Government, and Policy of this our Realm of England” in the Second Charter to that of “be not contrary to the Laws and Statutes of this our Realm of England,” in the third Charter is significant. There is a much clearer sense in the latter document that the common law may define boundaries beyond which the delegated authority to exercise power in the colonies may not extend. However, this is not to say that the charter suggests any direct equivalence between colonial and common law. A particular example of this distinction is found later in the Third Charter in the discussion of the manners in which the aforementioned “offending” individuals may be legally bound and/or punished:

That in all such cases, they our said Council, or any two of them for the time being, shall, and may have full Power and Authority, either here to bind them over with good Sureties for their good Behaviour, and further therein, to proceed to all Intents and Purposes as it is used in other like Cases, within our Realm of England; Or else, at their Discretions, to remand and send back the said Offenders, or any of them, unto the said Colony in Virginia, there to be proceeded against and punished, as the Governor, Deputy or Council there, for the Time being, shall think meet; Or otherwise, according to such Laws and Ordinances, as are and shall be in Use there, for the well-ordering and good Government of the said Colony. [75]

Clearly in the passage, the laws of the colony and England are acknowledged as being “otherwise” from one another. This further highlights the distinction drawn earlier between the unique liberties of Englishmen under the common law, and the more generic liberties of subjects of all of James’ dominions guaranteed under each of the Virginia charters.

The shift from authority to be exercised under “Our Hand,” [76] to authority free to exercise “good Discretion” in defining what is “fittest for the Good,” [77] or “for the well-ordering and good Government of the said Colony” [78] may be said to be the difference between colonial government as an expression of the sovereign’s prerogative, to colonial government in the manner of sovereign prerogative. In other words, the transformation of he colony as an effect of imperium, to the colonial council as wielder of imperium (albeit imperium still merely on loan from James).

Interaction between Settlers and Indigenous Peoples in Virginia

Up to this point I have been considering the discourse propagated by the colonial charters in relation to the legal backgrounds of English domestic and European diplomatic practice. While this has resulted in findings of some intrinsic interest, when placed in the context of the interactions between settlers and the indigenous peoples of America, these developments are brought to wider conclusions. Robert A. William’s The American Indian in Western Legal Thought: The Discourse of Conquest tackled this era and its legal implications long before I began to, and in far more detail than this paper has space. I then self-consciously retrace William’s narrative of analysis in much of what follows.  

It is notable that the Virginia Company, after vigorous internal debate, decided against presenting a public justification of their title to lands in Virginia, not only to avoid the inevitable debate with Spanish and other Catholic interlocutors, but also to sidestep the issue of legitimate possession vis-à-vis the native inhabitants and occupants of North America.

Because therefore, we shall be put to defend our title, not yet publicly quarreled, not only comparatively to be as good as the Spaniards . . . but absolutely against the natural people: some thought it better to abstain from this unnecessary way of provocation, and reserve ourselves to the defensive part, when they shall offer anything against us. [79]

Certainly any claims to be merely improving parcels found terra nullis is vitiated by the practical situation on the ground early in the life of the Jamestown Colony. As Williams writes:

Jamestown colonists were initially surprised by the Tidewater Indians' relatively advanced degree of settled habitation of their own country. Tribal villages contained houses and gardens, as well as numerous tools and decorative artifacts. The Indian settlements were scattered throughout the Tidewater region, and while the English had referred to the country as “ill-populated,” Powhatan's early-seventeenth-century confederacy may have included as many as 9,000 individuals. The vastly outnumbered English settlers at Jamestown had no choice but to seek peaceful Indians’ agreement to their plantation colony. Shortly after arriving, thy 145 colonists gladly purchased the right to settlement by a payment in copper (highly prized by the Indians) to one of Powhatan’s tributory tribes, the Paspahegh. [80]

Indeed, with Captain Christopher Newport’s return to the colony in 1608, he was instructed to perform a coronation ritual for Wahunsonacock (Powhatan), thus signifying his position as a vassal of King James (an act which Powhatan comprehended and sidestepped accordingly). “The presumptions of English Crusading-era-derived legal discourse denying infidel dominium were yielding to the emperor’s superiority respecting forces on the ground in America.” [81] In fact, it was rather the colonists who were much in the dependency of Powhatan - in particular for a stable food supply [82] - even during the time after which Captain John Smith had instituted military rule under the provisions of the Second Charter. [83]   This continuing dependence, and the resulting inchoate exercise of the King’s grant of his absolute prerogative, was one of many factors that lead to a change in the leadership of the colony, and eventually the issuance of the Third charter.

Sir Thomas Gates, the newly appointed colonial Governor, was given the following instructions in regards to relations with the natives:

[…] and in case of necessity or conveniency, we pronounce it not cruelty nor breach of charity to deal more sharply with them and to proceed even to death with these murderers of souls and sacrificers of god's images to the Devil, referring the consideration of this as a weighty matter of important consequence to the circumstances of the business and place it in your discretion. [84]

This harder line to be taken in the possession of Virginia was not mere rhetoric either. The level of support and number of settlers sent forth by the company in the years 1609-1611 is testament to this new strategy, as Williams writes:

Virginia Company's full-scale invasion of America was formally inaugurated with the departure from London of Governor Gates's fleet of 800 men, women, and children for Jamestown in May 1609. Another fleet, headed by Lord De La Warr left port in April 1610 with 150 passengers and 3 ships. Sir Thomas Dale, named knight marshal of the colony shortly after his arrival, left England with 300 individuals bound for Jamestown in March 1611. Dale wrote back to London that with 2,000 men released from the jails of England he could easily clear Virginia of Powhatan's people, or at least bring them quickly under English subjection. [85]

Thus was the fear of “Governors of colonies who had military backgrounds […] attemp[ing] to rule their colonies as they were accustomed to ruling their regiments,” born out. [86] This increased force, in conjunction with a native prophesy which had predicted that a “nation” would emerge from the Chesapeake to destroy his empire, Powhatan took a tougher line as well, leading to the period of hostilities know as the first Anglo-Powhatan War. [87]

Relations between the settlers and the natives only worsened after the death of Powhatan, and his succession by his more militant brother, Opechancanough, in 1618. [88]   As one of the greatest sources of tension lay in the encroachment of English settlers in the outlying regions of Opechancanough’s confederacy, the new Governor, George Yeardley, had agreed that any new settlements would need Opechancanough’s express approval. This agreement led directly to Barkham’s Case, where a colonist argued (unsuccessfully) his rights to land title under an agreement made with Opechancanough and approved by Yeardley before the Virginia Company, sitting as Court. [89] As Williams writes, this case set a clear precedent for the unrestrained exercise of imperium in order that the King’s sovereignty might be firmly establish in Virginia by conquest:

Any rights the company possessed to grant lands in America, therefore, had to derive from the king’s prerogative powers of conquest assigned to the Virginia Company under the king’s charter. […] The king, by charter, has assigned his prerogative rights as English sovereign to the company to conquer his perpetual enemies and acquire dominion over their lands. In essence, the company had been authorized to extend English sovereignty over America. […] The presumption in the lack of sovereignty in the infidel emperor thus contained its own imperatives for conquest, for conquest was the only method left for effectuating the king’s sovereignty over a savage who would not yield his dominion. [90]

It was soon after the decision was handed down in Barkham’s Case that the company back in London received word of the “massacre” of settlers in 1622. [91]

When news of the Indians’ commencement of hostilities in what became know as the second Anglo-Powhatan War reached London, the final restraints of legal and philosophical nicety was stripped from the Virginia Company’s colonial project. The war was now to be openly a war of conquest. Edward Waterhouse, the company’s lawyer charged with writing the official account of the “massacre” shied not away from the radical implications of the new policy:

Because the way of conquering them is much more easy than of civilizing them by fair means, for they are a rude, barbarous, and naked people, scattered in small companies, which are helps to victory, but hindrances to civility: Besides that, a conquest may be of many, and at once; but civility is in particular, and slow, the effect of long time, and great industry. [92]

Were this radicalization but an aspect of the theory of empire alone; rather, the events of the second Anglo-Powhatan War that followed saw the colonists exact their revenge by a disproportional response, which included visiting death on the indigenous population by means such as “giving poisoned wine to 200 Indians, ambushing another fifty in 1623, and by killing 800 in battle in July 1624.” [93]

Although the Virginia Company was “successful” in their war to overthrow Powhatan power, the episode would also begin to close the Jacobean era of governing colonies “at a distance” through chartered companies. As John C. Appleby writes:

Though Virginia survived, the attack sounded the death-knell for the Company, which was abolished by royal decree in 1624. Thereafter it became the first royal colony in the New World, a development which had important long-term implications for English Imperial authority. [94]

Similarly, James Axtell calls the second Anglo-Powhatan War the “coup de grace” to the Virginia Company’s wielding of Stuart absolute prerogative. [95] Maybe this legal “execution” of the Virginia Company was well warranted, after all, as Francis Jennings writes:

Of the 8,000 dead immigrants, 347 had been killed in the Indian massacre.  If Indians deserve a bad name because of the 347, what might the Virginia Company’s gentlemen deserve to be called for the other 7,600? [96]

While the answer to Jennings’ moral question seems clear enough after 400 years of hindsight, a more detailed evaluation of Jacobean Virginia for English and American legalism remains.

Reflections on English Legalism in Early Stuart Colonialism
Implications for Arguments about the Jacobean Consensus

Like in later events of the 1630s, questions could be raised about the application of civil law or theological arguments, and the absolute prerogative powers they justified, in contexts where the common law had jurisdiction. [97] This may be seen in the evolution of the Virginia Charters, for even as restraints were removed from the Company’s dealings with the Indians, increasingly common law norms were advanced for the internal governance of the colony. This makes sense in that the arguments from emergency and convenience, acceptable under civil law, lose their rhetorical force the longer and more regularized the settler society in America became.

Eventually the shared mentalité of the common law mind, containing both a coherent language of politics in its own right, and hegemonic rules for using other languages such as the civil law and theology, was destroyed by a crisis in confidence of the law itself. [98] This crisis was brought about by both the use of absolute prerogative in ways incompatible with the underlying consensus, and a failure of Charles to utilize his absolute powers in the military and diplomatic spheres in ways sufficient to the ends expected (especially in religious terms). Jonathan Scott refers to this problem as that of an unreformed polity and reformation politics. [99] When the English audience – used to relying on the common law as the foundation of not only domestic law, but also defining the proper role for non-domestic forms of law – begins to see the common law used merely as a move in the contest to govern, and not the rules of that contest, its function as a hegemonic language is lost. [100]

Implications for Arguments about Native Sovereignty and Title

The practice of English colonization in the early seventeenth century is relevant for those who concerns lie with the status of American Indians in the twenty-first by virtue of the deep and lasting impact of the colonial legal framework on American Indian law. As Vine Deloria, Jr.  and David E. Wilkins write, it has been these principles – not those enshrined in the Constitution of 1787 -  that have guided the US government’s approach to the legal status of tribal peoples and lands:

1.      The land was believed to ultimately belong to the United States [as the British Empire before it], although Indian tribes were recognized as holding a lesser title of occupancy that they could cede to the federal government without duress.

2.      Indians were culturally and intellectually inferior to Europeans and Euro-Americans.

3.      Indian tribes must nevertheless be treated as nations capable of entering into diplomatic negotiations and making war. [101]

Just from the analysis conducted in this paper, it is clear that these principles - while undoubtedly present in various forms – were in great flux at the beginning of the English colonial project. Thus, an understanding of that period gives purchase to contemporary arguments that seek to denaturalize the extension of English (then British, and later United States) sovereignty over the native peoples of North America. Given the lasting impact on American Indian law of English colonial practice towards native Americans, it seems just to employ a reevaluation of those practices is the cause of contemporary native legal rights. Otherwise the dark cultural legacy of colonialism remains the historical “hauntology” of the law today. [102] For as Francis Jennings writes of the discourse of seventeenth-century colonialism:

The logic is simple, faulty, and compelling as that of most other fallacies: Civilization is that quality possessed by people with civil government; civil government is Europe’s kind of government; Indians did not have Europe’s kind of government; therefore Indians were not civilized. Uncivilized people live in wild anarchy; therefore Indians did not have any government at all. And therefore Europeans could not have been doing anything wrong – were in fact performing a noble mission – by bringing government and civilization to the poor savages. [103]

Thus our contemporary legal practice is heir to both those early modern jurists who argued for the rights of indigenous peoples to their territorial and social existence outside of the sovereignty of a European prince, and also those legal justifications for spreading “civilization” at the points of the bows of settlers’ ships, the pens of monarchs exercising absolute prerogatives, and the cutting blade of the sword. [104]  

Avenues for Future Research

As noted in the introduction, this paper is part of a larger work in process which addresses the contours of the transformation of sovereignty in seventeenth century English domestic, British imperial, and European diplomatic practice. The direct follow-up on the discussion concluded herein will be to extend this analysis to cover two other key periods in the English colonization of America: the period extending from the personal rule through the interregnum, and the era between the Restoration and the Glorious Revolution.

This paper covers the foundational period for English colonialism, but it also brings that era to a close with the royal dissolution of the Virginia Company, and subsequent application of direct control by the crown. This may profitably lead into a discussion and investigation of how direct rule under Charles I modified the trends in colonialism’s legal framework identified in the Jacobean era. This analysis might also provide the opportunity to compare the exercise of absolute prerogatives in the colonial context with the conflict engendered by their use in England itself (with particular attention paid to the Five Knights’ case and the Ship Money controversy). An additional reason behind extending this analysis to include the middle of the century will be to subject Donald Lutz’s claim that such colonial documents as the Providence Agreement of 1637 and the Piscataqua River Combination of 1641 leapfrog the metropole by a decade or so in establishing the principle of popular sovereignty in English common law. [105] Eventually, such analysis could be expanded to include a consideration of sovereignty in the colonial context in relation to developments in England such as the Civil War, Interregnum, the reign of Charles II, and the restoration crisis leading to the Glorious Revolution of 1688.

Finally, this analysis may be brought to bear on the revisionists’ arguments that challenge the exclusive character of Westphalian sovereignty norms in defining modern international relations.  As Edward Keene writes:

To have an adequate conception of order in modern world politics, we have to go beyond the orthodox theory of toleration, reciprocal recognition, and territorial sovereignty in the European states-system, and we need to appreciate the importance of the idea of civilization not merely as a standard for regulating the entry of new states in international society, but also for validating and entirely different set of rules and political institutions in its own right. [106]

My objective in this paper has been to begin the specification of what form those “rules and political institutions” took in Jacobean Virginia as the means for analyzing the impact of this “other” system of world order in the English conception of sovereignty. Hopefully, the analysis begun here may fruitfully be extended to improve our understanding of the wider seventeenth century of “England’s troubles.” [107]