Moving from the vast ‘Atlantic Vector’ and its role in stimulating international legal developments, I now turn to a much narrower ‘sub-vector’ concerning legal rela-tions between the British metropole and its settler subjects who ultimately formed the sovereign United States of America. As a contextual matter, England found it-self advantaged by a ‘privilege of backwardness’ whereby innovations (including legal interpretations) developed elsewhere could inform its own practices, yet could also bypass the need for consistency with the traditions of the society that produced the original innovation. This was demonstrated through the ways in which English-men were able to legitimize their own colonial venture through invoking arguEnglish-ments formulated by Spaniards in the New World. However, when it came to the material social-relations that shaped colonial ventures, using Spanish arguments did not bind the British to Spanish practices, and the limitations that accompanied them. As dis-cussed above, the Spanish mode of colonial authority was highly centralized in that the King maintained ultimate title over New World lands due to fears that governors becoming feudal lords would undermine absolutist authority. The result was an ever-increasing need for direct extraction of mineral resources that stifled other modes of innovation.
By stark contrast, England’s New World colonization was more decentralized and principally enabled through the issuance of a diverse array of company charters where the monarch granted the charter-holder authority over a claimed territory for the purpose of fulfilling the charter’s terms.113 While issuance was rooted in a source of dynastic authority, the actual process of colonial administration was the responsibility of the named charter-holder resulting in a flexible hybrid synthesis of public and private authority.114 Within this plurality of colonial projects, decen-tralization allowed for multiple sites of innovation, the results of which were trans-ferable to other sites of colonisation. This culminated in an aggregate process of innovative circulation unavailable in centralized colonial projects. However, any effort to account for innovation in this context must confront the deeper social re-alities that enabled it. Considering England’s above discussed capitalist consolida-tion, and its production of high (and potentially redistribution-oriented) concentra-tions of dispossessed peasants, the question of manpower provision for these over-seas ventures was largely settled.115 This is to say nothing of how assertions by the indigenous peoples impacted by these colonial projects were consistently under-mined.
113 For a study of these various charter-based colonisation projects and the modes of legality gener-ated from them, see Tomlins 2001. For a placement of these charters within the evolution of Euro-pean legal thought over centuries, see Cavanagh 2017b.
114 On this point, one particularly interesting feature of the royal charters issued by the English Crown is that subject to a few exceptions (namely) the territories were described as the ‘Manor of East Greenwich in the County of Kent’ and, on the question of land rights, their holders received
‘…an extremely unencumbered tenure…in free and common soccage.’ Keene 2002, 65. Curiously, there is little evidence that this so-described manor ever actually existed as an actual estate in land.
For studies, see Cheyney 1905; McPherson 1998. A possible interpretation of why various North American lands where labelled as non-existent English manor is to view this formula as a hybrid artifact of the transition from feudalism to capitalism. On this reading, the ‘Manor of East Greenwich in the County of Kent’ designation played fealty to feudal rituals of land transfer, while at the same time used a standardized fungible labeling system as a means of legitimizing capitalism’s production of fictitious juridical rights-bearers abstracted from their material social conditions.
115 This labour surplus was supplemented by the introduction of harshly putative legislation against vagrancy and indebtedness. The result was a great deal of coercion in the making of a colonial work force whereby indentured servitude as criminal penalty or debt repayment acted as additional means of providing labour for overseas expansionist projects, see Neocleous 2012, 949-952.
To understand these colonial structures and their consequences, our attention must turn to a mode of English property ownership that was absent in the Spanish colo-nial context. While the Spanish colocolo-nial dilemma centred on the threat of feudal land ownership potentially extending beyond Europe, this complication was side-stepped in England through an innovation deemed ‘allodial title.’116 Developed to determine the status of vacant English (and Dutch) wetlands made amenable to ag-riculture and habitation by deliberate efforts, the label ‘allodial title’ characterized these lands as belonging to those who exerted the labour that transformed them.117 Moreover, title attained in this capacity was free and clear of feudal encumbrances or obligations due to a lack of any prior ownership.118
On this basis, analogies were drawn between the results of land reclamation projects in Europe and lands transformed through colonial settlements outside Europe on the grounds that the latter also existed outside the accumulated body of interests and obligations in land that defined feudalism (and its attendant social relations).119 Through this means of determining rights to colonial land, the English avoided the king versus lord ownership debate that was an extension of the late-feudal intra-ruling conflict between centralizing absolutism and the decentralized nobility so prominent in continental Europe. Linked to this broader transition from feudalism
116 Here it must be noted that it was in the seventeenth century that English common law’s conflation of ‘land’ as a tangible object with ‘property’ as an abstract right became fundamentally entrenched.
This transition can be observed in the writings of the highly influential English jurist Edward Coke whereby: ‘Coke’s Reports, published from 1600-1615, treat property in goods as separate to own-ership of land [yet] Coke’s Institutes, from 1628, use the terms more interchangeably, and generalise land and goods as property.’ Jones 2019, 195.
117 Keene 2002, 62-64.
118 Ibid 64-65.
119 Ibid 65-66. On the continued legacies of feudalism/allodial title in the frustrating of indigenous land rights claims in areas subject to colonization, see e.g. Bennet 1978; Edgeworth 1994; Hepburn 2005.
to capitalism (especially in its colonial contexts), allodial title is particularly note-worthy in two respects, both of which were tremendously consequential in bringing about the American Revolution.
Firstly, lands not subject to feudal encumbrances could have their ownership trans-ferred with a substantially greater degree of ease since there were no interests vested in feudal stakeholders able to contest alienation.120 Thus, allodial title, and its colo-nial applications, immensely contributed to the capitalist ideal of free property transactions between juridically equal parties conducted in a rational, legible man-ner unbound by adherence to pre-existing hierarchies and traditions.121 Such influ-ence was readily apparent in the broader context of extra-European acquisition where post-feudal practices of centrally registering enclosed property occurred in England’s colonies long before they were comprehensively entrenched in England itself.122 This process, and its situating of virtuous property-ownership in contrast to racialized notions of savagery, necessitated a substantial amount of theoretical justification. Amongst the most influential of these formulations was John Locke’s 1689 Second Treatise on Government and its grounds for dispossessing indigenous peoples.123 Through invoking this text’s moral ontology of land improvement as essential for the satisfaction of human needs, absolute property rights could be claimed by those who productively exerted their labour over land at the expense of those who occupied the same land, yet did not ‘improve’ it.124
120 On the various ways in which feudal encumbrances could impact the free alienability of property in land, see Gray 1883; Throne 1959.
121 As Henry Jones has recently argued: ‘Colonialism was a necessary condition for private property to be possible, both in material practice and conceptually.’ Jones 2019, 202.
122 Ibid. 190-191.
123 See Ibid. 199-201.
124 According to Locke’s classical account of the creation of property:
The labour of his body, and the work of the work of his hands, we may say, are properly his. Whatsover then he removes out of the state of nature not pro-vided, and left it in, he hath mixed his labour with, and joined to it something that is own, and thereby makes it his property. It being by him removed from
Turning to how English colonialization was able to draw upon earlier Spanish jus-tifications, a synergistic link can be forged between Locke’s theories and those of the famed ‘School of Salamanca’ jurist Francisco de Vitoria.125 By invoking Vito-ria’s claim that all peoples were under a universal duty to permit entry to those seeking the establishment of peaceful commercial relations, the English could le-gitimize their presence in the New World.126 Building on this initial justification of physical presence, they could then invoke Locke’s theory of property to deny that indigenous peoples actually owned the lands they inhabited.127 Through this Vito-ria-Locke framing, the English could situate their parochial material interests within the presumptively universal sphere of the law of nations. At the same time, they escaped Vitorian discourse’s feudal backdrop by invoking a capitalism-friendly no-tion of land acquisino-tion through actual occupano-tion that fit within a progressive con-ception of history alien to earlier medieval reasoning.128 This stood in stark contrast to the earlier justifications of discovery and conquest relied upon by the Spaniards in their colonization of the New World.129
the common state nature hath placed it in, it hath by this labour something annexed to it, that excludes the common right of other men.
Locke 1764 [1689], 216-217 (emphasis in original). On the inability of an idle individual to com-plain of this arrangement, see Ibid, 221. On the application of this frame to the uncultivated spaces of America, see Ibid. 226.
125 For analysis of Vitoria’s thought, see Chapter II, Part 2.3.
126 On the influence of Vitoria and the School of Salamanca in England, see Fitzmaurice 2014, 59-84.
127 See Arneil 1996; On the way in which Locke’s theory of property was uniquely edifying of cap-italist expansion through commodification of land via his theory of money, see Ince 2018b, 38-73.
128 On the progressive historiography of occupation in contrast to other modes of territorial acquisi-tion (and thus differentiating Locke from Vitoria), see Fitzmaurice 2012, 853.
129 By this medieval versus modern modes of thought, there long-term issues entailed by maintaining authority on the basis conquest in the context of inter-societal relations that demanded a delicate balance between the submission and the accommodation of the vanquished, see Benton 2018. Here it can be argued that an important site for England’s general abandonment of the traditional doctrine of conquest was its colonial experience in Ireland in the late sixteenth century. Here, traditional
Secondly, allodial title contributed to affirming capitalism’s foundational ideologi-cal distinction between politiideologi-cal sovereignty and private economic rights. This was readily observable in seventeenth century England where the individualistic, enclo-sure-focused exercise of land rights coincided with the demilitarization of the old feudal aristocracy and consequent transfer of property-protection responsibility to a depersonalized constitutional-parliamentary state that maintained the monopoly on legitimate coercive force.130 Furthermore, this dynamic was strongly imbricated in the process of colonial expansion. Here the consolidating doctrine of public sov-ereign prerogative over foreign relations was tempered by the need to resolve ques-tions of private rights emerging at common law as they related to individual claim-ants involved in colonial endeavours.131
While contradictory at one level, addressing the issues of state authority versus in-dividual rights raised by the intertwined processes of capitalist transition and over-seas colonization was a source of innovation in and of itself. Relatedly, the modes of colonial legality that proliferated in this context, when viewed through a modern lens, constituted a variable hybrid of the regime of legal relations between inde-pendent sovereigns (i.e. the laws of nations) and the extraterritorial extension of domestic law.132 It was through the production of these innovations that the ideo-logical fault lines between public-private, political-economic, and national-interna-tional began consolidating into their modern forms.
claims to Ireland by conquest that extended back to 1171, but lapsed due to local reclamation in all territories beyond Dublin and its surrounding eras. This prompted the colonial governor Sir John Davies to claim that such practices were inapplicable to the ‘barbarous’ Irish Catholic tribes whose decentralized authority structure rendered conquest impractical given that there was no one central-ized source of authority to submit to the terms of the conquest. Carty 1996, 32-33; see Davies 1988 [1612]. For further studies of Davies’s impositions in Ireland, see Pawlisch 1985; Orr 2014.
130 For the leading historical study of this institutional transformation, see Brewer 1990.
131 Koskenniemi 2017, 357.
132 See Koskenniemi 2016b, 251.