Law and history
From the 1970s historians began to emphasise that the English colonised America not by settlement but conquest. The lands of Amerindians were seized by force of arms, just as the Spanish had conquered Mexico and Peru.1 More recent studies have emphasised that English colonisers were uncomfortable with the language of conquest and employed natural law arguments that were more appropriate to agricultural settlers than to conquistadors.2 It is argued that these natural law claims underpinned the development of a commercial ideology of expansion. The use of the argument of terra nullius, for example, is said to reveal assumptions about the exploitation of the land that would underpin the expansion of commerce in the seventeenth and eighteenth centuries. Each of these interpretations, whether emphasising conquest or natural law, has drawn material from the early modern English tracts justifying colonisation to support their argument. Both would have that literature to be more coherent than it is. In fact, English promoters of colonies in the first century of colonising plans employed a whole battery of frequently conflicting arguments. These arguments were not only incoherent between authors and across time, but often the same author would resort to a range of mutually contradictory arguments.3 In this chapter I consider not only the use of ideas associated with the justification of agricultural colonies and conquest but also two arguments concerning the justification of colonies which have been ignored by historians. First,
1 See, for example, Francis Jennings, The invasion of America: Indians, colonialism, and the cant of
conquest (New York, 1975); and Robert A. Williams, Jr, The American Indian in western legal thought:
The discourses of conquest (New York, 1990).
2 See, for example, Anthony Pagden, Lords of all the world: Ideologies of empire in Spain, Britain and
France c.1500–c.1800 (New Haven, 1995); Richard Tuck, The rights of war and peace: Political thought
and the international order from Grotius to Kant (Oxford, 1999).
3 Cf. John T. Juricek, 'English claims in North America to 1660: a study in legal and constitutional
history' (Ph.D., University of Chicago, 1970); John T. Juricek, 'English territorial claims in North
America under Elizabeth and the early Stuarts', Terræ Incognitæ, 7 (1975), pp. 7–22; Christopher
Tomlins, 'The legal cartography of colonization, the legal polyphony of settlement: English intrusions
on the American mainland in the 17th century', Law and Social Inquiry, 26, 2 (2001), pp. 315–72.