Common and Civil Law? Taking Possession of the English Empire in America, 1575-1630 (1)
MacMillan, Ken, Canadian Journal of History
Most historians inform us that the legal foundations of the English empire in America were based on the common law. Founded on ancient custom and interpreted by important writers such as Ranulf de Glanvill, Henry de Bracton, and--in the Tudor and Smart period--William Lambarde, Edward Coke, and Matthew Hale, this unique legal code provided all that the English needed to know about taking possession of property. (2) This argument has much to be said for it, particularly when examining the various colonial charters issued between about 1575 and 1630. In this respect, the work of Viola Barnes and Charles Andrews, and more recently Patricia Seed and Christopher Tomlins is noteworthy. (3) These authors have argued that the precedents of land possession in common law were drawn upon in the authorization of settlements in North America. In Barnes's words, "the soil was granted under the time-honored tenurial conditions of landholding in England." (4) Settlers were issued a charter similar in form and function to those issued to English landlords. They were usually awarded a specified parcel of land, were given their tenure in "free and common socage" or in "knight's service in capite"--two of the most common forms of tenure in England--and were given explicit instructions to "inhabit or remain there, to build and fortify," common legal language requiring "improvement," or the practical, agricultural, use of land. The settlers owed the king homage according to the nature of their tenure, which was usually expressed in terms of money, commodities, or military and administrative service. All of these were in accordance with the English monarch's ordinary prerogatives--those rights of the king that were governed by the customary common law--and English property laws. Thus, when the colonists landed and built houses, tilled fields, and erected symbolic four and a half foot fences around a quarter acre of land for every 200 acres granted, they were mindful of the common law, as Patricia Seed, in particular, has informed us. (5)
Scholars offer a couple of reasons why the English used their common law when taking possession of the new world. For well over a century, legal and constitutional historians, such as F.W. Maitland and J.G.A. Pocock, have argued that the English people's preference for common law encouraged them to eschew continental legal traditions, which were based principally on Roman, or civil law. (6) This meant that England possessed a unique legal climate and that, therefore, in terms of seeking legal foundations for the English empire in America, common law was the only code that could be drawn upon when preparing the colonial charters. Other writers, such as Seed and John Juricek, argue that fundamental linguistic differences, and the use of indigenous, vernacular languages when defining terms such as "possession" and "occupation", meant that there could not be a uniform "international" code governing property law. Because there was no such universal body of laws regulating the possession of terra nullius (empty lands), the English turned to their ancient and intelligible common law. In their minds, this principally involved taking, improving, and defending the land, as any medieval English lord would be required to do in those lands that he was granted by charter from the king. (7) Based on the orthodox view of the clear supremacy of common law in England, then, it is understandable why historians turn to this legal code when considering land possession in the new world.
As historians such as Glenn Burgess, Brian Levack, and Johann Sommerville have recently suggested, however, it is no longer feasible to argue that England was myopically common-law minded, given the renewed reception and teaching of civil law in England after the 1550s. (8) The various writings of Francis Bacon, John Davies, Alberico Gentili, and John Selden, to name just a few of the better-known examples, show the acceptance of European civil law and its derivatives in England. …