Ken MacMillan has written an important book of interest to historians of the British Empire, early America, the Atlantic world, and the law. In this meticulously designed study, MacMillan argues that the English Crown drew on the mixed legal settlement of sixteenth-century England, especially deploying Roman law, in making its claims to the New World between 1576 and 1640. Roman law was uniquely useful to the Crown in its expression of imperial (as opposed to domestic) rights. These legal claims helped to define England as an empire amid a world of competing states.
MacMillan builds his argument carefully by examining different types of sources in each chapter and by scrutinizing these sources for the information they yield on how the Crown expressed its sovereignty and its rights to possession, specifically against the claims of rival European powers (as opposed to the rights of indigenous people, a subject that historians consider more frequently). Chapter 1 explores the legal pluralism of early modern England, looking at the different contexts in which Roman law and common law functioned. In chapter 2, MacMillan resurrects John Dee, who he argues has been overlooked by scholars long distracted by the voluminous writings of Richard Hakluyt. Dee's legal advice to Elizabeth I, especially between 1576 and 1580 and most fully crystallized in his manuscript, Brytanici Imperii Limites, helped establish the legal foundations for English claims to the New World. Chapter 3 takes an innovative look at different forms of land tenure and particularly at the letters patent that undergirded English claims. These documents, as MacMillan reminds us, were public texts, intended for display to other Europeans. In chapter 4, MacMillan turns from paper to stone, mortar, and wood, looking at the role that fortifications played in establishing English rights overseas. Roman law required that a claimant follow up on a discovery of new land and the assertion of a right to it in letters patent by occupying that land physically. Fortifications, MacMillan suggests, performed an international function by demonstrating an occupant's commitment to permanence and security. Maps constitute the main source base for chapter 5. Maps reproduced for circulation outside the British Isles differed from those circulated at home. MacMillan's interest is not the accuracy of these maps, but rather what they tell us about what cartographers wanted others to know about places the English claimed and occupied. Like letters patent and forts, maps also established claims to rightful occupation for a public and international audience. MacMillan's final chapter looks at the treaties and diplomatic activity that most explicitly addressed international rights. He offers two case studies: the Treaty of London that concluded the Anglo-Spanish War, and the protracted English and French negotiations over a wide swath of North America that resulted in the Treaty of St. Germain-en-Laye in 1632. Together, these chapters establish England as a kingdom operating on an international stage, drawing on the same international language used by European rivals in order to claim dominion overseas.
Among this book's many important contributions, four are especially noteworthy. First, MacMillan restores the Crown to a central role in overseas enterprises. In recent years, historians have emphasized the private nature of expansion, and their attention to the many different investment consortiums that funded and organized English ventures around the globe has distracted them from the important and unique role of the monarch. MacMillan corrects that oversight here. He does so by connecting the Crown to the legal pluralism of early modern England, and this is his second accomplishment. If common law governed the Crown's domestic authority, Roman law was essential for international, imperial, claims. The common law had no jurisdiction on lands outside England. This legal pluralism, moreover, demonstrates that England deliberately engaged in the creation of a doctrine of international law, one essential to adjudicating the claims of rival states, all of whom needed to find a common legal language in which to articulate their rights and claims. MacMillan's legal approach enables him to explain events that might have puzzled some historians. For example, it might seem surprising that the Protestant English did not challenge the legitimacy of the papal bull, Inter caetera, of 1493: rather, the English supported the bull and used precisely the same legal language to legitimize Elizabeth's own claims, embodied in her letters patent, to overseas territory. If the pope held imperium, so too did the English Crown. English claims were thus always mediated by the actions of rivals. MacMillan's international perspective constitutes his third major contribution. His emphasis on the global nature of English claims to territory in the New World joins David Armitage's approach in The Declaration of Independence: A Global History [Cambridge, MA, 2007]) as part of an important effort by historians to restore nations and empires to the international settings that created and shaped them. Fourth, and finally, MacMillan employs an impressive and imaginative array of sources in the careful construction of his argument. He takes a fresh look at some familiar maps, turns to the formal language of letters patents, and considers colonial fortifications in a new light. He connects the legal culture of early modern England with the kingdom's overseas ambitions. He draws innovative connections as he links different representations of royal authority overseas. This accumulated and diverse body of evidence enables him to build a persuasive argument, and throughout he prods the reader to consider old and often overlooked sources in novel ways. Sovereignty and Possession is a thoughtful, original, and authoritative book that deserves a wide readership.
