In the fall 2010 edition of the IJM there appeared a description of international law during “the Age of Discovery” and, in particular, the legal debate surrounding Portuguese and Spanish claims to new territory. As was mentioned, when other European powers began to establish empires of their own, they challenged the colonial monopoly that the Iberian kingdoms had tried to entrench in law. Of this law, Francis I of France had wryly asked, “could someone please show me the clause in Adam’s will excluding us from the division of the world?” and the French obtained one of the first, formal derogations from the Iberians’ claim to exclusive presence in the “New World” in the peace of Cateau-Cambresis of 1559. Thereafter, the French, Dutch, and then English began to assert their own titles to overseas lands and to establish their own possessions and empires. 

As a first premise, these powers disregarded the pope’s legal clout to decide temporal matters, the original basis for the Iberians’ entitlements; then, as the Reformation got underway and the Catholic faith and pope’s authority were undermined more generally, a new basis for land titles, access to the seas, and trading rights – and international law in general – was elaborated by a group of philosophers starting with Hugo Grotius. In place of the universal truth of Christian faith that had proved so utterly contestable in the Wars of Religion, Grotius posited a moral code derived from a theoretical state of nature in which humans notionally existed prior to the establishment of society. There, natural law was based on the ideal of self-preservation, which allowed for a minimalist morality by which humans could, simply, “defend [their] life…[and] acquire for [themselves]…those things which are useful for life.” One of the many things that made Grotius’ premises so novel was his imagining the moral equivalence of a person in a theoretical state of nature, and a state in the international system – and his reason for doing so was not simply abstract philosophy, but rather, a desire to develop a legal justification for the activities of Dutch merchants in what were then called the East Indies. Because of the right of an individual to acquire goods in the state of nature, the Dutch could trade in the East; moreover, the Portuguese could not try to proscribe access to the East by claims to political control of the seas, because people could not claim exclusive control of something “constituted by nature” like the air or the sea, for which “common use is destined for all men.”

Like the Iberians, the powers of northwestern Europe had a seafaring tradition; the English and the Dutch, for example, had long been engaged in shipping rye and timber in the Baltic and also fishing in the North Sea and North Atlantic. Soon they were venturing much further. Only a few years after Columbus landed in the Caribbean, John Cabot – a fellow Italian though sailing under the standard of the English king – reached Newfoundland in 1497 and claimed it for Henry VI. In the late 1570s, Sir Francis Drake followed the Portuguese east around the south Cape in search of commercial “opportunities” in Asia; his detractors, and the victims of his acts, considered him little more than a pirate. A decade later, Sir Walter Raleigh sought to establish a colony in Virginia that, though it floundered, was followed by the successful and enduring Jamestown settlement, founded on 14 May 1607. In 1600, Queen Elizabeth I also chartered the East India Company, to compete with the Dutch in India, Indonesia, and places east – just as Jamestown and a formal refusal during negotiations in 1604 to recognize Spanish privileges in America signaled English ambitions in the west.

The early modern British Empire differed markedly from its Spanish counterpart. The first Spanish claims in America had been based, in part, on res nullius, the ancient Roman principle that unoccupied land was free to claim. However, the discovery of the Aztec and Inca empires had proved America was most definitely not unoccupied, and so Spain became more concerned with asserting rights over people, not property.

The English returned the legal debate to one over property, with John Locke being the most important thinker in this regard. Grotius had insisted individuals could make use of uncultivated lands, in keeping with their right to self-preservation, even though an overlord might still retain technical jurisdiction. Locke built on and went beyond Grotius’ theory and, in the Second Treatise, developed his “labor theory of appropriation” which posited that the labor one put in to land was what provided for actual ownership. Like Grotius before him, Locke’s ideas were not abstract conjecture for conjecture’s sake: although his theory resolved the philosophical conundrum of how the Earth was originally divvied up, many of his friends, his patrons, and he himself all had financial stakes in English colonialism in America. This theory of appropriation and “improvement” – another key term in colonization in North America and the Caribbean – was particularly useful to Europeans, since natives’ conceptions of the importance of property were not linked to the land itself but instead to its varied uses in different seasons.

The idea of improvement went beyond the land. The English (and subsequently British) Empire was a protestant endeavor, and not only in Elizabeth’s original refutation of the pope’s authority to arbitrate and indeed make claims to land. It was protestant in so far as this theory of possession and improvement, applied to both territory and the souls of those inhabiting it. The British were not engaged in a saving mission, as had been the Spanish. The great eighteenth-century international law theorist, Emerich de Vattel, like Locke, thought that evangelizing was not a sufficient cause for expropriation, but improvement was. The English pioneer Richard Hakluyt had said the natives were “crying out to us…to come and help” and tellingly the seal of Massachusetts Bay Colony, founded in 1629, depicted a native saying “Come over and help us.”

European colonialism was always, therefore, a cause for conflict between European power, legal and otherwise – but as empire became both more entrenched and more widespread, the causes for antagonism proliferated and its scope deepened. For example, in 1731, Spanish vessels accosted a British frigate suspected of smuggling, based on rival interpretations of what constituted illegal trade; in the altercation, a Spaniard cut off the ear of the British captain, Jenkins. War broke out in 1739 when a Member of Parliament whipped up anti-Spanish sentiment in a speech in the House of Commons in which he waved the severed ear! The most important and spectacular colonial conflict of the period, however, was the Seven Years War, a war that brought together European dynastic conflict and imperial tensions, especially Franco-British rivalry in North America, the Caribbean, and India. The Seven Years War was arguably the first truly global conflict in history, and by war’s end New France (Canada), most French possessions in India, and all but two Caribbean islands went to Britain. The early modern French empire was eclipsed, like the Iberian ones before it, and the British Empire seemed all-powerful. In just a few years, however, that Empire would be shaken both physically and philosophically by a rebellion the legal justification for which was rooted in early modern imperial and international law.