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Discourses of European Intrusion upon the Americas, 1490-1640

  • Location: Legal Theory Workshop, University of Oregon Law School
  • Research area: Legal history

Oct 2008, Christopher L. Tomlins

Early-modern European narratives of the legalities of colonizing held the conquest and subjugation of barbarian indigenous peoples justified by their breach of duties owed strangers under ius gentium (the law of nations) specifically their antagonistic responses to intrusion, from which the occupation and possession of the territories they inhabited followed as a necessary consequence of wars justly and appropriately waged against them. Considered idiomatically, these narratives dominated sixteenth century colonizing discourse; they were pan-European in expression, rooted in a half millennium of warfare in and around the Mediterranean basin; and they developed hand-in-hand with an ideology of Christian proselytizing. When it came to New World colonizing their expression was predominantly (though not exclusively) Iberian.

In this presentation I will explore both the narratives of the sixteenth century, the critical reaction to them, and the emergence (partly in response to that reaction) of a distinct narrative trajectory that came to predominate in the seventeenth century and that, rather than pan-European in expression, was in important respects a peculiarity of the English. This narrative elevated land over people as the primary object of the colonizer’s attention, and as time went on rearranged both the legalities and the institutional mechanisms of colonizing accordingly.

The second narrative idiom, though distinct, overlapped with the first, with which it had much in common. Its gestation can be traced to early sixteenth century humanism; its roots lay in the same fecund soil of the law of nature and nations, to which it annexed vernacular English inflections. And its shift of emphasis was necessarily relative rather than absolute; for – inconveniently – prior inhabitants remained obstinately present in the imagined empty landscape of English desire, and so had to be acknowledged in one fashion or another.

Yet for all those remainders, what is surely a remarkable and distinguishing characteristic of the English colonizing project’s impact on the North American mainland is the thoroughness of its reinvention (legal, political, material) of the terrain upon which projectors seated their colonies – its fierce concentration upon the appropriation of territory by whatever means, its mental and physical conversion of that territory through establishment of going agricultural concerns, and – underlying all – the substantial and protracted task of replacing an existing and intractable population, in which it had little interest, with introduced and tractable populations to build plantations and farms, work their fields, and generally undertake the immense labor of constructing English inhabitations on the far side of the Atlantic.

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