CHAPTER 3 The Salamanca School in England In the sixteenth century, Francisco de Vitoria, as we have seen, and his successors in the so-called School of Salamanca made the first use of occupation to consider the position of colonised peoples.’ The Salamanca writers were widely read in Europe and (outside Spain) nowhere more so than in England. Yet we have only a very sketchy understanding of the reception of these Spanish theologians in England and, in particular, we know very little about how they were employed to consider the justice of English colonisation. The Salamanca theologians had used natural law to argue that rights reside in the subject ot individual, and on this basis they employed the idea of rights to defend Native Americans against Spanish colonisation. The English, famously in the work of John Locke, natural law to support the justice of colonisation and to deny the ti of indigenous peoples. They inverted the force of Vitoria’s and Soto’s arguments. As we remain largely unaware of the reception of the Sala- manca theologians in England, so the dramatic nature of this turn has not been clear to historians, nor have we understood how it was made. It was at the moment that the English established the Virginia colony, I will argue, thar the Salamanca understanding of rights was used to dispossess indigen- ous peoples. Reading backwards from Locke, we might expect that the natural law justifications of Indian dispossession in the generations before he wrote would share, if not his philosophical clarity, at least his certainty that dispossession was justifiable. Indeed, ‘dispossession’ is the wrong term for Locke’s understanding of the implications of colonisation for Native Americans. For Locke, there was no question of Indian dispossession because he did not believe Indians to be in possession of the lands upon which they lived. Locke’s moral certainty was in no way typical of the discussion of the legal status of Indians in sixteenth- and seventeenth- * The classic study is Pagden, The fall of natural man. 59)60 The Salamanca School in England century England. Early modern English people often acknowledged the rights of Indians and only overcame their consciousness of those rights with considerable difficulty. Even as they reversed the force of the natural law discussion of Indian rights, they were unable fully to escape the polemical defence of indigenous rights for which that tradition had origin- ally been employed. ‘The fact remains that the natural law arguments of trade and friendship and occupation were used by Europeans to dispossess indigenous Ameri- cans and other indigenous peoples. These arguments, while for Vitoria prohibiting invasion, provided a tool that could be and was turned against colonised peoples (and it is from that outcome that historians have anachronistically read the Salamanca theologians). There was, then, a turn. The question we are left with is when it happened — the historiography provides little sense of that. I will argue that the turn occurred in the English reception of the Salamanca writers. ‘The most important event for that reception was the first twenty years of the foundation of the English colony in the Chesapeake. This is not, however, to argue that many of the features of the early seventeenth- century English arguments about occupation and use of the land were not present in earlier discussions of the New World.* Thomas More declared in his Utopia of 1516, for example, that when the iskand of Utopia’s cities became over-crowded, they would establish colonies on the adjacent mainland ‘wherever the natives have plenty of unoccupied and uncultivated land’, The natives could join these colonies, if they chose to, and benefit from the Utopians’ superior understanding of how to exploit resources. Land that had ‘seemed too barren and paltry even to support the natives’ was now able to provide an ‘abundance for all’. If, however, the natives chose to resist, the Utopians could make war upon them and drive them out. Such a policy, as More pointed out, was consistent with the law of nature: “The Utopians say it is perfectly justifi- able to make war on people who leave their land idle and waste yet forbid the use and possession of it to others who, by the law of nature, ought to be supported from it. More thus introduced the Roman law of occupa- tion, and the Roman law of war, to consider the status of the New World mote than a decade before Vitoria delivered his lectures in Salamanca. > Chris Tomlins rightly points out chat many of the early seventeenth-century arguments deployed by the Virginia Company were evident in English discussions of colonisation a quarter of a century earlier: Tomlins, Freedom bound, p. 132, 0. 14 > Thomas More, Utopia, eds. George M. Logan and Robert M. Adams (Cambridge, 1989), p. 56. On More's discussion of colonisation, see Armitage, Ideological arigins of the British Empire, pp. 49-50.The Virginia Company promoters 61 In 1532 and 1533, Francis I dismissed Spanish claims to the New World upon the basis that the Spaniards did not occupy all the territories they claimed.* Elizabethan promoters of English colonies also employed argu- ments about the exploitation of land as the justification for their claims in the New World. These claims were rarely coherent. Elizabethans were as likely to appeal to legal humanism or the rights of conquest, religion, cession ot royal grant to justify their claims to new territories.” In contrast to Thomas More’s view of the lands colonised by the Utopians, and as these alternative legal claims reflect, Elizabethans frequently perceived the native inhabitants of the Americas to inhabit civil societies. This incoher- ence persisted into the seventeenth century, as did uncertainty about the justice of the enterprises, but it was at that time that these uncertainties began to be overcome by a more systematic discussion of the idea of occupation and the description of the inhabitants of the northern contin- ent of the Americas as uncivilised. One of the principal stimulants to these discussions was the reception of the Salamanca authors. Spanish discus- sions of the New World were familiar to Elizabethan audiences. Bartolomé de Las Casas’ Brevisima relacién de la destrucciin de las Indias had been translated into English and published in London in 1583 under the title The Spanish colonie.® It was frequently cited by promoters of colonies, but it was employed in order to propagate the Black Legend of Spanish Empire rather than to develop legal arguments for occupation. Las Casas was not a Salamanca theologian and his arguments did not employ the same natural law reasoning, The texts of the Salamanca theologians did not attract significant attention in England prior to the reign of James I. This leads us to the question of why, from the rule of James, promoters of the Virginia Company colony troubled themselves with reading sixteenth- century Thomist theology. The Salamanca authors had provided the most extensive early modern consideration of the legality of colonisation. Their writings, as we shall presently see, were felt to be directly relevant to concerns about justifying the Chesapeake colony. The Virginia Company promoters There is, however, a prior question of how the promoters of the Virginia colony were able to read and obtain texts of the Salamanca theologians. * Saliha Belmessous, ‘Greatness and decadence 559-79, at 561 » Fitzmautice, Humaniom and America, pp.137-66. © Ibid., pp. 141-2.62 The Salamanca School in England Most of those people who wrote to promote the Virginia Company were university educated and many were read in theology, and so would have had access to the libraries of Oxford and Cambridge.” The Oxford Uni- versity Library was, however, being created at this time by Thomas Bodley and the Cambridge University Library was weak. The college libraries were inferior to many private collections of books. It is instructive to consider the example of St John’s College Library, Cambridge, particularly given that many members of the Virginia Company attended this college. Samuel Purchas, the great compiler of voyage narratives, said thar it was at St John’s College that he ‘first conceived with this Travelling Genius’.® Prior to 1626, St John’s College Library did not hold the books of the Salamanca Thomists because this was the date upon which it received the first part of an endowment that included those works (the aim of the endowment was to provide books which were not already held at the library). Could, therefore, the promoters of the Virginia Company have used private collections for their reading of the Salamanca authors? This appears undoubtedly to have been the case, particularly if we believe Purchas’ claim to have consulted 700 authors in the composition of the first edition of Purchas his pilgrimage alone." Members of the Virginia Company had access to a number of private libraries. Henry Percy, the ‘wizard’ Earl of Northumberland, created one of the largest libraries in Jacobean England. His brother, George Percy, was one the first Chesa- peake colonists. Richard Hooker, the former tutor of Edwin Sandys, who was a leading figure in the Virginia Company, also collected a very large library." The great early modern lawyer and philosopher John Selden, who was associated with the Virginia Company and its members, was also in the process of creating a large library. ‘There was, however, a library even closer to the circles of the Virginia Company. This was the library of William Crashaw, preacher at the Middle Temple and later at Whitechapel, and one of the many important 7 On the education of these writers, see tbid., pp. 627. * Samuel Purchas, Hakluptus posshurnus or Purchas his pilgrimes, 4 vols. (London, 1625), vol. 3, Epistle dedicatory. On members and supporters of the Virginia Company who attended St John’s College, see Fitzmaurice, Humanism and America, pp. 66-7. e P. J. Wallis, ‘The library of William Crashaw’, Transcctions of the Cambridge Bibliographical Society, (3) (1956), 213-28; R. M, Fisher, “William Crashaw’s libraty at the ‘Temple’, The Library, 30(2) (1975), 16-24. "© Samuel Purchas, Pterchas his pilgrimage (London, 1613), Epistle dedicatory Sandys also sponsored the publication of Richard Hooker's Laws of eclesiastical polity. On Hooker and Sandys, see Theodore K. Rabb, Jacobear gentleman: Sir Edwin Sandys, 1561-1629 (Princeton, 1998).The Virginia Company promoters 63 but unexplored figures involved in the Company." Crashaw delivered a sermon promoting the Virginia colony (which was subsequently pub- lished), but more importantly he organised other promotional efforts on behalf of the Company, including tracts by William Symonds (another London preacher), an anonymous tract promoting the Bermudas and the tract of the Chesapeake colonise William Whitaker (the son of the former Master of St John’s College), and he clearly had a part in commissioning The proceedings of the English colonie in Virginia.” He was closely associated with the Virginian plantation until his death in 1625 (he remained in London during the plague of that year in order to care for the sick, but is assumed himself to have become one of its victims)."" Ie was from Crashaw’s library, via the patronage of the Earl of South- ampton (a leader of the Virginia Company), that St John’s College received its new library in 1626 (both Crashaw and Southampton were former students at the College). By 1612, Crashaw had created the third- largest library in England, exceeding 4,000 books and manuscripts. At this time, only the library created by Bodley in Oxford and the library of Richard Bancroft, Archbishop of Canterbury, were larger.'® ‘Thus, at the © Wallis, ‘The library of William Crashaw’s Fisher, “William Crashaw’s library at the Temple’, See also P. J. Wallis, William Crashato. The Shaffield puritan (Transactions of the Hunter Archaeological Society, 1963). © William Symonds’ letter concluding that tract begins: ‘Captain Smith I return to you the print of my labours, as Mr Croshaw requested me’, see T. Abbay and William Symonds (eds.), The proceedings of the English colonie in Virginia (Oxford, 1612), p. 110. Note that William Strachey also presented Crashaw with a copy of his Articles, Lawes and Orders, dyvine politique and mariall for the Colonye of Virginia; see Wallis, William Crashau, p. 42. As late as 1620, Crashaw was active in promoting the colony's affaits. The Virginia Company Court Minutes for 23 June 1620 record: “A writing being sent from Mr Crashaw intimatinge of one that will make Commodities in Virginia of good worth wch shalbe merchantable in all places of the world war referred co the said Mr Crashaw and Mr Deputy to confer wth him’: S. M. Kingsbury (ed.), The records of the Virginia Company of London, 4 vols. (Washington DC, 1906-35, vol. 1, p- 370. In 1617, Crashaw published Fiscus papalis (London, 1617 and 1621) in which he declared ‘let covetous Merchants goe to the Indies, and Gallants to Guiana, let silly Catholicks goe dwell in Ireland, and fooles into Virginia’ (sig, Age). This comment could be taken as an illustration of the early modern English ambivalence about colo: , except that it was made in a thickly ironic text. The irony is apparent from the puritan Crashaw’s declared purpose in ‘Laying downe the spiritual riches and infinite treasure which {as sure as the Pope is holy & true) are to be found in the Catholike Roman Church’ (title page) ‘The irony is also apparent in the continuation of the passage above: '... fooles into Virginia, Let us take a wiser course and post to Rome’. My thanks to Karen Kupperman for alerting me to Fiscus pals. + Ran Crahaw’s deat, sce Walls, Willan Cra, - 5% n. 108, In his will he employed the good offices of ewo leaders, of opposing factions, in the Virginia Company, Edwin Sandys and Robert Johnson; see Wallis, William Crashate, p. 12. ‘The endowment of Crashaw's books occasioned the construction of a new library building, which is the present-day rare books and manuscripts library. “ Fisher, “William Crashaw’s library at the Temple’, p. 19.66 The Salamanca School in England and spirit of a people — that is, upon the virtue of the citizens — as it did upon the strength of political institutions.” It is important in this context that English reports frequently praised Indian virtues, particularly martial virtues. The artist John White, governor of the short-lived Roanoke colony in 1585, represented Indians living in towns, cultivating fields, catching fish and employing a number of familiar technologies. It was also clear to the English that the Indians possessed a political system for which many writers expressed admiration. As John Smith observed: ‘Although the countrey people be very barbarous, yer they have amongst them such government, as that their Magistrates for good commanding, and their people for due subjection, and obeying, excel many places that would be counted very civil. The form of the Common wealth is a monarchical government.” His observation of the nature of rule by the ‘King’ Wahun- sonacock (often known as ‘Powhatan’ after his tribe) would have struck a familiar chord with readers in Jacobean England: ‘the lawes whereby he ruleth is custome. Yet when he listeth his will is law’.2® Of Wahunsona- cock’s seat, Smith observed: ‘The great King hath foure or five houses, each containing four score or an hundred foote in length’ overlooking a coun- trey in which lay ‘an hundred houses and many large plaines ... together inhabited’.”” Indians were also acknowledged to practise a religion, which for the natural law theorists demonstrated civility. Similarly, Alexander Whitaker, one of the more negative writers on Indians, conceded that the Indians must be counted amongst those who exploit nature: ‘There is civill governement amongst them which they strictly observe, and shew thereby that the law of Nature dwelleth in them: for they have a rude kinde of Commonwealth, and rough governement, wherein they both honour and obey their Kings, Parents, and Governours ... they observe the limits of their owne possessions, and incroach not upon their neighbours dwellings." From the perspective by which Indians were recognised to constitute a civil society, it was common that promoters of colonies would respond to the Spanish theologians by observing that they would not dispossess the Native Americans. Samuel Purchas was one of the most emphatic writers on the injustice of dispossessing Native Americans, albeit that he was % See Quentin Skinner, ‘Political philosophy’, in Charles B. Schmitt and Quentin Skinner, Cambridge history of Renaissance philosophy (Cambridge, 1988), pp. 389-452. * See Fitamaurice, Humanism and America, pp. 162-3. % John Smith, A map of Virginia (Oxford, 1612), p. 34.“ Ibid, p. 35 » John Smith, A true relation (London, 1608), sig. B4v. ® ‘Alexander Whitaker, Good newes from Virginia (London, 1613), pp. 26-7.Recognition of Native American society 67 generally referring to the Spanish conquests. As for many English writers, criticism of the Spanish placed clear limits on what could be allowed to the English. Purchas’ observations on the injustice of dispossession are par- ticularly trenchant in his essay ‘Of the propertie which Infidels have in their Lands and Goods’ in Hakluytus posthumus.® Purchas has been described as ‘the early modern British writer who showed the greatest familiarity with Vitoria’s writings’ (although Alberico Gentili might chal- lenge for that place), and it is certainly clear that Vitoria was the main instrument he employed in the defence of indigenous rights? Ics true that Purchas was at times untroubled by the Spanish disposses- sion of Native Americans. In a passage in which he cited Vitoria in the margin as his authority, he observed: ‘innumerable are the compacts and contracts mentioned in Histories, whereby che rule of Countries and States have beene made over to new Masters’. Accordingly, in the ‘Animadver- sions on the said Bull of Pope Alexander’, he acknowledged that howsoever unjust the Spanish conquest may have been, with the passage of time, their title became just: I question not the right of the Spanish Crowne in those parts ... The Castilian Industry I honour (as appears in the former relations) their Right may, for that which is actually in their Possession, without this Bull, plead Discoverie even before this [ie., the Donation of Alexander] was written, the Sword, Prescription, subjection of the Inhabitants, long and quiet possession; which, howsoever the Case was at first (wherewith I meddle not) must now, after so long Succession, be acknowledged Just. I quarrel the Pope only.* Purchas’ quarrel with the Pope was over the Donation of Alexander, by which the Catholic Church granted possession of the New World to the Spanish. There was scarcely an English writer on colonisation who did not make the same complaint.” The legal basis of the objection concerned the temporal powers of the Roman Church: ‘Christs Kingdome is not of this world, and properly neither gives nor takes away worldly properties, civill and political interests.’ This argument, as Purchas pointed out, is ‘cited by Vitoria’, ‘largely proving these propositions, That the Pope is not » Purchas, Hakluytus posthumus, volt, pp. 14-16. ' Armicage, Ideological origins of the British Empire, p. 88 Purchas, Hakluytus posthumus, vol. 1, bk. 1, ch. 5, pe 15 Purchas, Habluytus posthumus, vol. 4, Bk. 2, ch. 1, p. 20. See Fitzmaurice, Humanism and America, pp. 148-57. » Purchas, Hakluytus posthumus, vol. 1, DK. 1 ch. 5, P. 168 The Salamanca School in England Lord of the World, That the Temporall Power depends not of him, That it is not subject to his Temporall Power’. In his quarrel with che Pope, Purchas abandoned his claim that the Spanish conquests had become just. It is ungodly to ‘rob Kings of their supremacy and preheminence, subjects of their land and state, as if to convert to Christ were to evert out of their possessions, and subvert states’. “The rights of men’, he insisted, ‘by the royall or common lawes estab- lished (all derived from that of nature ... are in conscience of Gods commandment to be permitted them.’ To deny those rights is a crime against nature of the same order as ‘filthy Sodomites, sleepers, ignorant beasts, disciples of Cham, Balaam, and fore, rockes, clouds withoue water, corrupt trees twice dead, raging warres, wandering stares, to despise government ... spots and blots, wells without water, clouds carried about without a tempest, to whom the black darknesse is reserved for ever’.** Again citing Vitoria, he insists that infidels and, in this case, Native Americans cannot be deprived of their property: ‘nor can Infidelitie which concerneth Divine Law, yea in matters supernaturall, rake away that right which Positive or Naturall Law hath given; nor exclude from just title on Earth [in margin “Vict. de Ind”, ie, Vitoria, “On the American Indians”)’.” Indeed, he argued, it would be unjust not only to challenge Native American dominion but even to breach sovereignty: And for Ophir, long before inhabited (as appeareth Gen. 10) he [Solomon] did not for the discovery thereof, then new, challenge jurisdiction or sovereigntie, as Lord of that Sea or region by him discovered (no more than the Ophirians had been Lords of Israel, if they had then discovered it) bur lefe things as he found them, the Countrey appropriate to the Inhabit- ants [Vitoria cited again in margin].* Purchas was not exceptional in his agreement with Vitoria on this point. In Mare liberum, as we shall see, the Dutch philosopher and statesman Hugo Grotius had made the same argument, and had made it also on the authority of Vitoria: namely, that the Indians could no more be dispos- sessed of their land than the Europeans dispossessed by the Indians. According to Grotius: ‘Victoria therefore rightly saith that the Spaniards got no more authority over the Indians for this cause than the Indians had over the Spaniards if any of them had come formerly into Spain.”” Grotius’ Mare liberum had been wanslated into English by Richard » Purchas, Hakluyrus posthumus, vol. 1, bk. 2, ch. tp. 23. % Purchas, Hakluytus posthurnus, wol. 1, Bk. , ch. 5, p. 14. "7 Ibid p. 16. Ibid. » Grotius, The fie sea, p. 15.Recognition of Native American society 69 Hakluyt. Given that Hakluyt had left Purchas all his papers. (which Purchas employed in composing Hakluyrus posthumus), we could also assume that Purchas was familiar with Grotius’ work. Citing Vitoria, Purchas argued that even the preaching of Christianity could not justify the dispossession of the Indians: And in his [Viroria’s] Relectiones of the Indians he sayeth, that it doth not appeare to him, that the Christian Faith hath so beene preached to them, that they are bound sub novo peccato to beleeve it, having had no probable perswasion, as Miracles and examples of Religious life, but contrarie; yea, had the faith beene never so probably propounded, and they rejected it, yet might they not be spoyled of their Goods, or pursued by Warre."° Alberico Gentili, the professor of law in Elizabethan Oxford, had made the same argument in De jure belli libri tres. In the chapter ‘Whether it is just to make war for the sake of religion’, Gentili cited ‘the learned Vitoria’ for the argument that ‘religion was not a just reason for the war of his Spanish countrymen against the Indians’.*" Many of the Virginia Company promoters also warned of the problems of dispossession. One of the Company's hired pens, Robert Gray, declared ‘thae there is no intendment to take away from them by force that rightful inheritance they have in that Countrey’.” And William Crashaw, who kept the works of the Salamanca theologians in a room above the chapel at the Middle Temple, concluded: ‘A Christian may take nothing from a heathen against his will ... We will take nothing from the Savages by power nor pillage, by craft nor violence, neither goods, lands nor libertie, much lesse life.”*” The Virginia Company's anonymous True declaration of the estate of the colonie in Virginia paraphrased Vitoria in a further state- ment of these fears and explicitly acknowledged the debt to ‘Salamanca’. According to the report, Christianity must be preached in Virginia in: one of these three waies: [1] Either meerly Apostolically, without the helpe of man, (without so much as staffe [2] (or meerly imperiallie, when a Prince hath conquered their bodies, that the Preachers may feede their soules; [3] * Purchas, Hakluytus posthumtus, vol. fs bk. 25 ch. 1, p. 20. * Alberico Gentili, De jure belli libré res, translation of 1612 edn, first published 1598, ed. John C. Rolfe, 2 vols. (Oxlord, 1933), vol. rp. 39. * Robert Gray, A good speed to Virginia (London, 1610), sig. [Cale * William Crashaw, A sermon preached before right honourable the Lord Lawarre (London, 1609), sig, [Dslv-Dav. William Symonds, another Company promoter, raised the same problem: “the countrey, they say, is possessed by owners, that rule and governe it in their owne right: then with what conscience, and equitie can we offer to thrust them, by violence out of their inheritances? William Symonds, Virginia (London, 1609), p. 10.72 The Salamanca School in England therefore could be made the particular property of nobody. The existence of the sea as common property, or the property of nobody, was funda- mental to the right of communication and free movement. Freedom of commerce was also understood to be an extension of the natural commu- nication that should exist between man and man. To have the freedom of the sea was to have freedom of commerce. For many Europeans, such as Vitoria, to demand these rights of Native Americans was to ask no more than what was demanded from other Europeans (although, as we shall see, others such as Pufendorf would disagree). The demand recognised that Native Americans had a place at the legal table. The justification of colonies by commerce, therefore, was concerned much more with whether Native Americans would grant rights and less with the question of whether they possessed rights (taking for granted the fact that they did). Alberico Gentili had emphasised this disjunction between arguments from commerce and the justification of dominion in a passage that does not fit his belligerent image. He argued: No one doubts today that what we call the New World is joined to our own and has always been known to the remote Indi. And that is one reason why the warfare of the Spaniards in that part of the world seems to be justified, because the inhabitants prohibited other men from commerce with them; and it would be an adequate defence, if the statement were true, For commerce is in accordance with the law of nations [us gevttivm), and a law is not changed by opposition to it. Bur the Spaniards were aiming there, not at commerce, but at dominion. And they regarded it as beyond dispute that it was lawful to take possession of those lands which were not previously known to us; just as if to be known to none of us was the same thing as to be possessed by no one [in nullius bonis] Scepticism on the same question was repeated in Hakluyt’s translation of Grotius’ Mare liberum: ‘For they who pursue the barbarians with war, as the Spaniards do the people of America, are wont to pretend two things: that they are hindered from trading with them, or because they will not acknowledge the doctrine of true religion.’®° As they sought a colony rather © Gemtili, De jure belli, vol. 1, p. 89. emphasis added. Anthony Pagden argues that Gentili here cconflates the argument of communication and the argument of occupation. On the contrary, it would seem that Gentili like Vitoria, was progressively considering each natural law claim to tile before dismissing it. See Anthony Pagden, ‘Gentili, Vitoria, and the fabrication of a “natural kaw of nations”, in Kingsbury and Straumann (eds.), The Roman foundations of the law of nations, pp. 358-9. See also Benjamin Straumann, “The corpus itis as a source of law between sovereigns’, in Kingsbury and Straumann (eds.), The Roman foundations of the law of nations, 9p. 15-14 %° Grotius, The free sea, p. H.Acosta and the redescription of Native Americans 3 than a factory, the English had to find a justification appropriate to a colony and one less vulnerable to the cynicism of their contemporaries. Acosta and the redescription of Native Americans The most important innovation by the promoters of Virginia was not in exploiting the gaps on communication opened by Vitoria; rather, it was completely to reverse the moral force of the argument of occupation which was the strongest pillar in the Salamanca defence of indigenous rights. Once reversed, occupation would become the principal weapon in the attack upon indigenous rights. The nature of this reversal was, of course, astoundingly simple — so simple that many historians, as we have seen, would like to conclude that it was Vitoria’s intention all along. All that was required was a change in empirical description while adhering to the metaphysical assumptions regarding the exploitation of nature made by the Salamanca theologians. Rather than recognising that Indians lived in civil societies, as they had done, the English started describing Native Americans as devoid of society, closer in this respect to animals than humans, living off nature rather than exploiting it. William Strachey demanded: Who will chink ic is an unlawful act, to fortefye, and strengthen our selves (as Nature requires) ... in the wast and vast, unhabited groundes of their amongst a world of which not one foot of a thousand, do they either use or know how to turne to any benefit, and therefore lyes so great a Circuit vayne and idle before them?" The ‘Natives’ had failed to create political societies. Importantly, these claims were made by reference to the natural law theory developed by the Spanish theologians and again by direct reference to Salamanca and Salamanca-influenced writers. John Donne, glossing ferae bestiae, observed in his sermon before the Virginia Company: ‘In the law of Nature and Nations, a land never inhabited, by any, or utterly detelicted and imme- morially abandoned by the former Inhabitants, becomes theirs that will possesse it.’® Neither, he argued, does a man ‘become proprietary of the Sea, because he hath two or three Boats, fishing on it’. Whereas freedom of the sea had been used to support arguments for commerce with the Indians, now the idea of free seas was used to compare sea and land, and ™ Strachey, Historie of travell into Virginia Britannia, p. 25 ® John Donne, A sermon preached to the honourable company of the Virginian plantation (London, 1622), pp. 25-7.74 The Salamanca School in England to find that the land could also be void of ownership. The Native Americans had failed to turn trees into chairs. And, most damnably, they had failed to demonstrate their humanity. They were accordingly con- demned as ‘participating rather of the nature of beasts than men’ and as people who ‘doe but live like dear in heards’.* Alberico Gentili’s writings clearly provided part of the context for these descriptions of men as beasts. In passages reminiscent of Juan Ginés de Sepulveda, the Spanish apologist for conquest, Gentili had argued that it is just to wage war against those ‘who wearing the human form, live the life of the most brutal of beasts’, and citing Cicero's De officiis, he observed that ‘some men differ very litle from the brutes. They have the human form, but in reality they are beasts’. In contrast to Septilveda, however, he was not specifically referring to the people of the New World in either case. In ‘Of an honourable reason for waging war’, Gentili did exclaim: ‘why should Covarruvias [Vitoria’s student, Diego de Covarrubias] reproach me and others for that other war, waged by the Spaniards against the violators of the law of nature and of common law, against cannibals, and monsters of lewdness’.* Here, and against claims he made to the contrary, Gentili accepted an account of the peoples of the New World as having committed crimes against nature and a justification of conquest on that basis. But this was not equivalent to the descriptions, made by Strachey, Donne, Symonds and Gray, of the people of the New World as brute beasts who do not possess dominion or sovereignty. On the contrary, people with no dominion or sovereignty cannot really be conquered; their terri- tory is merely occupied. Gentili rejected the notion that the Roman emperor could be lord of all the world and he likewise rejected the papal donations. Having turned away from these justifications of global order, he adopted private law principles from Roman law as the basis for a law of peoples.” One of these private law principles was occupatio. In clear reference to the Roman law ferae bestiae, Gentili declared that ‘the seizure of vacant places is regarded as a law of nature’. “The ruling of our jurists’, he argued, ‘with regard to unoccupied lands is, that those who take it have a right to it, since it is the property of no one. And even though such lands belong to the sovereign of thac territory, as others maintain, yet because of that law of * Gray, A good speed to Virginia, sigs. Br-v; and Symonds, Virginia, p. 15. ™ See Williams, The American Indian in Western legal thought, p. 211 on parallels in Robert Gray and Gentili’s descriptions of Indians. Gentil, De jure bell, vol. 1, pp. 41and 7. °° Ibid, pp. 122-3 Straumann, ‘The Corpus juris as a source of law between sovereigns’, pp. 101-23.Acosta and the redescription of Native Americans 75 nature which abhors a vacuum, they will fall to the lot of those who take them.”® He included lands in the New World in this category, but he also included much of Italy, Spain and Greece: But are there today no unoccupied lands on the earth? Is it not, pray, being reduced more and more to the wilderness of primeval times, or in this decrepit old age is it more fruitful than ever before? What is Greece today, and the whole of Turkey? What is Africa? What of Spain? It is the most populous country of all; yet under the rule of Spain is not almost all of the New World unoccupied? Why should I name thee, Italy, in this connexion, and the country about Aquileia, Pisa, and Rome itself, unkempt and unwholesome because of the small number of its inhabitants?” While Gentili brought Roman law, and occupation in particular, to the understanding of global order, he did not use these tools to provide a clear vindication of the dispossession of Native Americans. Rather, he reminded his audience that occupation was a double-edged sword and that Montezuma (or Wahunsonacock for that matter), had he conquered Europe, may have exercised dominion (even around Rome, the centre of Europe's greatest civilisation) with perhaps more justice than the Euro- peans had in America. The employment of the works of José de Acosta was far more important than the writing of Gentili for the reversal of the force of ferae bestiae found in writers on Virginia. Born in 1540 and educated partly at Salamanca, Acosta died in 1600 as rector of the Jesuit College in Salamanca. He was a Jesuit whose ‘mind had been formed by Vitoria and his successors’. In contrast, however, to the theologians of Salamanca, Acosta spent sixteen years in the Americas. He was a missionary whose thoughts on the justice of colonisation were shaped by long experience in Peru. He was, like Vitoria, disturbed by the violence of the Spanish conquests. ‘Great harm’, he argued, ‘has been done to the Faith in this region from the first from the gteat liberty taken to participate in violence.” In the second book of his De procuranda Indorum (1588) concerning just and unjust war (De jure et iniuria belli), he agreed with the Salamanca authors that ‘in no way whatsoever’ was infidelity a just cause to wage war: ‘God alone is judge and avenger of that.”® He also refuted the doctrine that war can be waged against those who commit crimes against nature. He pointed out that only De jure belli vol. 1, pp. 79-80. Ibid, pp. 80-1 © José de Acosta, De procurand Indorum salute, tans, G. Stewart McIntosh, 2 vols. (Tayport, 1995-6), vol. 1 pp. i-vs Pagden, The fell of natural man, p. 147. “ Pagden, The fill of natural man, p.147. Acosta, De proctranda Indorum, vol. 1, p. 41. © Thid.,p. 3876 The Salamanca School in England God has the authority to punish sin, concluding: ‘The fact that a republic sins by making stupid and pernicious laws, or that its prince or its magistrates fall into bad habits, does not give the right to another neigh- bouring republic or its prince to promulgate better laws, nor the right to use force against them in order to apply such laws or make them be obeyed.’ At the same time, he agreed that commerce and preaching were just causes for ‘incursions into the lands of the barbarians’. For Vitoria, however, the American Indian was an abstract and undif- ferentiated creation. Acosta’s experience in the Americas led him to distin- guish between Native Americans on the basis of cultural signs. He accordingly developed a progressive theory of barbarism (and civilisation). In the ‘first class’ he placed ‘those who do not depart greatly from true reason and the common way of life’, for which the best example were the Chinese. Such peoples ‘have a stable form of government, legal system, fortified cities, magistrates’ and prosperous commerce. Of most import- ance was that the barbarians of this first category have ‘the use and knowledge of letters, for where there are books and engraved monuments there the people are more human and civilised’.®* In the ‘second class’ he placed ‘Barbarians who did not achieve the use of writing nor the know- ledge of philosophy or civil rights’. Nevertheless, this second category of barbarians would have government, fixed settlements, leaders, law and order, military capability and some form of religion. In this class Acosta placed the Mexicans and Peruvians ‘whose empires and republics, laws and institutions, are truly worthy of admiration’. For these people to receive the Gospel, there was an argument, he claimed, that they should fall under the imperium of Christian princes, but that they should not be deprived of dominium — that is, ‘they are not to be deprived of the free use of their riches and inheritance’. This argument was consistent with Vitoria. The sovereignty, or imperium, of a Christian prince over the second class of barbarians might be justified, but not dominium, not the dispossession of land and goods or the destruction of social systems. As we have seen, this second class of barbarism fitted many of the descriptions of ‘Virginian’ natives from the 1580s through to the first years of the Chesapeake colony. Thus, such descriptions could support émperium, but not dispossession. Where Acosta would prove particularly useful, however, was in his creation of the ‘third class’ of barbarians. “There are’, he argued, ‘many groups and nations of them in the New World. Amongst them are savages similar to wild animals, who hardly have human feelings — without law, “ Ibid, p. 6. © Tid pp. 84-5. Ibid, peg. Tid. Ibid, p. 5Samuel Purchas and Acosta 79 continued, ‘hath so officiously laboured herein, as he should but bring Owles to Athens, who should study for more strayned, or new Aucthority Concerming the same’”* Samuel Purchas and Acosta The English author who most enthusiastically employed Acosta was Samuel Purchas. Indeed, Purchas was more indebted to Acosta (and more indebted to Acosta than he was to Vitoria) than was any other early modern English writer. In Hakluytus posthumus, Purchas used Acosta’s De temporibus novissimus (first published in 1590) and De procuranda Indorum to argue that the northern parts of the Americas were ‘thinly inhabited, and indeed in great part not at all’.”° Chapters 2, 4, 5 and 6 of Book 5, Part 2 of Hakluytus posthumus reprinted much of the first six books of Grimstone’s translation of Acosta, from a total of seven. But it was in Purchas his pilgrimage that this debt was most cleat, particularly in Books 8 and 9 concerning the Americas. Nor did Purchas hide his debt to Acosta. In the first sentence of Book 8, he acknowledged that his subject would allow contemplation of ‘such Philosophical Subjects, as ° the best Authors have thought worthie the first place in their Histories of these parts’. The marginal note ‘b’ cites ‘Joseph Acosta de procuranda Indorum salute, & hist indie [The natwall and morall historie of the east and west Indies’, as well as Giovanni Botero, Relarioni universali and Francisco Lépez de Gomara. The following two books of Purchas his pilgrimage are abridgements of Acosta, Boteto and Gémara’s histories. Purchas laboriously cut and pasted from the three texts, with assistance from many more minor sources, t0 weave a relatively seamless narrative of the history and customs of the New World. With Acosta, Purchas drew most heavily upon the books of moral history in the Natuall and morall historie: that is, the books concerned with custom — ‘manners, ceremonies, laws, governments’, Unravelling, this complex fabric is extremely difficult, but it is clear, for example, that of the 100 pages in Acosta’s fifth book, Purchas reproduced at least thirty, and in the 150 pages of Books 8 and 9 of the Pilgrimage, Acosta was cited sixty-three times.” Purchas repeatedly and explicitly reverts to ™ Iid.,p. 55. For the use of Acosta, see also, for example, A true declaration of the estate of the colonie in Virginia, pp. 8 and 23. On Acosta, see also Joyce Chaplin, Subject matter: technology, the body, and science on the Anglo-American frontier, 500-1676 (Cambridge, MA, 2001), pp. 120 and 177. “© Purchas, Hakluytus posthumus, bk. 1, ch. 2.7, pp. §8-60, ‘Of America whether it were then peopled”. 7 Book five of Acosta is numbered 329-430; the following thirry pages are reproduced in Books 8 and 9 of Purchas’ Pilgrimage (cross-referenced page numbers in the Pilgrimage are given in brackets):80 The Salamanca School in England Acosta’s voice: ‘They shewed me, (it is Acostas speech). ..’; “But to return to Acosta, " he telleth. The availability and impact of Acosta’s work in seventeenth-century England is evident from the fact that Purchas used Grimstone’s 1604 transla- tion of the Natural and moral history and not the original in Spanish or De Bry’s 1590 Latin version (although he did use the Latin version of De procuranda Indorum, which was not translated into English until the twenti- eth century). The fact that it is Grimstone’s translation and not Purchas’ is rapidly evident from a comparison of any of the numerous transcribed passages. In the pages of the Pilgrimage, Grimstone almost achieved a second edition (which would come later), although in contrast to Acosta, he received no acknowledgement. Through Purchas we sce Grimstone’s text at work, but we also see Purchas at work with Grimstone’s text, It was necessary to make adjustments to Acosta’s account. It was important, for example, both for the Protestant Purchas and the Catholic Acosta that heathen religion could corruptly imitate true Christian religion, In Acosta’s progressive history, a people who believed in one god was more advanced than a people who followed numerous gods. Book 5, Chapter 25 of Acosta’s Historia accordingly recorded the encouraging ways in which Mexican religious rites ‘laboured to imitate and counterfeit the sacraments of the Holy Church’, albeit in ways corrupted by the Devil. Purchas reprinted this chapter. But where Acosta concluded that ‘the Gospel of our Lord Jesus Christ thrust out all these superstitions’ (to which Grimstone apparently did nor object), Purchas felt obliged to adapt this conclusion with ‘till the Spaniards substituted in place thereof their Masse, a masse of more monstrous absurdities, (in their tran- substantiation, bread-worshipping, God-eating, ..) then the former, not- withstanding the fairer pretexts of Christian and Catholike titles’.”? Here Acosta’s progressive theory of history is given a Protestant teleology. Acosta’s importance to Purchas is not, however, revealed simply by the extent to which Purchas borrowed from Acosta’s narrative of American history and culture. On the level of narrative, he was almost equally indebted to Botero and Gémara, There was a more profound link between the puritan Purchas and ‘that learned and iudicious Author, Josephus Acosta’, a Jesuit." The Pilgrimage, first published in 1613 and the 340-1 (718); 345-7 (736); 348-0 (67.4); 360-2 (730): 365-6 (672); 368-9 (672) 391-3 (734-5): 395-6 (679); 398-400 (732); 402-6 (673): 406-7 (730); 408 (673). This lis is not exhaustive, % Purchas, Purchas his pilgrimage, pp. 728 and 727 ° Ibid, pp. 734-5: Edward Grimstone, The naturall and morall bistorie of the east and west Indies (London, 1604), pp. 391-3 *© Purchas, Purchas his pilgrimage, p. 610.Samuel Purchas and Acosta 81 foundation of Purchas’ subsequent work, was to a large degree modelled on Acosta’s Historia, although Purchas was more ambitious than Acosta in scope, taking all time and all the world as his subject. Above all, Purchas conformed to Acosta’s classes of barbarity and used Acosta’s signs of classification to conduct his analysis, often citing Acosta to establish authority. Purchas’ full title was illustrative of this debt: namely, Purchas his pilgrimage, or relations of the world and the religions observed in all ages and places discovered, from the creation to the present. Religion was the focus of Purchas’ history of the world in part because, as for Acosta, the state of religion was the best indicator of a culture’s state of civilisation or barbar- ity. As Purchas stated in dedicating the book to Archbishop George Abbott, one of the two ‘lessons’ of his work was ‘that law of Nature (has] written in the practise of all men (as we here in the particulars doe shew) the profession of some Religion’. Books 8 and 9 of the Pilgrimage were concerned with the second and third classes of barbarians in the Americas (there being no barbarians of the first class). Citing Acosta, Purchas observed that the Mexicans belonged at first to the third class of barbarity: ‘very barbarous and savage, which lived only by Hunting ... They lived naked, solitarie in the Mountaines, without Tillage, Policie, or any Religious Ceremonies’. He then went on, again employing Acosta, to describe the development of a complex religion, the following of an idol who led them to create Tenochtitlan, the creation of temples, ceremonies, priests, new idols, feasts, sacrifices, baptism, marriages, burials, colleges, schools, picture writing and beliefs concerning life after death and the soul. By contrast, the Brazilians, who clearly conformed to the lowest form of barbarity, were later summarised with the sentence: “They have no use of three letters in the Alphabet, L, F, R, a reason whereof some have wittily given, they have no Law, Faith, nor Ruler.” In this sense they could possess no dominion, let alone sovereignty, and were ‘in summe, more like beastes then men’."* It was when Purchas turned to Virginia that he had the least need for Acosta’s narrative. Acosta had not written on this region, And yet it is at this point that Acosta’s impact upon Purchas is most evident. The Virginian Indians were described in terms of the lowest form of barbarians The evaluation was again made by appealing to Acosta’s signs of civil tion, Purchas found significance, for example, in the fact that native Virginians, ‘having no letters’, have no records."* Their understanding of "Ibid. Epistle dedicatory. Ibid, p. 659. Ibid., pp. 660-84. “Ibid. p. 705. % Ibid. ™ Ibid. p. 636.Occupation as labour: John Locke us twenty-first centuries)? Between the writing of Grotius’ Mare liberum (1609) and Pufendorl’s De jure naturae et gentium (1672), the character of European colonisation and the ideological justifications for colonisation had undergone dramatic change. Nowhere was this change more evident than in the English colonisation of America. English colonisers had absorbed the implications of the Salamanca theologians, and of Vitoria in particular, and as a result they had radically altered the polemical force of those writers. I have shown how this transformation of Vitoria into an apologist for empire was made partly through the use of Acosta’s writings, and this is the Vitoria whom Pufendorf was reacting against. The person who took this transformation of use as an argument against the rights of indigenous peoples furthest (and used Acosta to do it) was John Locke. Locke was less concerned than Hobbes and Pufendorf with the grounds of political obedience, which had been central to the wars of religion. In the years after the succession of the Catholic James II in England, and preceding his overthrow in the Glorious Revolution of 1688, Locke focused rather upon the question of resistance to absolutism and legitimate government.® But he was not only motivated by the political calamities of seventeenth-century Europe, he was also deeply interested in the world outside Europe and in particular in the colonisation of America. His writings have excited great interest amongst historians of empire not only because he made strident statements upon the status of American ‘Indians’, bue also because he made those observations in the context of his own deep professional involvement in the colonisation of Carolina to the point that he helped draft, and repeatedly revise, the constitution for that colony. He brought his reflections on America to the problems that absolute rule at home posed for the nature of property. In his Two treatises of government, and in common with Grotius, Hobbes and Pufendorf, Locke understood self-preservation to be the motive for the creation of civil society."° He also agreed with Grotius and Pufendorf in his notion that property can exist before civil society. Indeed, for him, civil society is created only to preserve our property in our © Peter Laslett, ‘Introduction’, in Locke, Two sreatises of government, pp. 45-66. © Amneil, Jobn Locke and America; Tully, An approach to politica! philosophy Armitage, ‘John Locke, a, and the two treatises of government’; Duncan Ivison, “The nature of rights and the in David Armitage (ed.), British political thought in history and literature, 1500-1800 (Cambridge, 2006), pp. 191-211. For scepticism on this scholarship, see Paul Corcoran, ‘John Locke on the possession of land: native title vs. the ‘principle’ of vacuum domicilium’, Proceedings, Australasian Patvical Studies Ascciation Annual Conference, 2007. 4° See Buckle, Natura! law and the theory of property, pp. 143-4 and 149 For differences on the issue of selftpreservation between Locke's Tivo sreatises and his earlier Eays on the late of nature.12 ‘Theories of occupation in the eighteenth century ‘disturbed in their labour’. ‘Such must have been’, he asserted, ‘the origin of the rights of property and dominion, and this fully justifies their establish- ment” At the same time as the creation of these rights, these people ‘formed themselves into the body of a political society’. In this account, the rights of property and what Wolff described as adventitious rights were established almost simultaneously. Vattel, like Wolff and Rousseau, believed that property was dependent upon a kind of community compact, or upon political authority. He agreed with Wolff that ‘free families’ coming together to form a sovereign ‘nation or state’ could previously have been in possession of ‘domain’, or property, as a form of adventitious rights in the same territory.”* Importantly, for Vattel, occupation con- ferred not only a right but also elevated the occupiers in their progress towards a more civilised state. Vartel stated the right of the first occupier in relation to the claims of nations, in contrast to Locke, who stated the same right in relation to individuals. ‘All mankind’, he argued, ‘have an equal right to the things that have not yer fallen into the possession of any one; and these things belong to the person who first takes possession of them.’ In the following sentence he deduced: ‘When therefore a nation finds a country uninhab- ited and without an owner, it may lawfully take possession of it.”” He was quick to add that a ‘nation’ may not ‘appropriate to itself” a country ‘which it does not really occupy’.”* Here he concurred with the long-standing scepticism of the pretentions of many colonising powers which extended beyond their power and he was, like Vitoria, Gentili and Grotius before him, particularly damning of the ceremonies of possession which under- pinned such claims: ‘In effect, when navigators have met with desert countries, in which those of other nations had . . . erected some monument to shew their having taken possession of them, they have paid as little regard to that empty ceremony, as to the regulation of the popes.” Vattel’s scepticism also extended to peoples who did not sufficiently exploit the land. “There is another celebrated question’, he ruminated, ‘to which the discovery of the new world has principally given rise.”*° This question was whether a nation may ‘take possession of some part of a vast country’ in which there are ‘none but erratic nations’. His answer was that all humans are under an ‘obligation to cultivate the earth’ and, as with colonising powers, no nation can appropriate more land than they can ‘settle and cultivate’.** His now notorious conclusion from these premises ” Ibid. p.213. 7° Ibid. p. 214.77 Tid. Thi. ® Tbid., p. 215, Compare Seed, Ceremonies of,“ Vatcel, The law of nations, p.216. "Thi.176 The Seven Years’ War In order to establish what rights the Indians held in land at the time of colonisation, Bulkley argued that it was necessary to clarify whether or nov they lived in the state of nature or a civil state. If they lived in a natural state, it may still be possible that they established property in land and so this matter must also be determined. Moreover, if they lived in a civil state, it would be necessary to establish whether the natives had created laws whereby they agreed to keep land in common (as would be permitted by Pufendorf). In order to resolve the issue, Bulkley therefore proceeded through a dialectical series of questions and answers about the rights of the Native Americans. Thus, his treatise takes a form remarkably similar to that employed by Vitoria, although with Bulkley we are never left in doubt about his conclusion. Bulkley first turned to che ‘supposition that the Aborigines of this Country, before and at the time of the First Discovery & Planting of it by the English, were ... not to be considered as having put on any Form of Civil Policy. What then, he asks, would have been ‘the Extent of their Rights to Lands in if if the Native Americans had been in a state of nature when the English colonised the continent? He proposed the Lockean argument that it is possible co establish property in a state of nature, including property in land. This can be done, he argued, by a person ‘adding to it something which is his own, for Instance his Labour’? ‘The law of nature’, he continued in Lockean fashion, ‘allows the Land a Man Tills & Subdues to be his Peculiar Property." He then cited Locke again in the passage in which Locke paraphrased the Roman law of occupation in order to explain the origin of property: this was Locke conceding that wild beasts killed by the Native American are his own, just as is the fish caught in the sea and the ambergris taken on the shore. Indeed, at this point in his argument, Bulkley repeatedly underlined the claim that the ‘cause and original of all Property’ was the removing of it from the common through labour: ‘Labour only seems to be the thing that begins Property.’ But, he added, what is not removed from the common in this way ‘must remain still in the same Common State it was made in’.?* Moreover, ‘as to a Right of Property in Land particularly, it can’t be of great Extent during mens continuance in this State’. The limit on the extent of property arises because people living in this state, having simple needs, are satisfied with the ‘Spontaneous productions of Nature’ and so are not obliged to till the earth. Arriving at the matter in hand, he declared that this was © Ibid, poxxiv. Ibid, prow. Tid, pp. xxvinxwvii, Ibid, pp. xxviiresviCritiques and adaptions of Locke: the Mohegan case "7 certainly the case ‘with the Aborigines of this Country before the arrival of the English to iv. Bulkley turned to ‘the Moheags [Mohegans] in particular’ and their ‘Pretended Claims about which there had been ‘so much Noise and Strife’.®’ If, he continued, what has been said of the state of nature is true, then it is abundantly clear that the Native Americans fit that description, namely: “That they were with their Bretheren in Peru, Florida, Brasil &c before mentioned from Acosta, to be rank’t with those in a State of Nature.”° The repeated use of Acosta is important.” Acosta, as we have seen, had developed a progressive theory of anthropology while employing Vitoria’s tests of civility, including the possession of technology and law. Bulkley followed suit: he observed that the natives have no ‘Utensils, such as Ploughs, Hoes, Axes, &c and they therefore cannot ‘Till the Earth’.* But he devoted a far greater space to the absence of law. Who can say, he demanded, that the ‘Essentials of a state of Civil Policy are to be found among them?” Who can find ‘Established, Setled, common Law? And who amongst them can ‘Judge with Authority to determine differences according to this Established Received Law?’ Trying to find this rule of law amongst the native peoples was, he declared, ‘like a search for the Living among the Dead’. When controversies arose among them, the Native Americans behaved as Hobbes or Locke would have individuals behave in a state of nature: ‘every one looks on himself as Vested with the Rights of the Law of Nature, and accordingly is Judge for himself and Executioner!® Anybody who is familiar with ‘Our Natives as we call them’ could not disagree with this description. It looks ‘very much like she State of Nature (if the forementioned Account of it be true)’ and it is certainly ‘Evidence of such an Imperfect State of Civil Policy as borders very near upon it’. The qualification ‘if’ here allows Bulkley to maintain the form, if not the substance, of dialectic. If all that has been said is true of the current state of the natives, then it can hardly be believed that prior to English colonisation, their ancestors were in a superior condition.’ Bulkley then made a sharp turn in the direction of his argument and from this moment he appears to have shaken most modern commentators from his path. He confronted face-on the problem that caused so much confusion and incoherence in the early seventeenth-century English % Ibid. p. xxvii. Ibid. * bid, p. xi * Ibid., p. xxiii cives Acosta again. See Yitush, Seater, p. 129, n. 81 on Locke as Bulkley’s probable source for Acosta, although Acosta’s text is paraphrased at times in ways that suggest a more detailed knowledge than the passages reproduced by Lacke. ® Bulkley, ‘Preface’, p. xxv. —°? Tid, p. 0x.” Thi, p. xxx180 The Seven Years’ War envisage the settlers coming under the umbrella of that native sovereignty. The sovereignty he envisaged was not territorial sovereignty. Rather, as he believed that it was a possibility that the Native Americans possessed sovereignty without territory, he assumed that native sovereignty was confined to the Native American peoples and their habitations, and did not touch upon the settlers who lived alongside them. At this point Bulkley realised he had still not exhausted all the possible arguments as to why the Native Americans may possess property. He next turned to the concession that the Native Americans lived in civil society and had also created compacts determining the ‘matter of Property in Lands, each Society with its Neighbours, and among themselves severally °° This possibility was the most dangerous for his case. He acknowledged that there were signs that Indians understood the nature of property and value. But this understanding, he argued, was something they had imitated from the English after their attival. He admitted that the Native Americans made many claims to territories, a fact in itself which revealed a conception of property. Indeed, it was this fact in the Mohegan case before the Privy Council that had motivated him to write. In this case, however, he argued that the various Native American claims were contradictory: ‘One Sachem or Community often Claiming what another did.” These overlapping claims cancelled each other out, proving that there were no settled terri- tories and revealing the various interests to be opportunistic. Even if, he added, taking the case even further, property had been settled and these claims were not merely opportunistic, it remained impossible now to establish who had owned what, since ‘all their Rights or Properties instantly became so Perplext and in the Dark that nothing can be Known or Determin’d upon them, and consequently no good Title possibly founded on them’. He pointed out that ‘Gentlemen deputed by this Government’ had set out to solve these problems by enquiring into ‘the Claim of the Moheags’, but that they found this claim to be in conflict with ‘the Pequots, Quinebaugs, Nahantick:’, who had ‘given another Account’. Still not having reached che bottom of the matter, Bulkley asked that if it was true that the Native Americans had created civil society and established compacts to settle the question of property, what kind of compacts did they create?” Did they share the land equally? Moreover, ‘in whom did they place the Lands’?! Were they, for example, placed in the hands of a single person: namely, the king? This latter conclusion was drawn by ‘Our Bigos’, who declared all the Indian lands to be vested in ‘rhe © Did, p.xl. 7 Tid. p.xli, Ibid, pp. slii-xliv. Ibid, pox. hid, p. bv.Critiques and adaptions of Locke: the Mohegan case 181 Grown’ Tf that were the case, the settlement of Indian property would not differ greatly from that of England, where all lands that were not held privately belonged to the Crown and were not open to occupation. But if this were so, Bulkley continued, then it was necessary to determine whether the Indian constitutions allowed land held by the Crown to be alienable, as in England, or if it was inalienable.** If the land was alienable from the Crown, ‘we must be resolved also whether any Alienations were made by their Kings to their Subjects.” It is at this point that Bulkley terminated his dialectic and turned to the conclusion. It is in the conclusion that we see that establishing a Lockean under- standing of Indian property rights had only been one possibility raised by Bulkley. The aim was not to establish a Lockean case, but rather to show that it is possible to develop so many interpretations of the property rights of the Indians and to draw so many contradictory conclusions that the only sure conclusion was that nothing certainly could be said and so there was no sound basis for native tide. The question invoked ‘so many inextricable Difficulties and renders them all so Uncertain Perplex’t and in the Dark that nothing Certain can be Known or Determined upon them’.** Locke served merely to establish one of a number of possibilities in considering whether the Indians possessed property. Bulkley realised that if he based his argument entirely on Locke, an opponent using Pufendosf or another philosopher might easily come and dismiss his claims entirely. Indeed, Bulkley treated the argument that property derives from compact with great seriousness and never dismissed that possibility. One might say that for Locke, property would also be derived from compact once civil society was established. What mattered for Bulkley, however, was the origin of property and whether that was outside contract, as Locke argued, or a product only of compacts. Bulkley certainly did at one point claim that labour in the state of nature is ‘the beginning of Property’, but in the second half of his essay, he was less clear on this question.** When considering the possibility that property could be settled by agreement, he spoke of land being ‘brought under the Regulation of Compact’, implying a Lockean perspective that once property is created in nature, it can be regulated by law. However, later in the essay he raised the possibility, as we have seen, that civil society could precede property and in this case he quite clearly believed that it was society that was the origin of property.*° What "Ibid. p.xlviti, — ° Ibid, pl Ibid. Ibid, po evi could be through the acts that created ‘a Skate of Society Civil that the ined and Regulated the matter of Property’: ibid., px ‘Aborigines’ had ‘De266 Res nullius and sovereignty the right of no one [“res nullius” is again the marginal subtitle] may become the right of some one; either while he occupies it, or in conse- quence of the effect he has produced in it by his labour.** In a fashion reminiscent of Vitoria’s use of ferae bestiae, Ferguson thus employed res nullius to show that the lands in which even the most supposedly primitive peoples lived could not be understood as unoccupied, or as having not been taken, and could not therefore be considered to be res nullius, Indeed, for Ferguson, these people were merely pursuing the perfection of which they are capable and which is appropriate to their circumstances. Here we see res nullius used not to describe things held in common, but closer to the more commonly understood sense employed by historians in the twenty-first century as meaning things which were not appropriated by anyone. But the salient aspect of this discussion is that res nullius was used not, as is commonly assumed, to legitimise dispossession, but to oppose it. While Ferguson echoed Vitoria’s defence of the rights of non-European peoples, he placed his theory of occupation in the context of a very different understanding of property from both that assumed by Vitoria on the one hand and the seventeenth-century natural law theorists on the other. The occupier, he claimed, has an ‘exclusive right’ to whatever he is the first to occupy, but this right of possession ‘does not amount to property’.’7 Possession becomes property ‘when mankind willingly enter into conventions’.”* For Ferguson, as for Grotius, the res nullius law was a product of one such convention. He concluded that the territory of non- European peoples, ‘however rude or barbarous’, was not res nullius because he believed they had already entered into conventions. Yet he rejected much of the apparatus of seventeenth-century natural law. Like Hutcheson before him, and others in the Scottish historical school, he dismissed the notion of a state of nature as hypothetical speculation.’? Without the state of nature to provide the motives and, in some accounts, the conditions for the development of property, it would become necessary for philosophers such as Ferguson, Hume and Smith to substitute the seventeenth-century natural law theorists’ abstract and hypothetical basis to property with an account of the development property in historical time. What these theorists took, however, from seventeenth-century natural law was an understanding of property, and laws regarding property such as res nullius, as a product of compact. In this respect they shared an understanding of res % Ibid, p. 213. 7 Ibid., pp. 103 and 204. ™ Ibid., p. 205 » Adam Ferguson, Essay on the history of civil society (London, 1767), pp. 3-20.Development of the anti-imperial critique 295 rights of barbarian peoples. And yet, the Declaration does not contain, neither explicitly nor implicitly, anything of chat kind.””* Yet he disagreed with this judgment. He argued that the Berlin Act contained enough substance to protect the sovereignty and property of Africans, and that the subsequent abuses of those rights had arisen from states and companies acting without regard to the agreement.”? Reviewing the anti-imperial tradition, he observed: As Vitoria already said in the sixteenth century, civilized powers have no more right to seize the territories of savages than savages have to occupy the European continent. The law of nations does not admit any distinction between the barbarians and the so-called civilized: men of all races, white or black, yellow or red, however unequal they are in fact have to be considered equal in the law.*° He then turned to Kant: ‘The theory is not new, but it is not before the end of the eighteenth century that it started recruiting numerous followers. One of the first, the philoso- pher Kant, exposed it in excellent terms in his Metaphysical elements of the doctrine of law ... we do not ‘without a specific contract’ have the right to colonize the land of another people.** Delivering his own view, Jéze summarised: ‘we decide in favor of the absolute right of the indigenous peoples. We believe the opposite theory does nothing but establish, on the pretext of civilization, the maxim “might is right” and violates, under the appearance of legality, the funda- mental rule of racial equality’? Jeze undertook to examine under what conditions a territory could be said to be a territorium nullius and could therefore by justly occupied. He complained that the occasion of the Berlin Conference and the Lausanne meeting of the Jnstitut had not led to a rigorous definition of territorium nnudlius in international law. He accepted that it was not for the ‘Powers’ at Berlin to make a ‘declaration of principle’ on the question; they did not establish the ‘rules of absolute and natural law’. But he could not accept that his colleagues in the Institut missed the opportunity to settle exactly what was territorium nullius, They could at least, he argued, have accepted Fusinato’s formulation that serritorium nullins regulates in public inter- national law what res mullius regulates in civil law — namely, things that are owned by nobody. The object in question in the case of serritorium nullius 7 Ibid, p.13. Ibid, pp. 13 56. © Thid, p. 103. Ibid, pp. 104-5. © Tbid., p. 2.Index absolutism, 115, 272, 281. See also Moser, Johann Jacob, belief in experience over reason as a ‘weapon against absolutism Acosta, José des 25, 75. U5. 177 273 availability and impact of his work in the seventeenth century, 80; on the diversity of peoples in the Americas, 77: influence of Vitoria on, 733 on the justification of colonisation, 75: oon the progressive theory of anthropology, ‘1773 and the redescription of Native ‘Americans, 73-9; on religion as a measure of civilisation, 78; on ‘third class’ of barbarians of Brazil. 77; on ‘third class’ of barbarians of Florida, 77: use of cultural signs to categorise Native Americans Cfirst, ‘second’, and ‘third’ class of barbarians (theory of progressive barbarism), 76-8: years spent in America, 25 ition: acquisition of sovereignty, 250, 321, \ernational laws governing the acquisition of territory, 240; occupation as the original form of, 2373 ‘primary acquisition’, 97; primitive acquisition, 104, 237. See abo Bonfils, Henry, on the acquisition of territory; Hutcheson, Francis, (on the acquisition of prope Immanuel, on original acquisition (original occupation’); Martens, Georg Friedrich von, on the acquisition of property by “acquiston to leg tle infra nin, The (Simsarian), 320 Acquisition of sovereignty over polar areas (Smedal), 3:8 Act of the Berlin Conference (1885), 294-5 Adam, Alexander, 259 Adams, John, 203; expansionist position of concerning the Oregon Tertitory dispute, air; knowledge of the law of nations, 210; knowledge of Vattel, 0; on the property rights of Native Americans, 201 n120; response of to Twiss, 210-11 Adams-Onis Treaty (1819), 204, 206 Altica, 6, 9 28, 170, 253s 273s 30% 3095 arguments justifying the colonisation of, 287; ‘carve-up’ (dismemberment) of Affica in the 1870s and 1880s, 310, 5275 colonisation of, 327; influence of commerce in, 297: property and limited sovereignty of Afficans, 3005 as terrzoriton mullius, 327. See alko Berlin Conference (1884-85); Congo, the; territorium nullius (land belonging to no onc), use of in the debate cover Aftica AMfican Conference (1885), 319 Ahrens, Heinrich, 225, 227; on Bentham's theory of tility as immoral and relativistic, 225; on ‘occupation and the reality of property in his ‘own time, 226: rejection of Locke's theory of labour, 226; rejection of the natural law theory of occupation, 226; support for Kant's theory of convention as the basis for property, 226 Alaska, 306 Alciato, Andrea, 56 Alexander VI (Pope), 46, 67, 101 Alexandrowicz, C. H., 98 Algonquian peoples: as belonging to the ‘thitd class’ of barbarism, 78; dispossession of, 78, See abo Pays dEn Haus, middle ground of the French and Algonquian nations in Alsace-Lorraine, 242 American colonies: British taxation of, 183; policy of the British Crown to control westward expansion in, 187; response in to British attempts to regulate and finance the colonies, 189; use of the argument of ‘occupation by settlers to make claims against Indians and the British Crown, 189 ‘American Indians. See Native Americans 358Index American Revolution, 24, 168, 171, 194; ‘occupation and the American Revolution, 199-203 Ammoun, Fouad, 327, 329; on the concept of terra nudllius and occupation, 327 analysis of the Roman eivil law, compared with the Jaws of England, An (Halifax), 260 Ancient law (Maine), 241 Anghic, Antony, 12, 48 iadversions on the said Bull of Pope ‘Alexander’ (Purchas), 62 Antarctic, the, 323-4 Antiquisate Rejpublicae Batavicae (Grotius), 9¢ “appetitus sovietatis(nacural desire of society), 89 approach t0 politcal philosophy, An (Tully), 182 147 Aquinas, Thomas, 39-40, 42. 46, 89; lack of the term res mullius in his work, 553 on the sovereignty of non-Christians, 98; on treasure troves, 39 126 Arendt, Hannah, 298 Aristotle, 39, 42: on potential, 44 Armitage, David, 19 Asser, Tobias, 285 Association Internationale du Congo, 28 ‘Austin, John, 217, 233, Australia, 6, 17, 146; British claim to sovereignty ‘aver, 129; colonisation of, 330} common law ‘of, 328 indigenous peoples in, 114, 3293 a8 not terra nudlius, 328; as terra mullius, 303 m2, 322-3, See ali Coe, Paul, on the sovereignty ‘of Aboriginal peoples of Australia; Queensland; zerre nuns, and the Western Sahara and Australia Azo of Bologna, 37, 55 Appileuera, Martin de, 40, 50 Bagor, Charles, 205 Bailyn, Bernard, 184 Balle, Christian Severine, 262 Bancroft, Richard, 65 Barbeyrac, Jean, 25-6, 125-6, 133, 167; debace with Pufendorf on the issue of “mutual agreement’, 128; on first possession as the foundation of private property, 128; refutation of Hobbes’ and Pufendorf’s understanding of the state of nature, 130; support of Locke’s labour theory, ‘on the “sway of reason in 10; on Wollaston’s view of property 126 m2 Barringron, Will 8 359 Bentham, Jeremy, 217, 225-6, 233; on law as the foundation of property, 244: on rights as the children of law, 227 Benton, Robert, 262 Berlin Conference (1884-5), 28 n71, 28-9, 129, 246, 255, 278, 282, 295, 298, 3275 dismemberment of Africa following che conference, 327; on the indigenous peoples of Africa, 289; intentions of, 273; negotiations of over whether protectorates are bound by the obligations of effective sovereignty, 2845 origins of, 273; response to by critics of empire, 290; on Sub-Saharan Affica as an immense serra nullius, 327. See alo Act of the Berlin Conference (1885) Beyona-Ba-Meya, 327: dismissal of the materialistic concept of terra mullius, 327; 0n sovereignty arising from spivicual ties, 327 Bismarck, Otto von, 246, 273, 282 Black Legend propaganda, 6%, 64 Blackstone, William, 18, 166, 176, 196 nios: concern of over landed empires, 1695 and the domestication of occupation, 170; on the foundational role for occupation in the creation of property in America, 169; on Locke's theory of labour as occupation, 169; ‘on ‘occupancy’ and the right co permanent property ‘in the substance of the earth itself’, 166; on occupation, property and common law, 168-9; on the reconciliation of the law of nations with common law, 167, 169; summary of seventeenth- and cighteenth-century writing on occupation and property rights, 167 Bland, Richard, 189, 199; on America as separate from England, 191; assertion of American colonists’ rights by, 189: on the law of nature and the rights that arise from occupation of territory, 189; on Native Americans, 191; rejection of the Hobbesian concept of rights derived exclusively fom civil society, 190: on the rights of private adventurers, 191; on the Virginia colonists’ compact with the British Crown, 191 Bluntschli, Johann Kaspar, 246, 250: on civil society, 251; eclectic and dynamic understanding of the law, 251; enthusiasm for European sovereignty and empire, 252; con the occupation of the territory of ‘barbarian ttibes,252:n the question of the acquisition of ‘cerritorial sovereignty’, 2503 on the right to existence recognised by natural law, 253: support of Bismarck’s unification policy, 251; support of Prussian hegemony, 251 Bodin, Jean, 47360 Bodley, Thomas, 62 Bonfils, Henry, 251, 268; on the acquis territory, 254; on international law as a ‘means to an international community, 2525 ‘on occupation applying only to “uninhabited” territory, 2525 rejection of the ‘eivilising mission’ and the expansion of empire, 254; oon the roots of international law, 251; scepticism of the civilising mission, 292 Botero, Giovanni, 79-80, 87 Boucher, David, 303 n2 Bowyer, George, 231, 231 n37; on common law and civil law, 251 7; on Roman law as the foundation of civil law, 231 Bracton, Henry de, 56-7 Brazil, Dutch attempts to form a colony in, 99 Brazza, Pierre Savorgnan, 287. See alo Congo, the, Brazza's civilising mission in Brett, Annabel, 41 33 Brevisima relacién de la desrucetin de las Indias (de Las Casas), 61 Brink, John Matthias, 262 British East India Company, 126; conquests in India, 150 Buckland, William, 35, 259 Bulkley, John, 25, 1823 on the creation of civil society without the establishment of property relations, 179-80; importance of property over sovereignty in his arguments, 179; on Indian rights and the state of nature and the civil state, 176-80, 18: n46s and the Lockean understanding of Indian property rights, 181-2; on Native American political organisation, 178; on Native American understanding of property and value, 180; con the nature of Native American compacts, 180-1; on ‘occupation and cultivation’ as the indisputable title’ to land, 182 473 on the “Pretended Claims of the Mohegans, 177; on the question of ‘Native right’, 174-5 “refutation of the Mohegan’ claim to political society and property’. 174 n5: on the state of nature, 175; on the territorial rights of Indians, 175; treatise of on the use of the claim to occupation as a means of questioning the rights of the imperial state, 3-4 Bulls of Donation (1493), 46, 204 Burke, Edmund, 168 Butler, Joseph, 153, Byrd, Richard E., 323 Cajeranus, 101 Calvert, George, 18 Cambridge University Library, 62 Index Cano, Melchior, 40, 47 capitalism, 2 n2, 275 Carlisle Commission, 161 Carmichael, Gershom, 26, 152-3: dispute with Pufendorf over the necessity of political obedience, 1325 dispute with Pufendost over the understanding of the pre-civil state and property, 132; on the first, second, and third laws of nature, 1323 on the “Occupation of territory’ and the “Occupation of moveables’, 133; support of Locke's labour theory, 132-4 Carmichael, Robert, 267 Carneades, 90, 158: scepticism of, 158 Cavendish, William, 85 Cecil, Robert, 7 Chakrabarty, Dipesh, 14 Chamberlain, Joseph P., 319 Chandler, Thomas, 193 Charles I (King of England), 18 Charles V (Holy Roman Emperor), 10, 46, 49-50 Charron, Pierre, 90, 114 Charter of Avalon (1623), 18 chauvinism, cultural, 29 Chesapeake colony, 60-1, 82 Christiania Conference (1910), 313 Christianity: and the dispossession of Native ‘Americans, 69; ways of preaching. Christianity in Virginia, 69-70 Christiansands, 262 Chiysippus, 36 Cicero, 35-6 158: moral philosophy of, 90; and the ‘theatre seat’ analogy of property and ‘occupation, 116, 226, 244 cityleities, 21, 425 walled cities (urbs), 21 civil law, 36, 216; and common law in England, 229; and discussions of ‘occupation in England, 229-325 in England, 260-1; European civil law, 262, 269; formal functions of, 231; origin of property in, 19. See also Getman civil law, and the law of nations: res medias (nobody's property), and civil law; Scotland, civil law as the foundation of the legal system in civil society, 8, 24, 42, 143, 251, 270; benefits of, 130; creation of, 89,115. 1385 fragility of, 1245 and Native Americans, 65- forms of sovereign civil society, 6 origins of in both self-preservation and the desire to preserve others, 154, 193: prior to the introduction of property, 95: property as a product of, 104, 131, 160, 163; and the pursuit of self perfection, 143: and security, 15; and the ‘sway of reason’ in civil society, 130Index civilisation, rhetoric of, 29 Cleveland, Grover, 307 Cobden, Richard, on empire as a hazard to free trade, 273 Coceeji, Samuel von, 260, 304 Coe, Paul, on the sovereignty of Aboriginal peoples of Australia, 328 Coe v. The Commonwealth (1993), 328-93 and the ‘enlarged’ concept of terra nulls, 329 Cold War, the, 324 “colonial protectorates’, invention of, 284 colonisation, 70, 3043 of Africa, 327; and the changing character of European colonisation, 115: critique of, 330; justification of, 30, 64, 15, 131-2, 327, 5305, justification of by commerce, 72: justification of English colonisation, 25; peculiar understanding of by the English, 25: scepticism of, 265; scepticism of ‘concerning colonisation motivated by the fear of losing liberty at home, 150: Spanish colonisation, 59. See occupation, as a justification for colonisation Colquhoun, James, 264 Columbia Joine Seminar in Intemational Law, 319-25, 327 Columbus, Christopher, 45 Commentaries on the Modern Civil Law (Bowyer), 251; as an ‘introduction to Grotius, Pufendorf and Vatee’, 252 Commentaries upon international law @Phillimote), 231 commerce, 216; and the doweeur of commerce, 5; frcedom of the sea as essential to commerce, 3325 influence of in Aftica, 2973 as a justification for colonisation, 72; and the law of nations, 72; the ‘sofeness’ of commerce, 150 commercial society: dangers of interest and property in, 159: and moral philosophy, 162 ‘communication: ‘natural communication’, 12; right of, 70-3. 147-8 community: and a community's decision to ‘employ proprietorship, 113; cosmopolitan ‘community, 149; ‘positive community’, 108, 1 Congo, the, 239, 290: Brazza’s civilising mission in, 2545 efforts to occupy the Congo, 2875 as the focus of European imperial enterprise, 273; reign of terror in conducted by Leopold IL, 298: treaties signed by Congolese with European powers, 288, See also International African Association; International Association of the Congo, recognition of asa state by the United States 361 Congo Free State, 29, 282; annexation of by Belgium, 298; constitution of, 283, 283 n40 Congress of Vienna (1814-15), 222 conquerors, redescription of as ‘seclers', 22 Conrad, Joseph, 281 n34 Constitution of Carolina (1669), 182 ‘contiguity’ (claim to adjacent territory), concept of, 213-14, Control for outer space and the Antarctic analogy (Jessup), 320, 324 Controversarinom ilustrium (de Menchaca), 42-3 cosmopolitan right, concept of, 149 Council of Trent, 40 Court Probate Act (1857), 230 Covarrubias y Leyva, Diego de, 40, 46, 50, 253 Grashaw, William, 63 1133 on dispossession of Native Americans, 69: library of, 63 ts, 63: promotion of the Virginia Campany by, 62 Creasy, Edward, 235, 278 m8; doubts of concerning the legal arguments used to justify empire, 235: on moral law, 2365 on. ‘occupation, 236; on positive law, 236 Creation of rights of sovereignty through symbolic acts T400-1800 (Keller, Lissiteyn and Mann), 323 Croghan, George, 194, 199 tig cultural diversty/difference, 13-14 cultural relativism, 137 Cumberland, Richard, 153 Darwinism, national, 275 Davis, Garters, 211; belief of chat occupation must follow discovery in order for sovercignty to be acquired, 211-13; citation of Vallet in support of his claims regarding discovery and possession, 211; views on the Oregon Territory dispute, 211-12 De Bry, Theodore, 8 De cive (Hobbes), 103, 150 De Indis (Grotius), 88, 97; differences between De Indis and On the law of war and peace, 96-75 views of property and oceupation in, 94 De jure belli ac pacis (On the law of war and peace [Grotius), 85, 90 m8, 97, 16, 3045 differences between De Indis and On the law of war and peace, 96-7; view of property in, 94-8 De jure belli libri tes (Gentil), 69 De jure naturae et gentium (Pufendort), 106-7, 109. 17, 127, 132, 3595 270 De juse pracdae (Commentary on she law of prize «and booty (Grotius|). See De Indis (Grotius) De legibus et consuetudinibus Angliae (On the law ‘and constitution of England (Bracton)), 56362 De offcits (Cicero), 24 De officio hominus et civis (The whole duty of man, according to the law of nature (Pufendotf]), 105, 259 De procuranda indorum (Acosta), 25. 77. 79-80+ and the redescription of Native Americans, 94 De rerum divisione (Bracton), 56 De societase publica cum infidelibus (On public society with non-Christians (Grotius)), 98. 00 De temporibus novisineus (Acosta), 79 Deckers, Daniel, 41 n33, Declaration of the Rights of Man (1789), 276 decolonisation, 15 Decretists, 375 39, 52 Deeretum (A concord of discordant canons {Gratian]), 38 Defence of Chapter V of mare liberi (Grotivs), 94 Denmark, 316 Des moyens dacquérir le domaine international (Ontolan), 224 Despagnet, Frantz, 249, 268, 312 nas; on the abandonment of the ‘idealism’ of Hobbes and Pufendorf, 249; critique of empire while at the same time excusing it, 53-4 oon the history of occupation, 249-50; on occupation as an historical and contemporary fact, 249; on occupation as a matter of private lav, 250; scepticism of the civilising mission, 292; on theories of incernational law, 2495 total respect of for sovereignty, 254. Dickens, Charles, 250 Dickinson, Daniel, 213; on discovery, 213; linking. of the principle of occupation wich the Monroe Doctrine through the concept of ‘contiguity’, 213-145 rejection of the rights of individual serelers in the Oregon Territory, 213: support of the right of occupation by nations, 235, Diderot, Denis, 221 Digest of Justinian (Justinian), 34-5, 45, 53: 270 Diogenes Laertius, 95 Discourse on inequality (Rousseau), 139 discovery (inverso), 45, 213, 237; British rejection. of discovery as a basis for tile, 205 ni32: European concepts/discussions of, 100-15 in international law, 312 dispossession: anxiety and arguments conceming, 65-8; and Christianity as a justification for, (69: of Native Americans, 75: and natural law tradition, 85; warnings concerning among the promoters of the Virginia Company, 69 Index Doctors’ Commons, 229, 260% demise of, 230; members in favour of selling off the property of, 2305 power of civilian lawyers in, 230 dominion, 76: arising from consent, 113; claims of the Holy Roman Emperor to domi over all the world, 46-8; ‘imperial’ dominion, 46; overlapping dominion, 46 dominium (ownership), 93, 238, 285 dominwn (property), 293 dominvm directum (crue property), 37-8 dominuon eminens (right of eminent domain), 210 dominium jurisdictions (superiority of a ruler over subjects), 41.45, 49 dominum wile (right deriving, from the use of property), 375 50; 210 Donation of Alexander, 47, 67, 307 Donation of Constantine, tor Donne, John, 73-43 on the colonisation of Virginia, 167-8 Dreghorn, John Maclaurin, 261 Droit des gens (Kliiber), 224 Duke of Wellington, objections to the Russian claims of sovereignty, 205 Dutch Fast India Company, 6, 50, 71,85, 91, 98 Durch empire, 8, 71, 306, 3085 attempts co form a colony in Brazil, 99 Dutch Revolt, 88 Dutch West India Company, 99 Duty of Man and Citizen (Pufendorf), 132, 259 Earl of Dartmouth, 186 Earl of Egremont, rulings of for the Southern ‘American colonies concerning settlements on Native American lands, 186 Earl of Halifax, 187 Earl of Hillsborough, 188 Farl of Shaftesbury, 153; on virtue as innate to humans, 153 East Greenland debate, 29 East Indies, 9, 91-2, 101 El Dorado, 77 Elements of international law (Wheaton). 305 Elizabethans, as promoters of English colonies, 6t empire, 31 176, 333 m3; abuses of, 333; commercial empire, 236; continental empires, 5 n9, 53 critiques of, 1 155 29, 3345 decline of continental empires and the rise of commercial empires, 5 ng; establishment of Affican and Asian empires based on commerce, 151; extension of through commerce rather than conquest, 5: global empires and the use of force, 7-8: ‘informal empire’, 3, 995 inherent Buropean disposition to empire, 13 932; liberal mn to empire, 271-2; origins of inIndex Americas, 81; contradictions in concerning colonisation, 82-5; full ttle of, 8: religion as the main focus of, 81 Hallifax, Samuel, 260 Harior, Thomas, 77 Harrison, Benjamin, 309 Heart of Darkness (Conrad), 281 034 ‘Heemskerck, Jacob van, 91-2 Heffier, Auguste-Wilhelm, 225, 267 ngo; on the “absolute state’ as belonging to the ‘ancien régime’, 223; on a constitutional state as the highest form of political development, 223; asa founding member of the Institut de droit international, 223; influence of within the Vormirz School, 223; on occupation over ‘wandering or savage peoples, 224; on public opinion as the arbiter of international law, 223-4; scepticism of concerning general colonial propaganda and the ‘civilising mission’ in particular, 224, 258 hegemony: American hegemony, 12; European ‘cultural and political hegemony, 99; justification of European hegemony, 12-15 Hill, Norman, 330 Histoire philosophique des établisements des Furopéens atee Indes (Raynal eta), 221 Historia natural y moral de las Indias (Acosta), 77-& as an authority on New World cosmology, 78; as a model for Purchas his pilgrimage, Sx pragmatic nature of, 78 historical consciousness, 20 historicism, 215. 274 Historie of tavell into Virginia Britannia (Strachey), 78, 83 History, progressive theory of, 23, 26, 177, 121-2, 227; stadial cheory of, 22, 119, 271 History of Rome (Niebuht), 240 Hobbes, Thomas, 23-4, 98, 104 n81, 105, 122, 1253 as an adherent of the compact theory of property, 25, 115 on contracts as the basis for all social relations, 105; on the ercation of property prior to civil society, 103: on individuals driven by the ‘Fear of Death’, 103; on justice and injustice, 1025 on nacural and civil states, 85; on the origin of property, 245 rejection of the Aristotelian ‘concept of human sociability, 102; rejection ‘of occupation theory, 102-5, 111; on the relation of law and justice to nature, 105; role of in the Virginia Company, 85; on the state of nature as a state of war, 102 Hoel, Adolf, 315; as an advocate for Norway's claim to Greenland, 3175 and the occupation of East Greenland, 316 Holst, Hermann Eduard von, 306 365 Holy Roman Empire: claims of dominion over all the world by the Holy Roman Emperor, 46-8; imperium of, 38: Hooker, Richard, 62 Hortencors, 146 Hudson Bay Company, 204 Huggucio (Hugo of Pisa), 38 human behaviour, as governed by virtue, 87 hhuman perfectbilty, 140-1, 143-5 human rights, 275 nit, 299 humanism, 90; legal humanism, 6 humanitarians, as apologists for empire, 272 Hume, David, 3-4, 26, 127, 134, 150, 162, 169, 1715 215; agreements and disagreements with Hobbes concerning civil society, 162 attempt to reconcile moral philosophy wich commercial society, 162; joy of at the prospect of American independence, 162; oon the law of occupation, 163-5; on the notion of imperial declension, 162; on ‘occupation as central to the understanding of the law of property, 162; support of trade and commerce, 162 Hutcheson, Francis, 152, 217, 264, 266: on the acquisition of property, 155: on the appreciation of beauty by humans, 1545 break of with Carmichael’s moral philosophy, 152; on the centrality of benevolence to moral sense, 154; on civil society, 154; critique of empire, 156; critique of Hobbes and Pufendorf, 153: moderation and toleration of, 152: on moral sense, 1545 ‘on natural sociability, 1535 on the natural state, 1525 on nature and natural law, 152; on the origin of property, 154-5 on the rights of mother-councries over colonies’, 156; on the seizing (occupation) of animals, 1553 on self-preservation, 153; on the state prior to the civil state, 152; struggle of with the ascendance and glorification of commercial society, 152 Hyde, Charles Cheney, 319 opinion of the Bast Greenland case, 320-1 imperialism, 298; development of anti-imperial critique, 3345 passins “free trade imperialism’, 6; ‘new imperialism’, 275, 277 ‘imperium (absolute power), 293; of Christian princes, 76: of European colonisers, 2423 Spanish and Portuguese claims to, 995, tercicorial imperium, 285 indigenous peoples/societies, 25, 843 in Austral nig; destruction of, 17. See also Native Americans; Virginia Indians inheritance, 54 n9t366 Innocent IV (Pope), 39, 94 inguiny into the rights of British colonies, An (Bland), 189 Institut de droit international, 216, 218, 223, 242, 246, 267, 276, 283, 290, 295, 308; 1888 meeting of concerning the subject of occupation, 289-90, 294; as apologists for the projection of European sovercignty, 219; commission of to decide the question of effective occupation, 285-6; and the Congo question, 279; differences within on the question of sovereignty, 252; fear of despotism among, 248; founding of, 23, 247; influence of Vitoria among the members of, 2545 liberal nature of is members, 252; on the meaning and scope of territoritan nulins, 289; and oceupation, 246-7: as the premier forum for debate concerning international law, 2435 scepticism of concerning colonisation, 289; varied spectrum of imperial critique among, as2-s. See also Revue générale de droit international public Instituts (Gaius), 240 Institutes of Justinian (Justinian), 34-5, 37: 53+ 240 Institutes of narural law (Rutherford), 196 m103, 196 insurance (shipping insurance), 263 International African Association, 277, 280, 282-3, 285 n49} creation of, 279 International Association of the Congo, 285 49; recognition of as a state by the United States, 287 International Court of Justice, 325-6, 328 international law, 12, 215-16, 249, 269, 312, 3285 creation of credited to Grotius, 88, 99: and debates concerning empire within international law, 273; as ditected by experience, history, and public opinion, 249: as European international law, 143 laws of governing the acquisition of territory, 240; natural law foundations of, 99, 216; popularisation of the idea of terra nullius in, 312 n25; public opinion as the arbiter of, 223-45 tise of in the nineteenth century, 251; role of in the relationship of liberalism o empire, 299. See abo Twiss, Travers, oon the development of theories of international law international lawyers, polarisation of, 289 internationalism, 300 Inupiac people, 306 islands, rising of in the sea, 54.91 55 94 jus gentium., See law of nations (its gentixem) jus in rem (sight to a thing), 47 Index James I (King of England), 18, 61, 65 James II (King of England), 115 Jamestown, 78 Jefferson, Thomas, onall of America asheld by allodial title, 2005 criticism of both commercial society and that of “savage Americans’, 2025 asa Lockean, 201-2; on occupation as a justification for the American Revolution, 203; on the rights of British Americans, 200-4; on the Powhatan confederacy, 202; fon the Rocky Mountains as the navural westem boundary of the United States, 2075 scepticism of civil society, 201; theory of liberty, 203: on the use of occupation, 199-200, 203; view of property, 203 Jeffersonians, and the right of occupation, 27 Jessup, Philip C., 19-20, 322-5: as ajudge on the International Court of Justice, 326; motives of concerning ferra nullias in the polar regions, 325-4 Jize, Gaston, 255, 291, 293, 297 873 on the anti- imperial tradition, 295: articles proposed by concerning occupation, 296-7; on the Berlin Act, 295; challenge of to German ‘occupation of the French Jewish community, 298: on the conditions necessary for a territory to be a ierrizortum nullius, 295-6; on etiticism of the Berlin Conference, 294; on European powers’ dependence on colonisation, 294; on the extension of European sovereignty into colonial territory, 296; French monarchist demonstrations against, 297; on the history of occupation from Roman law through natural law, 294; on the justice of ‘occupation, 294; opposition of to the legal recognition of the Congo Free State, 297: as representative for Haile Selassie in the League of Nations, 297-8 Joanna Catherina (ship, formerly John and Robert of Newcastle), 262 Johnson, Thomas, 259 Johnson, William, 186, 188, 194 Joint Seminar in International Law (Columbia University), 29 jurists, nineteenth-century, 217 n2, 21819, 268 n3t, 276, 285; lack of interest in extra- European imperial expansion, 219; reforms pursued by, 218 Jus privatum Romana German (Tittus), 127 just war, 75; Vitoria on, 40, 48-9 justification, Protestanc doctrine of, 4: Kant, Immanuel, 29, 125, 127, 134, I51, 220, 293, ‘953 anticimperalist arguments of, 147-8;Index ‘on civil consticutions, 145-73 on ‘civil union’, 146; on the concept of res nulls, 148 nig; on the constitution of a legitimate creaty, 2965 on contracts, 296 ng; on hospitality to strangers Cuniversal hospitality’), 147-95 on the idea that community could become a universal state, 252; linkage of the violation of the rights of colonised peoples to the violation of all rights, 148: on the natural right of ‘communication, 1475 on original acquisition Coriginal occupation’), 146-7; repudiation (of Locke on the issue of cultivation as necessary for occupation, 146: on the Roman law of occupation as an explanation for the origin of property, 145-63 on “taking control’ as the interpretation of ‘occupation’, 1465 use of the concept of perfectibility to critique the state, 144-5 Keal, Paul, on the historical use of rere nulius, 303 m2 Keene, Edward, 98 Keller, Arthur, 320-15 on the meaning of terra mullius as land not under any sovereignty, 3a Keller, Frederic-Louis, 251 King Aramamet, 173 King of Johore, 98-9 Kley, Dale van, 233 Kling, Melchior, 57 Kliiber, Johann Ludwig, 218, 221, 253, 2673 on legitimate occupation, 221; on the possibility of a universal world state, 222; universal rights, 222 Koskenniemi, Martti, 50, 217 n2, 21819, 233 169, 268 n31 L’Afiique Equatoriale, 282 Lansing, Robert, 314; on ‘political sovereignty’, 34 Las Casas, Bartolomé de, 41, 62.254 Laslett, Peters 17 Latin, medieval, influence of European vernacular grammar on, 55 Laveleye, Emile de, 285 law: division between domestic and external law, 168; human law, 46-7; imperial law, 167: municipal law, 167; universal laws, 299. ‘See also civil laws international law; law of the first taker; law of nations (Hus gentium); law of occupation; law of the sea; nacural law; privace law law of the first taker, i849, 259-60, 312 n24 law of nations (ius gentiumm), 10, 45, 57, 70, 210, 216, 231, 236-7, 261-2; and commerce, 72; 367 common debates over the occupation of territory in writing concerning the law of nations, 224-5; community of, 2895 in the context of legal exchanges with non- European peoples, 16; asa creation of natural law, 258; diplomatic uses of, 205; and the distinction berween barbarians and civilised men, 295: as the European law of nations, 15; as evolutionary, 222; foundation of in Roman and civil law, 261; Grotian values in, 995 a8 a hybrid of positive and natural law, 220-15 reconciliation of with common law, 167; and the tight to establish sovereignty to sovereign nations, 209 See also German civil law, and the law of nations; law of nations (its gemste), genealogy of law of nations (ius gentium), genealogy of, 232-9; development of the two great branches of the law of nations (natural law and positivism), 235; first period of dominated by Grotius, 2325 fourth period of characterised by the fusion of natural and. positive law, 233; second period of dominated by Pufendorf, 252; third period of dominated by Wolff, 232 Law of nations, The (Droit dex gens [Vattel), 40, 190 daw of nations, The (Twiss), 232 law of nature, 19, 195, 234, 237. See alo Pufendorf, Samuel, on breach of the law of nature; Pufendorf, Samuel, on the “fondamental law of nature’ law of occupation, 1,15, 21,333: critique of its use in justifying colonisation, 242: French jurists’ concern with, 243; and the Roman law of occupation, 33, 43; 45, 60, 98, 110, 120-4, 195, 240. See alio Hume, David, on the law of occupation; Kant, Immanuel, on the Roman law of occupation as an explanation for the origin of property: Maine, Henry Sumner, scepticism concerning Roman law and the law of occupation law of the sea: Grotius’ view of, 57, 313; Prussian view of, 305 laws of war: and disputes arising from the law of prizes in war, 263; during the American Civil War, 247; main issue of, 242 Lee, John, 230 Leibnitz, Gowtfried Wilhelm, 253 Lemkin, Raphaél, 298 Leopold I (King of Belgium), 239, 276: commissioning of the draft constitution, of the Congo Free State, 282: complaints brought against by the Portuguese government, 281;368 Index Leopold II (King of Belgium) (cont.) creation of the Intemational African Association by, 2795 failure of to incerest the Belgian government in his colonising of the Congo, 279; opposition to within the British Foreign Office, 2815 political and legal opposition to colonial ambitions of, 279; reign of terror of in the Congo, 258 Leviathan (Hobbes), 102 liberals/liberalism, 274, 29 and the civilising mission, 2725 complicity of in empire building, 271, 274; divisions within liberal political thought over the question of rights, 275; ‘Janus-faced nacure’ of liberalism, 275; liberal reformers as internationalists, 3003 opposition of to empire, 271-2, 275; origins of, 274 n9; post-colonial critique o' role of international law in the relationship of liberalism to empire, 299; selFinterest as a basis for liberal critique of empire, 299: use of international law by co legiimis empire, 272 liberty, 1, 299 Lieber, Francis, 2475 on civilisation as man’s true state of nature, 2475 and the ‘Lieber Code’, 247; on occupation leading to appropriation, 247; on occupation as the origin of property, 2475 scepticism conceming the state of nature as anything but hypothetical, 247 “linguistic tum’, the, 19 Lipsius, Justus, 87, 90 Lissitzyn, Joseph P., 320-1; on the meaning of serra mulfius as land wot under any sovereignty, 321 Lister, Thomas, 282 Litvinoff, Maxim, 297-8 Laceupation des territotres sans maitre (Salomon), 291 Locke, John, 1, 3, 1, 23, 82. 104, 125, 167, 1745 development of the theory of particular property, 18; on distinguishing the chief object of particular property from a state of nature, 121; on enclosure, 120 21595 influence of among American revolutionaries, 184; incerest of in the colonisation of America, 1s; on land as the chief matter of property, 120; Lockean nature of attacks on the British Crown by writers other than Locke, 193; on natural law, 59, 85: on natural law justifications for Indian dispossession, 59-60; on Native ‘American property rights, 181-2; on the “origin of ownership’, 133; on primitive and civil historical stages, 8 1149: professional involvement of in the colonisation of Carolina, 1s: on the progressive theory of history, 1215 rejection of the idea of ‘occupation as symbolic acts, 1205 on the Roman law of occupation, 120; on sovereignty, 122-3; on the state of nature and the state of war, 17; on the status of ‘American ‘Tndians’, 1153 on the two senses of property (common and particular), 16; on. "use creating both property and value, 17 fon value as the basis of a progressive understanding of history, 17; view! understanding of property, 24-5, 16, 258 See also Locke, John, labour theory of Locke, John, labour theory of, 26, 109, 18 mist, 126, 172, 196 ni05, 2023 and the act of ‘taking’ as ‘labour’, 119; Blackstone's view of, 169; contrast of with ‘occupation theory’ 8-19; dismissal of by Ahrens, 226; dismissal of by Hume, 164; and the ‘examples (from Roman lav) of wild beasts and ‘pearls’ of the sea, 119-20; labour and property value, 1:7; occupation as labour, 14-22, See ali Barbeyrac, Jean, support of Locke's labour theory: Carmichael Gershom, support of Locke’s labour theory: ‘Titius, Gottlieb Gerhard, support of Locke's labour theory Lord Dunmore, 186 Lord Granville, 282 Lord Salisbury, 307 Lords Proprietor of Carolina, 182 Lorimer, James, 2385 as an advocate of the vilising mission, 238; on the recognition of racial equality between whites and blacks in America, 238 Lovejoy, A.O.,19 Mably, Gabriel Bonno de, 244 Mabo, Edward Koiki, 328 Machiavelli, Niccolo, 7, 87, 50 Macpherson, C. B.. 2n2 ‘Magens, Nicholas, 263 Maigne, Jules, 276 Maine, Henry Sumner, 217, 239-42, 2495 as the chief exponent of the British historical school in international law, 2395 critique of landed empires by, 2425 influence of the German historical school on, 2393 scepticism concerning Roman law and the lay of occupation, 240-1; on the use of ‘occupancy to understand the origin of property, 241 Malet, Edward, 282, 288 Mallet-Provost, Savero, 309 Mandeville, Bernard, 153Index Mann, Frederick, 320-1; on the meaning of tema rnullius 2 land not under any sovereignty, 321 Manning, William Oke, 232 Mare liberurn (The fee sea (Grotius)), 68, 71. 91-2, 97-8, 1603 attack on, 943 Hakhuyt’s translation of, 71-25 primary argument of, 93 ‘Martens, Frédéric de, 308 Martens, Georg Friedrich von, 215, 218, 285; on the acquisition of property by treaties or ‘occupation, 221; importance of for nineteenth-century jurists, 2203 on. ‘occupation as a means of creating title, 221; relativism of, 2215 understanding of the law ‘oF nations as hybrid of positive and navural law, 220, 233 Martitz, Ferdinand, 285, 308; on regions considered to be tervitarium nullius, 285 ‘Mauritania, 325-6 Mbembe, Achille, on the ‘terrtorialisation of the sovereign state’, 286 men, as beasts, 74 ‘Menchaca, Fernando Vizquez de, 40. 42, 46 ‘views on prescription, 43-4, 236; views on private property, 43 Mercer, George, 187 Meriam people, 528 Metaphysical elements of the doctrine of awe (Kant), 295 Metaphysics of morals (Kant), 145, 147 Michell, Abraham Louis, 262-3 Mill, John Stuart, 1, 11, 227-8: influence of the Scottish historical school on his theory of ‘occupation, 229; on the origin of private property, 228; on two types of nacural laws, 228 Miller, David, 3145 on the Arctic regions becoming occupied and subsumed under sovercignty, 314 Mitterrand, Frangois, 297 Mohawks, 187 Mohegan case, the (dispute of the Mohegans with the colony of Connecticut), 173, 180; position of the British Crown concerning, 174. See abo Bulkley, John Molina, Luis de. 40. 64 Monroe, James, response of to British and Russian claims to the Oregon Territory, 207 Montoe Doctrine, 27, 129, 212; use of in the terra ullius debate concerning Venezucla, 306-7. See also Dickinson, Danie, linking of the principle of occupation with che Monroe Doctrine through the concept of ‘contiguity’ Montaigne, Michel de, 87, 90, 114 Montesquicu, 4, 5 n8, 150, 226; on the douceur of ‘commerce, s; on the sofiness of commerce; 150 369 Montezuma, 75 Montmorency, J. E. G. des 314-15 ‘moral philosophy, 15; and commercial society, 162 More, Thomas, 60-1 Morocco, 290, 325-6 Moser, Johann Jacob, 233; be reason as a weapon against absolutism, 233 Moya, Samuel, 275 Moynicr, Gustave, 246 Murray, William, 168 Murray Islands, 328 Mussolini, Benito, 297 in expetience over nationalism, 274; anti-imperial nationalism, 2985 in the nineteenth century, 15. 217 Native Americans, 97, 146, 1555 2253 dispossession of, 171-5; hllure of to create politcal societies, 73; recognition of as civil society, 64-70; redescription of as non-civil or devoid of society, 73-9; rights of and the concept of occupation, 85; and the struggle over sovereignty, 186; use of the arguments of occupation by American colonists against Native Americans, 173. See also Algonquian peoples: Mohawks; Mohegan case, the natural law, 36, 46, 59: 105, 209, 215, 232, 274% argument of natural law that property created by taking something, 258- development of and the emergence of the ‘modern’ schoo! of natural law, 88-95 development of natural law theory by Spanish theologians, 73: distinction between ‘modern’ and ‘ancient’ natural law traditions, 231-2; distinction between scholastic and seventeenth-century natural law, 89: inversion of the polemical force of natural law arguments of Spanish theologians, 84; late eighteenth-century natural law as empty in terms of ‘practical directives for government, 219; natural law arguments of trade and friendship, 60; natural law defence of the tights of non- European peoples, 137; natural law justifications of Indian dispossession, 59-60, 83; and the natural law of the moral world, 228; and positive law, 268; primary role of, 235; Protestant accounc of natural law and property, 160; and the pursuit of perfection, 220-1; redescription by Purchas of Vitoria's natural law assumptions in defence of Indian rights, 825 role of in international law, 2343 Roman concept of, 33: synthetic understanding of, 216; tensions berween natural law and customary law, 38-95 theories and theorists of in the seventeenth century, 23-43372 Index Principles of moral and politcal science (Ferguson), Proverbs, book of, 95 156, 160-1, 265 Prussia, 138, 223, 260, 262; Prussian view of the private law, 269; occupation as a matter of private law, 215, 250; occupation as a pri principle, 74. See alo Gentili, Alberico, adoption of private law principles as the law of the sea, 305 ue law public opinion, 274. See al Heffter, Auguste- ‘Wilhelm, on public opinion as the arbiter of international law basis for a law of peoples Pufendorf, Samuel, 6, 23, 85, 104, 15, 125, 167, proceedings of the English colonie in Virginia, The J. Smith), 65 Proclamation of 1763, 171,183, 184 ns2, 1895 as an acknowledgment of Native American sovereignty, 184 n52; British claims to sovereignty over North America in, 185-6 British justification for by the right of sovereignty, 84; context of 185 violation of 194 property, 1,22, 40% association of with sinfulness, 95; Cicero's ‘theatre seat’ analogy of property and occupation, 116; common! community property, 53 n90, 116; compact theory of, 25-6, 122, 134, 1785 as created in a state of nature, 103: division of, 54 ngt: and the doctrine of the sea as common property, 97; occupation of property following conquest, 245; occupation of property as a matter of private law, 2153 occupation-based theory of, 27, 126 n2, 131, 139, 160% origin of, 24, 19, 2473 particular property, 16; as a product of agreement, 121; a8 a product of civil society, 104, 151,160, 163; and the progressive theory of history, 122; property in wild beasts as the focus of Roman law, 109: questions concerning the creation of (from compacts or individual acts), 86; the relational meaning of property, 16; relationship between vice and private propery, 953 and the release of nacure’s porental ay necessary 0 the establishment of property, 85 a a ‘right by the natural aw of reason’, 393 seizure of (pases), 93: and the theory of justification, 9s; value of, 33,26. See al De Indis (Grotius), views of property and occupation in; De jure belli ac pacis (On the law of war and peace (Grotius)), view of property in; accupation; propery rights res nus (nobody's property); Smith, 195; bleak view of human nature, 105-6, 165; ‘on breach of the Law of Nature, 12; iticism of Aristotle, 114; critique of Hobbes’ view of the pre-civl stage of man, 106; on the dangers inherent in the pre-civil state, 106-7, 124; defence of cultural difference by, 113: denial of the natural right to consumption, 117; on discovery, 45: on the division of property, 128, 195; on the existence of property prior to civil society, 1085 on the ‘fundamental Law of Narure’ 106; and the genealogy of the law of nations, 252; imprisonment of, 105; on ‘negative community’, 108: on negative community and private property, 108; on occupation as contract, 105-7, 109-10, 1225 on the occupation of tertitory, OT on the origin of property, 24, 86, 107; Otis’ criticism of, 192: on ownership and sovereignty as based ‘on different relationships to the land, 113; on ‘positive community’, 108, 12; on possession proceeding from ‘mutual Agreement’, 28; on private property, 173 ‘on property and compact, 109, 178; on property created in a state of nature, 103: and the ‘reconstruction of rights in terms of ties’, 1545 rejection of custom as a basi for the law of nature, 1145 rejection of the right of hospitality, 148; relacivism of, 125 on self preservation, 114; Smith's criticism of, 165; and the ‘theatre seat’ analogy of property and ‘occupation, 116; on the three types of natural states, 106 n86; Titius’ criticism of, 130; understanding of Vitoria as an apologist for empire, 112; on ‘use’ and occupation, 1 tuse of the Roman law of the first taker’ 259; views on empire, 12-14 Adam, on property, occupation, and the four Purchas, Samuel, 62, 66; familiacity of with stages of human society property rights; as arising from sovereignty and vil society, 1315 association of the right to property with the right to property in oneself, 158 property rights and ‘first possession’, 128; and the question of whether property rights can be established outside of state sovereignty, 27 Proudhon, Pierre-Joseph, 226, 244; on ‘occupation, 226-7, 334; rejection of the idea of property as a natural right, 226, 244 Vitoria's writings, 67: indebtedness of to Acosta, 79-84: on the introduction of the Catholic mass into Mexico, 80; on Mexicans as belonging to the ‘thied! barbarity, 81; opinion of Virginia and Virginia Indians, 81-2; quarrel of with Pope Alexander VI, 67-8; redescription of Viroria’s natural law assumptions in defence of Indian rights, 82: on the rights of infidels, ‘71-2; on Spanish dispossession of Native Americans, 67-9 ass of |Index Purchas his pilgrimage. See Hakluytus Poselnemus (Purchas his pilgrimage (Purchas}) quaedem nullins, 56 Queen Maud Land, 323 Queensland, 328 Raleigh, Walter, 77 rationalism, Occidental, 22 Raynal, Guillaume Thomas Francois (Abbé Raynal), 221 Reading delivered before the Honourable Society of she Middle Temple in she year 1850 (Bowyer), 230037 Recueil des traités (von Martens), 220 Reddie, James, 234, 259 Reflections previous tothe establishment of a milisia (Berguson), 156 Reformation, the, 40, 51, 87, 1243 Reformation theology, 95 Relation of the state of Virginia (Rolfe). 70, 82. Relationi univerali (Borero), 29 relativism, 1375 and free human action, 157. See also cultural relativism; Pufendotf, Samuel, relativism of religion of nature delineated, The (Wollaston), 126 n2 res in bonis mullius, 57, 72 resin nulls, 6 es natura nul, 56 res nullius (nobody's property), 21, 56, 148, 161, 163, 167, 244, 254, 256, 267 130, 295; as all tertitories not inhabited by Christians, 292: analyses of in the context of Roman law, 53, 259; appearance of in medieval commentaries on Roman law, 55; and civil law, 260-4; and common property, 264-5: ‘concept of in the nineteenth century, 267; ‘concept of in the twentieth century, 2703 a8 a critique of colonisation, 265-7, 270; distinction berween res nullius and reritorium mulius, 286; as the doctrine ‘concerning the occupation of property. 2505 sgencalogy of, 51-8; and the grammar of

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