Reviewed by Alexander Haskell | Book Review | The William and Mary Quarterly, LXV.4

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Reviewed by Alexander Haskell | Book Review | The William and Mary Quarterly, LXV.4 | The History Cooperative

Reviews of Books

Sovereignty and Possession in the English New World: The Legal Foundations of Empire, 1576–1640. By Ken MacMillan. Cambridge: Cambridge University Press, 2006. 249 pages. $99.00 (cloth).
Reviewed by Alexander Haskell, University of California, Riverside
This excellent book, which should be read by anyone interested in the legal and constitutional foundations of England's emerging American empire, takes as its starting point the methods that the English in the late sixteenth and early seventeenth centuries used to assert legal title to American lands. Most studies have interpreted European claim making in America as profoundly limited in its capacity to speak persuasively beyond national borders. In Patricia Seed's ambitious comparative analysis, English, Spanish, French, Portuguese, and Dutch strategies for securing legitimate title in the New World cleaved tightly to specific national-cultural traditions. Even when they leaned on common legal terms such as "possession" that derived from a shared Roman-law tradition, Europeans understood such terms in their own vernacular languages and against the backdrop of their own particular cultural heritages. Thus splintered along national lines, the Atlantic was a zone of incompatible and conflicting legal systems, not an arena in which meaningful legal discourse or agreement was likely or even possible.¹	1
Countering this impression, an important achievement of Ken MacMillan's book is to demonstrate that Roman law did in fact provide a vital lingua franca in the early modern Atlantic world of competing territorial claims. In making this case, MacMillan is able to rely upon a wealth of new scholarship on the substantive role of Roman law in Elizabethan and Stuart England that was unavailable to Seed when she was writing in the early 1990s. Seed's book appeared at a time when the combined weight of F. W. Maitland's magisterial studies of English law and J. G. A. Pocock's analysis of England's "ancient constitution" argued that the English shunned Continental Roman law in favor of the homegrown common law.² More recent studies have significantly modified this view, not only by recovering the importance of Roman law in English legal culture but also by reconstructing the plural nature of early modern European legal cultures generally. Just as early modern states tended to take the form of loose confederations of semiautonomous polities with complex and often overlapping boundaries, so too did the legal cultures that developed in such "composite" states typically consist of intricate patchworks of disparate legal systems and codes. Such legal patchworks—pluralistic systems of "many legalities," as scholars have come to think of them—made generous room for Roman law and its derivatives, including civil law, natural law, the law of nations, and the laws of merchants, war, peace, prizes, and the seas, for the simple reason that the sheer cosmopolitanism of Roman law made it better suited than domestic legal codes, such as the English common law, for adjudicating affairs outside the realm.	2
In a Europe busily engaged in state and empire formation and where a loose jus commune (common body of laws) for international arbitration had gradually come into being, even the notoriously provincial English could not afford to ignore the efficacy of Roman law in foreign affairs. Especially after the break from Rome, when Henry VIII claimed "imperial," or sovereign, powers, the need to preserve and express such imperium in a world of competing and similarly independent states encouraged first the Tudors and then the Stuarts to promote the reception of Roman law in England. Thus, by the time the famed voyages of Martin Frobisher, Francis Drake, and Humphrey Gilbert initiated Elizabethan ventures into the New World in the mid-1570s, Oxford and Cambridge boasted Regius Professors of Civil Law, various civilian courts such as the High Court of Admiralty flourished, and authorities on Roman law served as key royal advisers, providing guidance especially in "matters of sovereignty, empire, and foreign relations" (28).	. . .

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