Journal Article

Common and Civil Law? Taking Possession of the English Empire in America, 1575-1630

MacMillan, Ken

2003

Overview

It has generally been assumed that claims to the English empire in America were most closely associated with the English laws of land possession. This notion is reinforced by the long-standing belief that England eschewed Roman civil law and its derivatives in preference for the unique, domestic, and vernacular common law. As a number of historians have recently argued, however, English contemporaries recognized that the civil law, as codified by the emperor Justinian in the sixth century, was needed in all matters dealing with foreign affairs and foreign lands, because the common law had no efficacy in these matters. An examination of the colonial charters (or letters patent) issued by the English between 1575 and 1630, reveals that, in addition to use of the common law, may be found various expressions of the civil law and its derivative, the law of nations. The employment of these legal codes helped to ensure that England’s claims to territory in North America were internationally intelligible and less subject to the type of challenges that could result from the exclusive use of the English common law.

• Publisher: University of Toronto Press
• Subject: American English / British Empire, ca. 1600-1970 / Civil law / Colloquial language / Common law / Government regulation / History / Language history / Law / Laws, regulations and rules / Legal history / Occupations / Portuguese / Possession / Prototypes / Social aspects / Spanish