In the middle of his report on the Case of the Post-nati, also known as Calvin’s Case (1608), Sir Edward Coke drew a distinction between the status of laws in conquered Christian and conquered infidel territories. Scholars have long interpreted this distinction as an expression of Coke’s interest in the Virginia Company, but the assumptions that underpin this colonial reading have recently been called into question. In this article, I revisit the influence of England’s early colonial ventures on Coke’s report. His remarks on infidels, I maintain, were intended to respond to a particular line of argument advanced before the Exchequer Chamber. Specifically, Coke aimed to foreclose the denization of Indigenous Americans in England as a result of colonial conquests, a possibility raised by counsel for both the plaintiff and the defense. Anxious about the potentially disordering implications of imperial expansion, Coke hoped to secure England’s legal order by excluding infidels from English subjecthood. But if this was what Coke intended by his remarks on infidels, what he did was furnish a new justification for colonial conquest that ran contrary to his own aims. In the conclusion of this article, I exploit this disconnect between Coke’s intentions and his actions to make a modest contribution to ongoing debates over the relationship between law and history.

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Francisco de Vitoria and Alberico Gentili on the Juridical Status of Native American Polities

Renaissance Quarterly, Vol. 72, No. 3 (Fall 2019): 910-952.

Over the course of the sixteenth century, Europeans writing about the ius gentiumwent from treating indigenous American rulers as the juridical equals of Europe’s princes to depicting them as little more than savage brutes, incapable of bearing dominium and ineligible for the protections of the law of peoples. This essay examines the writings of Francisco de Vitoria and Alberico Gentili to show how this transformation in European perceptions of Native Americans resulted from fundamental changes in European society. The emergence of a novel conception of sovereignty amid the upheavals of the Protestant Reformation was central to this shift and provided a new foundation for Europe’s continued imperial expansion into the Americas.

On September 21, 1638, the Mohegans, the Narragansetts, and the English colonists on the Connecticut River reached an agreement at Hartford to settle their affairs following the Pequot War. The original copy of the treaty having been lost, scholars have depended almost exclusively on a copy prepared for the 1705 hearing of the Mohegan land case. However, this document represents only a fragment of the original agreement, leaving out four of the thirteen provisions agreed to by the parties in 1638. The original text of the treaty is reconstructed here by drawing on all of the surviving copies of the agreement: the 1705 copy already familiar to historians, a 1734 copy prepared during a later hearing of the Mohegan land case, and a newly rediscovered copy dating from 1665 and held among the British Library’s Lansdowne Manuscripts. This reconstructed treaty illuminates how indigenous polities and English settlers sought to navigate the jurisdictional politics of early America. Moreover, it presents scholars with an important resource for reconsidering the evolution of Anglo-Indian relations in New England, particularly the breakdown of the relationship between the Massachusetts Bay Colony and the Narragansetts in the early 1640s.

South Carolina was a staggeringly weak polity from its founding in 1670 until the 1730s. Nevertheless, in that time, and while facing significant op- position from powerful indigenous neighbors, the colony constructed a robust plantation system that boasted the highest slave-to-freeman ratio in mainland North America. Taking this fact as a point of departure, I examine the early man- agement of unfree labor in South Carolina as an exemplary moment of settler- colonial state formation. Departing from the treatment of state formation as a process of centralizing “legitimate violence,” I investigate how the colonial state, and in particular the Commons House of Assembly, asserted an exclusive claim to authority by monopolizing the question of legitimacy itself. In managing unfree laborers, the colonial state extended its authority over supposedly private relations between master and slave and increasingly recast slavery in racial terms. This recasting of racial slavery rested, I argue, on a distinction, pervasive through- out English North America, which divided the world into spheres of savagery and civility. Beneath the racial reordering of colonial life, the institution of slavery was rooted in the same ideological distinction by which the colonial state’s claims to authority were justified, with the putative “savagery” of the slave or of the Indian being counterpoised to the supposed civility of English settlers. This article contributes to the literatures on Atlantic slavery and American colo- nial history, and invites comparison with accounts of state formation and settler colonialism beyond Anglo-America.