Garner: Europeans in Neo-European Worlds 35 EUROPEANS IN NEO-EUROPEAN WORLDS: THE AMERICAS IN WORLD HISTORY by Lydia Garner In studies of World history the experience of the first colonial powers in the Americas (Spain, Portugal, England, and france) and the processes of creating neo-European worlds in the new environ- ment is a topic that has received little attention. Matters related to race, religion, culture, language, and, since of the middle of the last century of economic progress, have divided the historiography of the Americas along the lines of Anglo-Saxon vs. Iberian civilizations to the point where the integration of the Americas into World history seems destined to follow the same lines. But in the broader perspec- tive of World history, the Americas of the early centuries can also be analyzed as the repository of Western Civilization as expressed by its constituent parts, the Anglo-Saxon and the Iberian. When transplanted to the environment of the Americas those parts had to undergo processes of adaptation to create a neo-European world, a process that extended into the post-colonial period. European institu- tions adapted to function in the context of local socio/economic and historical realities, and in the process they created apparently similar European institutions that in reality became different from those in the mother countries, and thus were neo-European. To explore their experience in the Americas is essential for the integration of the history of the Americas into World history for comparative studies with the European experience in other regions of the world and for the introduction of a new perspective on the history of the Americas. The process of adaptation of laws and institutions is one among many that illustrate this adaptation. English law in Colonial new York The colonial constitution of new York is an example of the overpowering influence of the different realities that existed between England and the Americas. from the first to the last, British governors of new York had to answer questions to the Board of Trade on the Produced by The Berkeley Electronic Press, 2004 1 World History Review, Vol. 2 [2004], Iss. 1, Art. 3 36 WORLD HISTORY REVIEW / Fall 2004 conditions of the colony. one invariable question was, “what is the Constitution of the government?” Until 1738 the governors usually replied that “the governor, with the Council and Assembly are em- powered to pass laws not repugnant to the laws of England.” In 1749, however, the governor added: “But the Assembly have made such encroachment on His Majesty’s Prerogatives by having the power of the purse that they in effect assume the whole executive power in their own hands.” Two years later, in 1751, the Board of Trade rec- ommended that the next governor safeguard the legal prerogative of the Crown, which was being undermined by the Colonial Assembly. Understandably, new York’s colonial constitution was subordinate to the English constitution and dependent on the King’s will. But as Hulsebosch stated, “the fit between English constitutional law and colonial experience was imperfect, and did not conform to English models,” for conditions in England were different from those in new York.3 In reality English constitutional law transplanted to north America was adapting to the local realities and distancing itself from that of the mother country, thus giving rise to the American revolution- ary interpretation of the “constitution” of the British Empire versus the British interpretation. london’s interpretation was that “parliament was omnipotent” to legislate, whereas the colonial interpretation was based on the belief that the rules “limited Parliament’s authority to legislate for the American colonies.”4 The passage of time increased the interpretational difference. By the middle of the eighteenth century there were three ver- sions of the of the Constitution of new York. The first was the imperial version sponsored by the British agents charged with enforcing the constitution and defending the interests of the British Empire. The second was the provincial interpretation that emerged from the grow- ing self-consciousness of the provincial elites and their relations with neighboring colonies, and from their use of voluntary associations and corporate models to create a system of local government based on legal traditions such as “the rights of Englishmen” and to “carry forward the progress of English liberty.” This provincial interpreta- tion amounted to a de facto autonomy according to the principle of “each sovereign body within a sovereign body,” an interpretation http://ecommons.txstate.edu/whr/vol2/iss1/3 2 Garner: Europeans in Neo-European Worlds Garner / EUROPEANS IN NEO-EUROPEAN WORLDS 37 similar to that of the Creoles in the Spanish Vice-royalties in the America during the Hapsburg Dynasty.5 The third version resulted from the experiences of new Yorkers in the northern marshlands, the open lands receiving the migration from the British islands and from Western Europe. In the marshlands the great challenge was to English property law, not to English constitutional law, since several groups claimed this land while no one clearly possessed title to it. The imperial agents wanted to control the marshlands for the Crown but provincial law wanted to gain control of these regions. At the same time contending families, ethnic groups, native claims, and claims of other nations and other colonies ensured that English property law, as interpreted and applied in England, had no chance of being implanted in these territories, much less obeyed. on this frontier people ignored English property law totally and did as they pleased by ignoring restricted areas of settlement, royal proclamations, titles, and regulations for the acquisition of land and trade. The disregard for English law was not restricted to new York. The 1777 Vermont Constitution invoked “the freedom of movement” in a similar situa- tion. In the reality of the frontier the inability of the imperial agents to enforce property law caused another casualty, the jury system. new York jurors did not protect “native claims,” accepted just about any type of infraction, and thus served as “a shield for individual and group interest.”6 Yet, all along colonials assumed that the provincial constitu- tion and the English “constitution” were similar and that the provincial constitution was “coordinate, not subordinate to the English.”7 new York colonials saw no discrepancy in their method of applying English law. rather, they saw themselves as people who “enjoyed the rights of Englishmen,” with a constitution that “confirmed the common law of England,” who ruled themselves locally, and who constantly “invoked the spirit and the phrases of common law.”8 However, English law, constitutional or private, had been transplanted to north America but it could not be applied as in England due to the differ- ent conditions and realities of the Americas. Distance and the open territory, combined with the belief in self-government, conspired to weaken and then to promote new interpretations of English laws that, while more in harmony with the local realities, were creating new Produced by The Berkeley Electronic Press, 2004 3 World History Review, Vol. 2 [2004], Iss. 1, Art. 3 38 WORLD HISTORY REVIEW / Fall 2004 concepts in contradiction to the general trend towards centralization then developing in England. Slave laws in the Americas The adaptation of European law to local realities is reflected in the evolution of slave law in the different slave societies in the Americas, which were based on the two judicial traditions of Eu- ropean law: roman law and Anglo-Saxon law. Each colonizing power brought the laws applicable to its conditions and at the level of the evolution of slave legislation existent in their mother countries at the time. Before European continental law was codified,r oman law was interpreted by professors, not by judges or practitioners, while in England judges did not have the power to make law. rather, they relied on precedents.9 In the case of slavery and manumission, under roman private law slaves were regarded as human beings for some purposes and as things for other purposes. In the area of manumission there was a specific body of law relating to slavery. Sincer oman slavery was not linked to race but to conquest, there was no obstacle to manumission. Before the sixth century Christianity had made little impact on roman private law. Therefore, the laws on manumission in the Justinian Code continued to be the laws of the roman Empire, and as a condition of imperium the laws of rome applied to all newly conquered lands by the right of accessio, that is, the condition of incorporating one into the other. Slave laws in the Americas preserved a major distinction between those that were the product of roman private law and those that were the product of the Anglo-Saxon law.10 In areas colonized by peoples who had received roman law, such as the Portuguese and Spaniards, slave laws followed the char- acteristic of roman law. In Spanish America, the source for slave laws was Las Siete Partidas, the legal system of Castile compiled by Affonso X in 1265, which was steeped in roman law. Slaves and manumission were mentioned in this Code, which also seems to have adopted from the Visigoth Code the recognition of the validity of slave marriages. In Las Siete Partidas the humanity of the slaves was recognized and an owner could free a slave or punish him/her in due measure. Inhumane treatment or killing a slave was forbidden, and slaves could complain to the courts. In certain cases judges could http://ecommons.txstate.edu/whr/vol2/iss1/3 4 Garner: Europeans in Neo-European Worlds Garner / EUROPEANS IN NEO-EUROPEAN WORLDS 39 order slaves sold.