Ballone on Ross and Owensby, 'Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America'

Author: 
Richard Jeffrey Ross, Brian Philip Owensby, eds.
Reviewer: 
Angela Ballone

Richard Jeffrey Ross, Brian Philip Owensby, eds. Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America. New York: New York University Press, 2018. 352 pp. $30.00 (paper), ISBN 978-1-4798-0724-6.

Reviewed by Angela Ballone Published on H-Atlantic (March, 2020) Commissioned by Bryan Rindfleisch (Marquette University)

Printable Version: http://www.h-net.org/reviews/showpdf.php?id=54635 

Travels across a Fog of Legal Misunderstanding in the Early Modern Americas

A collective volume with a decided cross-imperial approach, Justice in a New World compares and contrasts two major empires of the early modern era, the British and Iberian (the latter encompassing both the Portuguese and Spanish Empires). Most importantly, it highlights active Indigenous agency in dealings with and within these two empires. The authors accomplish such important points via the prism of legal intelligibility, and developing a deeper understanding of the process by which “law became intelligible as historical actors began to appreciate the values and history behind a legal idea” (p. 13). One aspect of such legal intelligibility is that of “mutual” intelligibility for legal encounters, meaning how European and Indigenous individuals moved gradually from an initial lack of understanding of their respective legal frameworks to higher levels of comprehension and interiorization of these, up to the adaptation—within their respective communities—of enhanced legal concepts and the hybridization of legal meanings attached by and to different groups (p. 13).

Enjoyable to read, supported by robust and up-to-date works and references in the chapters’ endnotes (beware, there is no bibliography as such, except for one at the end of chapter 5), Justice in a New World provides readers with an array of excellent transimperial case studies while also demonstrating an in-depth awareness of the limits to conceptualizing a definition for legal intelligibility. This work also does a remarkable job of leading readers through the various encounters that took place in the New World and lifts the “fog of legal misunderstanding” chapter by chapter (p. 13), a narrative experience that both European and Indigenous actors, as well as readers themselves, shared in the New World. Then, in the two final chapters, the book forces the reader to reconsider if not doubt the extent of intelligibility as a useful methodological category to approach early modern legal history.

Structurally, the first chapter serves as an introduction to the "state of the art" in legal studies across early modern empires. In it, Owensby and Ross provide the context of the scholarly discussions that motivated this volume, giving an idea of how the conference at which these works were discussed—held at the Newberry Library in 2014, "Meanings of Justice in New World Empires: Settlers and Indigenous Law as Counterpoints"—might have gone (p. 307). Then there are two main parts: part 1, “Mis-dialogue, code switching, and mixing languages of Law,” begins with a look at Brazil, North America, and Peru from the sixteenth to the early eighteenth century. The authors discuss how Indigenous peoples and settlers from New England, Pennsylvania, Virginia, Maryland, and Peru talked through their respective legal frameworks, up to the point of jointly producing something new in terms of an ever-growing common legal language. Part 2, “At the boundaries of differing conceptions of justice,” offers a broader chronological approach, although it develops in just three chapters. Here we read about both legal and geographical boundaries, inasmuch as chapters discuss conceptual differences with regard to how the parties involved dealt with murder, how property of the land was organized within the community, and, finally, how Indigenous people in the context of the independence struggle assessed citizenship. The case studies presented include Virginia and Florida in the seventeenth century, New York and east Florida in the eighteenth century and, finally, the Andean highlands of New Granada from the constitutional era to the nineteenth century.

In the first of the core chapters, Tamar Herzog calls our attention to questions about the law when studying mediators and translators in order to tackle the codes that guided their behavior—or, the rules that silently operated in the background of Indigenous-European encounters and interactions. She argues that “these rules were legal in the sense that they were normative” and highlights the fact that “laws were but a secondary normative source of very limited importance” (pp. 63-64). Hence the importance of taking into consideration other codified aspects of such encounters and interactions. Herzog also reconstructs both Portuguese and Indigenous legal structures by closely reading what limited documentary evidence is available, be it “flawed because it obscured what natives desired and rarely addressed the question why they did certain things” (p. 63). By performing something similar to what Herman Bennett has recently described as “the interpretative practice of rereading the early modern colonial library,”[1] Herzog convincingly compares and contrasts the information available in Portuguese accounts as "mis-dialogues" happening in the Amazon basin (e.g., the 1659 encounter between the Jesuit Antonio Viera and a group of "not-yet-domesticated Indians," the 1771 alliance conversations between the commander of the Iguatemi fort and Indians and, finally, the 1780 dialogues between Portuguese and Indians from the “Mura” nation). By examining the language used, topics discussed (e.g., alliances), and actions performed (e.g., gift giving), Herzog unveils “expectations that were not spelled out” and hints at the mechanics of disagreement between the two parties (pp. 77, 80). For Herzog, certain aspects and actions, as well as their effects, need to be analyzed in connection with “deep-rooted conventions” which, in turn, operated as “normative structures” (p. 82). In this sense, her call to consider questions about the law within disciplines beyond legal history is most valuable. Indeed, she shows how this approach can guide us to an understanding of how things worked on the ground of the New World, understood in its broadest terms both geographically (Iberian and British) and culturally (between different kinds of colonists and different groups of Natives).

In chapters 3 and 4, respectively by Jenny Hale Pulsipher and Craig Yirush, we move to sixteenth-century North America. Echoing one of the themes previously introduced by Herzog, the focus here is on land and on how its uses and misuses were at the top of the agendas for both Native peoples and European settlers. Pulsipher introduces us to the Nipmuc Indian John Wompas, who attended Harvard College and skillfully navigated a context of “creative misunderstanding” and “legal hybridity” with his European peers (p. 92). As an example of American Indians’ legal strategies to defend their rights to land before English abuses of such rights, together with their “own land ways,” Wompas’s trajectory gives the author an excellent way to discuss Indian implementation of deeds and land grants—a.k.a. English mechanisms of land acquisition—to “fight dispossession” (p. 99). At the same time, Pulsipher discusses negative English perceptions of New England Indians abusing such land practices; and yet, “in response to ... petitions [from Indians as subjects of the king], the English continued to pay for Indian land” even after the 1670s (p. 104). The land theme continues to be relevant in Yirush’s chapter focusing on Iroquois legal arguments at the 1744 Lancaster treaty conference hosted by the governor of Pennsylvania, to solve land disputes between the Iroquois and the colonies of Virginia and Maryland. Through delicate mechanisms of diplomacy and mediation, Yirush shows again the extent to which intelligibility of the respective legal frameworks was put into use by the parties involved. For example, both history and conquest rights played an important role in the argument used by Native spokesmen such as Canassatego or Tachanoontia (p. 125). In turn, it is interesting to follow the author in his discussion of how counterarguments presented by Virginia and Maryland differed in their form. As a scholar working more from an Iberian point of view and comparing that to British North America, I found these two authors’ discussion both compelling and thought-provoking. Property dealings also play a big role in chapter 5, by Karen B. Graubart. Here we move to Peru and Native community strategies to preserve their ways of owning and exploiting property within the very particular context of the reducción system imposed by Spaniards in Peru. She also looks at ways in which labor supplies were managed within the local community before and after the Spanish encounters. In line with previous chapters, Graubart discusses the concept of miserables (wretches) as an important aspect of Spanish legislation with regard to Indigenous peoples (p. 164).

As we move to the second part of the book, the theme of legal protection is further discussed by Bradley Dixon in chapter 6, where we learn about Native-English relations in Florida—where the legacy of the Spanish legal system was important in terms of what English knew about it—and, then, in Virginia before and after Bacon’s Rebellion in the late 1670s (p. 199). Interestingly, Dixon introduces here another core concept of negotiations in the Americas, that of tribute. According to him, “Virginia’s tributary regime was the closest that the English colonizers came to the Spanish ideal of incorporating Natives into the colonial polity.” Thus, “Native arguments ... took the form of assertions of the corporate rights they believed English law entitled them to” (p. 184). By contrasting Iberian models from the so-called vast “Spanish periphery” to Natives’ tributary status in English colonies, Dixon highlights how the Virginian case promoted coexistence and self-determination for both parties, up to the concluding account of modern-day Virginia recognizing Pamunkey Indians as a “federally recognized tribe” in 2015 (p. 204).

The comparative approach to colonial (hierarchical) and Native (customary) law serves as the basis for chapter 7, by Nancy O. Gallman and Alan Taylor, a methodological prism through which they analyze the specific case of intercultural murder in eighteenth-century North America (p. 215). By contrasting the “pragmatist” approach of William Johnson (British superintendent for Indian affairs in the northern colonies) to the “doctrinaire” of Jeffrey Amherst (British military commander in North America after 1763), and then adding the case of east Florida, these two authors complicate the entire concept of legal intelligibility by emphasizing the “interplay between three notions of justice,” where features from local Native communities intersected with those of either the British or Spanish laws, or in some cases, both (p. 231). 

Finally, tribute payments were among the arguments used by Indians within the viceroyalty of New Granada (today’s Colombia) to oppose early liberal experiments of Indigenous citizenship in the constitutional moment of the early nineteenth century that eventually led to independence from Spain. This enlightening case study is discussed by Marcela Echevarri in chapter 8. In it, Echevarri discusses the role of Indians “as strategic allies” in the struggle between creoles and the monarchical regime (p. 252). Protesting the “paternalist tone” of local colonial officers advocating their equality to whites as an improvement, some of the Indian voices who opposed the creoles relied on tribute to the Crown “as a practice that entitled [Indians] to the right of autonomy” (pp. 250-51, 258). In the author’s words, by “defending tribute payment” these Indigenous peoples were aiming at “protecting their territorial autonomy and the communal sovereignty,” thus relying on “the legal protection” that Spanish legislation had set up for them (pp. 260-61).

However, it is the final chapters that really stand out. Lauren Benton introduces the concept of studied ignorance as a legal strategy upon which European settlers had no monopoly. Taking as a starting point an incident from the nineteenth century involving Aborigines and settlers in Australia, she highlights two points: on the one hand, Aborigines' “purposeful disregard for settler sovereignty” and, on the other, settlers' “willful refusal to recognize Aboriginal claims to local authority” (p. 273). She concludes this was the work of “studied ignorance” since, “like feigned mastery, studied ignorance is a familiar and often favored legal strategy” of Indigenous peoples, one that easily goes hand in hand with the concept of “cultivated ambiguity” (pp. 275, 281-82). Then, Daniel K. Richter poses the question of “incommensurability” when comparing legal systems. For him, “at least in the abstracts, imperial power and settler colonial regimes could not have been more incomparable, and their legal cultures more incommensurable” (p. 292). On top of that, he adds, “what of the extraordinary diversity of Native peoples’ own legal cultures throughout the Americas?” (p. 294). At first it is nearly impossible not to agree with these two authors, but their work more meaningfully serves as a commentary if not review of the many case studies presented by the rest of the authors, a questioning of whether scholars can or should utilize the concept of legal intelligibility as a useful working tool to look at legal encounters in the early modern America. Benton and Richter’s dialogue with the other authors demonstrates a genuine consideration of each case study, as well as in-depth understanding of both the field of legal history and that of the British and the Spanish Empires. It is rare to find this in current scholarship. However, I must admit I was a bit surprised by this turn of events that the two editors had decided to take in designing the volume how they did, and it took me a while—of much-needed thinking, as after any good reading—to come to terms with this. In the end, though, Owensby and Ross structured these two “Concluding perspectives” as good examples of the very same limits they had mentioned in their introductory essay. 

Altogether, Justice in a New World is a compelling read and one that will undoubtedly push readers to the edges of their own, as well as different, fields of study. It will be of interest to both scholars and students studying imperial history in either the British or the Iberian Atlantic, or—even better—both. It offers a precise set of examples of how legal history can and should contribute to the history and cultural studies of Indigenous populations in the Americas and, hopefully, will spark further discussions around intelligibility, studied ignorance, and incommensurability.

Note

[1]. Herman Bennett, African Kings and Black Slaves. Sovereignty and Dispossession in the Early Modern Atlantic (Philadelphia: University of Pennsylvania Press, 2019), 3.

 

Citation: Angela Ballone. Review of Ross, Richard Jeffrey; Owensby, Brian Philip, eds., Justice in a New World: Negotiating Legal Intelligibility in British, Iberian, and Indigenous America. H-Atlantic, H-Net Reviews. March, 2020. URL: http://www.h-net.org/reviews/showrev.php?id=54635

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