A Caledonian Contradiction: The Darien Scheme and the Evolution of European Imperial Legal Doctrine
by Nick Troy
In March 1700, the Scots colony of New Caledonia on the Isthmus of Panama was abandoned for the second time. Already overwhelmed by “the Extreamity of famine” the previous year, the colony was finally and forcefully dislodged by the Spanish.1 Despite the ultimate failure of the colonial project, the Darien scheme – by its very existence – underlined a fundamental contradiction in Iberian colonial doctrines of occupation and highlighted a significant chink in the imperial armour of the “Spanish” Americas. In doing so, New Caledonia can be understood as part of a wider confrontation between the waning power of a Spanish Empire suffering “imperial overstretch” and a burgeoning ‘British’ imperialism, driven by Scotland and England, which benefitted from what Gerald Horne describes as “second-movers advantage”.2
The Company of Scotland was formed by a 1695 Act of Parliament “for encouraging of foreign trade” to all “parts of the world not being in war with his majesty [King William III]”.3 Much like their English neighbours, penetrating the peripheral areas of Spanish domain on the Mosquito Coast, the Scottish colonists quickly established a close relationship with the various Indigenous polities in the surrounding region, whom they told their intention was to live peacefully among them and trade, and began embedding themselves in the socio-economic fabric of the region.4 Additionally, they attempted to establish governance of the colony with ties to the British colonial network through powers derived from the 1695 Act.5 In cultivating their colonial enclave in this way, the colonists personified one side of an antagonistic contradiction emerging in Spanish occupational doctrine: their inability to effectively police all of their claimed. Subsequently, this created peripheries vulnerable to encroachment from European competitors and rebellion by hostile indigenous populations.
Fundamentally, the legal discourse surrounding New Caledonia and the Anglo-Spanish ideological confrontation rested upon differing justifications for occupation and possession of territories in the “New” World. This debate was rooted in an early-modern reinterpretation of the Roman law of res nullius – that which belongs to no-one becomes the property of the first taker – that incorporated land claims.6 Spanish claims generally relied on notions of right by discovery or conquest, with the former implying an acknowledgement of res nullius (given that to ‘discover’ land, it must be vacant beforehand), and the latter rejecting it entirely. These doctrines fall within the category of ‘intentional’ occupation, as they do not always necessitate the physical occupation and subjugation of a territory to justify sovereign authority.
Contemporary Dutch philosopher Hugo Grotius, cited by McBain to have had an intellectual influence over the legal strategy of the Darien project, in acknowledging the validity of res nullius, explicitly rejected the ‘intentional’ doctrine of discovery by arguing that “the finding of them [‘new’ lands] gives them no right but in that which was no man’s before their finding.” Furthermore, historian Andrew Fitzmaurice suggests that Grotius maintained that the land must be seized in order to become the property of the ‘discoverer’; the sight of land was insufficient to lay claim to it.7 This idea resonates in the work of John Locke, who can also be described as a scholar under the umbrella of ‘physical’ occupation, given that he proposed that labour must be invested in something to remove it from the State of Nature and into private property or possession.8
Alongside this clear assertion of ‘physical’ occupation theory, which was so crucial to Grotian philosophy, sat the the concept of consensual agreement, as seen in one pamphlet written by ‘Philo-Caledon’ in defence of the colony that contended the validity of occupying a territory “by consent of the Natives”.9 Additionally, colonists were instructed to record land purchases from Indigenous inhabitants in the “English manner, least we may have occasion to shew it in after-treaties”.10 This attempt to develop a territorial claim in line with European legal doctrines served a double-purpose: through consensual agreement, the Scots could argue the validity of their claims to a European audience, while also physically embedding themselves in the social composition of Darien – underlining the inherent vulnerability of Spanish ‘intentional’ occupation to foreign intrusion and settlement.
New Caledonia’s Grotian influence made it unique among other Anglo-Scottish attempts to cultivate British sovereignty in the peripheries of “Spanish” America through ‘physical’ occupation. In contrast, it was the ideas of English theorist John Locke that held prominence in the debates surrounding British settlements on the coast of Mosquitia in modern-day Nicaragua and Honduras and the Yucatán Peninsula in Mexico. Nevertheless, the interdependent nature of theory and practice was embodied in the colonists’ investment of labour in the land which, although not explicitly deployed in the legal arena, is indicative of Lockean occupation through labour. Similarly, ‘physical’ occupational theory in Darien held aspects of its contradictory aspect – ‘intentional’ occupation, particularly by conquest – with instructions from the Scots Company often permitting the use of force should more peaceful methods fail.11 Locke, likewise, did not recognise Indigenous property rights, and instead used weak arguments of self-defence to conduct what Pagden describes as de facto conquest in the dispossession of Indigenous Americans.12 This suggests that ‘physical’ occupation was thus not a clean break from the ‘intentional’ doctrines of the Iberian powers, but instead a philosophical development equally violent and oppressive towards Indigenous Americans as its predecessors.
A study of the philosophical and legal foundations behind the Scottish colonisation of Darien, thus shows that the project can be understood within a wider confrontation between ‘intentional’ and ‘physical’ occupation. The intellectual product of this tension contributed to an emerging ‘British’ imperial ideology and its justifications for dispossession and subjugation across the globe. This contradiction emerged in response to the absence of technically ‘vacant’ lands – as the Iberian powers laid ‘intentional’ claim to most of the Americas – and the necessity for Spain’s competitors to negate these claims to further their own colonial ambitions. In doing so, the Scots Company and their contemporaries played a role in developing a more dynamic legal dimension to colonial expansion that strategically co-operated with Indigenous polities to further colonial aims and concentrated authority around key resources, rather than making abstract claims to territory with little tangible influence over them or seeking their domination solely through conquest.
Nick Troy recently graduated from the University of Strathclyde with an MSc in Historical Studies. Nick’s research focused on the legality, cultivation, commerce and conflict of British settlements in the Spanish peripheral regions of the Mosquito Coast, Yucatán Peninsula and the Isthmus of Darien in the seventeenth and eighteenth centuries.
1 George Pratt Insh, ed., Papers Relating to the Ships and Voyages of the Company of Scotland Trading to Africa and the Indies: 1696-1707 [hereafter cited DSP] (Edinburgh: Edinburgh University Press, 1924), p. 117; Julie Orr, Scotland, Darien and the Atlantic World, 1698-1700 (Edinburgh: Edinburgh University Press, 2018), pp. 142-148.
2 For more on ‘second-movers advantage’ see Gerald Horne, The Dawning of the Apocalypse: The Roots of Slavery, White Supremacy, Settler Colonialism, and Capitalism in the Long Sixteenth Century, (New York: Monthly Review Press, 2020).
3 Appendix 2: ‘Act for a Company Trading to Africa and the Indies’ in G. C. McBain, “Parcels of rogues in a nation: the story of the Darien Company and the role of Grotius in Scots legal approaches to the ‘new world’”, ‘University of Glasgow Law Postgraduate Conference 2018 Working Papers’, [accessed 15/06/20: https://www.gla.ac.uk/media/Media_646985_smxx.pdf].
4 George Pratt Insh, The Company of Scotland: Trading to Africa and the Indies (London: Charles Scribner’s Sons, 1931), pp. 126-7.
5 Medieval and Early Modern Sources Online [hereafter cited as MEMSO], John H. Burton, ed., The Darien Papers, 1695-1700 [hereafter cited as DP],‘Rules and Ordinances for the Good Government of this Colony’ (24 April 1699), pp. 113-15.
6 Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500-2000 (Cambridge: Cambridge University Press, 2014), p. 51, 123.
7 ibid., p. 120.
8 John Locke, Second Treatise of Government and A Letter Concerning Toleration (Oxford: Oxford University Press, 2016), p. 15.
9 Philo-Caledon, A Defence of the Scots Settlement At Darien: With An Answer to the Spanish Memorial against it, (Edinburgh, 1699), [accessed 01/08/2020:https://archive.org/details/defenceofscotsse00belh/mode/2up].
10 MEMSO, DP (18 August 1699), p. 138.
11 MEMSO, DP, ‘Commission to William Bell’, (16 September 1699), p. 170.
12 Anthony Pagden, Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500-c. 1800 (London: Yale University Press, 1995), p .84.
Ideas for Further Reading
- Grotius, Hugo, On the Law of War and Peace (North Charleston: CreateSpace, 1625).
- The Free Sea (Indianpolis: Liberty Fund, 2004).
- Insh, George Pratt, ed., Papers Relating to the Ships and Voyages of the Company of Scotland Trading to Africa and the Indies: 1696-1707 (Edinburgh: Edinburgh University Press, 1924).
- Locke, John, Second Treatise of Government and a Letter Concerning Toleration (Oxford: Oxford University Press, 2015).
- Medieval and Early Modern Sources Online [MEMSO]
- Burton, John H., ed., The Darien Papers, 1695-1700 (Ontario: TannerRitchie, 2012).
- Philo-Caledon, A Defence of the Scots Settlement At Darien: With An Answer to the Spanish Memorial against it (Edinburgh, 1699) [accessed 01/08/2020:https://archive.org/details/defenceofscotsse00belh/mode/2up].
- Fitzmaurice, Andrew, Sovereignty, Property and Empire, 1500-2000 (Cambridge: Cambridge University Press, 2014).
- Horne, Gerald, The Dawning of the Apocalypse: The Roots of Slavery, White Supremacy, Settler Colonisalism, and Capitalism in the Long Sixteenth Century (New York: Monthly Review Press, 2020).
- Insh, George Pratt, The Company of Scotland: Trading to Africa and the Indies (London: Charles Scribner’s Sons, 1931).
- McBain, G. C., “Parcels of rogues in a nation: the story of the Darien Company and the role of Grotius in Scots legal approaches to the ‘new world’”, ‘University of Glasgow Law Postgraduate Conference 2018 Working Papers’ [accessed 15/06/20:https://www.gla.ac.uk/media/Media_646985_smxx.pdf].
- Orr, Julie, Scotland, Darien and the Atlantic World, 1698-1700 (Edinburgh: Edinburgh University Press, 2018).
- Pagden, Anthony, Lords of All the World: Ideologies of Empire in Spain, Britain and France c.1500-c.1800 (London: Yale University Press, 1995).