By Nicholas Troy
In 1787, to prevent conflict with Spain, the British colony of Black River – the central node in a dynamic contraband trade on the Mosquito Coast – was evacuated. At the start of the same century, logger settlements in Yucatán and the Scots colony in Darien paid the price for defying Spanish authority. The latter was overwhelmed twice, initially by “the Extreamity of famine” in 1699, and, after a brief recolonization, by force in 1700. In spite of their ultimate failures, the importance of these peripheral colonies cannot be underestimated in developing British imperial domain in the Americas, particularly its position in relation to its Spanish rival. Throughout the seventeenth and eighteenth centuries numerous attempts were made to assert British “Right of Dominion” within the Spanish imperial sphere, with the colonial projects in the Yucatán Peninsula, Mosquitia and Darien illustrative of an inter-imperial discourse that fundamentally challenged the contemporary hegemonic ideology of the Spanish Empire.
British settlement in Mosquitia during the 17th and 18th centuries came into existence largely as a by-product of the colonisation of Providence Island (1630-41). During this period, the Providence Island Company (PIC) branched out onto the mainland in order to trade with the Indigenous polities of the region, as well as for the “propagation of Christianity”. The Mosquito Coast was henceforth populated with British subjects in a smattering of settlements along the shore, namely the Black River settlement (1732-87). Prior to the establishment of Black River the authorities in Jamaica and British subjects along the Coast had cultivated a friendship with the indigenous Moskito, who were of crucial importance in protecting the informal logwood industry of Belize and the Yucatán Peninsula, which had grown rapidly in the wake of the Treaty of Madrid (1670) which essentially ended peacetime privateering. Similarly, while privateers cultivated areas of autonomy in the Yucatán, 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]”. This led the Company to establish the settlement of New Caledonia on the Isthmus of Darien in 1698 – a region, much like the Mosquito and the Yucatán, formally under the jurisdiction of the Spanish Empire. Like the English settlers on the Mosquito Coast, the Darien colonists quickly established a close relationship with neighbouring Indigenous polities, whom they told their intention was to live peacefully among them and trade.
As Benton notes, Europeans did not always pursue physical occupation as a means of possessing a territory, but instead sought to persuade their audience – both imperial and Indigenous – for possession. Benton suggests that, given Roman law was based in fact rather than entitlement, this would be employed theoretically to establish ownership through usacapio (length of possession).  This essay will assess and analyse the differing theoretical and legal justifications for occupation and possession between the British and Spanish empires, comparatively analysing their deployment in regards to the British settlements in the Spanish peripheries of the Yucatán Peninsula, the Mosquito Coast, and the Isthmus of Darien.
Legal Doctrine in Context
In the Social Contract, Genevan philosopher Jean-Jacques Rousseau posed the question: “How can a man or a people seize hold of an immense territory and deprive the entire human race of it?” It was precisely the question of how that had defined the discourse around early modern European colonisation of the Americas, with theorists, statesmen and even colonists themselves deploying legal arguments and justifications for their colonial projects, as well as utilising physical markers and inter-polity relationships to exert their “Right of Dominion” throughout the Americas. The colonial projects of the Yucatán Peninsula, Mosquito Coast and Darien were undertaken in areas of peripheral control in the Spanish Americas, and serve to underline the key contradiction within this Anglo-Spanish contest between the established and recognised Spanish ‘intentional’ occupation and the burgeoning ‘physical’ occupation of their British competitors.
Crucial to understanding this contradiction between ‘physical’ and ‘intentional’ occupation is acknowledging its root in Roman law, which the Iberian powers utilised as an additional justification to the Papal donations that gave them their early territories in the ‘New World’. Fundamental to the relevant Roman law was the doctrine of occupation, res nullius, which simply posits that that which belongs to nobody becomes the property of the first person to take it. For early modern scholars, this was in reference to the occupation of land, which was not its original purpose in Roman law. Spain and the embryonic British Empire had differing approaches to the concepts of occupation and possession, which were to prove antagonistic and allow for an aperture in the legitimacy of the former, wand thus permitting the penetration of the latter. This discourse was underpinned by Article VII of the 1670 Treaty of Madrid, which, in establishing peace between the British and Spanish crowns, ambiguously granted the former “right of sovereignty, dominion, possession, and propriety” over lands in the Americas which they did “at present hold and possess”.
The core doctrines of ‘intentional’ occupation were that of Right by Conquest and Right of Discovery. These concepts were the favoured justifications of the Iberian powers, who sought – through the former – not merely surrender from the indigenous population, but “submission to Catholicism and its legitimate representatives, the Spaniards”. Dutch philosopher Hugo Grotius, whose theory was more closely associated with ‘physical’ occupation, rejected this, claiming in his book The Free Sea that the Portuguese had no right to declare war upon indigenous peoples as there had been no hindrance of trade between them, and argued that Spanish imposition of Catholicism was not a “lawful” reason to “pursue them with wars and spoil them of their goods.” In contrast, English philosopher John Locke argued that “the Property of Labour should be able to over-balance the Community of Land”. In stating this, despite his explicit assertion that “the Conqueror, even in a just War, hath, by his Conquest no Right of Dominion”, Locke indirectly legitimised the dispossession of Indigenous Americans, as he believed they held no property rights to begin with, and settled only on land held in common. Thus, it was appropriate for the English to claim these ‘vacant’ lands and “destroy him [any potential aggressor] if he pleases” in “Defence of his own Right”.
Conversely, the doctrine of discovery finds a natural link with res nullius in the implicit notion that to “discover” such land, it must be vacant beforehand. However, Grotius argued that “the finding of them [‘new’ lands] gives them no right but in that which was no man’s before their finding.” In stating this, Grotius rejects the notion of discovery as a valid justification for occupation and possession, and instead invokes a contemporary understanding of res nullius (“but in that which was no man’s”). Furthermore, Fitzmaurice posits that Grotius even proposed that the simple sight of something did not constitute discovery as a right of possession, but that the land must be seized in order to become the property of the ‘discoverer’. This complements Locke’s argument of occupation as labour which, although not providing the same explicit opposition that Grotius does, tacitly rejects the right of discovery in that no labour was invested to remove the land from the State of Nature and into private property; a prerequisite for the acquisition of said property according to Locke’s Second Treatise:
“The Labour of his Body, and the Work of his Hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. It being by him removed from the common State Nature placed it in, it hath by this Labour something annexed to it, that excludes the common Right of other Men.”
Here, like Grotius, Locke implicitly supports the contemporary notion of res nullius – that that which is vacant becomes the property of the first taker. Locke suggests that, to take possession of the land, to establish domain, one must first remove it from the state of nature by combining it with one’s own labour. Naturally, this necessitates physical occupation of the land and thus firmly undermines Spanish ownership through usacapio. This is of particular importance in comparatively analysing the discourse around British colonisation in the aforementioned Spanish peripheries, where it was often posited – emphasising the inherent contradiction in ‘intentional’ doctrine – that Spanish ‘intentional’ occupation, having little or no physical presence in these areas, failed to ‘take’ the lands prior to British arrival.
By the 17th century, Spain was suffering from an “imperial overstretch”. Drained by their continuous conflicts with Indigenous populations they sought to subdue, and suffocated by their stubborn commitment to what Gerald Horne describes as a “religious sectarianism” that was to “characterize a flailing colonialism”, the dominant European power in the Americas had become susceptible to the parasitical tactics of its competitors. The encroachment of British colonial projects such as those found in Mosquitia, the Yucatán peninsula and the Isthmus of Darien are key examples of this parasitism, which challenged Spanish imperial hegemony not only in its physical form, but also as an ideological threat to the established Spanish notions of ‘intentional’ occupation.
In the case of the Yucatán, notwithstanding Jarvis’ assertion that English logwood cutters were “perpetual imperial trespassers”, res nullius was invoked by the British authorities in defence of the informal logging settlements. In initial recognition of Spanish settlement at the town and port of Campeche, as well as neighbouring settlements, the British argued that the “rest of the Province, before the logwood cutters were settled, was in a manner wholly desolate and uninhabited” and also used the 1670 treaty to argue that this land was included in concessions to the British Crown.
As Botella-Ordinas contends, the debate around logwood settlements on the Yucatán had a distinctly Lockean character, with the British authorities arguing that through a remodification of res nullius they had a right to improve land which the Spanish had, in their failure to effectively improve, “spoiled” and thus returned to the commons. It is also important to note the extension of ‘improvement’ to require such to the highest degree, given that the Spanish also employed the idea of improvement, alongside discovery, to justify their claim. This strain of Lockean ‘physical’ occupation theory is indicative of the burgeoning British challenge to Spanish dominion in the Yucatán – by emphasising the persistence of logging communities and arguing their rights through the 1670 treaty, the British suggested an absence of Spanish authority, thus underlining the inherent weakness in notions of ‘intentional’ occupation and exemplifying the antagonistic relationship between ‘intentional’ and ‘physical’ occupation. Additionally, by arguing that the Spanish had ‘spoiled’ the Yucatán, the British authorities implied that the intentional nature of the Spanish claims made them excessive and that the territory was outside the capabilities of the Iberian power to maintain and make use of. Thus, without effective authority to resist trespassers establishing settlements in their territory, alongside the inability to effectively utilise the land, Spanish claims and the legal doctrine that supported them were shown to be fundamentally weak in the face of the growing threat of rising European rivals.
Supporters and colonists of the Darien project also exploited ambiguities surrounding Article VII to press their own claims. In a pamphlet defending the settlement at Darien, Philo-Caledon (the anonymous author’s pseudonym) referred to the treaty, contending that “there’s not the least mention of excluding either Party from enlarging their Dominions in America, upon Wastes, or by consent of the Natives”. Interestingly, Philo-Caledon deploys here a Grotian understanding of consensual agreement as a prerequisite to the acquisition of property, where orthodox res nullius was inappropriate and Indigenous property rights were recognised. This consensual element was also a regular feature in the Scots Company instructions for planting a colony, which suggested such arrangements should the land be inhabited by Indigenous polities. This Grotian approach to ‘physical’ occupation allowed the Caledonians to embed themselves within the wider social and economic fabric of Darien – further exposing the lack of authority the Spanish Empire had over these peripheral regions where ‘intentional’ occupation was so easily undermined by encroaching interlopers and Indigenous hostility. The Spanish struggled to dislodge the Caledonians – who were aided by their new-found allies – with inland attacks, further demonstrating the reality that ‘physical’ occupation – as well as calling into question the very premise of Spanish ‘ownership’ – failed to exercise any real sovereignty over the regions the Spaniards laid claim to, instead turning these areas into peripheries where domain was, at best, extremely thin. This peripheralization is a natural product of ‘intentional’ occupation, a result of its inherent weaknesses, that left areas of Spanish domain vulnerable to the growing capabilities of its competitors to settle and cultivate space in the Americas.
Despite a 1740 agreement between the authorities of the Black River settlement and the indigenous Moskito, in which the Shore was ceded to the British Crown, the coast generally lacked the same explicit evocation of theories of occupation that characterised the Yucatán and Darien. This was likely due to the smattering of British settlements along the coastline being by-products of a haphazard series of events, rather than a concentrated enclave of British settlement. However, as with the Yucatán and Darien, the 1670 treaty was utilised by the English to argue that the informal settlements on the coast were legitimate, despite, as Floyd argues, neither side ever considering them so at the time of the agreement. This emphasis on agreements as a means of defining territories and possession is consistent with the Grotian argument in that the territories of the Coast were “expressly defined by certain treaties. This is particularly apparent in the recognition of the validity of treaties with Indigenous polities. Much like Darien, Spanish ‘intentional’ claims were transcended by the reality of British encroachment and settlement. The intrinsic contradiction within ‘intentional’ occupation theory had come to fruition over a protracted period to demonstrate the inability of the Spaniards to effectively protect their interests in Mosquitia, accentuated by the Anglo-Moskito alliance which birthed a dangerous enemy within Spanish dominion.
Interestingly, a pamphlet published in 1643 after the failure of the Providence Island colony provides an early indication of intent to colonise, with the proposal to settle the coast “for the propagating of the Gospel and the increase of trade”. The PIC previously showed interest in spreading Christianity on the mainland, which appears to have occurred in tandem with an expedition to source crops to be cultivated on Providence. The propagation of Christianity suggests an element of conquest ideology within ‘physical’ occupation, which Elliot argues was a regular underlying factor in English colonial promotion.
Pagden expands on this element of conquest ideology, noting the idea of de facto conquest, in which Indigenous Americans, dispossessed ‘peacefully’ of their lands in a Lockean sense – where their property rights were not recognised – could be subdued by force of arms should they resist. This is rooted in Thomas More’s assertion that Indigenous opposition was “a very just cause of war” in that they impeded “others from possessing a part of that soil of which they make no use”. Conquest ideology appeared in instructions for the second expedition to Darien, where they were commissioned to defend their interests “by force of Arms (if need be)”. Despite these instructions being more concerned with Spanish confrontation than Indigenous, it nevertheless demonstrates the option to colonise Darien forcefully and also illustrates the wealth of ideological influences on the developing British imperial ideology. ‘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.
The Spanish perspective of these British settlements in their periphery was universally hostile, viewing them as illegitimate incursions into lands the Spanish had acquired through Papal Bull for their discovery, alongside justifications of conquest. In each case, the Spanish feared the spread of reformed religion throughout their territories, particularly among the Indigenous population – indicative of the ferociously, and somewhat paranoid, sectarian attitude that characterised the Spanish Empire in the face of the threat of foreign interlopers. As Dawson highlights, the propagation of reformed religion would make Spanish influence over the Moskito even more difficult. This would therefore fundamentally undermine any claim to Mosquitia – as well as Darien and Yucatán – through conquest as they would have failed to submit the Indigenous peoples to Catholicism and Spanish rule, which Seed highlights as a crucial component of conquest ideology. British arguments of ‘physical’ occupation therefore highlighted a chink in the Spanish imperial armour, the inherent contradiction in a theory of occupation stretched by contemporary material conditions – Spanish weakness, Indigenous hostility, and a rising British imperial rival.
As Horne notes, the British benefited from a “second-movers advantage”, which this essay posits to include not only the physical benefit of colonisation after both the Spanish and their Indigenous enemies had exhausted their resources, but also in the theoretical and legal justifications behind their claims to American territory. British interest in the ‘Spanish’ Americas, and their settling in them, acutely highlighted the inherent contradiction of ‘intentional’ occupation theory – namely its vulnerability to foreign intrusion and natural inability to govern lands without a physical presence. The cases of Yucatán, Mosquitia and Darien highlight three unique cases in which a burgeoning imperial logic of ‘physical’ occupation was deployed – both explicitly and implicitly – in antagonistic opposition to the disintegrating claims of the Spanish Empire to vast swathes of the Americas.
Through the philosophy of scholars such as Grotius and Locke, British imperialism was able to contest the claims of its Spanish rival, effectively arguing that the “effect of right which depends upon a man’s intentions can never follow from a bare conjecture of his will, unless he has declared and proved it by some express and visible act”. This legal contest led to a crucial development in British imperial ideology; an advancement which adopted the kernel of intentional theory, such as the propagation of Christianity, while also developing notions of ‘physical’ occupation necessitated by the contemporary material conditions and geopolitics of 17th and 18th century Central America – one in which the Spanish were spread thin and vulnerable to encroachment.
Thus, legal doctrine, acting in symbiosis with contemporary conditions, had reached a new epoch; an epoch in which there were no – at least by European standards – technically ‘vacant’ lands, only territories with over which the Iberian powers had varying degrees of tangible authority. The burgeoning theory of ‘physical’ occupation, in its negation of Spanish territorial claims, was to menace the staggering Empire who, in their fall, were to see the rise of their formally parasitical competitors who employed it.
Authors Bio: Nicholas Troy is a recent graduate of MSc Historical Studies at the University of Strathclyde. His recent dissertation focused on the legality, cultivation and development of British colonial projects in the Spanish peripheries of Darien, the Mosquito Coast and the Yucatán Peninsula.
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 George Pratt Insh, The Company of Scotland: Trading to Africa and the Indies, (London: Charles Scribner’s Sons, 1931) pp.126-7
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 George Chalmers, Esq. A Collection of Treaties Between Great Britain and Other Powers, Vol. II (London: John Stockdale, 1790) p.37, ‘A Treaty for the composing of Differences, restraining of Depredations, and establishing of Peace in America’ July 1670
 Patricia Seed, Ceremonies of Possession in Europe’s Conquest of the New World 1492-1640, (Cambridge: Cambridge University Press, 2010) p.70
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 Ibid, p.92-4
 Hugo Grotius, The Free Sea. (Indianapolis: Liberty Fund, 2004). p.14
 Ibid, p.14
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 [MEMSO] John H. Burton (ed.) The Darien Papers [hereafter cited as DP] (Ontario: TannerRitchie, 2012), p.49, ‘VIII. – Appointment of the Council of the Colony’
 Dawson, William Pitt, p.684
 Troy S. Floyd, The Anglo-Spanish Struggle for Mosquitia (United States of America: The University of New Mexico Press, 1967), p.27
 Grotius, On the Law of War and Peace, (Createspace: North Charleston, 1625) p.72
 Fitzmaurice, Sovereignty, p.98
 Karen Ordahl Kupperman, Providence Island, 1630-1641: The Other Puritan Colony, (Cambridge: Cambridge University Press, 1995) pp.345-6; Certain Inducements to Well Minded People who are here Straitned in their Estates or Otherwise; (New York: Joseph Sabin, 1865) [accessed 14/08/2020:https://archive.org/details/certaininducemen00newy/page/n9/mode/2up?q=god] p.7
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 J. H. Elliot. Empires of the Atlantic World: Britain and Spain in America 1492-1830, (London: Yale University Press, 2007), p.9
 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
 Thomas More, Utopia (London: Verso, 2016) p.87
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 Fitzmaurice, Sovereignty, pp.8-9
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 Dawson, William Pitt, p.690
 Seed, Ceremonies, p.70
 See Horne, Dawning of the Apocalypse.
 Grotius, War and Peace. p.73
Feature Image: https://commons.wikimedia.org/wiki/File:New_Caledonia_in_Darien.jpg