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Chapter  The Ties That Bind: Legal Status and Imperial Power James Muldoon To speak of the legal history of European expansion would seem to express an oxymoron. How could the expansion of Europe and the creation of the great overseas empires of the early modern world have anything to do with legality?1 While expansion does call up images of heroic feats of arms, it is also true, as the Habsburg experience demonstrates, that empires can begin with fortunate marriages, dowries, and unexpected inheritances. Furthermore, even when conquest leads to the acquisition of new lands, it is only the first stage in the creation of an empire, because an empire is not simply an agglomeration of territory and peoples held together by force.2 To survive in the long term, an empire requires not only garrison commanders , it needs tax collectors, customs officials, clerks, and lawyers, especially lawyers. The lawyers provide formal justifications for conquest and empire building and then they create a legal structure that transforms a series of combat actions, inheritances, and other territorial acquisitions into a functioning imperial administrative system. In addition, it is obvious that the long-term survival of an empire inevitably requires the creation of bonds of common interest between the imperial rulers and the conquered or colonized people. The conquered must give at least some minimal level of assent to the imperial rulers if there is to be a stable imperial order. There must also be some ties that bind the conquerors, colonizers, and local representatives of the imperial power to the central governing powers of the empire, particularly after the newcomers are well established and the imperial power secure. Will the descendants of the original conquerors and colonizers remain loyal to the interests of the imperial mother country or will they seek goals befitting their own interests, even at the expense of imperial goals?3 In this chapter I examine the development of ties linking the English  James Muldoon king to important segments of two colonial societies, twelfth-century Ireland and eighteenth-century Massachusetts, focusing on the way in which English governmental policy regarding the status of English settlers abroad evolved. The history of the British Empire from twelfth-century Ireland to eighteenth-century North America illustrates the ways in which imperial of- ficials confronted the situation of those royal subjects who went abroad as conquerors or as colonizers, even as potential autonomous rulers, and then tested the strength of the ties that joined them to the royal government. Eighteenth-century American revolutionaries, the descendants of the original colonists, saw their situation in broad terms of imperial jurisdiction, arguing that their situation was similar to that of the English in Ireland. The Americans deployed the history of the English in Ireland in the polemical warfare that preceded the battles at Lexington and Concord. From the American perspective, there was a continuous history of English overseas expansion stretching from twelfth-century Ireland to eighteenth-century North America, and therefore a history of the development of the legal status of those who were engaged in the imperial project. Furthermore, the Americans asserted that in spite of this long history, the legal position of colonizers was not as yet satisfactorily defined.4 The English entry into Ireland is an oft-told tale, but one that has to be understood carefully. Writers often refer to it as the English conquest of Ireland, but this is quite misleading.5 As Gerald of Wales, a member of one of the Anglo-Norman families that went to Ireland, pointed out in his history of Ireland, the coming of the English into Ireland was complicated. The immediate cause was not an English royal desire for expansion but the need for mercenaries by one of the participants in a local war in tribal Ireland . According to Gerald of Wales, Dermot MacMurrough, the chief who ruled the area around Dublin, had sought the assistance of two English mercenaries already in Ireland, offering ‘‘each of them in turn his first-born daughter with the right of succession to his kingdom,’’ an offer that each refused because he was already married.6 Subsequently, in , MacMurrough was ousted and, while in exile, sought military support from abroad in order to regain his throne. He approached Henry II, who, it turned out, had no interest in engaging in the Irish wars. MacMurrough apparently swore an oath of allegiance to Henry, however, and received permission to recruit troops in England from among the...

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