Iberia and the American Colonial State: Paperwork, Archives, and Fictional Claims

The essay uses Herzog’s Frontiers of Possession as a provocation to elucidate the role of archives in the creation of bordered-lands.

Where is the state? Are two foes who communicate in writing with a distant mediator enough to form a state? In Frontiers of Possession (2015), Herzog seeks to explain how early modern Iberian and American borders were created. There is perhaps no better entry into the thicket of early-modern state formation than exploring the making of “frontiers”. How did towns near one another, competing over access to the shared commons, become either Portuguese or Spanish?


Herzog focuses on cases of contested jurisdictions over commons in Iberia. All her Iberian examples are of towns competing over shared commons (a piece of land, an island, a mountain). As these conflicts persisted over centuries, the litigating actors changed and so too did their claims. Herzog’s stories are the well-known cases of Iberian corporate bodies fighting over overlapping jurisdictions: religious orders, bishops, military orders, grandees, towns, vecinos. She studies four cases in detail as the parties and claims changed over time.

Herzog never makes clear what came first: did cross-jurisdictional conflict lead to borders or vice versa? The story of conflict itself means little. Corporate groups, in and between municipalities, repeatedly fought over their right to access wood, fish, wildfowl, or grass addressing rival courts and magistrates with overlapping jurisdictions, secular and lay. Although many of these legal brawls erupted in violence, the conflicts did not lead to the creation of separate states. The Spanish monarchy would have otherwise become a mosaic of tens of thousands of corporate mini-states. It is clear that bottom-up litigiousness was not the cause of war. Wars, however, did create states.

Herzog explores corporate rivalries that sought a resolution to conflict after the creation of two separate states through war. Along “borders,” litigating corporate bodies within and without towns demanded access to the resources of commons. Corporate rivals had two choices. They could either confront each other using the courts and magistrates of the same sovereign or confront rivals who acknowledged other sovereigns. If one party chose the latter, then the aggrieved corporate bodies had to wait for diplomacy to achieve resolution. Diplomacy created agreements over the use of commons that eased everyday violence. Yet these agreements were breached as new town corporate bodies and new claims over commons surfaced.

Herzog shows that routine practice of mediation via diplomacy reinforced identities and deepened commitments to rival sovereigns. The “Portuguese” of Valença became Portuguese as they used the court of Viana or the monarch in Lisbon to lay claim over the commons of the island of Verdoejo, located in the middle of the Minho River. The "Galicians" of the town of Tuy, on the other hand, became Galician by requesting mediation from the high court of Compostela or the king in Madrid. The towns and Valença and Tuy, and their many groups within, would battle for centuries over access to the island’s shared commons.

Herzog demonstrates that the early modern state in diplomacy did nothing but to convey local demands, seeking a peaceful resolution to the conflict. It was not until the mid-eighteenth century that the state (magistrates, courts, monarchs) developed agendas of their own, ceasing to be mouthpieces of the corporate lay and ecclesiastical bodies they represented. Magistrates, for example, began to draw lines across commons using reason or nature, not bottom-up claims. The emergence of these new activist states created for the first time firm lines on borders that had for centuries remained contested. This also coincided with the privatization of commons. The appearance of an activist state led to the privatization of commons and crossover litigiousness ceased by the late 19th century.

This exploration of cross-border litigiousness sheds light on processes of territorialization. Herzog demonstrates that the border moved municipalities into separate territories with contested commons, namely islands, mountains and grasslands that belonged to no one: bounded spaces with no sovereigns. Yet conflict did not always lead to this type of territorialization. The towns of Rubiás, Meaus, and Santiago between Galicia and Portugal, for example, belonged to no one. Each household in these three towns was either Portuguese or Spanish. Next doors neighbors paid tithes to different bishops and petitioned to different magistrates, monarchs, and courts. Each town was a territorial archipelago known as mistos, mixtos, and místicos municipalities. State formation did not necessarily lead to clear-cut territorialization.

State formation through local cross-border litigiousness also led to the reification of the archive. Herzog shows that parties could bring to the magistrates who spoke on their behalf only paperwork asserting claims, not proof of claims. The latter simply did not exist as claims and litigants constantly changed. Diplomatic agreements between states over the use of local commons and tithes drew on these useless archives for rhetorical support and effect, not substance. The reified power of the archive, nevertheless, grew. Rival towns and rival corporate bodies within these towns sought to destroy and burn each other’s archives when violence erupted. The Portuguese crown encouraged towns to keep written records describing boundaries and resources. These records were called tombos. The crown eventually centralized these tombos into a single archive, thus the name of the Portuguese national archive: Torre do Tombo.


Herzog does not pay attention to a similar process of territorialization and archive formation in America. One could have described how municipalities and corporate bodies within municipalities carved out separate and overlapping ecclesiastical and lay jurisdictions through conflict in the colonial and national periods. She does not.

Herzog’s preoccupation is rather to explain how the boundaries separating Spanish and Portuguese Americas in the late 18th century (as manifested in the treaties of Madrid and San Ildefonso) had absolutely nothing to do with the original abstract vertical lines in the ocean mandated by late 15th-century papal bulls and the treaty of Tordesillas. From a little sliver on the eastern coast of the continent, Brazil evolved into a quasi-continental expanse. How? By the mid-18th century, Tordesillas had become a sinuous line across the pampas, Mato Grosso and the Amazon. This line was a fiction supported by an archive of written reports that justified territorial possession.

Unwittingly, Herzog shows how fictions of possession became reified boundaries through the power of the archive and in the process demonstrates precisely the opposite of what she claims: treaties did matter. Portuguese and Spanish America created their boundaries through paper claims of possession by travelers, missionaries, smugglers, raiders, and merchants, not actual occupation. It was in the signing of treaties in mid-eighteenth century Madrid and San Ildefonso when experts, scientists, cartographers, and magistrates transmogrified the archive of these claims into fictional lines on the ground.

But how did roaming missionaries and travelers transform paper-work into claims? Herzog explores the meandering ideology of possession through the changing fiction of Roman law. Herzog shows that early-modern Europeans in America collapsed into one both private and public property that Roman law had long kept separate. Until the 1400s, commons could not belong to individuals and public property was considered unalienable. Not even monarchs could lay claim to commons. To lay claim to America, however, this distinction was erased. Thereafter possession became the business of claiming first on paper the reconnoitering of new lands. In Roman law, responding to these claims in silence implied consent. Thus for every claim by a “Portuguese” raider, missionary, smuggler, and merchant there had to be a countering Spanish written account. Looking at the evolution of the map from Tordesillas to the treaty of San Ildefonso, clearly, the Portuguese were far more prolific than the Spaniards as chroniclers of possession.

Herzog nuances this story of Roman law as possession by observing that for an entire century (1580–1680) Portugal and Spain belonged in a unified monarchy. It was not until 1680 that Portugal was recognized by both Rome and Spain as an independent kingdom. For an entire century, legal unity confused all paper claims of possession, for claimants had to clearly identify themselves as a subject of one state.

For over a century, none of the descriptions of possession penned by missionaries, travelers, raiders, and smugglers conferred clear claims to either crown. Herzog demonstrates, for example, that seventeenth-century Paulistas and bandeirantes were not considered Portuguese subjects but Spanish agents. Yet by the eighteenth century, the Portuguese crown had already firmly established the bandeirantes and their descriptions of deep inroads over all the Mato Grosso and the Amazon as “Portuguese.”

It took committees of mid-eighteenth-century scientist and experts gathered in Madrid and San Ildefonso to sort out the nationality of the subjects. Again, Herzog unwittingly demonstrates the opposite of what she argues: treaties did count in the creation of American borders.

Frontiers of Possession describes two very different ways of state formation. It reads like two separate books. What brings them together, however, is that the archive played both in Iberia and America a central role in the creation of borders. Through the alchemy of litigation and treaty mediation, the paperwork of fictional claims was transformed into lines on the ground.

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