Doctrine Of Conquest

[Griselda Humbarger]

Thediscovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in Johnson v. McIntosh (1823). In Marshall's formulation of the doctrine, discovery of territory previously unknown to Europeans gave the discovering nation title to that territory against all other European nations, and this title could be perfected by possession. A number of legal scholars have criticized Marshall's interpretation of the relevant international law. In recent decades, advocates for Indigenous rights have campaigned against the doctrine. In 2023, the Vatican formally repudiated the doctrine.[1]

The means by which a state can acquire territory in international law are conquest, cession by agreement, occupation of land which belongs to no state (terra nullius), and prescription through the continuous exercise of sovereignty.[2][3] Discovery of a territory creates a mere inchoate title which must be completed within a reasonable period by effective occupation of that territory.[3]

Law professor Robert J. Miller[4] states that by 1493, "The idea that the Doctrine [of discovery] granted European monarchs ownership rights in newly discovered lands and sovereign and commercial rights over Indigenous peoples due to first discovery by European Christians was now established international law, at least to Europeans."[5] Law professor Kent McNeil,[6] however, states, "it is not apparent that such a rule was ever part of the European law of nations."[7]

Miller and others trace the doctrine of discovery back to papal bulls which authorized various European powers to conquer the lands of non-Christians.[8][9] In 1452, Pope Nicholas V issued the bull Dum Diversas, which authorized King Afonso V of Portugal to "subjugate the Saracens and pagans and any other unbelievers and enemies of Christ", and "reduce their persons to perpetual servitude", to take their belongings, including land, "to convert them to you, and your use, and your successors the Kings of Portugal."[10] In 1455, Pope Nicholas V issued Romanus Pontifex, which extended Portugal's authority to conquer the lands of infidels and pagans for "the salvation of all" in order to "pardon ... their souls". The document also granted Portugal a specific right to conquest in West Africa and to trade with Saracens and infidels in designated areas.[10][11] Charles and Rah argue that these bulls were used to justify the Atlantic slave trade.[9]

In 1493, following a dispute between Portugal and Spain over the discovery of non-Christian lands in the Americas, Pope Alexander VI issued Inter Caetera which drew a north-south line 100 leagues West of the Cape Verde Islands and gave the Spanish Crown exclusive rights to travel and trade west of that line, and to "bring under your sway the said mainland and islands with their residents and inhabitants and to bring them to the Catholic faith." In 1494 Portugal and Spain signed the Treaty of Tordesillas which moved the line separating their spheres of influence to 300 leagues west of the Cape Verde Islands.[10] The treaty was eventually endorsed by Pope Julius II in the 1506 bull Ea quae pro bono pacis.[12]

Throughout the sixteenth century, Spain and Portugal claimed that papal authority had given them exclusive rights of discovery, trade and conquest of non-Christian lands in their respective spheres of influence. These claims were challenged by theorists of natural law such as the Spanish theologians Domingo de Soto and Francisco di Vitoria. In 1539 Vitoria wrote that the Spanish discovery of the Americas provides "no support for possession of these lands, any more than it would if they had discovered us."[13]

France and England also made claims to territories inhabited by non-Christians based on first discovery, but disputed the notion that papal bulls, or discovery by itself, could provide title over lands. In 1541, French plans to establish colonies in Canada drew protests from Spain. In response, France effectively repudiated the papal bulls and claims based on discovery without possession, the French king stating that "Popes hold spiritual jurisdiction, and it does not lie with them to distribute land amongst kings" and that "passing by and discovering with the eye was not taking possession."[14]

Similarly, when in 1580 Spain protested to Elizabeth I about Francis Drake's violation of the Spanish sphere, the English queen replied that popes had no right to grant the world to princes, that she owed no allegiance to the Pope, and that mere symbolic gestures (such as erecting monuments or naming rivers) did not give property rights.[15]

From the sixteenth century, France and England asserted a right to explore and colonize any non-Christian territory not under the actual possession of a Christian sovereign.[16] The stated justifications for this included the spread of Christianity, the duty to bring civilization to barbarian peoples, the natural right to explore and trade freely with other peoples, and the right to settle and cultivate uninhabited or uncultivated land.[17]

Hugo Grotius, writing in 1625, stated that discovery does not give a right to sovereignty over inhabited land, "For discovery applies to those things which belong to no one." Dutch policy was to acquire land in North America by purchase from indigenous peoples.[18]

By the eighteenth century, some leading theorists of international law argued that territorial rights over land could stem from the settlement and cultivation of that land. William Blackstone, in 1756, wrote, "Plantations or colonies, in distant countries, are either such where the lands are claimed by right of occupancy only, by finding them desert and uncultivated, and peopling them from the mother-country; or where, when already cultivated, they have been either gained by conquest, or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations."[19] Two years after Blackstone, Emer de Vattel, in his Le droit des gents (1758), drew a distinction between land that was effectively occupied and cultivated, and the unsettled and uncultivated land of nomads which was open to colonization.[20]

All imperial European states enacted symbolic rituals to give notice of discovery and possession of lands to other states. These rituals included burying plates, raising flags, erecting signs, and naming territories, rivers or other features. More concrete claims of possession ranged from building forts to establishing settlements. Rituals of a transfer of sovereignty often involved trials, executions and other acts to symbolize that the laws of the colonizing power were in force.[21][22]

European monarchs often asserted sovereignty over large areas of non-Christian territory based on purported discoveries and symbolic acts of possession. They frequently issued charters and commissions giving the grantees the power to represent the Crown and acquire property. While European states often acknowledged that indigenous peoples inhabiting these lands had property rights which had to be acquired through conquest, treaty or purchase, they sometimes acted as if territories were uninhabited and sovereignty and property rights could be acquired through occupation.[23][24]

Summarizing the practices European states used to justify their acquisition of territory inhabited by indigenous peoples, McNeil states, "While Spain and Portugal favoured discovery and papal grants because it was generally in their interests to do so, France and Britain relied more on symbolic acts, colonial charters, and occupation."[23] Benton and Strauman argue that European powers often adopted multiple, sometimes contradictory, legal rationales for their acquisition of territory as a deliberate strategy in defending their claims against European rivals.[25]

The discovery doctrine was expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. McIntosh in 1823. In that case, Chief Justice John Marshall held that under generally accepted principles of international law:

Banner and Kades argue that the 1823 case was the result of collusive lawsuits where land speculators worked together to make claims to achieve a desired result.[28][29] The plaintiff, Johnson, had inherited land originally purchased from the Piankeshaw tribes. Defendant McIntosh claimed the same land, having purchased it under a grant from the United States. In 1775, members of the Piankeshaw tribe sold certain land in the Indiana Territory to Lord Dunmore, Royal Governor of Virginia, and others. In 1805, the Piankeshaw conveyed much of the same land to William Henry Harrison, governor of the Indiana Territory, thus giving rise to conflicting claims of title.[30] The court found, on three grounds, that it should not recognize the land titles obtained from Native Americans prior to American independence. A number of academics and Indigenous rights activists have argued that Chief Justice John Marshall had large real estate holdings that would have been affected if the case were decided in favor of Johnson.[31]

Marshall found that ultimate title to land comes into existence by virtue of discovery and possession of that land, a rule that had been observed by all European countries with settlements in the New World. The United States had ultimate title of the land, as against other European nations, because it inherited that title from the original discoverers Britain and France, as part of the sovereign rights the U.S. had won from the British crown through war.

On the discovery of this immense continent, the great nations of Europe ... as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. ... The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.[32]

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