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Discovery is Possession: How Europe Took North America

How Europe Took North America

Most common histories of the formation of the United States include rebellious Englishmen, curious Spaniards, and enterprising Frenchmen, all seeking to forge new lives and opportunities inside a vast, open land. Their empty maps implied settlement and extraction on a first come, first serve basis. The terrain, however, was not unoccupied; it was not free for the taking. Countless native nations had already carved their footpaths and laid claim to the lands between the Pacific and Atlantic Oceans. These peoples had been living in North America for thousands of years before Vespucci, Columbus, or Sir Richard Grenville “discovered” its shores. How, then, were hundreds of thousands of natives annihilated in just a few hundred years post-European discovery? What allowed the settlers to simply claim what they found? The root of the answer finds itself within the emerging international law system of the early-modern period, as well as its underlying philosophies, formed well before the English even dreamed of leaving the island of their royal crown. John Locke and his brethren perceived America as a land still in the “state of nature.” This notion, which allowed Europeans to flock to North America in massive droves, would not have existed without the prevailing Roman ideas of possession and acquisition. The evolution of the idea of terra nullius explains how settlers of the New World rationalized the dispossession of the current geographical United States.

The Romans lived and prospered well before pilgrims, fur traders, or conquistadores. For a few hundred years after the beginning of the Common Era, the Roman Empire controlled vast swaths of land. At one point in its history the ancient state encompassed the entirety of all the lands along the shores of the Mediterranean, as well as much of what is now central and western Europe. Occupation, at this time, was granted by means of a myriad of methods, most of which are insignificant to the discussion at hand. Importantly, though, it was argued that if land is terra nullius, literally “no man’s land,” then it may be rightfully occupied. Roman law included the concept of res nullius, an empty thing, or a thing that belongs to no one. An empty thing is common to all until it is put to use, and the person who puts the thing to use becomes the owner. As Pateman explains in “The Settler Contract,” Terra nullius is, therefore, a rather capacious concept. “To call a tract of land terra nullius has a range of meanings: the territory is empty, vacant, deserted, uninhabited, vacuum domicilium; it belongs to no one, is territoire sans maître; it is waste, uncultivated, virgin, desert, wilderness.” A terrain with no inhabitants, in other words, is wholly available to the first person who puts the land to use. The implication here is that collective nations are not nomadic (i.e. they settle in one area and only expand when more room is required). These ideas did not die with the ancient Roman Empire of the middle ages. Indeed, terra nullius becomes a central idea in the formation of international laws on property and possession in the early-modern period.

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When the Spaniards led expeditions into the New World, they were called conquistadores, for their intentions were plain: conquest. They set sail under the authority of five Papal Bulls before they left Spain. In these Bulls, Pope Alexander VI made a grant of such land “as you have discovered or are about to discover” to the explorers, by virtue of his temporal jurisdiction. Discovery was essential to European colonialism, and, as the Dutch jurist Hugo Grotius wrote, “to discover a thing is not only to seize it with the eyes but to take real possession thereof, … the act of discovery is sufficient to give a clear title of sovereignty only when it is accompanied by actual possession.” However, neither the English nor the Dutch worked under the authority of Papal Bulls, so they needed to find a way to justify their colonial claims. Legitimacy for these territories, as it turned out, followed conquest.

Hugo Grotius (1583-1645), who was instrumental in the early creations of international law, defended the right of conquest. His seminal work, De Jure Belli ac Pacis, laid the foundation for the ideas on what it meant to wage war, whether a war was just or unjust, and what to do once a war is won. In this compendium, he argued that all agreements enforced by victors in a formal war were valid; “they cannot be made void by reason of a fear unjustly inspired.” But, as Pateman points out, he provided a justification for conquest by corporations and colonists. Because the settlers in a terra nullius are in a state of nature, the law of nature applies. With De Jure Praedae, Grotius was the first early modern theorist to argue that each individual has a natural right to punish offenders. Grotius writes that the power of the state derives from a “collective agreement,” so “it is evident that the right of chastisement was held by private persons before it was held by the state.” In De Jure Belli Grotius states that the law of nature allows anyone of “sound judgement” to inflict punishment. By extension of this individual right, Grotius justifies “private war” on offenders who are either individuals or nonstate entities.

Grotius identifies three circumstances when private war is legitimate. I return to Carole Pateman:

First, if the danger is so great that there is not time to bring the matter before a judge. Second, where judicial institutions are unavailable “either in law or in fact.” Institutions are unavailable in fact if the judge refuses to take cognizance, or “those who are subject to jurisdiction do not heed the judge.” They are unavailable in law in “places without inhabitants, as on the sea, in a wilderness, or on vacant islands, or in any other places where there is no state.”

Therefore proper judicial proceedings are not required and the individual right to punish others runs in “a wilderness,” or “where there is no state”; in other words, in a terra nullius. Third, “war can legitimately be waged against those who breach the law of nature, whether or not a king or his subjects is directly affected, and punishments can include loss of ownership.” Grotius emphasizes that the “law of nature” existed before states were ever organized, and that it is “now enforced, in places where men live in family and not in states.” In Grotius’ view, “the most just war is against savage beasts, the next against men who are like beasts.” When one closely reads the language with which the Europeans described the natives of North America, it’s clear that the natives were almost always seen as less than human, that is, “savage beasts.”

The comparison of Native Americans to the animals of the wilderness is apparent in works by all major European nations that were represented in the early American colonies. Before the French and English landed on the east coast of the current United States, Christopher Columbus had sailed his way around many of the Caribbean Islands. On these islands, he found people, most of which were “hopelessly timid.” However, Columbus described other “races” of Indians as monsters. He writes, “I have found no trace of them except at the point in the second isle as one enters the Indies, which is inhabited by a people considered in all the isles as most ferocious, who eat human flesh.” One can only imagine the perception of the natives of the Caribbean once this letter was relayed back to Spain. Columbus continues, “They possess many canoes, with which they overrun all the isles of India, stealing and seizing all they can.” The image of beasts is a constant reminder of a vital threat while in the islands. Not all “Indians” are the same, though, for “they are ferocious compared to these other races, who are extremely cowardly.” Columbus’ letter back to his employers in Spain allowed for a preconception of what future Spanish and Portuguese may find in the New World. A hundred years later, Alberico Gentili argued in De Iure Belli, a work that was instrumental in the formation of international law, that the Spanish were fighting a just war against Indians “who practiced abominable lewdness even with beasts, and who ate human flesh...such sins are contrary to human nature … against such men, as Isocrates says, war is made as against brutes.” The same type of descriptions of the natives are simultaneously found in the midwest and northern regions of North America.

If the Spanish were searching for valuable resources to extract, the French, later found drifting west down the St. Lawrence river, were in America for commerce and the spread of Catholicism. In a collection of Jesuit Relations, written by French Jesuit missionaries in the early to mid-seventeenth century, the same beast-like description of the natives is wildly apparent. One story relates, “the Hiroquois tried to stifle the project at its birth, as I shall shortly relate when I shall have spoken of what those Barbarians did during the Winter, and even again in the Spring, to come to their petty wars on the Island.” These “Barbarians” are said to be constantly harassing the missionaries. The harassment, in the eyes of the French, is done for sport. The story describes, “they surprised some cabins of Savages, killed those whom they first met and took away alive as many as they could to their own country, to become the objects of their sport, and food for the flames and for their stomachs.” The French, like the Spanish, saw many of the natives as ferocious, savage, war-loving beasts. This language did not escape the explorers of Virginia, as can be seen in the letters of Captain John Smith.

In the 1608 True Relation of encounters with natives of Virginia, John Smith litters his pages with descriptions that align with those of the aforementioned Europeans. He freely uses the term “salvage” to illustrate certain natives, especially those who seem menacing. One line reads, “The next day after my letter, came a salvage to my lodging, to have slaine me.” On a following page, Smith chronicles an event that found him face to face with a group of natives, one of which surprised Smith with his humanlike demeanor. He writes, “and with such a grave and Majesticall countenance, as drave me into admiration to see such state in a naked Salvage…” The fact that Smith was caught off-guard by a native who did not seem menacing implies a preconception of the native nation that is characterized by brutality and animalistic action. From the Caribbean to Virginia, up north to the St. Lawrence, the natives were being depicted as animal-like beasts, whether they were truly acting like them or not.

Because Gentili and Grotius described the natives in this same fashion, and these jurists were influential in the creation of early-modern international law, the law that Europeans followed during this time included justification for dispossessing native land. The , however, increasingly came to conceptualize conquest as unsustainable in fact, as well as morally undesirable in theory. Justification in terms of conquest, as Pateman describes, placed an awkward constraint on settlement. “The agreed with international lawyers that conquered peoples should retain their own customs and property.” The ideas of these international lawyers, of course, were sourced on Hugo Grotius. Chapter XV of De Jure Belli Ac Pacis, titled “Moderation in Conquest,” begins, “What equity requires, or humanity commends, to be shown towards individuals, is so much the more to be shown towards nations or parts of nations, inasmuch as wrongs or kindness done to many is the more remarkable.” In other words, Grotius is attributing the same “golden rule” that holds between individuals to nations as well. The very next line reads, “As other things may be acquired in a just war, so may sovereignty over a nation and even the very sovereignty enjoyed by a nation itself, though only so far as can be justified as a punishment for wrongdoing or a satisfaction of some obligation” (emphasis mine). There was, therefore, a moral dilemma inside the minds of the conquering : what did these people do to us? As it turns out, the settlers had a solution.

At the beginning of the colonization of the current United States, European settlement was a slow, painful process. This process began with an intention of discovery, extraction, and international competition, and it was only the bravest explorers undertaking the missions. As more companies were created for commerce (such as fur trading), colonists were given more reason to cross the Atlantic. In the early 1600s, in rapid succession, the English began a colony (Jamestown) in 1607, the French built Quebec in 1608, and the Dutch began their interest in the region that became present-day New York. A generation later, the Plymouth Company (1620), the Massachusetts Bay Company (1629), the Company of New France (1627), and the Dutch West India Company (1621) began to send thousands of colonists, including families, to North America. Each of these companies arrived with the assumption that they were settling on a terra nullius and that their intentions of expanding civilization were just. Over a hundred years later, once the original thirteen colonies were established, the early Americans came to the realization highlighted above; they could not continue warring against the natives in an effort to take their land. Not only was it destructive to their own society, they had no justification to kill natives who were not harming them first. The colonists inevitably turned to treaties and other forms of agreements. This allowed for a much more aggressive expansion without the rapid loss of manpower.

Treaty making was morally just, for it was based on mutual agreement. Carole Pateman disagrees with this sentiment, “Without recourse to the “strange doctrine” of individual punishment, the dividing line between contract, consent, submission, and conquest can be very porous indeed in the hands of theorists of an original contract.” This is demonstrated, as she describes, by the “frequency with which consent makes way for hypothetical consent inferred from some source or sign and, most obviously, in Grotius’ and Hobbes’ insistence that my ‘consent’ is still genuine even when obtained with the conqueror’s sword at my throat.” So, despite an updated moral justification for the dispossession of land, the underlying ideas for these updates were created by the same people who created the original ideas on property and possession. The lawmakers, in other words, were updating laws to allow for continued expansion into the American midwest. Once treaty-making became the primary form of dispossession, expansion escaped the snail’s pace that it exhibited in the early days of settlement. To illustrate this, one can look at the creation of Ohio, Indiana, and Michigan as territories and then states.

In 1787, Michigan, Ohio, Illinois, Indiana, and Wisconsin were all included under one ordinance: the Northwest Territory. Treaty-making, which became the primary mode of expansion during the late-eighteenth century, allowed Ohio to become a state in 1803, Indiana in 1816, Illinois in 1818, and Michigan in 1837. Clearly, this expansion far outpaced the form of settlement that was most common a century before.

One now sees an evolution of the Roman idea of terra nullius into what eventually became rapid settlement and expansion thereof within the shaping of the early United States. Beginning roughly two thousand years ago, powerful Europeans believed that if something was not being used, and someone uses it, then that thing becomes that person’s possession. This gets connected to physical space when the term terra nullius is used to describe open, unused land. “No man’s land” was the original state of the entire world, so they said. When the explorers of the New World needed justification for their new geographical possessions, then, terra nullius was an easy place to begin. Influential lawmakers of the early modern period agreed that unused land in North America was for the entrepreneurial spirits of Europe to take. When it became clear that one needed a more legitimate justification than simply “the land isn’t being used,” destroying native nations became the answer. Depicting these natives as half-beast, animalistic, barbarian savages allowed one to wage war against them without moral draught. Once conquest became unreasonable for the conquerors, said conquerors turned to formal agreements in the shape of treaties, further rationalizing the same act that had been occurring since the fifteenth century: dispossession of native land.

On a general yet relevant note, it is astounding to learn how a simple idea can be used to justify things that, over time, are realized to be wrong. Rather than attempting to understand the underlying philosophy of the original colonists’ acts, they chose to mold the policy to give their ever-living consciences some comfort. This, I believe, is similar to the proverbial “kick the can down the road,” when present policymakers decide to allow the policymakers of the future to deal with the issues of the present. The “problem” of the Native Americans is still getting kicked down the road, with an end that is absent from the crosshairs of America.

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