By David J. MacKinnon and Dr Sandra J.T.M. Evers

“…— to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit.”

Romanus Pontifex, Papal Bull issued by Pope Nicolas V on Jan, 8 1455, authorizing King Alfonso of Portugal to conquer Africa and beyond, and to engage in the slave trade

“…to seeke out, discouer, and finde whatsoever isles, countreys, regions or prouinces of the heathen and infidels whatsoeuer they be, and in what part of the world soeuer they be, which before this time haue bene vnknowen to all Christians… And’that the aforesayd Iohn and his sonnes, or their heires and assignee may subdue, occupy and possesse all such townes, cities, castles and isles of them found”

Excerpt from Letters Patent issued by King Henry VII to the Explorer John Cabot and his sons for the discovery of new and unknown lands, Feb 3, 1496.

“Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”

Chief Justice Marshall of the US Supreme Court in Johnson v. M’Intosh (1823)

ABSTRACT

1.     In Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, Chief Justice Marshall directly traced the English title to land in America to the “discovery” of America by the Italian explorer John Cabot, acting pursuant to Letters Patent issued in 1498 by King Henry VII’s royal commissionⁱⁱ.

2. This title arose out of “the exclusive right of the discoverer to appropriate the lands occupied by the Indians” on the basis of a claim of “ultimate dominion to be in themselves…even while yet in the possession of the natives”ⁱⁱⁱ;

3. By the treaty which concluded the war of the American revolution, title to land “…which had previously been in Great Britain passed definitively to these states […] but neither the declaration of independence nor the treaty confirming it could give us more than that which we before possessed or to which Great Britain was before entitled. Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 at 585;

4. The aforementioned Letters Patent granted the right to “…to seeke out, discouer, and finde whatsoever isles, countreys, regions or prouinces of the heathen and infidels whatsoeuer they be, and in what part of the world soeuer they be, which before this time haue bene vnknowen to all Christians… And’that the aforesayd Iohn and his sonnes, or their heires and assignee may subdue, occupy and possesse all such townes, cities, castles and isles of them found”;

5. By virtue of his subordinate feudal bond to the pope as subditi Catholic Prince, and by the express wording of the Letters Patent, the authors argue that indeed, Henry VII was governed by and subordinate to the two fifteenth century papal bulls Romanus Pontifex (1455) and Inter Caetera (1493), respectively decreed by Pope Nicolas V and Pope Alexander VI;

6.  The lack of a viable legal and moral underpinning for the order to “capture, vanquish, and subdue” – i.e. by classifying non-Christians as homo animales living in a “base, fallen state” – constitutes a fatal defect which renders the Letters Patent as issued by the royal commission to the Cabots in 1498, ultra vires the powers exercised under the royal prerogative^iv.

7. By basing US government radical title to land upon the Letters Patent, Chief Justice Marshall has incorporated the Letters Patent and the two papal bulls into the US case law by reference or by necessary implication, thereby creating res judicata which is inconsistent with rights protected under the US Constitution and with international human rights legislation.

The Issue: Are there grounds for challenging Johnson v. M’Intosh, 21 U.S. 8 Wheat 543 (1823), based upon:

(i) the principles of judicial review of executive decisions; and

(ii) the Property law maxim Nemo Dat Quod non Habet?

Introduction

In 1992, Steven T. Newcomb’s article “The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. M’Intosh and Plenary Power”^v raised and examined the issue of Christian dominion as a legal notion still influencing US native law. The following points raised by Newcomb are relevant to this article:

I Johnson v. M’Intosh stands for the proposition “that the discovering nation of monarch possessed dominion over the soil even before taking actual physical possession of the discovered lands.”^vi

II The United States claim to plenary (or radical) title to land in the United States is based upon the Christian notion of dominion:

“As the successor nation to Great Britain’s right of dominion (based on Christian discovery of non-Christian lands), the government of the United States possessed the absolute right of soil. This was all that was needed for it to have a plenary power, or absolute governmental authority, over all the lands and inhabitants within the geographical limits claimed by the United States. This concept of territorial dominion has since been used in subsequent Supreme Court decisions to establish that the United States has an absolute legislative authority over Indian nations and peoples.”^vii

III Newcomb characterizes the theological principle underlying the “rights of heathens” as follows:

“This refusal to recognize the rights of heathens was consistent with some aspects of biblical theology. Since the Bible was construed to mean that all the lands of the earth were destined to be brought under Christian dominion, it was logically necessary to devise a principle by which non-Christian lands could be distributed among those Christian sovereigns who were willing to work toward the fulfillment of God’s will.”^viii

IV In his Commentaries on the Constitution of the United States^ix, Chief Justice Marshall’s colleague, Justice Joseph Story acknowledged the laws of Christendom, and particularly the Papal Bull, Inter Caetera, as the basis for the court’s opinion in Johnson:

“As infidels, heathens and savages, they were not allowed to possess the prerogatives belonging to absolute, sovereign and independent nations.”

V Newcomb further traces the reinforcement of the principle of discovery by Henry Wheaton in his Elements of International Law^x:

“According to the European ideas of that age, the heathen nations of the other quarters of the globe were the lawful spoil and prey of their civilized conquerors, and as between the Christian powers themselves, the Sovereign Pontiff was the supreme arbiter of conflicting claims.” (Wheaton, at 219, cited at Newcomb 316)”

VI Court rulings subsequent to Johnson v. M’Intosh continued to assume as a fundamental principle Chief Justice Marshall’s finding that native rights to sovereignty had been diminished by discovery^xi, while omitting to mention the Christian underpinnings for the diminishing of those rights.^xii

VII In Newcomb’s 1992 article, he expresses the wish that “…the Johnson decision must somehow be overturned and the Christian/heathen distinction stricken from United States law.”^xiii This article aims to investigate and raise possible grounds for overturning the case on the basis of its legality.

Newcomb has pointed out what is patently clear in the landmark case, but appears to have been largely ignored by numerous courts and commentators since – that Johnson v. M’Intosh does not ground US government radical title in principles of possession, Terra Nullius or other analogous doctrines of property rooted in the Common law, but rather on the legal and moral underpinnings implied by the Papal bulls claim of dominium over heathen lands and peoples. This naturally begs a further examination of Vatican policy underlying the Papal Bulls. The examination of that issue has led the authors to conclude that Vatican claims of dominium over lands of the New World is not based upon a utopian vision of Christian monarchs “…willing to work toward the fulfillment of God’s will” as Newcomb suggests, but rather upon an existential construct that heathen peoples were an inferior sub-species of humans, homo animales, by virtue of their lack of the redeeming grace of baptism. It is this ontological tenet underlying the Papal Bulls that constitutes a fatal defect to the validity of the Letters Patent issued by Henry VII’s royal commission in 1498, as it is repugnant to the core values of the US constitution itself, and the values of the Enlightenment as reflected in modern international and national human rights legislation^xiv.

The injustices wrought by men acting under the authority of the Papal Bulls have been charted in detail by commentators from the ranks of lawyers, social scientists, activists and indigenous peoples worldwide, particularly in Canada, Australia and the United States over the last thirty years. To draw an analogy from the Criminal law, if the spoliation and enslavement of the New World in the name of discovery is a crime, then the actus reus of the offence and its countless tragic victims has been comprehensively demonstrated. Several analysts – notably Newcomb, Peter d’Errico, Robert Williams and Robert Miller, have argued convincingly that Chief Justice Marshall’s ruling in Johnson v. M’Intosh derives its ultimate moral succour from the Papal Bulls. This article however, takes the reasoning one step further, suggesting that there was also mens rea, or criminal intent behind the Papal Bulls of discovery, and that this criminal intent invalidates ab initio both the Papal Bulls Inter Caetera and Romanus Pontifex, and thereby the Letters Patent issued to the Cabots.

I – The Alchemy of “Discovery”

“No person shall be deprived of life, liberty or property without due process of law.”

Fifth Amendment of the US Constitution

The “Doctrine of Discovery” as an explanation for US government sovereignty over native lands in the United States is most frequently associated with the leading case, Johnson v. M’Intosh, presided by Chief Justice John Marshall of the United States Supreme Court in 1823, and more recently upheld in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005).

The case concerns a dispute over 12,000 acres of land in present-day southern Illinois, and turned on the issue as to whether native Americans were entitled to transfer land title by sale to private citizens. Plaintiff Johnson inherited shares from his grandfather who had allegedly acquired land by direct purchase from Piankeshaw Indians in 1773 through the United Land Company. The defendant William McIntosh, obtained his subsequent title of the same parcel of land from the federal government. Chief Justice Marshall, ruling in favour of the Defendant, found that the nature of Indian title is such that Indians are solely entitled to transfer title to the federal government. The decision stands for the principle that the United States holds “ultimate dominion” to the soil (“seisin in fee”) and that the Indians reserve a right of possession, with the limitation that they could only sell to the United States (a “lease for years”)^xv In so finding, the Court determined that the US was settled on the basis of discovery and conquest.

The Doctrine of Discovery as described by Chief Justice Marshall in Johnson v. M’Intosh has triggered commentary by social scientists, lawyers and native issues specialists^xvi worldwide, and in the context of aboriginal land claims in Australia, has received considerable attention in the wake of the watershed case Mabo et al v. State of Queensland^xvii, the Doctrine of Discovery has more recently been linked with the international law doctrine of Terra Nullius first coined in the Rome of Antiquity^xviii. The Western Sahara^xix case where the ICJ considered Spain’s claim that the Sahara was Terra Nullius in 1884 is also frequently referenced in this regard. The rights of the “Discoverer” to appropriate and settle lands in the New World, both uninhabited and inhabited, has also been defended under Common law doctrines analogous to Terra Nullius, which are in part derived from Hobbesian definitions of sovereignty, and were more broadly driven historically by England’s rising ambitions to challenge Spain’s pre-eminence as a New World colonizer at the turn of the fifteenth century. Unfortunately, Terra Nullius has more recently been “bandied about” by commentators eager to explain what they perceive as “racist” “ethnocentric” or “christocentric” policies of the European powers during the Age of Discovery. The term Terra Nullius “has been subject to sloganisation and careless misinterpretation.” The same might be said of the “Doctrine of Discovery”^xx.

The recent brandishing of academic swords over the issue of “discovery” has considerably muddied the waters concerning the original ratio decidende of Johnson v. M’Intosh and how that judgment stands up in the light of contemporary international law. The authors hope that this confusion will be clarified by an examination of the language of Justice Marshall’s judgment and his terms of reference.   

Justice Marshall’s singular reliance upon the pre-Reformation premise of “dominium” over unbaptized heathen can be traced back to two fifteenth century papal bulls – Pope Nicolas V’s 1455 papal bull Romanus Pontifex and its successor, Pope Alexander VI’s 1493 edict Inter Caetera – which authorized the conquest, spoliation and enslavement of non-Christian peoples and lands in Africa and the Americas during the Age of Discovery at a time when monarchs dared not risk the censure of the Vatican and when Europe’s great powers were still Catholic. Henry VII’s deferential position in law thus invites further scrutiny of the issue. Although much attention has been drawn towards the reasons offered up by Justice Marshall, it might be useful to examine the documentary “chain of title” justifying the claim to ownership to determine whether or not it discloses any defect that vitiates its validity.

Ratio decidende

During the course of his reasons, Justice Marshall ruled that when the European nations discovered America “they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives.” [any emphasis in bold appearing in quotations cited in this article are those of the authors]

The justification offered for sovereign title to US lands while in the occupation of native Indians depends principally upon the terms of the letters patent issued to the explorer John Cabot and his three sons by Henry VII in 1498, granting them the right “to discover countries then unknown to Christian people and to take possession of them in the name of the King of England” and finds the authority to grant such a right within the royal prerogative. Cabot’s subsequent exploration voyages under the commission of Henry VII are commonly recognized to be the first European contact with North America since the Viking expeditions of the 11^th century. The limiting phrase within the Letters Patent “to discover countries then unknown to Christian people” sets the boundaries of the grant via an express incorporation by reference of the prohibition contained in its enabling instrument, the Inter Caetera:

“None of the islands and mainlands …[shall]…be in the actual possession of any Christian king [per alium regem aut principem Christianum non fuerint actualiter possesse]”

and constitutes the legal recognition by Henry VII that the exercise of the royal prerogative is subordinate to the pope in certain matters, particularly where it concerned conquest of the New World, the breach of which was sanctioned by excommunication. Or in modern terms, it might be said that Henry VII attorned to the jurisdiction of the pope.

When Justice Marshall ruled that: “Not only England, but all the nations of Europe who have acquired territory on this continent have asserted in themselves and have recognized in others the exclusive right of the discoverer to appropriate the lands occupied by the Indians”, he broadens the scope of discovery beyond the Letters Patent, and provides further confirmation of the link between the Doctrine of Discovery and the papal bulls, one supported by the temporal proximity between Inter Caetera and the departure of the Cabots for America and by Justice Marshall’s assertion that the royal commission granted the right to take possession “…notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.”.

The judgment of Justice Marshall makes scant mention of Terra Nullius, or analagous Common Law doctrines to justify the US pre-emptive right over land in the US. It was Discovery alone which justified title. Discovery, “gave exclusive title to those who made it” and discovery resided upon an assertion of “ultimate dominion”:

“While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.”

“No one of the powers of Europe gave its full assent to this principle, more unequivocally than England…”

The rights vested in the Crown by discovery, as described by Chief Justice Marshall, are not connected with the Jus Gentium, but on the right of dominium. Whereas the Chief Justice is known for having set limits by way of certiorari and judicial review remedies to the power of government, when it comes to Indians, all residual power remains with the Crown. :

“Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will… It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.”

As we will see later on, there were reasons enough to be concerned about the prospects for survival of the young republic, and to conclude that for all the fine talk about “we, the people”, without taking and holding land from sea-to-sea, there would be no American nation. The enemy, or enemies, had to be dealt with. But with the passage of time, stare decisis remains, leaving a flank for attack as vulnerable as that of Washington’s troops at the Battle of Brandywine Falls, and which led to an ignominious defeat, witnessed firsthand by Private John Marshall, and undoubtedly informing him that unless the borders of the land were secured from sea-to-sea, the republic could founder and never fulfill the promise of the revolution^xxi. In the words of the Chief Justice:

““Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”

As for the substantive validity, scope and enforceability of the title, Chief Justice Marshall rules that a “… title by conquest is acquired and maintained by force” and that “the conqueror prescribes its limits” and “[W]hen the conquest is complete and the conquered inhabitants can be blended with the conquerors.”

In an extraordinary passage, Justice Marshall conceded that the doctrine of discovery offends the tenets of natural law and the usages of civilized nations. 1823 marks the year when America reneged on its Revolution, and opted for the Manifest Destiny of the Monroe Doctrine. It was also the year of Johnson v. M’Intosh. And whatever overriding reason pushed Marshall to create the precedent, sooner or later, the Courts have to examine the issues of legality being raised herein.

“However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned. So, too, with respect to the concomitant principle that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be rejected by courts of justice.”^xxii

Chief Justice Marshall’s characterization of title is framed in a negative syntax unusual for a judicial ruling, and relying upon the fact that it “has never been contended that the Indian title amounted to nothing…” or that their “…right of possession has never been questioned…” in order to conclude that: “[t]he claim of government extends to the complete ultimate title, charged with this right of possession and to the exclusive power of acquiring that right.”^xxiii

Justice Marshall exclusively relies upon the Letters Patent of Henry VII as authority for the proposition that “ultimate dominion” over lands within the United States resides with the government, notwithstanding Indian Occupation. The Letters Patent unquestionably incorporate the two papal bulls by reference. And the papal bulls constitute the blueprint, or auctoritas sacrata which underlies European nations assertions of sovereignty over lands worldwide during the Age of Discovery, notwithstanding the occupation of the New World’s original inhabitants.

At the time of the confection of the Letters Patent to the Cabots, England was a Catholic nation. Henry VII did not enjoy unlimited sovereignty. In his every action, he remained, in pre-Reformation England, a subditi, or prince beholden to the Pope’s spiritual and temporal authority, an admitted shackle to royal prerogative, and one that had yet to be broken by the Reformation and Henry VIII’s contention that he and not the Pope was God’s Vicar on earth.

The Letters Patent issued by Henry VII to John Cabot and his three sons in 1496 disclose terms of reference^xxiv that can only be construed as deferential to the papal bulls Romanus Pontifex (1455) and particularly Inter Caetera, issued by Pope Alexander VI only three years previous (1493).  The dual concerns competing for Henry VII’s attention at the time England entered the fray of discovery can reasonably be conjectured as the wish to counter the Spanish claims to discovery, while being careful not to provoke the wrath of the papacy and risking the costly inconvenience of excommunication.

The royal commission’s letters patent to the Cabots are not only consistent with, but re-assert Christian dominium over “remote, heathen and barbarous” lands exemplified by the aforementioned papal bulls, and reaffirm the corollary that by virtue of being unbaptized, a man is homo animales, an assertion which is antithetical to the contemporary values of the Age of the Enlightenment.

By incorporating the notions of dominion and conquest, Johnson v. M’Intosh, and its subsequent re-affirmation in the Oneida^xxv cases constitute res judicata within the United States. Although the geo-political position of the United States in 1823 offers a plausible explanation for Justice Marshall’s ruling that radical title lies with the US government, our concern lies with the issue as to whether the “supra-legal” authority of the two Papal Bulls, and particularly that of Inter Caetera, is fatal to the retroactive incorporation by reference of Henry VII’s royal prerogative, leaving only one of two possible conclusions. Either the Letters Patent are bound by Inter Caetera or they are not. In either hypothesis, the theological underpinnings for granting sovereignty over yet-to-be-discovered lands purely because they are non-Christian is insufficient to cure the original defect in the title. Viewed from a commercial law standpoint, one might argue that the provision authorizing the possession of and radical title to non-Christian lands offends public policy, and is ipso facto null and void. Accordingly, by virtue of the maxim Nemo Dat Quod non Habet property title obtained pursuant to the Letters Patent may be defective, Henry VII not being in a position to transfer title to property he never owned in the first place.

The following section will elaborate on the underlying issuance of the two papal bulls, their juridical importance throughout Europe at the end of the 15^th century and the issue as to whether the royal prerogative of Henry VII was subordinate to ex cathedra exercise of the papal power.

II – Tracking homo animales, circa 1455

The confection of the two edicts most closely associated with the Age of Discovery follow close upon the Great Schism of 1419 and the fall of Constantinople in 1453, both of which were seismic events which shook the very foundations of the Vatican.

In the fifteenth century, orders from the pope were hardly governed by “fine points of theology and philosophy of law”^xxvi Notwithstanding the historical context, the modern reader searches in vain for even a pretence of jus gentium in Pope Nicolas V’s 1455 edict^xxvii wherein a man claiming to be the “Vicar of God” authorizes King Alfonso of Portugal to “invade, search out, capture, vanquish, and subdue pagans and other enemies of Christ wheresoever placed”, and “to seize all the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery”. The subsequent actions of the King and Dom Henrique, or as the English world knows him, Prince Henry the Navigator, if anything heighten the discomfort that the phrase “in perpetuam seruitutem” was no flight of literary fancy or “conscience-salving dispensation” to occasionally delve into the excesses of the slave trade, but the reflection of long standing practice of the Portuguese monarchy, and those in the King’s service, particularly Dom Henrique. Slavery was not only practiced; it was codified in the Ordenaçoes Afonsinas, and slave raids had already been carried out along the Mauritanian and Senegalese coasts in the 1440s^xxviii.

The increasingly secular leanings of a papacy still shaken by the recent conclusion of the Great Schism in 1419 and the fall of Constantinople in 1453 within the political climate of petty despotism and treachery which reigned in the Italy of the early Renaissance all contributed towards the Curia coming under increasing influence from external forces.

“The language of papal decrees reflected rather the skill and arguments of the royal chanceries that drafted the appropriate petitions (suplicas) to the Curia, rather than carefully researched formulations of the papal policy. The end of the Great Schism in 1419 did not mean the end of intense pressures on the papacy as an institution and of trepidations and personal insecurity for individual popes. It is quite telling that Eugenius IV, although personally committed to respecting the natural rights of non-Christian peoples, nonetheless did not hesitate to issue crusading bulls to both Dom Henrique and the King of Portugal upon request.”^xxix

“Similarly, Nicholas V was not in a position to quibble over high principles. Although he emerged victorious from the second schism, having achieved the abdication of Felix V, and although he managed to reach agreement with the Synod and obtained acknowledgement of his authority, the danger of yet another Synod was always hanging over his head.”^xxx

“Moreover, the urgent need to organize a general crusade against the advancing Turks as a response to the fall of Constantinople in 1453 hardly permitted him to alienate the king of Portugal, one of the few Western monarchs who could be counted on mustering genuine enthusiasm for the campaign. But even if we discard the implications of the call for a general crusade, the fact remains that Nicholas V had barely consolidated his position by the time the Holy See was requested to arbitrate the dispute between Portugal and Castile in 1453.”^xxxi

Although somewhat speculative, Elbl provides a plausible explanation for the prelude to the actual issuance of the bull:

“Likely as not, the Portuguese delegation not only presented the Curia with a pre-formulated version of the required document but presented it through long-standing contacts in the papal secretariat which included a well-known admirer of Infante Dom Henrique, Poggio Bracciolini (d.1457], the famous humanist and long-serving secretary of the Curia, who in one of his public letters to famous men calls Dom Henrique “new Alexander” and congratulates him on the subjugation of the “inhuman peoples” of Africa.^xxxii

The laudatory praises of Dom Henrique contained in the bull itself and the formulation for enslaving Africa “in perpetuam seruitutem” are entirely consistent with the work of Bracciolini. In any event, both the papacy and the Portuguse monarchy participated in the confection and execution of these policies with great enthusiasm.

“They showed remarkable religious zeal and will to serve God, despite considerable expenses, risks and dangers to which they were subjected in the process. Their actions were not undertaken without papal authorirzation or knowledge.”^xxxiii

Geographically speaking the reach of the papal bull corresponded to the ambitions of those who had sought its passage:

“The crusading bulls issued to Dom Joao I, Dom Duarte, and to Dom Alfonso V himself, and authorizing them to carry out conquest in Morocco, were interpreted broadly as covering all the Muslim and pagan lands along the African coast, in the Atlantic, and as far as the supposedly Christian India”^xxxiv

“For the purposes of the Portuguese Crown, the potential weakness of the Romanus Pontifex proved to be the fact that its arguments were derived from older, crusading bulls, with emphasis on religious war and conquest. Portugal was in no position to attempt direct rule or impose “perpetual servitude” upon the inhabitants of coastal Africa (not to mention the Indian subcontinent). The need to institute peaceful relations with overseas rulers and equitable relations with native populations very quickly called for appropriate adjustments in the language of official documents and necessitated skillful reformulation of the justification of Portuguese sovereignty”^xxxv

Just as these shifting sands of temporal power between European nations would largely dictate the scope of their authority, papal imprimatur remained vital in the process of reinforcing or defending claims to territory and property in Africa or the Americas.

III – Saint Peter’s Shackle

The relevance of papal bulls as instruments of great power diplomacy can be traced back to what Walter Ullman refers to as the “theocentric and christocentric outlook” of the earlier Middle Ages^xxxvi. Notwithstanding the decline in power and moral authority in the late medaieval Papacy, and the excesses of the Renaissance popes, the notion of the Pope as ““Vice-Regent of god on earth” endowed with absolute sovereignty, the plentitudo potestatis, which he wielded for the higher benefit of his flock, and was accountable only to God”^xxxvii endured. The source for this power according went right back to scripture, when in Matthew’s words, Christ himself vested the power in St Peter, “…quodque solveris super terram, erit solutum et in coelis” (Matt,xvi, 18-19).

Even kings and emperors, as subditi, to coin the ultramontist term, were subjects of the Papacy:

“Secular rulers were primary executors of papal will – defenders of peace and administrators of pope-determined justice in the temporal sphere. The Pope always remained in possession of his superior and sacred authority (auctoritas sacrata) and therefore in position of ultimate sovereignty even if for the sake of expediency he chose to delegate a segment of his plentitudo potestatis to secular rulers.”^xxxviii

“The Romanus Pontifex was based on a convoluted and highly adaptive web of precedents, building on the legal reasoning and diplomatic practices that emerged over several centuries in response to the expanding trade with the Muslim world, the Crusades, and the Iberian Reconquest. Like the preceding papal decrees, the Bull combined, in a curious way, feudal principles, christocentric and ultramontist political philosophy, and the Thomist philosophy of natural law.”^xxxix

Essentially, “…territorial sovereignty of secular rulers however was perceived in terms of delegation of the Plentitudo potestas by the de iure sovereign^xl. This was particularly important where the secular ruler was also a vassal of the pope as a feudal overlord, which was the case of the King of Portugal. Other jurists of the High Middle Ages increasingly differentiated between de iure and de facto situations, the de facto ones increasingly gaining in importance. The point is that the older paradigm was still present and ready to serve as a justificatory tool if necessary.”^xli

“The Pope always remained in the possession of his superior and sacred authority (auctoritas sacrata) and therefore in position of ultimate sovereignty even if for the sake of expediency he chose to delegate a segment of his plentitudo potestatis to secular rulers.”^xlii

Any “profits and benefits” derived by the Portuguese crown from its new territories “represented a just reward for its service to God, and a reparation for losses and damages suffered in the process.^xliii Whoever should deprive the Crown of its well deserved rewards, directly or indirectly, would show disrespect both for the authority of the Pope and for the service of God. Such an offence suggested heresy and heresy was punishable by excommunication.”^xliv

“The Romanus Pontifex did not content itself with relying only on the argument of a just reward but exploited the long-standing canon law principle that the Pope commanded a right to regulate the contacts between Christians and non-Christians, contacts which could potentially result in spiritual pollution or corruption.”^xlv

Thus, the “main import of the Romanus Pontifex was in the moral and spiritual authority it provided secular legislation aimed at securing the Crown’s benefits from its rights over access to the south Atlantic^xlvi.

Those “benefits” included the profits of the slave trade, which had been recognized as far more lucrative in the short term than the quest for subterranean riches. But the sine qua non to engage in the slave trade was the imprimatur of the sole living human being with the authority to divide the world into two classes of human beings – the faithful and heathen.

Christians, and that would include Henry VII, were part of the Church Universal, and linked by a spiritual and temporal bond of fealty by virtue of their partaking in the mystery of Corpus Christi, and were necessarily governed by the rules set by Christ’s temporal vicars, as opposed to the “…homo animales living in the base fallen state ensured by the Original Sin and devoid of the redeeming grace of baptism.”^xlvii

It was this existential divide that would become the template for the colonization of the New World, and justify its every excess under the deux ex machina known now as “discovery”.

IV – A power-relations blueprint

Although aimed principally at avoiding an impending conflict between Portugal and Castile while securing material wealth for the Portuguese crown, Romanus Pontifex was to have an impact that “was much broader and more enduring. The Romanus Pontifex marked not only a major diplomatic defeat for Castile but established a power-relations blueprint for the entire early stage of the European overseas expansion…”^xlviii

However, early attempts by the Portuguese crown to claim dominium over its African territories were often simply ignored, or disputed^xlix. Thus, the recourse to the higher power of the pope was very much the product of realpolitiek on all sides, driven by the necessity to come up with a supra-legislative authority which could defeat competing claims coming from Castile.

“Religious sanction and invocation of papal authority provided the secular authority with moral and spiritual authority that lay custom and law by itself could not generate. The bull Romanus Pontifex established a power-relations blueprint for the entire early stage of the overseas expansion, by granting the right of access, conquest, and commerce to the Portuguese Crown and to Infante Dom Henrique (Henry the Navigator) as a reward for their past services and in recognition of their moral and religious reliability in dealing with non-Christians.”^l

The instrument chosen and the manner of its expression would however prove easily transferable to other “Crowns” and to other territories. The importance of Romanus Pontifex was not solely in the acts carried out in its name – from slavery, to the more “minor” incidents of torture on the wheel or being burned at the stake for not carrying a proper trade licence for dealings in West Africa – but rather can be attributed to its significance as a precedent which served as a template for the Inter Caetera, Pope Alexander VI’s May 3, 1493 bull drafted to meet the imperatives of Isabela and Ferdinand of Spain.

V – The Vicar of God

Inter Caetera (“Among other works”) is the first of a trilogy of bulls known as the Bulls of Donation or the Alexandrine Bulls, all delivered in 1493, and purporting to grant overseas territories to Spain and Portugal. The bulls served as the framework for negotiations which resulted in the Treaty of Tordesillas (1494), dividing the non-Christian world between the two powers.

The general political context immediately preceding the issuance of Inter Caetera is not controversial – Columbus had just returned from the supposed Indies, Portugal and Castile were still hotly contesting their African claims, and the Vatican was under the sway of the Borgias, who as Burkhardt has pointed out, were no more Italian than the House of Naples. Furthermore, the “Vicar of God” issuing the 1493 Papal Bull, Inter Caetera, Pope Alexander VI, Cardinal Borgia, remains one of the most licentious and ruthless figures of a century already notorious for its despotism, an active promoter of the practice of nepoti and a man rumoured to have died accidentally by his own hand alongside his son Cesare Borgia after mistakenly eating sweetbreads destined for a wealthy cardinal whose assets were coveted by the two Spaniards^li.

“In the nature of the father, ambition, avarice, and sensuality were combined with strong and brilliant qualities. All the pleasures of power and luxury he granted himself from the first day of his pontificate in the fullest measure. In the choice of means he was totally without scruple…But when the Pope in course of time fell under the influence of his son Cesare Borgia, his violent measures assumed that character of devilish wickedness which necessarily reacts upon the ends pursued.”^lii

Inter Caetera is built upon the same ideological edifice as Romanus Pontifex. The edict commences with a preliminary recognition of the stated purpose of the Castile monarchy to “bring under your sway the said mainlands and islands with their residents and inhabitants and to bring them to the Catholic faith.”^liii and follows this with an exhortation and strict command to fulfill its duty “…to lead the peoples dwelling in those islands and countries to embrace the Christian religion;”

When Pope Alexander VI invoked “the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth,”, he spoke ex cathedra as spiritual head of the Church universal and in this capacity the bull is vested with the authority of the infallibility of the pope^liv on questions so designated. His stated intent is to bind the church universal under pain of incurring naufragium fideli, or spiritual shipwreck:

“Let no one, therefore, infringe, or with rash boldness contravene, this our recommendation, exhortation, requisition, gift, grant, assignment, constitution, deputation, decree, mandate, prohibition, and will. Should anyone presume to attempt this, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul..”

The geographical scope of the papal bull is set forth in the following clause which does: “… give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainlands and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde.”

And the limiting clause, which re-appears five years later in the Letters Patent granted by Henry VII states:

“With this proviso however that none of the islands and mainlands, found and to be found, discovered and to be discovered, beyond that said line towards the west and south, be in the actual possession of any Christian king or prince up to the birthday of our Lord Jesus Christ just past from which the present year one thousand four hundred and ninety-three begins.”

“And we make, appoint, and depute you and your said heirs and successors lords of them with full and free power, authority, and jurisdiction of every kind; with this proviso however, that by this our gift, grant, and assignment no right acquired by any Christian prince, who may be in actual possession of said islands and mainlands prior to the said birthday of our Lord Jesus Christ, is hereby to be understood to be withdrawn or taken away”

VI – The subditi Prince

Henry VII’s status as subditi is confirmed by the deed of his own marriage with Catherine of York, ratified by papal bull whose terms disclose that both document and marriage are political acts of the highest importance for the realm of the King. Pope Innocent VIII, acting in his capacity as “saide holy Padre the Pope of hys propur mocyon by hyegh and holy commaundemeut” in the recitals of the document, speaks nowhere of love and loyalty, but of the much more pressing and temporal matter of putting to rest all “the longe and greuous variaunce, contentions, and debates that hath ben in this Realme of Englond betwene the house of the Duchre of Lancastre on the one party, And the house of the Duchre of Yorke on that other party.”^lv

With pretenders to contend with on the home front, having usurped the throne himself, Henry’s foreign policy throughout his reign was characterized by a dosing of guile,force and diplomacy as the need arose. Spain was still the pre-eminent power in Europe, and Henry’s primary foreign policy aim was to seek an alliance with the powerful Spanish monarchs, Ferdinand and Isabella, fresh from their own triumph of capturing Granada, and the return of Columbus from America. In 1501, Catherine of Aragon, daughter of Ferdinand and Isabella, arrived in England to marry Arthur, Henry’s eldest son. The betrothed were married at age 15 in November, but by Spring 1502, Arthur died. A new marriage was organized with the new heir, and future Henry VIII. A papal dispensation was sought to annul the first marriage, and obtained. This would lay the basis for another schism which would rock Christianity, but there is no doubt that Henry VII in fact, word and deed, acted at all times publicly as a subditi of the Pope.

Almost four centuries later, this principle of the Pope wielding indivisible and superior auctoritas sacrata and depriving secular monarchs of full sovereignty would be the one seized upon by the Chief Justice of the US Supreme Court in post-revolutionary America when the nascent republic was not only filled with promise, but threatened on all fronts, with the greatest danger coming from within. And, in a supreme irony, Chief Justice John Marshall would look neither to Voltaire, Diderot or Montaigne, nor to Thomas Paine, Benjamin Franklin or Jefferson, nor even to Grotius, Locke or Vattel and other luminaries of Jus Gentium for moral comfort, notwithstanding the detailed submissions of counsel in this regard, but rather sought refuge in the same haven as the Portuguese monarchy in 1455, the Spanish monarchy in 1493 and the UK monarchy in 1498, and one which, if viewed from the standpoint of a native American, might rhetorically be characterized as the ultimate refuge of a scoundrel.

At the end of the fifteenth century, France and England, as Catholic countries, were anxious to preserve their own interests in the world without risking excommunication:

“The argument devised by legal scholars which would open the door to legitimizing England and France’s exploration of the New World.^lvi hinged on the phrase “not yet discovered by any other Christian prince.”^lvii

“Consequently, Henry VII, his granddaughter Elizabeth I, James I, and other English monarchs repeatedly instructed their explorers to discover and colonize lands “unknown to all Christians” and “not actually possess of any Christian prince.” More specifically, in the 1606 First Charter to Virginia and the 1620 Charter to the Council of New England, James I granted the colonies property rights in America because the lands were “not now actually possessed by any Christian Prince or People” and “there is noe other the Subjects of any Christian King or State….actually in Possession…where by any Right, Claim, Interest, or Title, may…by that Meanes accrue.””^lviii

Even following the reform, the language of Colonial charters continued to reflect the intent and language of the original bulls. James I, in his role as “Defender of the Faith”, granted in the first Charter of Virginia in 1606 :

“Licence, to make Habitation, Plantation, and to deduce a colony of sundry of our People into that part of America commonly called VIRGINIA, and other parts and Territories in America, either appertaining unto us, or which are not now actually possessed by any Christian Prince or People in fact and ordered colonists to propagate “Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government.”^lix

“England and France thus added to the Doctrine the element of actual occupancy and current possession as a requirement to establish European claims to title by Discovery; and they applied this new element in their dealings with Spain and Portugal. For example, Elizabeth I wrote to the Spanish minister in 1553 and stated that first discovery alone “cannot confer property.” England repeatedly argued in 1580, 1587, 1600 and 1604 that it could colonize anywhere other Europeans were not already in possession.”^lx

“…in the 1550s both England and France tried to negotiate separate treaties with Spain and Portugal to settle issues in the West Indies while Spain relied on its papal title to argue for monopoly rights to the entire region. The Spanish negotiators wrote their king that they could not convince the French to stay away from “such places which are discovered by us, but are not actually subject to the King of Spain or Portugal. They are willing only to consent not to go to the territories actually posssessed by your majesty or the King of Portugal. Spain and Portugal were not currently in possession but where they had been granted authority under papal bulls.^lxi”

“…the detailed accounts of Jesuit activities in the New World demonstrate the common understanding of the ideas of first discovery and possession of territory inhabited by non-Christians as being the grounds for legal claims by European kings to sovereignty and jurisdiction…Jesuits also argued that France had discovered and “taken actual possession of all the country” years before the English arrived and thus legally owned the area because “no Christian had ever been [here]…[and] this hitherto unknown region [was] brought…under [French] jurisdiction.^lxii”

Unlike the a posteriori importation of Terra Nullius, it would appear that the requirement of “occupatio”, although certainly analagous to the original sense of terra nullius, was a necessary result of the British and French imperatives to defeat Spanish claims in the New World during the pre-Reformation. England remained Catholic, and the King a subditi of the Pope, even if that Pope happened to be a Borgia who, alongside his son, was “bent on the secret destruction of all who stood in their way”^lxiii.

The necessity of taking possession then, was not born a priori of a racist, ethnocentric doctrine at conception, but as a strategy to counter Portuguese and Spanish claims to the New World by subjecting first discovery to the condition of actual occupation. It can safely be surmised that the minds of monarchs and explorers alike were not primarily on native peoples outside of comments in obiter such as those of Cook that aboriginals appeared to be much happier than Europeans, but rather on the best way to defeat the claims of the Spanish without falling afoul of the Pope by way of excommunication.

The core of the problem of actual temporal power bristling to break free of the control of the pope would eventually be resolved by Henry VIII by simply appropriating the spiritual domain of the pope and for all intents and purposes, defeating the papal authority on the issue. The matter might well have remained there, had it not been, as we will see later in this article, for Chief Justice Marshall’s decision, that, save and except obiter on the impact of the 1763 Royal Declaration, relied neither upon possession nor the English Common Law, but upon Henry VII’s claims to dominium. This lapse into the status quo ante of papal supremacy seems to have gone unnoticed by the new wave of pundits, activists and experts eager to punish alleged “ethnocentric” crimes and misdemeanours committed under the oft-cited but rarely considered doctrine of Terra Nullius.

“For example, a 1622 letter to the Virginia company of London recounted that the colony was the king’s property because it was “first dicouered” at the charge of Henry VII in 1497 by John Cabot, who “tooke possession thereof to the Kings vse [use]. A Virginia legislative committee repeated this Discovery principle in a 1699 report. Additionally, a history of the state of New Jersey in 1765 defined English claims as being based on Cabot’s voyage and discovery, subsequent English possession, and ‘from the well known Jus Gentium, Law of Nations, that whatever waste or uncultivated country is discovered it is the right of that prince who had been at the charge of the discovery’.”^lxiv

“…Benjamin Franklin, one of America’s most prominent Founding Fathers, stated at the Albany NY Congress in 1754 that ‘his Majesty’s title [in] America appears founded on the discovery thereof first made, and the possession thereof first taken, in 1497.”^lxv

VII – The Scramble for America

America in 1823 was less than half a century old with only 24 States in the Union. Spain and Mexico threatened on the south and west, Russia asserting sovereignty over Oregon, Washington and half of British Columbia, heated and unresolved disputes with Great Britain over the Great Lakes and an arms race, the entire northeastern border disputed, and the Indian wars and Civil war yet to come, with the slave trade still alive and well among mariners.

In 1823, the Creek war had only ended nine years earlier. The First Seminole War had just occurred, where The Seminole fought defending their lands and runaway slaves. But the iconic Indian wars (Navajo conflicts, Seminole wars, Rogue River wars, Nez Percé war, Battle of the Little Bighorn and the Wounded Knee massacre) were yet to occur. And the revolution was less than half a century old. Across the water, France’s revolution had turned on itself, and America had yet to consolidate its hold on its own territory.

1823, the year of Johnson v. M’Intosh, marked the announcement of the Monroe Doctrine, driven by US Manifest destiny and the desire to maintain spheres of influence.

But the retrospective view of America and the architect of “spheres of influence” overlooks the precarity of the times. The US, despite its spectacular demographic growth, was war-weary and saddled with war debt. Napoleon’s calamitous 1812 Russian campaign had capped off the French revolution by lapsing into a restoration period, leaving the British free to turn their attention back to the American continent, “enacting a crippling blockading of the east coast, attacking Washington and burning the White House and other Government buildings, and acquiring territory in Maine and the Great Lakes region. American forces, however, won important naval and military victories at sea, on Lake Champlain, and at Baltimore and Detroit. Canadians defeated an American invasion of Lower Canada. By 1814 neither side could claim a clear victory and both war weary combatants looked to a peaceful settlement.”

“Under the mediation of the Czar of Russia, Great Britain and the United States came together in the summer of 1814 to negotiate the terms of peace. On Christmas Eve British and American negotiators signed the Treaty of Ghent, restoring the political boundaries on the North American continent to the status quo ante bellum, establishing a boundary commission to resolve further territorial disputes, and creating peace with Indian nations on the frontier. As the Ghent negotiations suggested, the real causes of the war of 1812 were not merely commerce and neutral rights, but also western expansion, relations with American Indians, and territorial control of North America.”^lxvi

Britain and America had just come out of a costly shipbuilding race. The entire west and south of the United States had yet to become part of the union. “Indian Territory” covering Oklahoma would only be created the following year. Texas and California were part of Mexico. Only 24 of the 50 states existed, and the troublesome border issues along the Great Lakes and the northeast with Great Britain would only be settled in 1842 by the Webster-Ashburton Treaty. Russia’s claim to “The Oregon Country” had yet to be abandoned. The war debt had yet to be paid off.

The Oregon Territory, stretching from the Rocky mountains to the Pacific, and covering present-day Oregon, Washington and most of British Columbia, was uppermost in the minds of the US administration:

“Originally Spain, Great Britain, Russia, and the United States claimed the territory. In 1819, under terms of the Transcontinental Treaty, Spain ceded its claims to the territory to the United States. Shortly thereafter the United States contested a unilateral Russian move to grant its citizens a fishing, whaling, and commercial monopoly from the Bering Straits to the 51st parallel. In 1823 President Monroe promulgated his doctrine, which put Russia on notice that the United States did not accept Russian attempts at monopoly. The U.S. claim was based on the explorations of Lewis and Clark and on the establishment of trading posts set up by John Jacob Astor’s Pacific Fur Company, such as Astoria at the mouth of the Columbia River. Great Britain based its claim, in part, on James Cook’s exploration of the Columbia River.”^lxvii

In hindsight, US westward expansionism appears inevitable, but at the time, precarity existed on all fronts. There were war debts to pay off. The Indian/settler divide and the North/South divide were simmering cauldrons about to explode into the Indian and Civil Wars which define modern-day America. Crucially, there was land to expropriate to accomplish the dictates of Manifest Destiny. In 1823, with the explicit ambitions of the Monroe Doctrine, the US could ill afford opening a judicial front which called into question the entire thrust westward when they had just entered the Great Game.

These were undoubtedly considerations not far from the mind of Justice John Marshall. Any concession to the validity of Indian title as being “sovereign” in any way would be a Pandora’s box, and a fifth column from within the nascent republic, by an enemy who had recently joined in war with Great Britain against the republic. John Marshall’s commitment to the strengthening and centralizing of the republic would no doubt encourage him to seek out the narrowest possible construction of the Indian right to occupy their own lands. And, so Marshall’s obiter does not charge the lands with the right of occupation of the Indians. He defines the “right of dominion” of the Crown as conveying the soil “while in the occupation of the Indians”, leaving the door open to the narrowest of all constructions – that in fact the right of dominion was notwithstanding the occupation of the Indians. Expansionism was driven by more than aggression. It was the only possibility of securing the borders. At the same time, the only feasible way of holding the land, even in the case of success on the ground, would be to acquire the land at rock-bottom prices. And not even Chief Justice Marshall could deny the Indians the minimalist principle of compensation following expropriation.

The most plausible explanation then is in the result, pointed out by Eric Kades^lxviii in two articles, i.e. that it drove the price of Indian land down by creating a single-buyer market. But, in doing so, it also lay the basis for a judicial dichotomy with far-reaching consequences to the present day – a leading case in native land claims espousing virtues antithetical to the constitution.

The act of incorporating pre-Reformation law into the United States, and thereby re-introducing the authority of a Catholic monarch was the judicial equivalent of reinstating a regency, and seems to have asphyxiated the voice of native Americans.

The question remains as to why the very creator of judicial review within the United States would resort to such a line of reasoning, when he must have known it contained a fundamental flaw. Was the argument of conquest grounded in dominium a reason or a pretext responding to a political imperative? If a reason, it is one Marshall almost seemed to be inviting jurists to repudiate. However, if it is a pretext, then we must ask why he would serve up such a deflection, which necessarily entails some speculation based on the circumstances of the times.

But the wheels of justice have proved to be particularly creaky where it concerns recognition of the pervasive impact Johnson v. M’Intosh had, not only on the fundamental issue of native land title, but on hearts and minds within the United States. Until the US Supreme Court overturns Johnson v. M’Intosh, and/or the offending bulls are rescinded ex officio by Pope Francis, or denounced as crimes against humanity in a UN forum such as the ICJ, the case remains res judicata and thereby binding precedent within the US justice system.

In the meantime, one is entitled to wonder why, over the course of two hundred years, the issue of the legality of the decision has yet to be fully raised^lxix. To lay all the blame at the doorstep of Chief Justice Marshall borders on the facile, notwithstanding the fact that it is a bewildering and at times enigmatic judgment. Considerable light can be shed on his reasons from the historical context and the very real dangers faced by the young republic. But recent attempts to analyse the case do not resist the same scrutiny. The fixation of some critics on ethnic cleansing, ethnocentrism, racism^lxx and the evocative and tragic image of the Trail of Tears has succeeded in deflecting their focus from the primary task – a due diligence examination of the legality of the original Letters Patent of Henry VII upon which the entire decision depends.

And yet, a simple three-step “chain of title” examination discloses a public policy consideration which amounts to a fundamental defect in Henry VII’s Letters Patent which is not cured by the mere passage of time.

1. Ultimate sovereignty in Johnson v. M’Intosh is derived from the Letters Patent of 1498;
2. By virtue of his feudal bond to the pope as subditi Prince, and the express wording of the Letters Patent, Henry VII incorporated by reference the papal bulls Inter Caetera and Romanus Pontifex.
3. Romanus Pontifex and Inter Caetera are ex cathedra edicts of the Pope, authorizing practices of slavery and spoliation by virtue of the right of Christian dominium over “remote, heathen and barbarous” lands, and the status of the occupants of such lands as homo animales by virtue of being unbaptized.

It is historically, linguistically and legally inaccurate to characterize any of the Papal Bulls of Discovery, or Letters Patent issued in furtherance thereto as anodyne, mediaeval flourishes of Papal rhetoric designed to incite well-meaning Christian monarchs to advance God’s will on earth by their evangelical works. Both Inter Caetera and Romanus Pontifex direct the Vatican’s spiritual power towards a secular end – the pillaging and subjugation of peoples based upon an invented and dubious theological construct. In this, the bulls fall four-square within the despotic politics of the early Italian Renaissance. Pope Alexander VI, ex-Cardinal Borgia, was a man characterized by “ambition, avarice, and sensuality”^lxxi, qualities that he shared with his contemporaries – Machiavelli, Cesare Borgia and Lorenzo de Medici. The Papal Bulls were acts of realpolitiek designed to keep the peace between the powers of the day, and ensure that the 15^th century scramble for the New World would remain unfettered by the mundane dictates of jus gentium. However, by relegating indigenous peoples to a lower tier of humanity as homo animales, the bulls created an ideological template for conquest, but one which has no place within the contemporary case law of the United States.

If a litigant were to file a suit today under circumstances similar to those of Johnson v. M’Intosh, the title of McIntosh should be struck from the relevant land register as defective, null and void ab initio, as it was acquired from the US government, which claims its right is derived from the Letters Patent issued by Henry VII to the explorers Cabot in 1498.

Judgment for the Plaintiff, with costs.

Schedule I: The Bull Romanus Pontifex (Nicholas V), January 8, 1455.

We [therefore] weighing all and singular the premises with due meditation, and noting that since we had formerly by other letters of ours granted among other things free and ample faculty to the aforesaid King Alfonso — to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery, and to apply and appropriate to himself and his successors the kingdoms, dukedoms, counties, principalities, dominions, possessions, and goods, and to convert them to his and their use and profit

And by force of those and of the present letters of faculty the acquisitions already made, and what hereafter shall happen to be acquired, after they shall have been acquired, we do by the tenor of these presents decree and declare have pertained, and forever of right do belong and pertain, to the aforesaid king and to his successors and to the infante, and that the right of conquest which in the course of these letters we declare to be extended from the capes of Bojador and of Não, as far as through all Guinea, and beyond toward that southern shore, has belonged and pertained, and forever of right belongs and pertains, to the said King Alfonso, his successors, and the infante, and not to any others. We also by the tenor of these presents decree and declare that King Alfonso and his successors and the infante aforesaid might and may, now and henceforth, freely and lawfully, in these [acquisitions] and concerning them make any prohibitions, statutes, and decrees whatsoever, even penal ones, and with imposition of any tribute, and dispose and ordain concerning them as concerning their own property and their other dominions. And in order to confer a more effectual right and assurance we do by these presents forever give, grant, and appropriate to the aforesaid King Alfonso and his successors, kings of the said kingdoms, and to the infante, the provinces, islands, harbors, places, and seas whatsoever, how many soever, and of what sort soever they shall be, that have already been acquired and that shall hereafter come to be acquired, and the right of conquest also from the capes of Bojador and of Não aforesaid.

And we decree that whosoever shall infringe these orders [shall incur the following penalties], besides the punishments pronounced by law against those who carry arms and other prohibited things to any of the Saracens, which we wish them to incur by so doing; if they be single persons, they shall incur the sentence of excommunication; if a community or corporation of a city, castle, village, or place, that city, castle, village, or place shall be thereby subject to the interdict; and we decree further that transgressors, collectively or individually, shall not be absolved from the sentence of excommunication, nor be able to obtain the relaxation of this interdict, by apostolic or any other authority…

Therefore let no one infringe or with rash boldness contravene this our declaration, constitution, gift, grant, appropriation, decree, supplication, exhortation, injunction, inhibition, mandate, and will. But if anyone should presume to do so, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul. Given at Rome, at Saint Peter’s, on the eighth day of January, in the year of the incarnation of our Lord one thousand four hundred and fifty-four, and in the eighth year of our pontificate.

The Bull Inter Caetera (Alexander VI), May 4, 1493.

Wherefore, as becomes Catholic kings and princes, after earnest consideration of all matters, especially of the rise and spread of the Catholic faith, as was the fashion of your ancestors, kings of renowned memory, you have purposed with the favor of divine clemency to bring under your sway the said mainlands and islands with their residents and inhabitants and to bring them to the Catholic faith. Hence, heartily commending in the Lord this your holy and praiseworthy purpose, and desirous that it be duly accomplished, and that the name of our Savior be carried into those regions, we exhort you very earnestly in the Lord and by your reception of holy baptism, whereby you are bound to our apostolic commands, and by the bowels of the mercy of our Lord Jesus Christ, enjoin strictly, that inasmuch as with eager zeal for the true faith you design to equip and despatch this expedition, you purpose also, as is your duty, to lead the peoples dwelling in those islands and countries to embrace the Christian religion; nor at any time let dangers or hardships deter you therefrom, with the stout hope and trust in your hearts that Almighty God will further your undertakings. And, in order that you may enter upon so great an undertaking with greater readiness and heartiness endowed with the benefit of our apostolic favor, we, of our own accord, not at your instance nor the request of anyone else in your regard, but of our own sole largess and certain knowledge and out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth, do by tenor of these presents, should any of said islands have been found by your envoys and captains, give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainlands and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde. With this proviso however that none of the islands and mainlands, found and to be found, discovered and to be discovered, beyond that said line towards the west and south, be in the actual possession of any Christian king or prince up to the birthday of our Lord Jesus Christ just past from which the present year one thousand four hundred and ninety-three begins. And we make, appoint, and depute you and your said heirs and successors lords of them with full and free power, authority, and jurisdiction of every kind; with this proviso however, that by this our gift, grant, and assignment no right acquired by any Christian prince, who may be in actual possession of said islands and mainlands prior to the said birthday of our Lord Jesus Christ, is hereby to be understood to be withdrawn or taken away. Moreover we command you in virtue of holy obedience that, employing all due diligence in the premises, as you also promise — nor do we doubt your compliance therein in accordance with your loyalty and royal greatness of spirit — you should appoint to the aforesaid mainlands and islands worthy, God-fearing, learned, skilled, and experienced men, in order to instruct the aforesaid inhabitants and residents in the Catholic faith and train them in good morals.

Let no one, therefore, infringe, or with rash boldness contravene, this our recommendation, exhortation, requisition, gift, grant, assignment, constitution, deputation, decree, mandate, prohibition, and will. Should anyone presume to attempt this, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul. Given at Rome, at St. Peter’s, in the year of the incarnation of our Lord one thousand four hundred and ninety-three, the fourth of May, and the first year of our pontificate.

Gratis by order of our most holy lord, the pope.

Schedule II – Tables comparing Romanus Pontifex, Johnson v. M’Intosh and the Letters Patent issued to John Cabot and sons.

Papal Bulls Romanus Pontifex (1455) Inter Caetera (1493) “The Roman Pontiff, successor of the key-bearer of the heavenly kingdom and Vicar of Jesus Christ, contemplating with a father’s mind all the several climes of the world and the characteristics of all the nations dwelling in them and seeking and desiring the salvation of all…” “we bestow suitable favors and special graces on those Catholic kings and princes, who, like athletes and intrepid champions of the Christian faith, as we know by the evidence of facts, not only restrain the savage excesses of the Saracens and of other infidels, enemies of the Christian name, but also for the defense and increase of the faith vanquish them and their kingdoms and habitations, though situated in the remotest parts unknown to us, and subject them to their own temporal dominion” “ free and ample faculty to the aforesaid King Alfonso–to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and the kingdoms, dukedoms, principalities, dominions, possessions, and all movable and immovable goods whatsoever held and possessed by them and to reduce their persons to perpetual slavery…” Inter Caetera Wherefore, as becomes Catholic kings and princes… you have purposed with the favor of divine clemency to bring under your sway the said mainlands and islands with their residents and inhabitants and to bring them to the Catholic faith…” “…we exhort you very earnestly in the Lord and by your reception of holy baptism, whereby you are bound to our apostolic commands, and by the bowels of the mercy of our Lord Jesus Christ, enjoin strictly, that inasmuch as with eager zeal for the true faith you design to equip and despatch this expedition, you purpose also, as is your duty, to lead the peoples dwelling in those islands and countries to embrace the Christian religion…” “…out of the fullness of our apostolic power, by the authority of Almighty God conferred upon us in blessed Peter and of the vicarship of Jesus Christ, which we hold on earth…” “give, grant, and assign to you and your heirs and successors, kings of Castile and Leon, forever, together with all their dominions, cities, camps, places, and villages, and all rights, jurisdictions, and appurtenances, all islands and mainlands found and to be found, discovered and to be discovered towards the west and south, by drawing and establishing a line from the Arctic pole, namely the north, to the Antarctic pole, namely the south, no matter whether the said mainlands and islands are found and to be found in the direction of India or towards any other quarter, the said line to be distant one hundred leagues towards the west and south from any of the islands commonly known as the Azores and Cape Verde.” “With this proviso however that none of the islands and mainlands, found and to be found, discovered and to be discovered, beyond that said line towards the west and south, be in the actual possession of any Christian king or prince…” you should appoint to the aforesaid mainlands and islands worthy, God-fearing, learned, skilled, and experienced men, in order to instruct the aforesaid inhabitants and residents in the Catholic faith and train them in good morals. “Let no one, therefore, infringe, or with rash boldness contravene, this our recommendation, exhortation, requisition, gift, grant, assignment, constitution, deputation, decree, mandate, prohibition, and will. Should anyone presume to attempt this, be it known to him that he will incur the wrath of Almighty God and of the blessed apostles Peter and Paul.

Johnson v. M’Intosh (1823) 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…” their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.” “No one of the powers of Europe gave its full assent to this principle, more unequivocally than England…” “In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries ‘then unknown to all Christian people;’ and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.” “Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will… It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account. “The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assertFurther in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. “An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.” “Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits”

King Henry VII Letters Patent Issued to John Cabot (1498) to seeke out, discouer, and finde whatsoever isles, countreys, regions or prouinces of the heathen and infidels whatsoeuer they be, and in what part of the world soeuer they be, which before this time haue bene vnknowen to all Christians And’that the aforesayd Iohn and his sonnes, or their heires and assignee may subdue, occupy and possesse all such townes, cities, castles and isles of them found, which they can subdue, occupy and possesse, as our vassals, and lieutenants, getting vnto vs the rule, title, and jurisdiction of the same villages, townes, castles, & firme land so found. which before this time haue bene vnknowen to all Christians

SCHEDULE III

MAP OF UNITED STATES OF AMERICA 7 (1823-1845)

[Historical and Political Maps of the United States]