Vincent J. Curtis
1 Aug 22
Introduction
The purpose of this work is to analyze the so-called “Doctrine of Discovery”, the papal bulls said to contain it, and the effect of cancelling the papal bulls on international law and on Canada’s legitimacy as a country.
The Papal Bulls
The papal bull Inter Caetera was issued by Pope Alexander VI on May 4, 1493, presumably at the request of King Ferdinand II of Castile and Queen Isabella I of Castile. It is one of five papal bulls issued to the kings of Spain and Portugal as those countries began ocean-going explorations of the world outside of Europe after 1450. It is said that a “Doctrine of Discovery” is contained in these documents.
Below is an extract from Inter Caetera, the most important of the papal bulls associated with the Doctrine of Discovery. I’ve highlighted in bold and underscore the operative parts in the extract, and I’ve left in material so that you can see how much of a legal document the papal bull was. It’s full of legalese. Below it is an extract from the Letters Patent that King Henry VII of England gave to John Cabot, commissioning him to head west and discover new lands for exploitation. Only the operative parts of that document are included; I’ve deleted the legalese, and also not shown is the fact that the contract would have given Henry twenty percent of the net proceeds of the booty recovered by Cabot.
Inter Caetera (extracts):
“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, enjoy 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.”
“…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 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 taking 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.”
Letters Patent of Henry VII to John Cabot 5 March 1496 (extracts):
“…full and free authority, faculty and power to sail to all parts, regions and coasts of the eastern, western and northern sea, under our banners, flags and ensigns, …, to find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the world placed, which before this time were unknown to all Christians. We have also granted to them, licence to set up our aforesaid banners and ensigns in any town, city, castle, island or mainland whatsoever, newly found by them.”
“…may conquer, occupy and possess whatsoever such towns, castles, cities and islands by them thus discovered that they may be able to conquer, occupy and possess, as our vassals and governors lieutenants and deputies therein, acquiring for us the dominion, title and jurisdiction of the same towns, castles, cities, islands and mainlands so discovered;”…
“that all mainlands, islands, towns, cities, castles and other places whatsoever discovered by them, however numerous they may happen to be, may not be frequented or visited by any other subjects of ours whatsoever without the licence of the aforesaid John and his sons and of their…”
Pope Nicholas V issued the papal bull Dum Diversas on June 18, 1452, which authorized King Alphonso V of Portugal to attack Africa and enslave “Saracens” (i.e. Muslims) and pagans. Pope Calixtus III renewed that permission in 1456 with another papal bull. Pope Sixtus IV in 1481 issued yet another renewal. Pope Leo X issued another papal bull, Preceise denotionis in 1514 renewing the permission and assigning sphere of influence to Spain and Portugal. These, along with Inter Ceteris of Alexander VI, comprise the set of papal bulls which allegedly contain a “doctrine of discovery.”
With the capture of Constantinople in 1453 by the Turks, the Eastern Roman Empire came to an end, a thousand years after the fall of Rome itself. The Turks continued working their way up the Balkans toward Vienna. In Spain, however, Ferdinand and Isabella completed the expulsion of the Muslims from the Iberian Peninsula after nearly 800 years of Muslim occupation. Iberian sailors in their sailing ships began exploring the Atlantic Ocean and were working their way down the coast of Africa, around the Cape of Good Hope, and into the Indian Ocean. In 1492, Christopher Columbus, taking a different route, sailed westward and discovered islands and a landmass between Europe and legendary India.
The Pope, as head of the Christian Church, was Europe’s most important spiritual figure, and consequently, in the nature of the times, an important political figure also. He could confer political legitimacy on nearly any action, and belief in the power of divine sanction was strong in that age. It was also becoming clear that Spain and Portugal could come into conflict with their competing enterprises.
Hence, it should not be surprising that Ferdinand and Isabella would seek papal sanction for their enterprise as well as the exclusive right to develop the recent discovery of their explorer, Christopher Columbus. And that is what Pope Alexander VI gave them. He granted Spain the exclusive right to develop Columbus’s discovery so far as it was in his power to grant, and drew up a domain of exclusivity, which applied to Spain and Portugal. (England and France were not at this time players in the exploration game, and so at that point did have interests to be considered.) In short, Alexander ruled that there was to be no claim jumping, so far as it was in the Pope’s power to prevent. ‘No claim jumping’ is the essence of the ‘Doctrine of Discovery’, so far as the European powers were concerned.
Pope Alexander VI was obviously anxious for the expansion of the Christian faith in the new lands. Look carefully that he grants his favour to Ferdinand and Isabella in consideration for the advancement of the faith in these new realms. Alexander observes that Ferdinand intends to bring under his sway “the mainland and islands with the residents and inhabitants,” “islands and countries.” Alexander blesses this enterprise since it will result in advancing the Christian faith. Acts of war (full and free power, authority, and jurisdiction of every kind) were not excluded in the means by which these would be brought under Spanish sway.
In the next major extract, Alexander makes reference to dominions, places, cites, camps, and villages, as well as all rights jurisdictions, appurtenances, islands and mainlands found or discovered by your captains. With the exceptions noted, these are what Alexander grants exclusively to Spain for development. At this time “bring under your sway” certainly encompasses military conquest, though economic exploitation of some sort was the aim in view, so far as Spain was concerned.
If there is a “doctrine of discovery” in these texts, it is that whatever you find first is yours to exploit, and within this is the understanding that it is the Christian powers of Europe that Alexander is talking about. No claim jumping allowed!
The extract of the Letters Patent that King Henry VII of England granted to John Cabot is devoid of the concern for the expansion of the realm of Christianity, of which Alexander was so solicitous. This was a business deal. Henry straight up authorizes Cabot to discover and make war of conquest if necessary upon whatever he finds in New Found Land. Cabot is granted on behalf of the King of England “licence to set up our aforesaid banners and ensigns in any town, city, castle, island or mainland whatsoever, newly found by them.” In those days, setting up the banners of a king was tantamount to declaring it under the rule of that king. This sign of possession could amount to an act of war in Europe. That military conquest was intended is clear in the second extract. Cabot would become Henry’s Lord Lieutenant of whatever he was able to subdue, and that Henry would have “the dominion, title and jurisdiction of the same towns, etc.” This is a pretty clear expression of an expansion of the English king’s dominions, especially when one compares these words with the history of wars between France and England since 1066. The right of conquest is very much behind these intentions. Henry ensured, however, that any war would be limited, and not war necessarily if other means were possible.
Henry’s commission was both political and commercial. As a business enterprise, Henry was to receive twenty percent, after expenses, of whatever booty Cabot could bring home. Is there a "doctrine of discovery” in this? It appears to amplify the idea that whatever the Christian kings of Europe could find first was their exclusive domain of exploitation. No claim jumping by other European powers; in Henry’s case, by other English of Cabot’s discoveries. Military conquest and occupation of the newly discovered lands was within the ambit and expectation of these voyages of discovery.
Let’s jump forward to 1792. U.S. Secretary of State Thomas Jefferson announced authoritatively and on behalf of the United States of America that the “Doctrine of Discovery” was international law, and that it applied to the United States. Based on what we’ve seen so far, Jefferson meant that what American explorers discovered first was America’s to exploit. Jefferson was speaking at that time to Britain, France, and Spain.
In 1792, the United States were bounded on the west by Louisiana Territory. The acquisition of Louisiana by President Jefferson and the Lewis and Clark expedition lay a decade in the future. West of Louisiana lay New Mexico territory, including a nascent Texas, and north-west of that lay the Oregon Territory. Jefferson was thinking ahead. To compress history a bit, America bought Louisiana from France in 1803. Mexico declared its independence from Spain in 1821. The U.S. went to war with Mexico in 1846-48, acquiring Texas, New Mexico and California as prizes. The Gadsden Purchase acquired more territory south of the Gila River from Mexico, and the boundary of the Oregon Territory with British North america was settled in 1846. The central continent was America’s to digest. The Lewis and Clark Expedition discovered that Louisiana did not cross the 49th parallel.
The U.S. Supreme Court first cited a “doctrine of discovery” in the 1823 case Johnson v. M’Intosh. . In a classic case of Indian giving, the same tribe sold the same land to different people at different times, once was before the American Declaration of Independence, the other time after. Writing for the majority, Chief Justice John Marshall wrote that the court decided that title assumed before the United States came into existence carried less weight than that after. Marshall declared that the United States was the true owner of the land, having inherited it from Britain, the original discoverer. American Tories, British Empire Loyalists, could be readily dispossessed of their land without compensation because title to it was obtained before the Declaration of Independence.
Legal analysis on this point descends into current politics, confusing title to land with the agreement among European powers to divide up North America into spheres of influence on the basis of who discovers what first.
Where land title gets confused with sovereignty can be illustrated. For example, the Republic of the United Sates holds underlying title to all its lands – an element of its sovereignty; in Canada, underlying title lies in the Crown, the Sovereign of Canada. Title of properties within sovereignties is a different matter.
Let us now make clear the difference between title to a parcel of land and national sovereignty. If China purchased every parcel of land in California, it would not make Californian sovereign Chinese territory. That would undoubtedly require a military decision by arms. Likewise, if Mexico tried to reclaim California, that too would bring into conflict two national sovereignties. When the Confederacy withdrew from the Union, the Union went to war, as President U.S. Grant noted in his memoirs, because the confederacy was an attempt to form another country upon the territory of the United States. There is a clear distinction between title to land and sovereignty.
Canada
It is sometimes said that Britain acquired an empire in a fit of absent-mindedness. Something similar can be said about the building of the Dominion of Canada. What is now Southern Ontario and southern Quebec came under British sovereignty by the Peace of Paris of 1763. True, Britain conquered New France at the Battle of the Plains of Abraham, but French acknowledgement of the fact wasn’t official until the signing of the Treaty. Britain held New France more or less as a military conquest under largely French law until the political reorganization of the Quebec Act of 1774. After the American Revolution, British-American refugees began pouring into British North America, into territories not previously inhabited in any substantial way by European settlers. It was the policy of the British government to deal with Indians as amicably as possible, and so Governor Sir Frederick Haldimand, finding the Mississauga Indians in possession of certain territories, purchased (i.e. gave them money for) the Haldimand Tract to create a new homeland for the Iroquois Indians who had been loyal to the British during the late revolution. The Constitution Act of 1791 reorganized Quebec into Upper and Lower Canada, and immediately more land purchases were negotiated with the Mississaugas to keep separate the Indians from the newly arriving British-American settlers.
In 1670, King Charles II of England granted to the Hudson’s Bay Company all lands draining into Hudson’s and James Bay. This was seen as an act of sovereignty by France, for in 1689, a military expedition was launched from Quebec to attack a Hudson’s Bay outpost on James Bay. The Hudson’s Bay Company never made pretence of governing Rupert’s Land, contenting itself with setting out trading posts to trade with the natives. In 1869, the Dominion of Canada purchased Rupert’s Land from the Hudson’s Bay Company and formed and incorporated the Northwest Territories into the Dominion. Fearful of the new government, the first Riel Rebellion broke out in 1870. This was put down by military force under General Sir Garnet Wolseley, and the province of Manitoba was established in 1870 to settle political fears. Later, the government of Canada established and sent out west the North West Mounted Police to drive out American whisky traders and gently establish Canadian sovereignty in the region, in the eyes of the United States. Land settlement was encouraged by Canada, and enormous tracts of land were rented on the cheap for twenty years to enterprises to establish ranching and farming out west. Treaties were made with various Indian bands to keep Indians and settlers separate and to content the Indians with the new developments. A second Riel Rebellion broke out in 1885 and this too was put down by military force.
There was no ‘Doctrine of Discovery’ at play in Canada at this time, as the knowledge of these lands was possessed by the sovereign powers for well over a century by then. The United States did not attempt to occupy Canadian territory, as they considered it British, and the U.S. was not seeking war with Britain. Various treaties over the years between Britain and the United States established the border between British North America, now Canada, and the U.S.
The British Crown made little effort to rule lands occupied by Indians, which gives rise to certain ambiguities that last to this day. One of these is the meaning of title over Indian lands.
Lurking in the background in all of this - the elephant in the room - is the doctrine of right of conquest. This is separate and distinct from a doctrine of discovery. If Cortes had failed in his siege of Tenochtitian, and the Aztecs prevailed, the Spanish exploitation of Columbus’s discoveries would have taken a different turn. However, Cortes succeeded, the Aztec empire was destroyed, and Mexico brought firmly under Spanish sway. Vikings in the 11th and 12th centuries, exploring westward, discovered and settled Iceland, Greenland, and Labrador. Their settlement in Labrador, at L’Anse aux Meadows, is thought to have been destroyed by local Indians. If the English settlements along the eastern seaboard of America met with similar fates, as some nearly did, this would have changed dramatically the nature of the exploitation of the “discoveries,” which, by then, were known, though little was known of the interior.
British sovereignty was booted out of the Thirteen Colonies as a result of the American Revolution, and a new sovereignty was established. Likewise, Mexico booted the Spanish Crown out of Mexico in 1821, and a new national sovereignty was established. These, and the Monroe Doctrine, could be held up as example of rights of conquest available to the aboriginals. Save for the Riel Rebellions, Canada never had to use military force to consolidate sovereignty over its territory, relying on political and economic means. But the result was the same, the Crown remained sovereign over the lands of the Dominion of Canada.
Canada’s success at political settlement meant the right of conquest was a sword that almost never had to be drawn, and that fact has left to a certain extent some questions open.
The effect of cancelling the Papal Bulls
There is an idea among aboriginals that if the papal bulls at issue were withdrawn or cancelled, it would render illegitimate the occupation of the territory of Canada by the Sovereignty of Canada. If Canada is founded upon a ‘doctrine of discovery’, then cancelling the doctrine of discovery makes Canada illegitimate and perhaps illegal, if not under Canadian law then international law.
This view is plainly mistaken. There is no papal bull or encyclical entitled “The doctrine of discovery;” such a doctrine is inferred by some into the papal bulls. If Inter Caeteris were cancelled, it would cancel papal sanction of Spain’s exploitation of Columbus’s new discoveries. It would cancel the papal plan for the division of world into two parts between Portugal and Spain. It would remove the papal opposition to ‘claim jumping,’ as well as his encouragement to spread the Christian faith. It would not nullify right of conquest, which was the operative principle of colonization. What makes the colonization of North America different from, say, the British colonization of India is that large numbers of Europeans moved into North America and little by little displaced the aboriginals by sheer weight of demography. British settlers in India at no time challenged the demographic dominance of the native Indians.
An appeal to international law would only lead to ambitious courts running their heads against reality. If a court decided that the Dominion of Canada amounted to an illegal occupation of aboriginal territory, what could be the remedy? Forced expulsion, or financial settlement? Does this sound like another play for money by aboriginal leaders? Canada could plausibly hold that the court had committed an act of war upon her, as a challenge to national sovereignty over territory often leads to military conflict.
We can conclude that the cancellation of
the papal bulls would have no legal effect in international law, or domestic
Canadian law. That water is under the
bridge, over the dam, and well into the ocean after the revolution of 500
years. Canada’s legitimacy as a country
cannot be challenged by people or tribes who think they hold title to parcels
of land within that sovereignty. The
beef between aboriginal bands and the government of Canada cannot be
adjudicated by a court Canada doesn’t agree to, and international courts would
see the dispute as an internal Canadian affair.
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