US Supreme Court: Johnson v. M'Intosh in 1823.

"Doctrine of Discovery" 500 year-old-idea of claiming new lands

Robert Miller: "Native America Discovered & Conquered"

European Explorers landing, planting flag & cross and claiming new lands for their country

***

In 1452, Nicholas V issued the papal bull 'Dum Diversas', granting the King of Portugal the right to reduce any "Saracens, pagans and any other unbelievers" to hereditary slavery. Dum Diversas legitimised the colonial slave trade that begun around this time with the expeditions by Henry the Navigator to find a sea route to India, which were financed with African slaves. This approval of slavery was reaffirmed and extended in his Romanus Pontifex of 1455.

He was compelled, however, to add that the lustre of his pontificate would be forever dulled by the fall of Constantinople, which the Turks took in 1453. The Pope bitterly felt this catastrophe as a double blow to Christendom and to Greek letters.

Pope Nicholas V and slavery

Nicholas issued the bull "Dum Diversas" (June 18 1452) in response to a request from the Portuguese monarchy. King Alfonso V was conferred the right to "attack, conquer, and subjugate Saracens, Pagans and other enemies of Christ wherever they may be found." It gave title over all lands and possessions seized and permitted the Portuguese to take the inhabitants and consign them to perpetual slavery.

The geographical area of the concession given in the bull is not explicit but Richard Raiswell argues that the use of the terms "pagans" and "other enemies of Christ" indicates the scope of the bull was applicable to the newly discovered lands along the west coast of Africa and that the ambiguity of the text was such that it encouraged the Portuguese to extend their explorations further afield.

He further argues that the use of crusading language in the bull served to make the Christian-Muslim relationship the model for Africa.

The bull issued by Nicholas "Romanus Pontifex" (8 January 1455) reaffirmed "Dum Diveras" and also sanctioned the purchase of black slaves from "the infidel".

According to Raiswell (1997) he expressed enthusiasm when recalling the number of slaves that had been captured, brought back to Portugal, baptised and expressed his hope that the entire populations of these new found lands would be converted.

military force, rather than peaceful evangelisation,

Stogre (1992) notes that this bull, perhaps in part due to misleading information provided by the Portuguese, introduced the concept of military force, rather than peaceful evangelisation, for missionary purposes and that it applied to lands that had never previously been subject to Christian ownership, subsequently leading to the "brutal dispossession and enslavement of the indigenous population".

The bull also conferred exclusive trading rights to the Portuguese between Morocco and the Indies with the rights to conquer and convert the inhabitants. A significant concession given by Nicholas in a brief issued to King Alfonso in 1454 extended the rights granted to existing territories to all those that might be taken in the future.

It is argued that collectively the two bulls issued by Nicholas gave the Portuguese the rights to acquire slaves along the African coast by force or trade. The concessions given in them were confirmed by bulls issued by

Pope Calixtus III "Inter Caetera quae" (1456),

Sixtus IV "Aeterni regis" (1481) and

Leo X (1514) and they became the models for subsequent bulls issued by

Pope Alexander VI: "Eximiae devotionis" (May 3 1493),

"Inter Caetera" (May 4 1493) and

"Dudum Siquidem (September 23 1493) when he conferred similar rights to Spain in relation to the new found lands in the Americas.

Some historians view these bulls together as extending the theological legacy of Pope Urban II's Crusades to justify European colonization and expansionism,[4] accommodating "both the marketplace and the yearnings of the Christian soul."[8] Dum Diversas was essentially "geographically unlimited" in its application, perhaps the most important papal act relating to Portuguese colonization.[9]

Dum Diversas provided:

"We grant you [Kings of Spain and Portugal] by these present documents, with our Apostolic Authority, full and free permission to invade, search out, capture, and subjugate the Saracens and pagans and any other unbelievers and enemies of Christ wherever they may be, as well as their kingdoms, duchies, counties, principalities, and other property [...] and to reduce their persons into perpetual slavery. ”

In 1537 pope Paul III explicitly condemned enslaving non-Christians in Sublimus Dei. In 1686 the Holy Office limited the bull by decreeing that Africans enslaved by unjust wars should be freed.

Dum Diversas, along with other bulls such as

Romanus Pontifex (1454), I

neffabilis et summi (1497),

Dudum pro parte (1516), and

Aequum reputamus (1534)

document the Portuguese ius patronatus.

Pope Alexander VI, a native of Valencia, issued a series of bulls limiting Portuguese power in favor of that of Spain, most notably Dudem siquidem (1493)

****

Colonial History: Theory of Christian Expansion

USA Constitution and Discovery Doctrine

"No person shall be…deprived of life, liberty, or property, without due process of law…"

This idea, which is a bedrock of American democracy, is from the Fifth Amendment to the U.S. Constitution, which was completed in 1787. That same year, the U.S. government enacted the Northwest Ordinance, which created the first organized territory out of the region that is today Ohio, Indiana, Illinois, Michigan and Wisconsin. Among other regulations, the ordinance set forth a guiding principle for the treatment of Native Americans and their lands:

--

"The utmost good faith shall always be observed towards the Indians; their land and property shall never be taken without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed."

--

Just seven years later, in 1794, the U.S. government sent a regiment led by General "Mad" Anthony Wayne to conquer a confederation of American Indian tribes attempting to keep hold of their lands. At the Battle of Fallen Timbers, a band of 800 Native Americans was slaughtered and 5,000 acres of crops were destroyed. The tribes of the region were forced into a treaty that limited them to the northern region of what is today Ohio, and it took them twenty years to recover from the loss of lives and property.

In 1802, President Jefferson signed the Georgia Compact, which stated that in exchange for land (what is today Alabama and Mississippi), the federal government would remove all American Indians within the territory of Georgia "as soon as it could be done reasonably and peacefully."

By 1830, the U.S. government had passed the Indian Removal Act, which authorized the President to remove the remaining Eastern Indians to lands west of the Mississippi. Between 1938 and 1939, under President Andrew Jackson, 15,000 Cherokee Indians were forcibly taken from their land, herded into makeshift forts, and made to march-some in chains-a thousand miles to present-day Oklahoma.

Over 4,000 Cherokee died from hunger, disease, and exhaustion on what they called Nunna daul Tsuny or the Trail of Tears. By the late 1840s almost all Native Americans had been moved to lands west of the Mississippi.

It seems astonishing that a country founded upon the ideal of "life, liberty, and property" could move from a policy of "good faith" toward the Native Americans to one of complete domination in the space of one generation. In order to understand how such a contradiction could occur, it is necessary to go back in time almost seven centuries before the American Revolution.

1095

In 1095, at the beginning of the Crusades, Pope Urban II issued an edict-the Papal Bull Terra Nullius (meaning empty land). It gave the kings and princes of Europe the right to "discover" or claim land in non-Christian areas.

1452

This policy was extended in 1452 when Pope Nicholas V issued the bull Romanus Pontifex, declaring war against all non-Christians throughout the world and authorizing the conquest of their nations and territories.

These edicts treated non-Christians as uncivilized and subhuman, and therefore without rights to any land or nation. Christian leaders claimed a God-given right to take control of all lands and used this idea to justify war, colonization, and even slavery.

1492

By the time Christopher Columbus set sail in 1492, this Doctrine of Discovery was a well-established idea in the Christian world. When he reached the Americas, Columbus performed a ceremony to "take possession" of all lands "discovered," meaning all territory not occupied by Christians.

1493

Upon his return to Europe in 1493, Pope Alexander VI issued the bull Inter Cetera, granting Spain the right to conquer the lands that Columbus had already "discovered" and all lands that it might come upon in the future.

** This decree also expressed the Pope's wish to convert the natives of these lands to Catholicism in order to strengthen the "Christian Empire."

1573

In 1573 Pope Paul II issued the papal bull Sublimis Deus, which denounced the idea that Native Americans "should be treated like irrational animals and used exclusively for our profit and our service."

1635Pope Urban VIII (1623-1644) formally excommunicated anyone still holding Indian slaves. By this time, however, the Doctrine of Discovery was deeply rooted and led nonetheless to the conquest of non-Christian lands and people in every corner of the world.

Although the U.S. was founded on freedom from such tyranny, the idea that white people and Christians had certain divine rights was nevertheless ingrained in the young nation's policies. The slave trade, for example, and centuries of violence against black people depended upon the idea that non-Whites were less than human.

The theft of Native American lands required a similar justification.

1823 - Supreme Court case, Johnson v. McIntosh.

In 1823, the Doctrine of Discovery was written into U.S. law as a way to deny land rights to Native Americans in the Supreme Court case, Johnson v. McIntosh. It is ironic that the case did not directly involve any Native Americans since the decision stripped them of all rights to their independence.

In 1775, Thomas Johnson and a group of British investors bought a tract of land from the Piankeshaw Indians. During the Revolutionary War, this land was taken from the British and became part of the U.S. in the "County of Illinois."

In 1818, the U.S. government sold part of the land to William McIntosh, a citizen of Illinois. This prompted Joshua Johnson, the heir to one of the original buyers, to claim the land through a lawsuit (which he later lost).

USSUPREME COURT

In a unanimous decision, Chief Justice John Marshall wrote that the Christian European nations had assumed complete control over the lands of America during the "Age of Discovery."

Upon winning independence in 1776, he noted, the U.S. inherited authority over these lands from Great Britain, "notwithstanding the occupancy of the natives, who were heathens…" According to the ruling, American Indians did not have any rights as independent nations, but only as tenants or residents of U.S. land.

For Joshua Johnson, this meant that the original sale of land by the Piankeshaws was invalid because they were not the lawful owners. For Native Americans, this decision foreshadowed the Trail of Tears and a hundred years of forced removal and violence. Despite recent efforts to have the case repealed as a symbol of good will, Johnson v. McIntosh has never been overruled and remains good law.

1845 - Manifest Destiny

In 1845, a democratic leader and prominent editor named John L. O'Sullivan gave the Doctrine of Discovery a uniquely American flavor when he coined the term Manifest Destiny to defend U.S. expansion and claims to new territory:

".... the right of our manifest destiny to over spread and to possess the whole of the continent which Providence has given us for the development of the great experiment of liberty… is right such as that of the tree to the space of air and the earth suitable for the full expansion of its principle and destiny of growth."

The idea of Manifest Destiny was publicized in newspapers and debated by politicians. It furthered the sense among U.S. citizens of an inevitable or natural right to expand the nation and to spread "freedom and democracy" (though only to those deemed capable of self-government, which certainly did not include Blacks or Native Americans).

Whether called the Doctrine of Discovery or Manifest Destiny, the principles that stimulated U.S. thirst for land have been disastrous for Native Americans, African Americans, Mexicans, and many others both in North America and abroad who lost life, liberty and property as the result of U.S. expansionism. The history of Christian law helps us to understand how our leaders-many considered heroes and role models today-undertook monstrous acts in the name of liberty. This insight into the prevailing ideas of the day, however, does not excuse their behavior. Some may have truly been misled by the ideals of Christian discovery, but others acted knowingly out of self-interest, greed and bigotry. Even as far back as Columbus, however, there were religious and political leaders, as well as ordinary citizens, who knew better and worked against racism, colonization and slavery.

When the Indian Removal Act of 1830 came up for debate in Congress, for example, New Jersey Senator Theodore Frelinghuysen, a strong believer in Christian compassion, led a bold attack with a six-hour speech that extended over three days. Frelinghuysen predicted terrible suffering and therefore argued to uphold the independence of the Cherokee Nation. Many other members of Congress, including Tennessean Davy Crockett, fought against the Act. Though it passed in both houses, 47% of Congress (116 of 246 members) voted in opposition to the bill.

It is tempting to view the problems of the past as ancient history-long resolved and no longer relevant to our lives. The effects of manifest destiny, however, continue today. American Indian Nations are still in court over land disputes, and countless native people suffer from extreme poverty and other social problems as a result of past policies. September 11th and the wars in Afghanistan and Iraq have ignited age-old debates about U.S. objectives. Though the public discourse no longer includes terms such as "expansion," "discovery," and "destiny," discussions about globalization, preemptive war, and the responsibilities of the world's only "superpower" echo familiar themes. It is perhaps fitting that this dialogue ensues as the country commemorates the bicentennial of the Lewis and Clark expedition, or Corps of Discovery, which paved the way for U.S. expansion. The anniversary presents an important opportunity to pay tribute to the victims and survivors of Indian genocide, to learn about contemporary native culture and issues, and to work against prejudice and discrimination in local communities.


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