The Illusion of Reciprocity in the History of International Law: Conquest and Civilisation in Johnson’s Lessee v. M’Intosh

[Alessandro Marinaro is an incoming second-year Master candidate in International Law at the Graduate Institute of International and Development Studies, in Geneva, currently working as a research and evaluation intern at the Joint Inspection Unit of the United Nations System.]

Johnson v. M’Intosh: A Necessary Contextualisation

The age of the Marshall Court has probably been the most influential period in the history of the US Supreme Court. Through its practice and jurisprudence, it has irreversibly shaped the nature of the United States as a political and cultural entity, and its development and expansion as a settler State. Given the eminently colonial origin of international law, early SCOTUS case-law in matters of territorial expansion, civilisation and native sovereignty played a pivotal role in the context of the whole colonial-imperial West and its relationship with the outside world. Beyond Johnson’s Lessee v. M’Intosh, 8 Wheat. 543 (1823), the most famous string of cases decided by the Supreme Court in matters of native sovereignty limitations and territorial expansion also included Cherokee Nation v. Georgia, 30 U.S. 1 (1831) and Worcester v. Georgia, 31 U.S. 515 (1832).

The role of the US as the first Western, non-European power par excellence, the setting of the case and the fact that the Court directly interpreted and applied the law of nations, all suggest that contextualisation is vital to understand the complexity of Johnson v. M’Intosh’s wider implications and connections with the colonial dimension of international law.

The background to the case consisted in a dispute over title. Joshua Johnson’s (plaintiff) father bought a tract of land by the Piankashaw Indians, who were living on that territory, prior to the American Revolution. After the Declaration of Independence those lands were included into the County of Illinois within the State of Virginia. The Virginia delegates to Congress then conveyed the land to the US federal government. 35 years later, the US federal government sold a portion of that land to William M’Intosh (defendant). Initially, Johnson brought this action to eject M’Intosh from the land he had purchased from the Piankashaw. Eventually, the question arrived to the Supreme Court on appeal from the District Court of Illinois.

One could develop endless connections among the themes touched by the majority opinion: titles to sovereignty, indigenous-aboriginal rights, chains of title, discovery, conquest, civilisation, reciprocity, assimilation, the possession and use of land. Indeed, most of the Supreme Court’s case-law concerning land disputes in the years of territorial expansion involved competing chains of title over land, with one of the two usually going back to private cession or purchase, and the other one to some level of US public administration.

However, for obvious reasons of space, the great part of this analysis will be devoted to the argument of civilisation in its apologetic function with regard to conquest, expansion and sovereignty. As the (unanimous) majority’s main legal argument, civilisation as justification will be contextualised in its longer and controversial history, especially in its connection with an author such as Francisco de Vitoria, whose writings are situated at the early-modern inception of colonial expansion, in particular, in his De Indis Et De Iure Belli Relectiones.

The Illusion of Reciprocity and the Apologetic Function of Civilisation: Between Marshall and Vitoria

It is possible to identify a passage that serves as a keystone for the edifice of entire opinion:

“Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants offered an apology for considering them as people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they may ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.” (21 U.S. 543)

In the second half of the reasoning, Marshall articulates civilisation and Christianity as an “ample compensation” bestowed on natives in exchange for European “complete independence”. This is the ultimate foundation of the Court’s argument and decision. The Court’s final and unanimous decision was to identify M’Intosh’s one as the only valid chain of title (the one which did not involve the Piankeshaw tribe as the seller). The outcome determined a regime of monopsony with regard to territorial acquisitions to the advantage of the US public administration. This meant that natives were authorised to sell or cede land to only one buyer: the US government. Private purchases, negotiations or cessions which involved native parties were to be considered invalid.

Put it bluntly, the native title to sovereignty is ceded to European colonial powers by means of discovery and conquest, and that title is inherited by the US federal government from the European power in question (the British Empire). Therefore, having natives lost their original title to sovereignty on their lands, the only valid chain of title is the one amenable to the different layers of US government, the one which has in European conquest or acquisition its source of validity.

What is really interesting is to look at the ultimate justification offered by the Court for the legal validity of European conquest, and therefore for the extinction of native sovereignty over land. It is almost described in terms of a fair transaction. A transaction legitimised by native “character” and “religion”, and by the “superior genius” of Europeans. The gifts of civilisation in exchange for “complete independence” (to be intended as sovereignty).

In Marshall’s tone one can trace back the persistent obsession with reciprocity of European-Western discourse with regard to uncivilised, non-Christian and “not wholly unintelligent” (Vitoria, De Indis, 160) natives. As early in the history of colonial discourse as Vitoria’s Relectiones, the language of reciprocity permeates the legal reflection on the European’s relationship with the native. In trade, religion, war, travel, territorial acquisition, private property, the ultimate source of validity of Vitoria’s relational framework seems to be the principle of reciprocity or at least, the illusion of reciprocity.

The eighteenth “lawful title whereby the aborigines of America could have come into the power of Spain” (Vitoria, De Indis, 160), indeed, consists in the taking over of administration by Spain “for the welfare and in the interests of the Indians, and not for the mere profit of the Spaniards.” (Vitoria, De Indis, 161). Even though Vitoria justifies this particular title with the exercise of Christian charity, his reasoning fits perfectly the rhetoric of reciprocity which underpins the other seventeen lawful titles. “Administration” in exchange for “welfare”, “civilisation” in exchange for “absolute independence”.

Under the illusion of reciprocity, these “transactions” are inherently fair, and their fairness is ensured by what in Marshall’s words in described as the “character and religion” of natives, and in Vitoria as their unfitness to “found or administer a lawful State up to the standard required by human and civil claims.” (Vitoria, De Indis, 161). Even the Chief Justice, if one reads closely the majority opinion, seems to conceptualise the title given by the legal fiction of discovery (which he, indeed, recognises as a conventional principle established among European governments) more as a way to avoid disputes (“conflicting settlements”) between colonial powers than as the legal justification for European appropriation of native territory. What really justifies appropriation is another legal fiction, the illusion of reciprocity which pictures civilisation as a valid compensation for sovereignty on the grounds of native lack of the former (and, automatically, need for it).

Unlike Marshall, Vitoria rejects the legal fiction of discovery as a valid title, characterising natives as “true owners” under natural law (Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (1990), 99). However, on a deeper level, the ultimate source of legal validity of European conquest in both Vitoria and Marshall remains founded on the illusion of reciprocity. As cleverly observed by Williams: “Victoria’s high regard for trade and commerce in his Law of Nations must have generated immense enthusiasm for his theories in the proto-mercantilist quarters of Discovery-era imperial Spain. The Christian Humanist’s desire for a universal world order adapted to satisfying human needs could be realized by simply expanding the merchant marine and by sending the conquistadores wherever Spanish trade was not welcome.” (Williams, The American Indian, 102).

The majority of Vitoria’s “lawful titles” are founded on the principle of legal equality between Spaniards and natives under natural law, therefore they permit conquest or appropriation either on a spontaneous, voluntary basis, or on the grounds of native breaches of mutual obligations (reciprocity). Two elements contribute to make these theoretically reciprocal set of natural law rights and obligations a mere illusion of reciprocity. One is the easiness with which natives can incur in breaches of their alleged obligations (especially with regard to trade), and the other is the total disregard of both cultural differences and a deeply asymmetrical reality (especially with reference to geography, military power, and trade).

Conclusions

There are multiple ways of interpreting the illusion of reciprocity as a discourse of conquest. It is, at the same time, the product of unilateral, deep-rooted cultural assumptions, humanist wishful thinking, legal fiction-construction, deception (to its victims) and self-deception (to the conscience of its theorists). It is by no means easy to identify which one is its correct interpretation, not even by analysing the authors’ tones, their argumentations, their beliefs, biases, roles and the historical contexts in which they found themselves. It is an almost impossible task, since all of the above-mentioned interpretations are probably, and in different measures, correct. At the very least, they cannot be seen as mutually exclusive.

There is, however, another factor that is common to both Marshall and Vitoria, and that influences decisively the illusion of reciprocity as a legal justification and discourse of conquest. Namely, the material historical constraint of writing in extremely delicate positions of power within the structure of the conquering power. Marshall as Chief Justice of the US Supreme Court and Vitoria as Primary Professor of Theology at the University of Salamanca. One has to consider the political implications that their opinions had (or could have had) at the time. The need to find legal and moral justifications (or to confirm the available ones) was a pressing one, and most of the contradictory positions expressed both in Johnson v. M’Intosh and in the Relectiones probably resented the tension between moral considerations, legal-philosophical reasoning and the political weight of those positions themselves.

In particular, there are two clear examples of this dynamic. In Johnson v. M’Intosh, Chief Justice Marshall openly states that “conquest gives a title which the courts of the conqueror cannot deny” and that “these claims have been maintained and established as far west as the river Mississippi, by the sword … it is not for the courts of this country to question the validity of this title” (21 U.S. (8 Wheat.) 543). It is evident, from these lines, that Marshall (and the rest of the Court) were caught in the middle of an extremely delicate situation. A situation in which they justify the legal title acquired with conquest and, at the same time, recognise conquest as an inevitable fact which (even if they wanted) they would have had no competence to declare illegitimate. Taking into account the role of the Supreme Court in shaping US history, a different ruling could have had the potential to undermine the legal validity not only of land acquisition by the federal government, but also to question the legitimacy of the newly-independent country’s very existence.

The second example concludes Vitoria’s eighteenth “lawful title”. Writes Vitoria: “Now, it seems to follow from all this discussion that, if there be no force in any of the titles which have been put forward, so that the native Indians neither gave cause for just war nor wished for Spanish rulers, etc., all the travel to, and trade with, those parts should be stopped, to the great loss of the Spaniards and also to the grave hurt of the royal treasury (a thing intolerable).” (Vitoria, De Indis, 161).