Recently, some evangelical churches have apologized for the Doctrine of Discovery, a contested fifteenth-century Catholic Spanish theory that Christian explorers could claim and take land previously unknown to themselves if it was ruled by non-Christians, a theory the United States Supreme Court falsely claimed was a universal aspect of international law.

Recent resolutions of Christian denominations condemning the so-called Doctrine of Discovery are responses to the belief that bad religious doctrine, the idea that the indigenous peoples as non-Christians did not have the right to their lands, caused the brutal conquest of the Americas from 1492 through to the nineteenth century. However, this is an oversimplification of the history of multiple European countries, dozens of indigenous nations, and several centuries.

The immediate source of the Doctrine of Discovery is United States Supreme Court Chief Justice John Marshall, and his opinion was given initially in the 1823 Johnson v. M’Intosh. However much Marshall might appear to be a credible source, there are reasons to question both his reasoning and his competence on the issue. The case involved whether land purchases from the Piankeshaw people in the Old Northwest before the Declaration of Independence outweighed later sales of lands to the United States government in the same area three decades later. The claim—now disputed by some—was that the lands overlapped. Rather than inviting the Piankeshaw to be heard and give their interpretation, Marshall invented a legal fiction that the indigenous people had no right to sell their land and that the United States government inherited from the United Kingdom the paramount right to dispose of the land. This suited Marshall, whose family has been found to have had land claims that would have been harmed if indigenous rights to sell land had been upheld, and clearly, he did not recuse himself from the case. Johnson then grounded this “right” of the United States government to usurp the indigenous people in a supposed universal Christian Doctrine of Discovery. Except, the doctrine that he supposed was neither universal nor consistent.

First, one must distinguish between the colonization of the New World, which began in 1492, and the colonization of English North America, which took place a century later. The colonizing powers behaved differently and were in competition rather than collusion with one another. There were four major colonial powers—Spain, Portugal, France, and England—and three minor powers—the Netherlands, Denmark, and Sweden. In the case of New Netherlands and New Sweden, which stretched from what is now New York to the border of Maryland, the home governments only recognized the right to colonial settlement after the land had been purchased from the indigenous people. Protestant humanism and natural law influenced the Dutch and Swedes, who had little regard for papal pronouncements about discovery. In the Danish West Indies case, settlement was based on the terra nullius of land previously discovered by other European countries but now uninhabited. While the Dutch and Swedes were by circumstance minor colonial players in the Americas, this should not deceive one as to their standing in Europe. New Sweden occurred during the Stormaktstiden or Great Power Era of the Swedish Empire, when kings such as Gustavus Adolphus the Lion of the North saved the Protestant cause in the Thirty Years’ War and Carolus Rex with his soldiers, the dreaded Caroleans, dominated the Baltic and struck fear into Russian, Polish, and German armies across the continent. The Dutch likewise were the innovators of modern capitalism, extraordinary seafarers who produced Hugo Grotius, considered by many to be the father of international law. Writing on the subject at hand in his treatise of the rights of navigation, Mare Liberum, Grotius explicitly contradicted Portuguese assertion of a Discovery Doctrine to the East Indies, going so far as to title the second chapter “The Portuguese Have No Right By Title Of Discovery To Sovereignty Over The East Indies To Which The Dutch Make Voyages.” Expounding on his pointed title, he writes:

The Portuguese are not sovereigns of those parts of the East Indies to which the Dutch sail, that is to say, Java, Ceylon, and many of the Moluccas. This I prove by the incontrovertible argument that no one is sovereign of a thing which he himself has never possessed, and which no one else has ever held in his name…

First of all, if they say that those lands have come under their jurisdiction as the reward of discovery, THEY LIE, both in law and in fact. For to discover a thing is not only to seize it with the eyes but to take real possession thereof, as Gordian points out in one of his letters…

But in addition to all this, discovery per se gives no legal rights over things unless before the alleged discovery they were res nullius. Now these Indians of the East, on the arrival of the Portuguese, although some of them were idolators, and some Mohammedans, and therefore sunk in grievous sin, had none the less perfect public and private ownership of their goods and possessions, from which they could not be dispossessed without just cause…

For religious belief, as Thomas Aquinas rightly observes, does not do away with either natural or human law from which sovereignty is derived. Surely it is a heresy to believe that infidels are not masters of their own property; consequently, to take from them their possessions on account of their religious belief is no less theft and robbery than it would be in the case of Christians.

That during the mid-seventeenth century the countries with respectively the most feared European army and navy took a high view of non-Christian property and sovereignty rights cannot be dismissed out of hand, nor should we forget that these were Protestant great powers. However, with the four major colonial powers, the story’s complexity begins before the Age of Discovery.

In the Discovery Doctrine conspiracy, a primary culprit is papal bull Dum Diversas, issued in 1452 by Pope Nicholas V to induce the Portuguese King Afonso V to wage war against the rising Ottoman threat that would less than a year later conquer Constantinople and end the ancient Roman Empire. To persuade the Portuguese, the pope incautiously gave them wide latitude to “subjugate the enemies of Christ, namely the Saracens” and to “lead them into perpetual servitude.” However, the timing of the bull demonstrates that this did not have the indigenous peoples of the Americas in mind as they were not known to exist. Furthermore, the thrust is pointedly directed at the ongoing wars against Islam in the Balkans, the Iberian Peninsula, and North Africa. Other Christian monarchs were exhorted at this time in different papal bulls to take the cross and attack the Ottomans directly, such as in the disastrous failed Crusade of Varna in 1443–44. The Portuguese, however, chose the more profitable indirect route of cutting into the Ottoman monopoly on Europe’s trade with India and the east. Even so, it is of note that during the era of the Crusades, Pope Innocent IV had taken care to issue pronouncements that infidels did possess natural rights to their land and self-government when they were not at war or threatening Christians. The practicality of this reasoning was to prevent unending and undesired war between Christians and Muslims if for no other than reason than the military and technological superiority of the early modern Islamic states of the east. Furthermore, it was in accord with the just war tradition and the desire to maintain peace wherever possible.

After the “discovery” of the New World in 1492 by Christopher Columbus, Pope Alexander VI—himself a Spaniard and the infamous Borgia pope—was asked to mediate conflicting claims to the exclusivity of exploration between Portugal and the Crown of Castile. This became the bull Inter caetera of 1493, which confirmed Castilian claims, and the Treaty of Tordesillas of 1494, which harmonized those claims with Portugal’s claims. The impetus was the superior military power of the Portuguese at sea and their claim that the land discovered by Columbus belonged to them and not the Spanish. Throughout this period, the critical determinant in the relationship between the Christian kings and the newly discovered non-Christian rulers was military power. In the sixteenth century, Spanish and Portuguese explorers traveled to India, China, and Japan, where conflict with the great Asian powers would have ended in crushing European defeat. The Portuguese had no theological impediment to opening new markets for trade and proselyting, especially in Japan where Portuguese missions found fertile ground. However, conditions conspired to render a liberal interpretation of discovery rights desirable in the Americas.

First, the indigenous peoples of the Americas lacked gunpowder and iron weapons, which reversed the technological scales; when fighting the Ottomans, the Europeans never fancied themselves as superior. Second, while the Americas were comparatively close to Europe, unlike India, they were still thousands of miles from the royal authority, which meant barbarity and cruelty could reign with little oversight or audit. The fight for accountability and the arguments for indigenous rights against the brutality of the Spanish conquistadores was the life’s work of Bartolomé de Las Casas, as noted in the book Bartolome de Las Casas: Great Prophet of the Americas by historian Dr. Paul S. Vickery. Unlike many theorists of the time, Las Casas had experience in the New World and with the native peoples; he advocated successfully for the assertion of royal power over the depredations of the conquistadores, many of whom, like the Pizzaro family, were more gangsters than intrepid explorers.

As early as 1497, the English tried to poke holes in Inter caetera by exploring the northern coast of North America. The French also did not support the claims of the pope to grant exclusivity for all time to lands unknown. Still, they waited until they were in a position to militarily and politically challenge the bull without risking Spanish wrath or papal censure. Under the remarkable renaissance monarch, King Francis I, the French authorized explorers after the 1520s on the grounds that “discovery” without settlement conferred no land rights. The divergence in imperial and colonial strategies was made even more significant by the Age of Discovery’s coincidence with the Protestant Reformation. While Spain, Portugal, and France remained Catholic, the remaining colonial powers became devoutly and profoundly Protestant. For many English Protestants, the pope was now considered the antichrist, and his pronouncements were treated as anything but gospel.

Consequently, Spanish atrocities in the New World were well-known and condemned by Protestants, both as part of their propaganda against their Catholic rivals and to justify their colonial adventures as an expression of a better form of Christianity to bring the indigenous people. In 1584, the Anglican minister Richard Hakluyt wrote a 21-chapter treatise to Queen Elizabeth I via Walter Raleigh advocating that England should become a colonizing power because, as the title of the eleventh chapter lays out:

That the Spaniards have executed most outrageous and more than Turkish cruelties in all the west Indies, whereby they are everywhere there, become most odious unto them, who would join with us or any other most willingly to shake off their most intolerable yoke, and have begun to do it already in diverse places where they were Lords heretofore.

Hakluyt both recognized that the indigenous were the rightful lords of the lands and that the Spanish had cruelly treated them. But it was not until the seventeenth century that France and England became serious competitors and threats to Spanish domination of the Western Hemisphere.

The Discovery Doctrine, such as it was, was not logically severable from Spanish and Portuguese grants of exclusivity by the popes, for if the pope had the authority to lay out a universal doctrine on the discovery and conquest of unknown lands, did the pope not have the power to determine who instead had the rights to the land? However, England and France wrested control of Caribbean islands and North American territory in wars with Spain. Nevertheless, on the mainland of North America, the French and English had to contend with unconquered indigenous nations. Their responses varied based on the situation. Whereas the Puritans took an ironically Catholic conquistador view of native land rights, Roger Williams, the founder of Rhode Island, purchased land from the indigenous to forestall Puritan claims and had his actions ratified by the restored King Charles II. William Penn operated in reverse, receiving his land grant from the Crown, then purchasing the land from the native peoples retroactively to secure his rights. On some occasions, the English of Virginia claimed land and took it; on others, they purchased it. Whether indigenous land rights were recognized depended on who was on the ground at the time and their moral calibration. Some settled on land that was not occupied or claimed by indigenous peoples. Often, this land was unclaimed with good reason, such as the inhospitable land around Jamestown, which was not suited to cultivation and thus was largely avoided by the Powhatan. Even then, proximity could lead to conflict.

In North America, the French were more interested in trade than settlement. Seeking after a rumored Northwest Passage, the French kings subsidized explorers, desiring trading partners and new routes. Samuel de Champlain and the French Jesuits deliberately sought to counter the bad reputation for Catholicism fostered by Spanish atrocities and arrogance. They cooperated and lived among the indigenous, with French men intermarrying with the local women to such an extent that their children became the Métis people of Canada. Eventually, the French did settle North American in more significant numbers but were ultimately conquered and brought under British rule during the French and Indian War when, as the name implies, the indigenous peoples largely sided with the French against lest trustworthy British and their American colonists.

King George III might have wished for the cost savings of reduced war expenditures and a formally recognized limit to colonial expansion after his Proclamation of 1763. European powers operated on contingencies, and there was no universal conspiracy roadmap with varied goals and ambitions. Again, the Americas were not the only newly discovered lands. European knowledge of Africa and East Asia was extremely limited before the mid-fifteenth century. But engagement with African kingdoms, the Indian subcontinent, and Japan was primarily conducted with the assumption that inhabitants were the rightful owners of their lands. These non-Europeans were also powerful enough to dictate the terms and conditions of trade. However, the Proclamation of 1763 becomes pertinent to the argument against John Marshal. King George III claimed the exclusive right to buy land from the indigenous people in the area under British control or claimed by Britain, an event that angered many of America’s Founding Fathers. Curiously, Marshall argues that the United States government inherited this plenary power, which could be read as a massive expansion of power of the US Constitution’s Article One, Section Eight granting Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” In a further irony, the claim of discovery abolishing indigenous land rights was contradicted in the odious 1857 Dred Scott v John F.A. Sanford case by the iniquitous Chief Justice Roger B. Taney, who argued against the rights of African Americans because they were completely different from the native peoples. In the opinion, Taney writes referring to Blacks:

The situation of this population was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper, and neither the English nor colonial Governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian Governments were regarded and treated as foreign Governments, as much so as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different Governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our Government. (emphasis mine)

It would seem then that the “universal” acknowledged rights of the indigenous people depended on what was in the interest of the court of the day, whether it was taking other people’s land or forcing other people’s labor.

Pope Paul III in 1537 published the papal bull Sublimis Deus, which effectively revoked Inter caetera 44 years after it was issued and 70 years before the foundation of the Jamestown colony; the document in part reads:

The enemy of the human race, who opposes all good deeds in order to bring men to destruction, beholding and envying this, invented a means never before heard of, by which he might hinder the preaching of God’s word of Salvation to the people: he inspired his satellites who, to please him, have not hesitated to publish abroad that the Indians of the West and the South, and other people of whom We have recent knowledge should be treated as dumb brutes created for our service, pretending that they are incapable of receiving the Catholic Faith.

We, who, though unworthy, exercise on earth the power of our Lord and seek with all our might to bring those sheep of His flock who are outside into the fold committed to our charge, consider, however, that the Indians are truly men and that they are not only capable of understanding the Catholic Faith but, according to our information, they desire exceedingly to receive it. Desiring to provide ample remedy for these evils, We define and declare by these Our letters, or by any translation thereof signed by any notary public and sealed with the seal of any ecclesiastical dignitary, to which the same credit shall be given as to the originals, that, notwithstanding whatever may have been or may be said to the contrary, the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect.

This remarkable document was at first ignored and resisted by Charles V Holy Roman Emperor and King of Spain, with the latter title making him the ultimate European power in the New World. The wealth extracted from the conquistadores’ conquests and brutality funded his wars in defense of Christendom against the Ottomans and Moors in the Mediterranean. The Lutheran movement that he was resisting in Central Europe had the ironic effect of strengthening Charles’ ability to ignore the papacy. However, years later as he was compelled to reform the administration of his colonies, the reality of the atrocities was made plain, and he was afraid he was going to hell if he allowed the abuse of the indigenous peoples to remain unchecked. He had looked the other way for too long and was not attentive to what was done by his subjects. Now faced with the truth, he feared for his soul. This remarkable turnaround is detailed in the historian Geoffrey Parker’s biography of Charles, Emperor: A New Life of Charles V. Fear of eternal damnation is not usually the behavior of someone who thinks that the actions done in his name were in accord with the teachings and commandments of his religion. Yet having realized the enormity of the crimes committed against indigenous people of the New World, Charles V, perhaps the most important Christian ruler of the last half-millennium, was afraid. Convinced by Las Casas and others of the injustice of his empire, he issued the New Laws of 1542, which made the indigenous peoples under Spanish rule subjects and vassals of his Crown of Castile with the rights of the same. He limited their compulsory labors and ended their slavery by law. This provoked a rebellion and civil war from the Pizzaro faction in Peru, which was only put down by royal reinforcements and resulted in the execution of Gonzalo Pizzaro, younger brother of famed—infamous—Francisco Pizzaro, destroyer of the Incan Empire. Due to this resistance, the New Laws were curtailed, a sad reminder of why a just government must also be a powerful government. However, Charles’s belated reforms affected the native population; by 1600, the Spanish empire in the Americas consisted of approximately 250,000 Europeans but nine million indigenous subjects of the Crown, a status American Indians never received in Protestant colonial British America.

Let none this mislead any to think that the abuses of colonization did not occur or were somehow justifiable. It is a good thing to avoid and condemn avarice where we find it. But far from being necessary for American Protestants to apologize for a loosely defined and adopted Catholic theory of the fifteenth century, it would be wiser and humbler to question the tendency to locate evil outside of our own time rather than confront the misdeeds of the present. When John Marshall concocted his theory, he blamed his injustice on an imagined past, and sadly, American courts have continued to follow him in this misreading of history. Then again, there is a strange self-importance for Protestants to apologize for Catholic doctrine they don’t observe or for events that occurred before their sects existed. Are they apologizing as Protestants, mere Christians, or White Americans? Likewise, Protestants and Catholics would have benefited from Sublimis Deus, locating the doctrine we now call racism as a devilish scheme to subvert the mission of the church and promote man’s sinful tendency to seek lucre. That many Anglo-American Protestants did not follow the lead of the Dutch or Swedes is worthy of historical reflection. Humility would lead us away from attempting to particularize our virtues and universalize our sins. John Marshall was wrong. He made it up, much like his excessive doctrine of judicial review. This is reason alone to trust the wisdom of the multitude in the legislature as our Founders intended for Congress, rather than the pronouncements of courts deviating from their limited constitutional role.