International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Summer 2016 Issue
 

Historic Moments in International Law

 

Of Bread and Wine – and the Law of Nations

Stephen C. NeffBy: Stephen  C.  Neff, Reader in Law – Public International Law, University of Edinburgh Law School

Among those who have mused on the blessings of civilization, there has often been a pronounced bias in favor of agricultural ways of life and against nomadic and pastoral lifestyles.  Among the ancient Greeks, this was particularly the case, and nowhere more vividly than in Homer’s account of Polyphemus, the cyclops in the Odyssey. This decidedly oafish character is derided for his disgusting habits of consuming milk instead of wine, and of eating meat raw, “like a mountain lion,” instead of cooking it (as a proper Greek would do).  More generally, the cyclops as a race are described as an “insolent and lawless people” who “plant nothing with their hands, nor do they plough . . . they have no political assemblies, nor appointed laws.”  To top it off Polyphemus was a cannibal to boot, as he set about methodically devouring Odysseus’s unfortunate shipmates.

Less imaginative writers in the classical age echoed these sentiments. The Roman historian Ammianus Marcellinus, writing in the Fourth Century A.D., voiced similarly negative views about the various tribal peoples on the margins of the Roman Empire.  “No man among the Saracens,” he asserted derisively, “ever grasps a plough-handle, cultivates a tree, or seeks a living by tilling the soil, but they roam continually over wide empty tracts of land, with no home, fixed abode or laws. . . .   They all feed upon game and great quantities of milk. . . .  I have seen many of them who were completely unacquainted with grain or wine.”

The coming of Christianity brought no great change of outlook – hardly surprisingly, as Christianity was virtually exclusively an urban phenomenon in the Roman period.  Central to the liturgy of the new religion was – and continues to be -- the ritual consumption of bread and wine.

It might be thought that all of this has little, if anything, to do with international law. But that would not be correct. The privileging of agricultural production over other styles of life turned out to play a role in the European colonial expansion into the New World in the years after 1492, as well as in the British settlement of Australia in the 18th and 19th Centuries.  In the New World, the “agricultural thesis,” as it has sometimes been termed, was most important to the English colonists of North America, where it played a prominent role in the legal justification of English sovereignty.

The Spanish did not make use of the agricultural thesis, for various reasons.  For one thing, the Indian kingdoms which they encountered were agricultural economies rather than hunting-and-gathering or pastoral ones. In addition, they had (broadly) three alternate grounds for justifying their title to the new territories: first, papal grants of sovereignty dating from the 15th Century; second, violation by the native kingdoms of the Spaniards’ natural-law right of freedom of trade; and third (at least in the case of Hernando Cortés in Mexico) attacks by the Aztecs on native allies of the Spaniards. These justifications were not available to the later English settlers – with the papal-grant argument being particularly noxious to the sturdy protestants of the 17th Century.

The English sometimes relied on cession as the basis of their title, with the Quakers being particularly scrupulous about obtaining formal transfer of territories by way of treaty.  But in many instances, treaties were

  

not concluded with native rulers. In the settlement of Massachusetts Bay Colony, the possibility of purchasing land from the Indians was explicitly rejected – precisely on the basis of the agricultural thesis. As John Winthrop explained, the Indians themselves had no legal title to convey because “they inclose no Land, neither have they any settled habitation, nor any tame Cattle to prove the land by.” 

The most attractive alternative basis of title was occupation. But there was a catch – and a large one at that.  The catch was that occupation, as it had been handed down from Roman law, could only be used in the case of a res nullius, i.e., of something that was previously owned by no one. And clearly the native North Americans owned the lands in question prior to the arrival of the colonists – or so it would appear.

Here too, however, the agricultural thesis was brought to bear. The argument was that, since the Indians did not have a settled, agricultural mode of life, and did not live in organised political communities of the European kind, they could not be said to be truly sovereign over the North American territories. They had long-established rights to use the territory, for hunting and such purposes; but they could not be held to have sovereignty over it.  On this view, North America actually was a res nullius, not in the sense that no people were present but rather in the sense that no people possessed the sovereignty.

The agricultural thesis may strike a modern reader as a shockingly egregious case of self-pleading, liberally laced with ethnocentrism (or worse).  It did, however, attract some very prominent support. No less an authority than Emmerich de Vattel, in his famous treatise on The Law of Nations in 1758, endorsed it. Persons who “choose to live only by hunting, and their flocks” were criticised for pursuing an “idle mode of life” to the detriment of humanity at large, because they thereby took up territory which could be made much more productive by agriculture. Such anti-social persons, Vattel concluded, “have, therefore, no reason to complain, if other nations, more industrious and too closely confined, come to take possession of a part of those lands.”

Also supportive of the agricultural thesis was the United State Supreme Court, in the case of Johnson v. McIntosh in 1823.  At issue was the validity of title to land which was purchased from Indian groups prior to the American acquisition of sovereignty over the relevant area.  Chief Justice Marshall, writing for the Court, held these supposed titles to be invalid as against persons who later acquired the land from the American government. The reason was that the Indians, never having had full sovereignty over the lands, could not grant an absolute title that would be valid against the world at large.  “[T]he Indian inhabitants,” stated Marshall, “are to be considered merely as occupants” of the lands and not as full sovereigns.  It is fortunate, then, that Odysseus did not attempt to purchase land from Polyphemus during his eventful visit.

For those interested in issues of legal title to the English North American colonies, an excellent source is Anthony Pagden, “Law, Colonization, Legitimation, and the European Background,” in volume 1 of The Cambridge History of Law in America (2008).  Of great interest on the full range of legal issues relevant to native North Americans is Robert A. Williams, The American Indian in Western Legal Thought:  The Discourses of Conquest (1990).  For those of a less bookish and more horticultural tendency, warm comfort may be taken in the knowledge that Mother Earth’s bounties go beyond the bread and wine of life, and extend to juridical sovereignty as well. So rich are the fruits of the Earth.

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