The Principle of Prescription

In his book Elements of International Law, first published in 1836, Henry Wheaton pointed out that “the general consent of mankind has established the principle, that long and uninterrupted possession [of land] by one nation excludes the claim of every other.” During the so-called Age of Discovery, the category “mankind” was restricted to Christian Europeans from Western Europe.

The principle mentioned by Wheaton is commonly known as “prescription.” Even a moment of reflection leads to the obvious point that the original nations of this hemisphere had a long and uninterrupted possession of the soil prior to the nations of Western Europe invasively arriving during the fifteenth, sixteenth, and later centuries.

Thus, the question arises: Didn’t the prior possession of the lands of the hemisphere by Indigenous nation exclude the claims of the invading nations of Christendom? In his article “The Right of Discovery,” historian B. A. Hinsdale points out, that the Christian powers were only willing to apply the principle to other Christian nations so that the long possession of lands by the heathen nations of the hemisphere could not and would not exclude the claims of the any Christian power. 

As Hinsdale put the matter: “[P]resciption, which would have given the original inhabitants of the newly discovered lands, at least the most advanced of them, the territories that they occupied, was [a principle] strictly limited to Christian powers. The rule had no application whatever to the infidels of either east or West.

            Behind Hinsdale’s comment is the assumption that the original Native inhabitants of the past were subject to the perspective, point of view, and mental activities of the “Christian powers.” In other words, every historical account written from a Western European perspective presumes that the Christian European thinkers had the unilateral authority to decide what was real, and how “things” such as “Indians” were to be defined.

Buried in every historical account of the “Age of Discovery” is the idea that the Christian Europeans of the past arrived to this hemisphere already in possession of the exclusive authority and “right” to decide what was real, and how “things’ such as Indians were to be named and thereby categorized. Those accounts would have us assume they were in control of the reality-construction process.

            When people of our generation study the explanation of the principle of prescription provided by Wheaton and Hinsdale, the explanation assumes that the Christians arrived already in possession of the right to decide that the principle of prescription would only be applied to Christian powers; they had the authority to decide that the principle of prescription would never be applied to “heathen” or “infidel” peoples so as to deprived non-Christians of the principle, “First in Time, First in Right.”

To say that long possession of land by a Christian nation excludes the claim of every other Christian and non-Christian nation to that same land, is to apply a religious criterion to the situation. So long as the nation that has had long possession of the land is a Christian nation, that nation will be recognized as having the right to exclude the claims of every other nation.

Clearly, a religious standard (Christian v. non-Christian) was being applied by the Christian powers to decide which nations of Western Christendom had the right, from the perspective of the Christian commonwealth, to exclude the claim of every other nation. -Steven Newcomb