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, at least from a Western European perspective.

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

Henry Wheaton (1785-1848)
Reporter of the U.S. Supreme Court,
international law expert and U. S. Diplomat

Thus, the question arises: Didn’t the prior possession of the lands of the hemisphere by Indigenous nations rightfully exclude the claims of the invading foreign nations from 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 of “prescription” to other Christian nations. This would ensure that the long possession of lands by the “heathen, “pagan,” and “infidel” 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 continent and the hemisphere 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. We’ve been controlled to a remarkable degree by the mind of the White man.

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 that they and only they were in control of the reality-construction process.

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

To say that long possession of land by a colonizing Christian nation excludes the claim of every other colonizing Christian 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, it 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. How is this use of a principle of Christian domination a valid basis of U. S. Federal Indian law and policy? -Steven Newcomb