Losers weepers – The Law of Nations

This is part of a series of articles on Indigenous issues and history to promote awareness of our shared history among the general population.

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The Doctrine of Discovery provided the monarchs of Europe with a very questionable justification for claiming the territories inhabited by non-Europeans between the fifteenth and nineteenth century, and it remains a foundational principle in Canadian law today. However, it was not alone in providing a rationale for colonization and the oppression of indigenous people in this country. A book, first published in France in 1758, has also been used through the decades since its first appearance to justify the dislocation and colonization of this country’s indigenous peoples.

The Law of Nations: Or, Principles of the Law of Nature Applied to the Conduct and Affairs of Nations and Sovereigns, was written by Emmerich de Vattel and gained a wide following in Britain and North America as soon as it was translated into English in 1760. Its main principle was that the entire Earth was given to humans in general, and only those who made “proper” use of it deserved to keep it. By “proper”, Vattel meant cultivation, settlement and making full use of the land being held by societies and nations.

This meant that those, such as many of the indigenous peoples in Canada, who lived by hunting, trapping and fishing, were abusing the land and did not deserve to keep it to themselves. Section 81 of the book states: “Those nations who inhabit fertile countries, but disdain to cultivate their lands, and choose rather to live by plunder, …deserve to be extirpated as savage and pernicious beasts. There are others, who, to avoid labour, choose to live only by hunting, and their flocks… Those who still pursue this idle mode of life, usurp more extensive territories than, with a reasonable share of labour, they would have occasion for, and 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.” As far as he was concerned, those who were not permanently cultivating “those extensive tracts rather ranged through than inhabited them”.

Addressing the situation with the indigenous people in North America, specifically, he stated in Section 209: “Their unsettled habitation in those immense regions cannot be accounted a true and legal possession; and the people of Europe, too closely pent up at home, finding land of which the savages stood in no particular need, and of which they made no actual and constant use, were lawfully entitled to take possession of it, and settle it with colonies…We do not, therefore deviate from the views of nature in confining the Indians within narrower limits.”

This mode of defining “savage” and “civilised” seems to have dominated British attitudes towards the First Nations, most particularly after their value as military allies had decreased following the War of 1812. The Crown and its representatives equated farming with civilization, and the traditional lifestyle of the Indians – hunting, trapping, fishing, a nomadic way of life – as that of the savage. In 1830, the British Government introduced a new policy for dealing with indigenous people in Canada: “The Civilisation Policy”, by which they would be confined to permanent settlements where they would learn farming and be educated according to European methods.

The influence of de Vattel’s book is seen in the repeated use of references to “cultivators of the soil” in correspondence between 1812 and 1836, and lands not being used for farming were known as the “waste lands of the Crown”. Governor General Francis Bond Head used this language in explaining to the inhabitants of Manitoulin Island in 1836 why they should surender their land: “If you would cultivate your Land it would then be considered your own Property in the same Way as your Dogs are considered among yourselves to belong to those who have reared them; but uncultivated Land is like wild Animals.”

This attitude underlay the entire Civilisation Policy, as would be explicitly stated in a Government Report of 1844: “The wisdom and justice of this course is most strongly recommended by Vattel, in his Law of Nations….”. The Report then quoted Section 209 (quoted above) to show that “Their unsettled habitation in those immense regions cannot be accounted a true and legal possession…We do not, therefore deviate from the views of nature in confining the Indians within narrower limits”.

The Law of Nations, like the Doctrine of Discovery, set out the principles upon which the indigenous peoples of Canada would be brought under legal and cultural restrictions, imposing a Eurocentric, and very dubious, attitude toward their traditions, culture and social structures, which has bound them to this day.

2 COMMENTS

  1. On August 4th, 2003, the day of the great power blackout in Ontario and neighbouring states, I was meeting with an Indigenous layer and an Indigenous newspaper publisher on a patio on Elgin St. in Ottawa. The publisher was telling stories she heard from her elders when she was a child living on the Tyendinago Mohawk Territory near Deseronto. She said that one of her favourite stories was how white settlers conquered vegetables in the same way they conquered Natives. They wanted Natives in nice straight rows where they could weed out what they didn’t want to flourish.

    This was/is sad but true.

  2. I think there are traces of it in many Municipal development policies, where tracts of woodland and wetland are conspicuously labeled as “Vacant Land” in many proposals for ‘Development’.

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