March 17, 2013 at 11:39 pm #327
In 1493, the year after Columbus made his great or at least so-called discovery, the Roman Catholic Church proclaimed the natural law governing questions of legal rights as between natives and newcomers. Because, at that time, the church was universal in Europe that declaration of natural law determined international law.
The declaration took the form of formal legislation, a papal bull entitled Inter Cetera. It enacted that aboriginal people were not humans with souls but rather animals without souls and, for this reason, without rights either of jurisdiction or property in the lands of the new world.
Controversy raged in European legal circles. Not all Europeans had the same attitude of rapaciousness and racism. There was another faction, that saw the new world and its native people as a symbol of salvation, rather than a challenge and a threat; they saw a Garden of Eden peopled by more noble beings, where others imagined a dark forest inhabited by sub-human demons in peoples’ form.
In 1537, a subsequent papal bull, entitled Sublimus Deus, repealed Inter Cetera on all points of law. Thus, natural law and international law came to recognize and affirm that aboriginal people are human with souls, jurisdiction and property, which must be respected as a matter of law. Sublimus Deus concluded by enacting “should the contrary happen, it shall be null and of no effect.”
The contrary has happened, as clearly focused by the set of cases in the 1990s in Canada. Yet, there has been no repeal of Sublimus Deus. To the contrary, the legal point settled by Sublimus Deus became so entrenched in international law as to provide the blueprint for the constitutional law of both Canada and the United States.
On the eve of the American revolution the Royal Proclamation of 1763 restated Sublimus Deus and the various constitutional instruments reiterating its legal point over the intervening years. Thus, the proclamation confirmed that the aboriginal people could not, legally, be molested or disturbed by newcomer governments, their courts or their citizens. At least, not upon “any Lands whatever” which were not “ceded to or purchased by” the crown.
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