Law 207.7: The Jurisprudence of Conquest

Conquest is at the foundation of the legal regimes of the United States.  The conquest of native peoples, and the defeat of previous colonizers, was itself justified in legal terms, and continued to shape legal status and legal argument.  These justifications were heavily indebted to ancient sources and theories, with which we will begin.  Readings will be at the nexus of arguments about the right of war, the justifications of empire, and legal titles over other lands and peoples.  We will examine claims that were sometimes rivals to and sometimes complementary to an argument from a right of conquest, including consent, ownership, purchase, protection, salvation, defense of self or others, and productivity.  After reading classical sources, we will spend much of our time on the legal justifications for taking possession of ‘the New World’, especially by the Spanish and English, but also by the French and Dutch.  The course will cover materials through the early nineteenth century legal justifications for Indian dispossession, including Marshall’s influential opinion in Johnson v. M’Intosh (1823) that “conquest gives a title which the Courts of the conqueror cannot deny.”