Property and Empire: The Law of Imperialism in Johnson v. M’Intosh

Chief Justice\u27s Marshall\u27s opinion in Johnson v. M\u27Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies of law: one governing relations between civilized nations, the other relations between civilized governments and the imperfect sovereigns of other nations. I then show how Marshall\u27s long dicta reflect the then-prevalent view of the hsitorical progress of societies from hunter-gatherer to commercial orders, with each stage corresponding to a particular set of property institutions.This historical theory lent intelligibility to the legal distinctions between civilized and lesser or imperfect sovereigns by claiming that the latter occupied earlier stages of development and that civilized nations were legally permitted to overrride the property institutions of primitive societies in order to induce progress. The dicta, then, provide the frame for the reasoning of this case, just as the theory of historical progress framed the jurisprudence of colonialisn in general