The Spanish Polemic on Colonisation
Part three: Bartolomé de Las Casas and Revolutionary Theocracy (4)
Francisco de Vitoria on the legal right of conquest
In the next article in this series I hope to review the controversy. For now it is enough to say that this dispute itself takes place in the shadow of a work of intellectual wizardy performed eleven or twelve years previously. I am thinking of On The Indians Lately Discovered, a course of relectiones (“master lectures”) by Francisco de Vitoria, the foremost professor at the University of Salamanca and Spain’s outstanding jurist. (19)
Vitoria is often said to be the founder, or one of the founders, of modern international law, but this is disputed. Less controversially, he was the last great master of the theory of Just War. Roughly since the time of World War I, there has been a trend of thought in the United States which is interested in reviving Just War theory, and this has produced a cult of Vitoria and scholastic legal thinking. (Some time ago it was in the newspapers that President Obama had been reading St. Thomas Aquinas for guidance on best practice in conducting drone bombings. One would not be surprised to find him going on to Vitoria for further inspiration.)
On the Indians is about the right (if any) of the Spanish to take possession of lands and remove local rulers, establishing their own sovereignty, in America. To judge from his lectures (surviving only as transcripts by students, not revised by the author), Vitoria was a master of precise formulation and expression. He was one of the most articulate men on earth. And yet, for more than four and a half centuries people have been arguing over what he actually said in these lectures and how much else he implied.
Vitoria begins by asking whether the American Indians had ownership of their lands and properties before the arrival of the Spaniards. (20) He shows unambiguously that the answer is yes. It is irrelevant that they were unbelievers, or that they seemed to the Spaniards to be stupid: they were true human beings and in both private and public matters they had “true dominion”. They were authentic owners of their lands and their princes had real ruling authority.
He then examines the titles by which the Indians (or barbarians, as he calls them) came under the rule of the Spaniards. There are, first of all, seven unjust rights or titles, which have to be rejected.
1. The Holy Roman Emperor (currently also king of Spain) is lord of the world.
2. The Pope is lord of the world and he donated America to the kings of Spain.
3. The right of discovery.
4. The Indians’ refusal to accept Christianity.
5. The need to punish the Indians for their crimes against nature (cannibalism, human sacrifice, sodomy).
6. Voluntary choice by the Indians of the king of Spain as their lord.
7. America as God’s gift to the Spaniards.
Vitoria demolishes these seven titles with merciless finality. Then, much more guardedly, using conditional language, he presents seven legitimate titles by which the Indians “could have come under” the Spaniards.
1. The Spaniards’ right freely to travel and to dwell and to trade in the Indians’ territories: if this right is denied it may be enforced by just war, leading (if absolutely necessary) to confiscation of lands and transfer of sovereignty.
2. The right to preach Christianity: ditto.
3. Protection of Christian converts.
4. The possibility that, when a reasonable number of the Indians had become Christians, the Pope might decide in their spiritual interests that their pagan masters (even if they are not oppressive) should be removed and replaced by a Christian prince.
5. Humanitarian intervention: to prevent, for example, human sacrifice practised on innocent people or the killing of condemned criminals to be used in cannibal rites.
6. Voluntary choice by the Indians of the king of Spain as their lord (which might happen in the course of time).
7. The fruits of alliances with the local Dermot McMurroughs. It is legitimate to support rulers who are justly waging war against major local powers, and afterwards to enjoy the usual fruits of just war. In this instance Vitoria, who normally steers clear of specific examples, mentions the case of Mexico, where Cortés allied himself with the Tlaxcaltecs against the Aztecs.
Last but not least, with uncharacteristic bashfulness, Vitoria presents an eighth title which, he says, he cannot positively affirm but he also cannot flatly reject. It is the possibility that the Indians, even though they are not entirely incapable of structuring their lives, on account of their extreme cultural backwardness do it so badly that it would be better, in their own interests, if somebody else did it for them. He mentions Aristotle’s claim that certain peoples are naturally slaves: in this context, he says, it could be relevant, and the Indians, who appear to fit in this category, could be governed “partly as slaves”. – That was going to be the central argument of Juan Ginés de Sepúlveda, and it is remarkable how this formidable jurist finds that he cannot say he is for it or against it. But he seems to be somewhat more for it than against it, at least at that moment of his survey.
And yet previously he has demolished the two main arguments that were commonly used to justify the Spanish empire! One was the right of discovery. “No other title was originally set up”, Vitoria says, “and it was in virtue of this title alone that Columbus the Genoan first set sail.” And the right of discovery would be perfectly valid if the lands that Columbus discovered had been uninhabited. When something has no owner, the rule applies that the first finder can have it. But as previously shown, the Indians were real owners and rulers in their territories. And therefore discovery, “in and by itself, gives no support to a seizure of the aborigines, any more than if it had been they who had discovered us”.
On the Papal donation, which the Spanish monarchs had always thought of as the principal justification of their American empire, Vitoria has a devastating chain of reasoning which I will try to give in summary.
"First proposition: The Pope is not civil or temporal lord of the whole world, in the proper sense of the words "lordship" and "civil power." … (Those who say differently) attribute to the Pope that which he has never claimed for himself … No lordship can come to him save either by natural law or by divine law or by human law. Now, it is certain that none comes to him by natural or by human law, and none is shown to come to him by divine law. Therefore the assertion is ungrounded and arbitrary…
The Pope has no spiritual jurisdiction over unbelievers, as even our opponents admit… Therefore he also does not have any in temporal matters.
Second proposition: Even assuming that the Supreme Pontiff had this secular power over the whole world, he could not give it to secular princes. This is obvious, because it would be annexed to the Papacy. Nor can any Pope sever it from the office of Supreme Pontiff or deprive his successor of that power, for the succeeding Supreme Pontiff cannot be less than his predecessor; and, if some one Pontiff had made a gift of this power, either the grant would be null or the succeeding Pontiff could cancel it.
Third proposition: The Pope has temporal power only so far as it is in subservience to matters spiritual, that is, as far as is necessary for the administration of spiritual affairs…
Fourth conclusion: The Pope has no temporal power over the Indian aborigines or over other unbelievers. This is dear from propositions I and III. For he has no temporal power save such as subserves spiritual matters. But he has no spiritual power over unbelievers (I Corinth., ch. 5, v. 12). Therefore he has no temporal power either.
The corollary follows, that even if the barbarians refuse to recognize any lordship of the Pope, that furnishes no ground for making war on them and seizing their property. This is dear, because he has no such lordship. And it receives manifest confirmation from the fact (as will be asserted below and as our opponents admit) that, even if the barbarians refuse to accept Christ as their lord, this does not justify making war on them or doing them any hurt. Now, it is utterly absurd for our opponents to say that, while the barbarians go scatheless for rejecting Christ, they should be bound to accept His vicar under penalty of war and confiscation of their property…
This shows that the title under discussion cannot be set up against the barbarians and that Christians have no just cause of war against them, either on the ground that the Pope has made a gift of their lands on the footing of absolute lord or that they do not recognize the lordship of the Pope… What has been said demonstrates, then, that at the time of the Spaniards' first voyages to America they took with them no right to occupy the lands of the indigenous population.”