[In the following essay, Parry discusses the enormous influence Dominican theologians in the 1500s had on the debate about whether Spain had the right to force Indians to convert to Christianity. In particular, Parry concentrates on churchmen John Major and Francisco de Vitoria, who gave religious justifications for the Spanish conquest even as they demanded that Native Americans receive at least some degree of civil protection.]

The Dominicans in the early sixteenth century were the principal champions throughout Europe both of missionary enterprise and of scholastic thought. At the Spanish court they held a privileged position—at least under Charles V—as the Emperor's emissaries in his intricate negotiations with the Papacy. In the New World they supplied a body of zealous and disciplined teachers; in Spain, determined and fearless writers upon the theory of Empire. Despite differences among themselves, most of them held steadily to the principles of individual liberty and free conversion, and in this they received distinguished support from outside the order also. About the time of the Junta of Burgos two treatises appeared in Spain on the subject of the Indies, one by the canonist Matías de Paz, a Dominican,¹ the other by the civil jurist, Palacios Rubios,² both declaring that the Indians were rational beings, and naturally free both before and after conversion, and that their paganism by itself gave no ground for war against them. Both writers proceeded to qualify this declaration, however, by restating the doctrine, associated with the name of Henricus de Segusia, Cardinal of Ostia, of universal papal dominion in temporal as in spiritual matters, thus basing the rights of the Spanish conquerors upon a papal grant overriding the “natural rights” of the Indians: “The authority of the Supreme Pontiff alone may give to our Catholic and invincible King the right to govern these Indies, with political, but not despotic, rule, and so keep them perpetually under his dominion.”³ The doctrine of papal sovereignty was a commonplace among canonists of the fifteenth and early sixteenth centuries, while the medieval conception of the world as a homogeneous Christendom with an infidel fringe still lingered. It involved the belief that infidels might retain their lands and possessions only by the favour of the Church. If they should refuse to recognise papal authority, the Pope might direct the steps necessary for bringing them into obedience—even to the extent of appointing Christian rulers over them, with the proviso, however, that such appointed rule might be “politicum” only and not “despoticum”. Ostiensis had had in mind the infidels of the Near East. His doctrine as applied by Palacios Rubios to the New World became a confused mixture of humanitarianism, papal absolutism, and Spanish imperialism—the discovery of America had demonstrated more powerfully than any theory the error of regarding “the World” and “Christendom” as more or less coterminous. From the time of the Junta of Burgos onwards, writers on the subject of the Indies began to admit the absurdity of calling upon the Indians to acknowledge the authority of a Pontiff of whom they had never heard. The more radical theorists sought justifications of the Spanish enterprise which might be independent of papal authority; others, more cautious, hedged the papal grant with legal and humanitarian restrictions.

Gregorio López was the most outstanding representative of the cautious “transition” school.⁴ He held that the Spanish Crown derived its rights of conquest from the “apostolic concession”, but that the nature of such a concession forbade the use of military force except as a final resort. The Indians should not, at first, be attacked or intimidated; missionaries should be sent among them, to preach the Gospel and to convince them that they had nothing to fear from the Spaniards, and fortresses should be built, both to protect the missions and to form centres of peaceful trade and intercourse. López considered that if the Spaniards showed sufficient wisdom and indulgence at this stage, the Indians would probably submit voluntarily to the Pope in matters spiritual, and to the King in matters temporal. If, however, the Indians attacked the missionaries, punitive expeditions might be sent against them, with the sole object of punishing, or preventing, such unprovoked attacks. The Indians might not be attacked for refusal to accept the Faith, or for idolatry; human sacrifice, however, constituted a “casus belli”, since it involved innocent victims, and the same argument applied to attempts on the part of pagan Indians to persecute Christian converts. Finally, and most important of all, López firmly rejected that part of the Ostiensian doctrine which enjoined war and confiscation of property against those pagans who refused to accept the authority of the Pope.⁵

The compromise evolved by Gregorio López represented fairly accurately the orthodox official view of the Indian enterprise, as illustrated, for instance, in the Ordinances concerning Discoveries of 1573.⁶ The special interests of the Spanish colonists on the one hand, and the enthusiastic humanitarianism of some of the missionaries on the other, called for other and less orthodox arguments; but in Spain, López' views were generally accepted. Covarrubias followed him, as did Solórzano in the Política Indiana, in attempting to solve the awkward problem of how to uphold Indian interests, while showing a proper respect for the authority of the Papacy and of the Spanish Crown. The close connection between Church and State in Spain made it especially necessary for Spanish theologians to proceed with caution. Significantly, the first writer to attack the problem by suggesting a secular justification for Spanish imperialism was not a Spaniard.

The international and relatively objective outlook of early sixteenth-century scholarship was well illustrated by the fact that John Major (or Mair), a Scottish Dominican with no personal or practical interest whatever in the Indies, felt impelled to write in support of the Spanish enterprise, and to begin with an emphatic denial of universal papal sovereignty: “… for the supreme Pontificate was first established by Christ; but He granted no temporal monarchy.”⁷ This statement was supported by examples of the freedom of the kingdoms of France and Spain from outside interference in temporal matters. The Emperor's claim to universal dominion fared no better than the Pope's at Major's hands; the Emperor was one territorial prince among many, not even qualified to act as an arbiter between European rulers, since at the time when Major wrote he was engaged in war with the King of Hungary. There is more than a suspicion of “modern”—perhaps Scottish—pragmatism in this treatise—for instance, in the statement that “There is no senate in which the partition of kingdoms is discussed; when kingdoms are divided, their boundaries are fixed by the sword—I speak of practical affairs, as they really exist”.⁸ So much for the two swords! Temporal dominion, according to Major, was founded not in faith and charity, but in natural law. By that law infidel princes held their office by as good a title as any Christian, a title which neither Pope nor Emperor might dispute, if the infidel's only offence were his infidelity.

A justification for the Christian conquest of the lands of infidels arose at once, however, if the heathen refused to tolerate the peaceful preaching of the Gospel. Major, like Palacios Rubios, was thinking here of the infidel of the later Middle Ages. The Mongols had permitted preaching in their territories; Dominican and Franciscan missions had made converts without interfering with the temporal and heathen lordship of the great Khans. In the fifteenth century the Mongols had given place to the Ottomans, a militant and military Moslem power, with whom no argument was possible except that of the sword. The problem in Major's mind was whether the Indians were, so to speak, Mongols or Ottomans; if, as it appeared, the Indians had behaved as Turks and resisted peaceful missionaries by force of arms, contrary to natural and divine law, then the Spaniards had sufficient justification for deposing the native rulers and seizing power themselves. Of these questions the Pope was judge, by virtue of his “regulating” authority over Christian princes in matters pertaining to the Faith. He might delegate missionary work among obstinately heathen peoples, and might if necessary authorise the seizure of political power and the levying of tribute, to cover the cost of supporting the missionary preachers by armed force. Here, so early in the sixteenth century, was the doctrine of indirect power especially associated with the name of Cardinal Bellarmine, but evolved by the Dominicans long before Bellarmine's time. Juan de Torquemada had suggested it. Major used it as the basis of his theory of conquest, and Vitoria was to elaborate it into a juridical system.

All this was good sixteenth-century thought, and Major was on safe ground. At this point, however, his thought took a curious turn which made him a precursor of Sepúlveda as well as of Vitoria and Bellarmine. Leaving his theological ground, he found a second justification of conquest in the duty of bringing civilisation—in a secular sense—to a barbarous people. Aristotle, naturally, was his authority, quoted with all the affectionate familiarity of the medieval schoolmen, who spoke always as if they held “our philosopher” firmly by the arm. But though the argument was ancient, its imperialist application was modern: “Those people live like animals … it is evident that some men are by nature free, and others servile. In the natural order of things the qualities of some men are such that, in their own interests, it is right and just that they should serve, while others, living freely, exercise their natural authority and command.”⁹ Major was the first publicist to apply the Aristotelian theory of natural servitude to the natives of the New World or to any entire race. Sepúlveda, a confirmed imperialist, quotes him as an authority in his “Apologia pro libro de justis belli causis”;¹⁰ but Sepúlveda shrank from the full implications of the theory—Major did not. The theologian Major, despite his rejection of Ostiensis, thus arrived at a theory of colonisation and conversion far harsher than that of the lawyer Palacios Rubios—a theory of wholesale servitude.¹¹

More humane, more logically complete, and far more pregnant with consequences for the future, were Francisco de Vitoria's Relectiones de Indis. Vitoria himself denied having seen any previous treatise upon the question of the Indies.¹² The works of Matías de Paz and Palacios Rubios were never published; but Vitoria was certainly familiar with some parts of Major's Commentaries, and in writing of the Indies he followed Major in three fundamental arguments. Both denied to Pope and Emperor any temporal jurisdiction over other princes, whether Christian or infidel.¹³ Both recognised the political dominion and proprietary rights of the infidel in his own land. Both accorded to the Pope a “regulating” authority, recognised among Christian peoples, by virtue of which a single prince might be charged, to the exclusion of others, with the task of protecting missions to the heathen, by armed force if necessary. Apart from these conventional similarities, however, the points of view of the two Dominican writers differed profoundly. Major, despite his appeal to fact and reason, wrote as a theologian and a theorist, interested in the Indies in a purely abstract sense as a field for evangelising and civilising enterprise. The Indians, for him, were a branch of the great body of “the Heathen” and might justly be punished for the sins of those other pagans who had defiled the Holy Places—the conquest of the New World was simply another Crusade. Vitoria, on the other hand, was concerned with the moral and legal aspects of an urgent practical problem—a problem of international relations. In the Relectiones de Indis, the Indian races were considered as politically organised peoples, subject, with the peoples of the Old World, to the rules of Jus gentium. Vitoria was among the earliest of those thinkers who held that “there was a natural law connection between all nations, and that this connection, while it did not issue in any authority exercised by the Whole over its parts, at any rate involved a system of mutual rights and duties. From this point of view international law was conceived as a law binding inter se upon States which were still in a state of nature in virtue of their sovereignty, and binding upon them in exactly the same way as the pre-political Law of Nature had been binding upon individuals when they were living in a state of nature.”¹⁴Jus gentium was the law “quod naturalis ratio inter omnes gentes constituit.”¹⁵ It was not primarily the idolatry, the wickedness, or the barbarity of the Indians, but their transgressions of this newly conceived international law, which in Vitoria's view gave to the Spaniards any right which they might possess to conquer the lands of the New World.

Vitoria's theory of international justice assumed, though without stating, the now familiar doctrine of the equality of States. The principal rights possessed by every nation were those of peaceful commerce and intercourse with every other nation (provided that no harm were done to the natives of the land visited); and the peaceful preaching of the Gospel. The Spaniards originally shared with other nations the right to visit the Indies upon such errands. The Pope, however, “quia potest ordinare temporalia, sicut expedit spiritualibus,” had confided the task of evangelising in the New World to the Spaniards alone, partly as the nation best fitted for the task, and partly to avoid strife, since the Spaniards possessed the subsidiary claim of prior discovery. The papal decree was binding upon all Christian princes, though not upon the Indians; but the Indians, equally with the Christians, were bound by the wider rules of the Law of Nations to receive the Spaniards peacefully, and to hear the Gospel even if they would not accept it. Refusal to hear, refusal to admit strangers, the murder of traders and missionaries, would give the Spaniards a just ground for war and conquest—just as later, such resistance was held to justify the political encroachments of the East India Company, though English imperialism emphasised the economic rather than the theological side of the argument. Vitoria met the obvious objection, that resistance might be deliberately provoked, with a moral proviso that the traders must behave as Christians and present the Gospel fairly to the natives. The argument that the Indians incurred the penalty of conquest merely by rejecting the Gospel after hearing it preached—even if valid under any circumstances, which Vitoria doubted—broke upon the fact that Christianity had not been fairly presented in America: “I hear of no miracles or signs or religious patterns of life; but rather of many scandals and cruel crimes and acts of impiety.”¹⁶

The Law of Nations in Vitoria's thought, unlike modern International Law, did not require universal acceptance in order to claim universal validity. The nearest approximation on earth to a formulation of Natural Law (from which, originally, Jus gentium was derived) was “a consensus of the greater part of the whole world, especially in behalf of the common good of all”.¹⁷ The supposed majority of peoples constituted by Christian Europe was considered, therefore, to be the guardian of Natural Law and to have a secondary right and duty (since the Indians were members of the “natural society and fellowship”—“illi omnes sunt proximi”) to exercise a paternal and benevolent guardianship over peoples living in ignorance or open defiance of Natural Law. Typical offences against Natural Law—quite distinct from offences against the Law of Nations—were tyranny, human sacrifice, and bestiality; all of which crimes were attributed by the colonists to the Indians. Vitoria, however, never disposed to accept uncritically the tales of the colonists, hesitated to deduce from this argument a definite right of conquest.

The possibility that a majority of Indians might elect to live under Spanish rule; the duty of protecting converts from the dangers of persecution or relapse, and innocent people from tyrannical rulers; the right of assisting a friendly nation in a just war against a neighbour (such as the war of the Tlascalans against the Aztec confederacy, of which Cortés made such adroit use)—all were recognised as possible minor justifications for Spanish intervention in the New World. Finally, Vitoria suggested that if the Indians were totally irrational beings, it would be a charitable action for the Spaniards to assume responsibility for their government. He never accepted definitely the view that the Indians were “amentes”, though he admitted that some of them appeared to be nearly so; but even if such a theory could be proved, the resulting authority of the Spanish Crown would be limited. Here, again, the moralist accompanied the jurist and the theologian, with the warning words: “I make the suggestion (of the irrationality of the Indians) only tentatively, and with this condition: that Spanish rule should be exercised in the interests of the Indians and not merely for the profit of the Spaniards.”¹⁸

Vitoria, pleading his ignorance of American affairs, declined to commit himself over the question of which of the possible justifications of conquest had proved valid in the Indies, though he ventured a tentative general opinion: “The prime consideration is that no obstacle be placed in the way of the Gospel … I personally have no doubt that the Spaniards were bound to use force and arms in order to continue their work there, but I fear measures were adopted in excess of what is allowed by human and divine law.”¹⁹ Whatever grounds for just war may have existed in the Indies, however, Vitoria would have preferred an empire based on peaceful trade to one formed by conquest; he believed peaceful commerce to be at least as effective as conquest, not only in spreading the Gospel, but in satisfying a legitimate desire for commercial profit and for the increase of the royal revenues: “The Portuguese, to their own great profit, have a big trade with similar people, without reducing them to subjection … a tax might quite fairly be placed on the gold and silver which would be brought away from the Indies … inasmuch as the maritime discovery was made by our sovereign, and it is under his authority that trade is carried on in safety.”²⁰ Under such an arrangement, the scope of just war would be confined to punishing those who forcibly obstructed the traders and the Christian missionaries.

Vitoria wrote the last outstanding treatise on the question of the theoretical grounds for the Spanish conquest, which dealt with the problem judicially and was not an obvious polemic. His sympathies, however, were evidently with the Reform party. It would be difficult to justify the encomienda on his premisses, for even if the Indians were proved to be irrational beings, as the apologists of the encomienda asserted, he believed that the duty of assuming a benevolent guardianship belonged to the Crown and not to private individuals. He was always emphatic in his assertions that no title could be found to justify the enslavement of the Indians or the confiscation of their property, except in the case of prisoners taken in the act of unjust war or rebellion—enslavement in this case being regarded by Vitoria, as by most sixteenth-century writers, as a mitigation of the death sentence.²¹ The Relectiones de Indis contributed to the solution of the urgent practical problem of the treatment of the Indians, as well as debating the more theoretical question of the justice of the conquest. Vitoria admitted, indeed, that this last question was, by his day, almost purely academic; he remarked with an air of resignation that once the Spaniards were installed in the Indies they could not withdraw and leave colonists and converts to perish.²² Vitoria's great influence and his considered humanity (which constituted the greatest difference between him and Major) could not fail to affect official thought on the Indian question. His belittling of the imperial authority called forth a reprimand from the Emperor and a strong hint to the Dominicans not to discuss such problems in future, in public; but many of the legal principles for which Vitoria, as well as Las Casas, argued so persuasively, came to be embodied in imperial legislation. The New Laws of 1542, and even more the Ordenanzas sobre Descubrimiento of 1573,²³ both extremely liberal and humane colonial codes for their time, illustrate well the influence which humanitarian theory exercised upon the Spanish Crown throughout the sixteenth century.

Notes

1. Matías de Paz, De Dominio Regum Hispaniae super Indios, extracts printed in Archivum Fratrum Predicatorum, III (Paris, 1933). Cf. V. B. de Heredia, Un Precursor del Maestro Vitoria, Salamanca, Establecimiento Tipográfico de Calatrava, 1929.

2. Palacios Rubios, De Insulis Oceanis, rediscovered in 1870, not yet published.

3. Matías de Paz, De Dominio.

4. Cf. Román Riaza, Anuario de la Asociación Francisco de Vitoria, vol. iii, 119.

5. S. Zavala, Instituciones jurídicas de la Conquista de América, p. 96 (Madrid, 1935).

6. Colección de documentos inéditos … de América y Oceanía … del Real Archivo de Indias, Pacheco and Cárdenas ed. (Madrid, 1864-6, referred to as D.I.I.), vol. viii, p. 484.

7. Quartum Sententiarum, dist. 24, quaestio 3: “Non est unum caput in temporalibus, cui reges sunt subiecti omnes … nam primo summus pontificatus est ex institutione Christi: nulla tamen monarchia in temporalibus est ex ejus institutione.” Cf. P. Leturia, Maior y Vitoria ante la Conquista de América, Estudios Eclesiásticos (Madrid, 1932). Father Leturia prints, as an appendix, the relevant passages from Major's Sententiae.

8. Leturia, op. cit. Appendix.

9. Leturia, op. cit. Appendix.

10. Johannis Genesii Sepúlveda Cordubensis opera, vol. iv, pp. 340-1 (Madrid, 1780).

11. It is fair to observe that in 1511 when Major wrote, the sedentary civilisations of the Andes, Yucatan, and the Anahuac plateau, were still unknown to Europeans.

12. “Ego nihil vidi scriptum de hac quaestione”, De Indis, ii, conclusion. The three Relectiones de Indis are printed in an English translation, as an appendix to J. B. Scott, The Spanish Origin of International Law (Oxford, 1934).

13. “Ex quo patet error multorum jurisconsultorum, ut Archidiac., Panormit., Sylvest., et multorum aliorum, qui putant quod Papa est dominus orbis proprio dominio temporali, et quod habet auctoritatem et jurisdictionem temporalem in toto orbe supra omnes Principes. Hoc ego non dubito esse manifeste falsum, cum tamen ipsi dicant esse manifeste verum, ego puto esse merum commentum in adulationem et assentationem Pontificum, unde et cordatiores jurisconsulti oppositum tenent,” De Potestate Ecclesiae, relectio i,

14. Barker, trans.: Gierke's Natural Law and the Theory of Society, vol. i, p. 85.

15. Vitoria's adaptation of Justinian's Institutes, i, 2, 1: “… quod naturalis ratio inter omnes homines constituit.”

16. De Indis, lectio ii, § 14.

17. De Indis, lectio iii, § 4.

18. De Indis, lectio iii, § 18. Vitoria was more uncompromising than most modern exponents of the idea of trusteeship. Compare Lord Lugard, The Dual Mandate (London, 1920).

19. De Indis, lectio iii, § 12.

20. De Indis, lectio iii, § 18.

21. De Jure Belli, § 42, 46.

22. De Indis, lectio iii, conclusion.

23. D.I.I. vol. viii, p. 484. Complete text of Ordenanzas sobre Descubrimiento 1573. The key to the spirit of the code is in clause xx: “Los descubridores por mar o tierra no se empachen en guerra ni conquista en ninguna manera, ni ayudar a unos Indios contra otros, ni se revuelvan en cuestiones ni contiendas con los de la tierra, por ninguna causa ni razón que sea, ni les hagan daño ni mal alguno, ni les tomen contra su voluntad cosa alguna suya, sino fuere por rescate, o dándosele ellos de su voluntad.”