School of Salamanca - The Conquest of America

The Conquest of America

In this period, in which colonialism began, Spain was the only western European nation in which a group of intellectuals questioned the legitimacy of conquest rather than simply trying to justify it by traditional means.

Francisco de Vitoria began his analysis of conquest by rejecting "illegitimate titles". He was the first to dare to question whether the bulls of Alexander VI known collectively as the Bulls of Donation were a valid title of dominion over the newly discovered territories. In this matter he did not accept the universal primacy of the emperor, the authority of the pope (because the pope, according to him, lacked temporal power), nor the claim of voluntary submission or conversion of the Native Americans. One could not consider them sinners or lacking in intelligence: they were free people by nature, with legitimate property rights. When the Spanish arrived in America they brought no legitimate title to occupy those lands and become their master.

Vitoria also analyzed whether there were legitimate claims of title over discovered lands. He elaborated up to eight legitimate titles of dominion. The first and perhaps most fundamental relates to communication between people, who jointly constitute a universal society. Ius peregrinandi et degendi is the right of every human being to travel and do commerce in all parts of the earth, independently of who governs or what is the religion of the territory. For him, if the "Indians" of the Americas would not permit free transit, the aggrieved parties had the right to defend themselves and to remain in land obtained in such a war of self-defense.

The second form of legitimate title over discovered lands also referred back to a human right whose obstruction is a cause for a just war. The Indians could voluntarily refuse conversion, but could not impede the right of the Spanish to preach, in which case the matter would be analogous to the first case. Nonetheless, Vitoria noted that although this can be grounds for a just war, it is not necessarily appropriate to make such a war, because of the resulting death and destruction.

The other cases of this casuistry are:

• If the pagan sovereigns force converts to return to idolatry.
• If there come to be a sufficient number of Christians in the newly discovered land that they wish to receive from the Pope a Christian government.
• In the case of overthrowing a tyranny or a government that is harming innocents (e.g. human sacrifice)
• If associates and friends have been attacked — as were the Tlaxcaltecas, allied with the Spanish but subjected, like many other people, to the Aztecs — once again, this could justify a war, with the ensuing possibility of legitimate conquest as in the first case
• The final "legitimate title" although qualified by Vitoria himself as doubtful, is the lack of just laws, magistrates, agricultural techniques, etc. In any case, title taken according to this principle must be exercised with Christian charity and for the advantage of the Indians.

This doctrine of "legitimate" and "illegitimate" titles was not agreeable to Emperor Charles V, then ruler of Spain, in that they meant that Spain had no special right; he tried without success to stop these theologians from expressing their opinions in these matters.