The Propriety of Spanish and Catholic Colonization
“Go therefore and make disciples of all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Spirit, teaching them to observe all that I have commanded you.” Matthew 28:19-20
Recently an article,[1] with a photograph of Francis wearing an American Indian headdress and speaking to someone else also wearing an American Indian headdress, appeared in Catholic News Agency and reported on a statement issued from “two Vatican departments” concerning the legal doctrine known as the doctrine of discovery. The article noted that “the legal concept of the `doctrine of discovery’ is not part of the teaching of the Catholic Church” and historical research shows certain papal documents “`written in a specific historical period and linked to political questions have never been considered expressions of the Catholic faith.’” The reason for this recent declaration from Rome was to advance “the search for reconciliation and healing” which equates to handing a rhetorical weapon to the enemies of Catholics and Catholicism. That confuses people and hinders the search for Truth while placing Catholic doctrine on a par with paganism. It is a good way to create the global citizen, the goal of George Soros and many other plutocrats.
The Spanish and Catholic colonization of the New World was justified by a number of legal doctrines to be found in the Law of Nations, as originally conceived by Catholic scholars and churchmen. Since Catholic News Agency and some at the Vatican want to ignore such, ostensibly to please the princes of this world, I shall discuss these omitted rationales.[2]
The Foundational Question
We are dealing with matters of law, namely the Law of Nations, and law as we know from the Catechism “finds its first and ultimate truth in the eternal law.”[3] The Catholic Church created the Law of Nations.[4] The Law of Nations is preparatory or antecedent to what today is understood as international law. Professor Reut Yael Paz of the University of Giessen said as much during a conference on Religion and the Law: “So modern international law was born as a product of…a liberal…empires, turning to formal annexation….But the ideology obviously goes back…the ideology goes deeper back into the school of Salamanca, and the way they criticize the Spanish Empire.”[5]
Professor Paz summed up the dynamic of the last 500 years or so with the School of Salamanca positing the Law of Nations and then the corruption wrought as a necessity by the Protestant Reformation and with Protestant Hugo Grotius’ (1583-1645) The Freedom of the Seas and On the Law of War and Peace (1625). The School of Salamanca sponsored such lights as Francisco de Vittoria, OP (1483-1546) and Francisco Suarez, OP (1548-1617), and it began in 1524 with its work of giving a moral character and meaning to the actions of states and the relations between states. With Grotius began a long line of authors who reduced international law to a set of rules devoid of any connection to morality such that international law became more of a code of conduct like proper etiquette between individuals to see who was sociable, or within the crowd of the accepted, and who was not. One of these authors following from the line of Grotius was Emer de Vattel (1714-1767) whose own Law of Nations was read by the American Founders.
The Law of Nations is more than just rules governing the conduct of different countries. It is the morality of actions between countries and even within them, for it sees state action both domestically and externally as part of a continuum. States, like persons, are moral actors and their actions are supposed to advance man’s ultimate end. Eppstein explains:
“`Law of Nations’…serves better than any other English term to indicate at once the natural and moral basis of the rules obtaining between peoples and the positive forms given to those rules. It would, however, be inaccurate to translate `Jus Gentium’ in St. Thomas as `International Law’ in the modern sense of Inter-State Law.”[6] Jus Gentium in turn is to be distinguished from a modern reading of the term which is more in line with Jus Cogens.[7]
Jus Gentium is “`the body of rights belonging to all peoples, whatever the accidents of their birth, which should be respected in their mutual relations’….” These rights are fundamental, are held by all peoples, and come from God. These fundamental rights are “the right to conserve themselves in being; to develop according to their nature; to hold property; to bequeath it; to trade; to travel freely. To which we might add the right to speak their maternal language: to follow their own domestic and religious customs – so they be not contrary to natural law – to choose or obey their own local authorities….” And, “It is in part to protect these rights that, first, civil society, then international society is formed. The `Jus Gentium’ is in a sense the end to which international law is the means. For the object of conventions between States is (directly or indirectly) to promote the welfare of the families that compose them; and this welfare comprises the free exercise of all the rights contained in the `Jus Gentium’ as well as those arising from the Law of Nature itself.” International rules between states that grew up over time may be changed by agreement between the States,[8] but Jus Gentium, and the moral demands on States, remains. (emphasis added)
Therefore, Jus Gentium, or the Law of Nations, has religious or moral meaning and is to be understood in terms of the Catholic religion. It is with this in mind that Catholic doctrine concerning international relations is to be understood. And it is in terms of morality in the form of the Law of Nations, that the Spanish conquest of the New World was, and is, subject to review, as are the actions of every state and country of the modern era.
Justifying Conquest and Dominion: Tutelage, Discovery, Just War, Intervention
Vittoria addressed the Spanish conquest in De Indis. From the beginning, he saw the conquest as a moral question that was prompted by reports “of so many massacres, so many plundering of otherwise innocent men, so many princes evicted from their possessions and stripped of their rule”.[9] The issues that arose from this state of affairs rested with the Church to resolve:
“I assert that it is not for jurists to settle this question or at any rate not for jurists only, for since the barbarians in question, as I shall forthwith show, were not in subjection by human law, it is not by human, but by divine law that questions concerning them are to be determined….And as the issue concerns the forum of conscience, its settlement belongs to the priests, that is, to the Church. Accordingly in Deuteronomy, Chap. XVII, 18, it is enjoined on the king that he take a copy of the law from the hand of the priest.”[10]
Vittoria’s First Relectio concluded that the natives of what we call Latin and South America were not irrational and were capable of ownership of the lands that they held at the time of the Spanish arrival. In addition, the fact that the Indians were pagans did not deprive them of the right of ownership of these lands. He wrote:
“Now it remains to consider whether at any rate dominion may be lost by reason of unbelief…My answer is in the following propositions: The first proposition is that unbelief does nt prevent anyone from being a true owner…The proposition is also supported by the reasoning of St. Thomas, namely: `Unbelief does not destroy either natural law or human law; but ownership and dominion are based either on natural or on human law; therefore they are not destroyed by want of faith…..From all this the conclusion follows that the barbarians in question cannot be barred from being true owners, alike in public and in private law, by reason of the sin of unbelief or any other mortal sin, nor does such sin entitle Christians to seize their goods and lands, as Cajetan proves at some length and neatly (Secunda Secundae, Q. lxvi, art.8)….’”[11]
Still, Vittoria recognized under the Principle of Tutelage that the natives may be subjected to the Spanish to remedy a “defect of their nature.” Arguing from Aristotle, Vittoria concluded that the Principle of Tutelage is a justification for the Spanish holding the Indians in a colonial status. He wrote that what “Aristotle…means is that by defect of their nature they need to be ruled and governed by others and that it is good for them to be subject to others, just as sons need to be subject to their parents until of full age, and a wife to her husband…Now, it is clear that he does not mean hereby that such persons can arrogate to themselves a sway over others in virtue of their superior wisdom, but that nature has given them capacity for rule and government….”[12]
Vittoria then proceeded to deal with four other legal doctrines that potentially justified the colonization of the New World and the dominion over the Indians by the Spanish.
The first was the right to discovery mentioned by the Catholic News Agency article. Vittoria made plain that “the Right to Discovery applies only to uninhabited land.” Christopher Columbus (1451-1506) set sail under this title, the Right to Discovery, which means that those “regions which are deserted become, by the law of nations, and the natural law, the property of the first occupant….” [13] The lands of the Mayans, Aztecs and other indigenous peoples in Central and Southern America were not deserted and so the Spanish could not claim them.
A second possible justification was just war. Vittoria eliminated many of the justifications for such in his Second Section. The grounds eliminated were failure to recognize Papal authority, refusal to accept Christianity, and alleged sins against the “positive divine law.”[14] However, he clearly upheld the view that “while there are other sins against nature, such as cannibalism, and promiscuous intercourse with mother or sisters and with males, and for these they can be attacked in war and so compelled to desist therefrom….”[15] He also recognized that denial of natural rights were a proper ground for just war to be waged against the Indian natives.[16] These natural rights included many of the essential components of what constitutes the Law of Nations and also now are known as international law. These are: denying membership of a state or country into which one is born, denying the right to natural resources which are not otherwise determined to belong to one nation or another, denying trade when there exists no just legal reason to deprive one of trade or to treat the Spanish differently from others with whom the natives trade, denying use of the common waters, denying the friendship of “harmless folk”, expelling innocent foreigners, denying travel by the Spanish through the aboriginal lands without proper justification, self-defense of the Spaniards against the Indians who may attack them to try to slay them, protection of missionaries.[17]
A third possible justification was consent of the aborigines, however, as Vittoria stated, this required the absence of fear and ignorance and the facts were such that these were present and so vitiated any consent that may have been obtained by the Conquistadores.[18]
A fourth possible justification rested in the doctrine of “charitable intervention”. Vittoria writes:
“Another possible title is founded either on the tyranny of those who bear rule among the aborigines of America or on the tyrannical laws which work wrong to innocent folk there, such as that which allows the sacrifice of innocent people or the killing in other ways of uncondemned people for cannibalistic purposes. I assert also that without the Pope’s authority the Spaniards can stop all such nefarious usage and ritual among the aborigines, being entitled to rescue innocent people from an unjust death. This is proved by the fact that `God has laid a charge on every individual concerning his neighbour (Ecclesiasticus xvii: 12) and they are all our neighbours. Therefore, anyone may defend them from such tyrannical and oppressive acts, and it is especially the business of princes to do so. A further proof is given by Proverbs xxiv: `Deliver them that are drawn unto death, and forbear not to free those that are being dragged to destruction.’ This passage is not to be taken as applying only when victims are actually being dragged to death, but the natives can also be compelled to abstain from such ritual. And if they refuse, it is a good ground for making war on them and proceeding against them under the law of war, and if such sacrilegious rites cannot otherwise be stopped, for changing their rulers and creating a new sovereignty over them….”[19]
From what we know of the human sacrifice practiced by the Aztecs and the Mayans, the doctrine of charitable intervention was applicable to the Spanish conquest. In light of this, then it would make sense for the doctrine of tutelage to justify the rule by the Spanish to reform the aboriginal peoples. We also know that the Spanish made allies with some of the tribes as these tribes fought against the Aztec Empire to gain their independence or to secure justice. In sum, sufficient grounds existed for the Spanish to overthrow the Aztecs and Mayans.
Papal Bulls and the Law of Nations Today
The Catholic News Agency article referenced a number of Papal Bulls that were supposedly cited in support of the “legal concept of discovery.” Papal Bulls are apostolic letters with a metal seal, usually of lead.[20] The Papal Bulls mentioned were Dum Diversas (1452), Romanus Pontifex (1455), and Inter Caetera (1493). They addressed specific situations that came to the attention of the Pope. Whether or not these three Papal Bulls “came to serve as the basis and justification for the Doctrine of Discovery, the global slave-trade of the 15th and 16th centuries, and the Age of Imperialism” as alleged on the “Doctrine of Discovery” website, is another matter that needs to be taken up at a later time. Suffice it say for now that the said website, dedicated to the Doctrine of Discovery, tells us that there is an agenda to revive discredited and defeated notions of social organization. In pertinent part, the website states:
“Overview
The Doctrine of Discovery educational resource, is lovingly maintained by Indigenous Values Initiative and the American Indian Law Alliance. It is licensed under the Creative Commons Attribution 4.0 International License.
“Land Acknowledgement
We begin by acknowledging with respect the Onondaga Nation, Central Fire of the Haudenosaunee Confederacy, on whose ancestral lands we now inhabit. Wherever you are located be aware of the Indigenous Peoples on whose lands you reside. We are mindful that the technology that makes this conference possible comes from the mineral extraction by multinational corporations, which decimate and displace Indigenous people and their land all over the world. May the information you glean from this website motivate you to uphold Indigenous values, protect Mother Earth, Honor Indian Treaties and hold your government and various institutions accountable who stand in the way.”[21]
Secondly, an important matter of further inquiry is to determine the extent to which the Law of Nations as originally devised or conceived by the Salamanca School, is to be found in the current understanding of international law to include the Jus Cogens, treaties, and surviving customary law. This is a study that must be left for a later article. Closely associated with such an article will be a discussion of the American response to the Law of Nations. The American Founders were indeed very well aware of at least some version of this international regime.
Finally, as the Law of Nations is based on the Natural Law, it is still in effect and must be honored. The doctrines of charitable intervention, discovery, tutelage and more are all applicable to countries regardless of the current state of international law.
[1] Hannah Brockhaus, “Vatican: `Doctrine of discovery’ Is Not Catholic Teaching,” March 20, 2023, Catholic News Agency.
[2] My main source will be John Eppstein’s The Catholic Tradition of the Law of Nations (The Lawbook Exchange Ltd., Clark, New Jersey, 2012), Chapter XV, pp. 396-461.
[3] Catechism of the Catholic Church, Section 1951.
[4] See, Eppstein; James Brown Scott, The Catholic Conception of International Law: Francisco De Vitoria, Founder of the Modern Law of Nations; Francisco Suarez, Founder of the Modern Philosophy of Law in General and in Particular of the Laws of Nations; A Critical Examination and a justified Appreciation (The Lawbook Exchange, Ltd., Clark, New Jersey, 2014) originally published in 1934; Smith, W.G. (1910). International Law. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved September 10, 2022 from New Advent:
http://www.newadvent.org/cathen/09073a.htm.
[5] Reut Yael Paz, “Religion and the Law,” March 8, 2023 Zoom conference sponsored by Brunel University London.
[6] John Eppstein, The Catholic Tradition of the Law of Nations, (The Lawbook Exchange, LTD, Clark, New Jersey, 2012), 259.
[7] Jus Cogens is a term that has come to refer to the “norms laying down international obligations `so essential for the protection of fundamental interests of the international community that their breach was recognized as a crime by that community as a whole.’” Jus Cogens has come to take the place of Jus Gentium in the minds of many as the former expands. See, Antonio Cassese, International Law (2nd Edition) (Oxford University Press, 2005), 202.
Antonio Augusto Cancado Trinidade, “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content In Contemporary International Case Law,” as accessed at https://www.oas.org/dil/esp/3%20-%20cancado.lr.cv.3-30.pdf.
[8] Eppstein, 259; Eppstein notes that Francisco Suarez, OP (1548-1617) viewed Jus Gentium as different from the agreements or conventions between states which is better known as international law, whereas Francisco de Vittoria, OP (1483-1546) tended to include international law, which consists of agreements or conventions or customs, in the concept of Jus Gentium.
[9] Vittoria. Extracts from the First Relectio, `De Indis’ as cited and quoted by Eppstein, p. 433.
[10] Ibid.
[11] Ibid., 434-435.
[12] Ibid., 436.
[13] Ibid., 439.
[14] Ibid., 438-442.
[15] Ibid., 442.
[16] Ibid., 448
[17] Ibid., 444-452.
[18] Ibid., 442.
[19] Ibid., 454-455.
[20] Thurston, H. (1908). Bulls and Briefs. In The Catholic Encyclopedia. New York: Robert Appleton Company. Retrieved April 3, 2023 from New Advent: http://www.newadvent.org/cathen/03052b.htm
[21] “About,” Doctrine of Discovery, https://doctrineofdiscovery.org/about/ as of April 3, 2023.