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Conquest by the Rules

Conquest by the Rules

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Origins. The European societies who conquered the Americas had centuries of experience in conquering and subjugating other peoples, and with this experience came legal support for both conquest and governance of the newly acquired territories. In the Crusades of 1096-1291 Europeans attempted to free the Holy Lands from the control of Islamic peoples. Pope Innocent IV argued that he was given authority by Jesus himself over all peoples for the good of their souls, an authority first given to Peter and handed down from pope to pope. Obviously, not all peoples respected this authority, and the pope was to use it only to the degree necessary to protect the wellbeing of souls. A pagan people who disallowed the preaching of the Gospel, Innocent claimed, were subject to coercion for their own good. The Pope could, if necessary, even declare war on such a people.

Justification. This argument provided a theoretical legitimacy for the Crusades themselves, and in the centuries to follow it would be cited as justifying European conquests of other peoples as well. This meant that by the 1500s and 1600s a close connection existed between exposing other peoples to Christianity and the justification for conquest. In Innocents eyes pagan peoples had rights, including the right to rule themselves. But they also had obligations, violations of which negated the right to self-rule. This amounted to saying that if alien peoples conformed to European notions of right and wrong they were not subject to conquest. Many Europeans sincerely believed that this was in the best spiritual interests of the conquered peoples; others merely manipulated the situation for their selfish ends. But however their motives might have differed, the result was the same: Europeans used religion to justify conquering other peoples.

Spain and Portugal. The Spanish and Portuguese were the first to adapt this philosophy to conquering the New World. Both nations governments were intertwined with the Catholic Church and remained so after the Protestant Reformation of the 1500s. In the 1450s Pope Nicholas V affirmed the power of Portugal over the Canary Islands and empowered the Portuguese king to extend his power to the African mainland as well. The rationale used was the same as that of Innocent in the 1200s. The Pope assumed that Portugal would conquer Africa more for the salvation of the souls of the pagans than for personal gain. But once such a process was underway it could not be stopped. Spains King Ferdinand II ordered that Indians be baptized in Spanish-controlled territories of the New World, for this is the principal foundation upon which we base our conquest of these regions.

The Requerimiento. The Popes authority also could serve as a check on abuse of New World Indians, and it sometimes did so. The explorer Christopher Columbus recognized that the Popes support of conquest was not intended to justify harsh treatment of natives. Indeed, in the 1500s a fierce debate raged among churchmen in Spain over conquest, colonization, and the treatment of the Indians. If the church became a justification for conquest, it also could serve as a fierce critic. Ferdinand himself requested legal advice on his titles to New World lands from two noted legal scholars, Matias de Paz and Juan Lopez de Palacios Rubios. Both argued for legitimacy, and Lopez was instrumental in writing the Spanish document of conquest, the requerimiento. This document required the Indians of the Americas to accept the rule of the church and warned that they were subject to war if they refused to accept missionaries. The terms of the requerimiento were to be read to Indian peoples for their consideration before any conquest might occur. However reasonable this may have seemed in Madrid, in actual practice this requirement was either ignored or executed in a meaningless way. In the 1550s Spain stopped the practice and simply declared their entire colonizing effort to be a missionary enterprise.

Vittoria. Nevertheless, some Spaniards objected. Led by Friar Antonio de Montesinos, Dominicans had objected to Spanish treatment of the Indians on Hispaniola in the 1510s. In the 1550s Franciscus de Vittoria argued in On the Indians Lately Discovered that all peoples, including those in America, enjoyed natural legal rights to freedom and that the Pope had no authority to grant the Americas to Spain. But even he held, in the tradition of Innocent IV, that a pagan peoples violation of the laws of nature served as justification for the Christian conquest of those peoples. Vittoria, however, de-emphasized the authority of the church, thus broadening the theoretical bases for conquest.

England. The English could hardly base their conquests on the same papal grounds as did the Spanish. They had no papal bull (an order from the pope) to support their claims to North America, and they eventually joined other nations in breaking ties with the Roman Catholic Church. By the time the English settled their first American colonies, England had become a Protestant nation, one at odds and often at war with Catholic Spain. The religious disputes between Catholics and Protestants served to spur the nations to compete even more heatedly for New World dominance. Protestantism may also have helped to advance capitalism, which in turn fueled the economic forces that drove expansion.

Black Legend. If Protestantism gave some Europeans added reasons to expand their national powers and to compete with other nations, it also influenced the legal language used to justify expansion. In the 1480s, under Henry VII, England used language similar to that used by Spain and Portugal, respectful of both papal and Iberian authority. But by the 1570s, when serious attention was given to settling the New World, Englands monarch was the Protestant Queen Elizabeth. English justifications for conquest centered on their right to conquer peoples who violated the laws of nations, on the right to challenge Catholic and Spanish rule in the Americas, as well as on the desire for economic gain. The English felt particularly justified in opposing Spain after the 1583 publication of Bartolomeo de Las Casass Brief Narration of the Destruction of the Indies by the Spaniards. Las Casas, a member of the Dominican order, excoriated his fellow Spaniards for their inhumane and un-Christian treatment of the Indians. One edition of the book contained a record of Las Casass debate with Juan Gines de Seplveda over the treatment of the Indians, with Seplveda defending Spanish practices. Las Casas claimed Indian deaths to have been fifteen or twenty million at the hands of the Spanish. Las Casas thereby provided the English both a stinging indictment of Spanish colonization and a rationale for their own. The English did not blame the influence of religion in justifying conquest but blamed instead the evils of Roman Catholicism and of Spain. The Black Legend, as it is called, was used by the English to justify their own efforts in the New World. Ironically, and tragically, their own record of the treatment of Indians was no better.

Perpetual Enemies. In its charter of 1606 the Virginia Company specifically empowered the company to settle Virginia, a land not now actually possessed by any Christian Prince or People. One of its authors, the famous jurist Edward Coke, had argued earlier that the king was entitled to ignore legal claims made by perpetual enemies. The early English colonies in the Chesapeake Bay area and in New England generally took the same stand: they were entitled to occupy land because it was not owned by Christians. Some colonies, notably Rhode Island and Pennsylvania, attempted to deal with the Indians on a more equal footing, negotiating and abiding by treaties. But the general English pattern resembled the Spanish one: conquest justified in the name of religion.

Source

Robert A. Williams Jr., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990).

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