The Spanish Defense: Legal Justifications for Conquest

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The Spanish Defense: Legal Justifications for Conquest


Papal Donation. Spain proffered three arguments to justify their seizure of the American continents and their subjugation of the native inhabitants: papal donation, discovery, and conquest. Under papal donation the Spanish crowns lawyers noted that Jesus Christ had given St. Peter the keys to the kingdom of heaven. According to the officials of the Catholic Church, this bequest, called the Petrine Mandate, gave Peters successors, the Catholic popes in Rome, the right to convey title to and dominion over lands that had been, or might be, discovered by a Christian nation. With the Inter Caetera Divinae, Pope Alexander VI conveyed title to most of the Americas to Spain. This papal donation was a significant argument for title so long as the Catholic Church remained the only spiritual authority in Europe. After the Protestant Reformation, however, the Protestant nations of Europe rejected the idea that the Pope could convey title of undiscovered lands to favored kings.

Discovery. The doctrine of discovery, the second prong of Spanish title, was devised by Church officials during the time of the Crusades. Under this theory a nation acquired the right to exclusive possession of newly discovered lands that were not previously claimed or possessed by a Christian monarch. Usually the discovering nation left a mementoa cross, plaque, or perhaps a coat of armsto signify its claim. Thus Spanish officials contended that when Christopher Columbus made landfall on San Salvador he established a superior claim for their nation to the entire Western Hemisphere. In the sixteenth century England, Holland, and France would object to this Spanish argument as well.

Conquest. Papal donation and discovery were based on the presumption that the lands of non-Christians were open to seizure by Christian nations. However, to many legal theorists of the time, papal donation and discovery alone did not confer sovereignty and title. Rather, some legal philosophers contended that the Christian nation was required to perfect its title by purchase, colonization, or conquest. The doctrine of conquest held that a victorious nation in war acquired sovereignty over the conquered nation and could exert its legal and political jurisdiction over its residents. The doctrine of conquest dates back at least to Roman law, and in the fifth century a.d., St. Augustine made the concept of a Christian war of conquest a principle of Catholic law. Augustine believed that such a war had to be for a just cause, that it could only be just for one side, and that the only just causes of war were self-defense and the recovery of stolen

property. In the eleventh century Pope Gregory expanded upon this doctrine and proclaimed that God sanctioned wars against nonbelievers and enemies of the Church. English nationalists, on the other hand, who could not claim that their nation held title by papal donation or original discovery, saw the theory of conquest as a separate doctrine that they could use to trump the claims of Spain.

The Rights of Non-Christians. In the thirteenth century Pope Innocent IV suggested that non-Christians possessed the same rights as Christians under natural law. He then asked rhetorically, [I]s it licit to invade a land that infidels possess, or which belongs to them? In answering that question, Innocent IV argued that violations of natural law by nonbelievers, such as Christian conceptions of sexual perversion or idolatry, created a duty in the Pope to force the miscreant peoples to admit missionaries into their lands. If the nonbelievers did not convert to Christianity, Innocent argued, he could then authorize secular governments to declare war on the nonbelievers and force them to accept the faith. Out of Innocent IVs theory emerged two competing lines of authority. One recognized that non-Christian peoples held property rights and sovereignty under the theory of natural law, and the other maintained that under certain conditions Christian nations could encroach upon and extinguish those rights. This ambiguity, which essentially gave non-Christians natural rights with one hand and took them back with the other, controlled philosophical discussions of Native American rights for the next five hundred years. Thus, even before Columbus set sail for the West, Christian European governments possessed legal theories that they believed gave them the right to seize the lands of Native Americans. These doctrines were based on the premises that western culture was sanctioned by God and that Europeans were spiritually and culturally superior to peoples of other lands and faiths. Under that flag of cultural arrogance Europeans could invade and conquer the lands of non-Christians, and they could by right sanctioned by God take the lands of the conquered and make them their own. Ultimately, though, the title conferred by these doctrines was only as good as the military power behind it. Consequently, the parties to disputes over the sovereignty and ownership of newfound lands settled them on the battlefield or at the diplomatic table. For the non-Christian inhabitants of those lands, the same rule applied. For the European nations to enforce their claims over them by papal donation or discovery, they had to be militarily powerful enough to perfect them by conquest. As long as Native Americans successfully resisted the European military threat, they retained their title and autonomy.


L. C. Green and Olive P. Dickason, The Law of Nations and the New World (Edmonton, Canada: University of Alberta Press, 1989);

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

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