Victoria, Franciscus de (1480-1546)
Franciscus de Victoria (1480-1546)
Dominican Protests. The atrocities committed by the Spanish during their conquest of the Americas provoked vehement protests from the Dominican order of Catholics. The most effective of these critics of Spanish policy was Bartolomé de las Casas. Las Casas urged Charles V, the Holy Roman Emperor and king of Spain, to completely reform Spanish policies toward the Indians. He argued that Indians possessed the same natural rights as Europeans. Consequently, Las Casas said, the justifications of conquest devised by Spanish lawyers were illegitimate; the Spanish taking of Indian land, labor, and property was wrongful; and the conquistadores and encomenderos had a duty to restore Indians to their natural rights. Moreover the Spanish, as demonstrated by the Requerimiento, attempted to impose Christianity on the Indians by force. Potential converts to Christianity, according to Las Casas, had to have the liberty of conscience to choose their faith. If they did not, their conversions were meaningless in the sight of God. Spain therefore did not have the right to conquer the Indians because they were not Christians and did not have the right to enslave, assault, and murder Indians for the purpose of coercing them to accept their religion. Las Casas went so far as to declare those who disagreed with these assertions as heretics, and he encouraged Charles to intercede and return the Americas to the Indians.
Legal Opinion. The criticism of Las Casas disturbed King Charles, and in 1532 he asked Franciscus de Victoria, one of his legal advisers, to counsel him on Spain’s rights to the Indian lands in America. Victoria, a Dominican professor of theology at the University of Salamanca, used the opportunity to prepare a series of lectures on the rights of nations. These lectures were published posthumously in 1557 and represented one of the earliest attempts to construct a comprehensive code of international law. In 1551, between the public pronouncement and publication of Victoria’s thoughts, King Charles, still concerned about the legality of the Spanish claim, ordered a court debate about the morality of Spain’s Indian policy. Charles asked Las Casas and other critics of Spanish policy to present their views before a board of royal advisers. The humanist scholar Juan Ginés de Sepúlveda presented the argument supporting the legality of the Spanish title and the morality of the Indian labor system. Sepúlveda, unlike Las Casas, had never been to America and based his conclusions about Indians on the writings of the Spanish historian Fernández de Oviedo. Indians, Sepúlveda said, were uncivilized barbarians intellectually incapable of self-government. As such, under natural law Spain had a paternalistic duty to instruct them in the ways of Spanish civilization and convert them to Christianity. Sepúlveda also contended that Indians practiced human sacrifice and idolatry and were sexually promiscuous. As a Christian nation Spain therefore had an obligation to end, by force if necessary, these “unnatural” practices. Sepúlveda concluded that Spain had a natural right to conquer the Indians, enslave them, and force them to convert to Christianity.
Conclusions. When Victoria’s lectures were published a few years after the debate, it was clear that he had attempted to reconcile the positions of Las Casas and Sepúlveda. As a student of natural law, Victoria began his study with Las Casas’s presumption that indigenous non-Christian peoples possessed the same natural rights as all other free and rational peoples. Native Americans could therefore claim the same sovereign powers and legal entitlements as the people and states of Christian Europe. Victoria declared that Alexander VI’s conveyance of the Americas to Spain was “baseless” and did not impact the national and individual rights of Native Americans. Roman civil law declared that “what belongs to nobody is granted to the first occupant.” Consequently Victoria concluded that Native Americans theoretically retained absolute ownership of their property. In short Victoria rejected the doctrines of discovery and papal donation. He also repudiated Sepúlveda’s argument that Indians forfeited their rights when they refused to accept Christianity. Despite these seemingly firm convictions, Victoria awkwardly approved the Spanish conquest. Indians, he wrote, were required to abide by the natural law of nations. He accepted Sepúlve-da’s argument that practices such as cannibalism, idolatry, and human sacrifice were abhorrent to natural law. When Indians performed acts such as these, they did, as Sepulveda had argued, forfeit their rights under natural law. Victoria added that Christians had a natural duty to civilize the Indians and convert them to their faith. Though the Pope could not capriciously hand out title to native lands to secular monarchs, he could grant Spain an exclusive guardianship over Indians for the purpose of converting them to Christianity. Indians, on the other hand, were obligated, under what Victoria called the doctrine of “natural society and fellowship,” to admit Christian missionaries into their lands, to listen to their message, and to provide them with the facilities to assist in their own conversion. If a native group failed to admit or listen to the Pope’s emissaries, they again violated natural law. Natural law, according to Victoria, also required Indians to treat the agents of “civilized” nations hospitably, to allow them free access into their lands, and to protect them from harm. This implied that Indians could not legally interfere with the “free and open commerce” of Spain. Victoria concluded that though Indians were rational human beings, they were intellectually inferior to Europeans. This inferiority at times resulted in a political structure that was so debased that an Indian people could not administer their own affairs. This offered another opportunity for a civilized nation to take sovereignty over the Indian people in question and teach them the benefits of Spanish civilization. The refusal to accept the benefits of Spanish Catholic civilization—its economic system, culture, and religion—negated the presumption of native rationality and created a right of guardianship in Spain over the recalcitrant natives. If Indians opposed or infringed upon a Christian nation’s rights or refused to remedy their reprobate activities, Victoria wrote, then the Christian nation could summarily “enforce against them all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their former lords and setting up new ones.”
Surrender of Rights. In sum Victoria agreed with Las Casas that Indians maintained national and individual rights under natural law. At the same time, though, Victoria agreed that Christians had a duty to try to convert all of mankind to their religion. When these two concepts came into conflict, the natural law sacrificed the inherent rights of Native Americans to the Christian mission. Arguably Victoria did not really attempt to deduce law from nature; he worked backwards to achieve a particular result. More than likely the ambiguity of Victoria’s doctrine resulted from a surrender to the royal will. In the early 1530s Victoria, following Las Casas’s lead, had brazenly lectured on the sanctity of the natural rights of Indians. His rationalizations for the Spanish conquest, however, appeared only in the lectures from around 1539. Later Victoria explained that Charles V “took exception” to his early pronouncements in favor of Indian rights and that his subsequent lectures were an effort to moderate his original position. This royal dissatisfaction brought two disparate lines of authority together into a murky equivocation, and these two clearly incongruous threads of argument remained bound together in the writings of the legal theorists that followed. Although the Spanish never formally adopted Las Casas’s humanitarian ideas, advocates of British and French colonization in America used his criticism of Spanish policy to justify their own claims to North America. By violating the natural rights of Indians, they argued, Spain had forfeited the rights to the Americas that they had claimed under the theories of papal donation and discovery.
Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (Oxford, U.K.: Oxford University Press, 1990).