The Indian doubt is the crisis of conscience that assailed the Spanish kings Carlos I and Felipe II in the mid-sixteenth century about the legitimacy or not of the conquest of America and the maintenance of their sovereignty in those territories. In the same way, it also subjected to analysis the right to make war on the Indian and the treatment and labor exploitation they suffered. To overcome these doubts, the monarchs consulted the most enlightened minds of the time, both in their theological and juridical aspects.
In fact, the doubt was so great and the need to clarify it so compelling that on July 3, 1549, Carlos V, after a report from the Consejo de Indias, decided to interrupt the expeditions of exploration and conquest in view of “the dangers to the body and soul of the Indians, which the conquests brought with them, were so great that no new expedition should be authorized without the express permission of the Consejo”. Obviously the emperor was not only concerned with the righteous titles themselves but also with the salvation of his own soul, since he was directly responsible for what happened in the Indies at the eyes of God.
In order to solve this problem, the Emperor Carlos V convened a meeting in Valladolid in 1551, in which the most important jurists and theologians would participate, as well as two people who would defend radically opposed visions: Juan Ginés de Sepúlveda and Bartolomé de las Casas. We will talk about them and about the meeting itself later on. Before that, we will carry out an analysis of how the delicate issue of the legitimacy of the Spanish presence in the new territories was managed.
The right of conquest since the Discovery
Since the first days of the conquest of America, that is, since the Discovery, the Spanish monarchs tried to legitimize everything that was happening on the other side of the ocean. The Portuguese threat in the struggle for influence in the Atlantic Ocean and the possible protest from other European kingdoms made the Catholic Kings quickly and efficiently mobilize all their resources to have legality on their side.
Since Christopher Columbus, on his return from his first trip in search of the Indies, visited the Catholic Monarchs in Barcelona in 1493, they did not lose a minute and asked Pope Alexander VI for papal bulls in order to continue their explorations and conquests and also exclusively separating the spheres of action of both powers with the Treaty of Tordesilas of 1494. The good relations of the Borgia pope with the kings helped a lot. Through these bulls, the Pope gave them the new islands “discovered and to be discovered” but always in exchange for the commitment to Christianize and evangelize their inhabitants. At that time, the Vatican was not only concerned with spiritual matters, but its radius of action also extended to the so-called Christian Republicha, that is, all the existing Christian states, so that the Castilian expansion greatly favored it. These bulls were the favorite excuse used by the Catholic Kings for the legitimacy of the conquest and colonization of the territories that were being discovered.
Christopher Columbus, in his travels, took possession of the islands that he found with practically no opposition. It can be said that the process was similar to that carried out a few years ago with the Spanish Reconquest, which was characterised by the border war in which the territory won from the infidel was given to the conqueror in exchange for him remaining on it and populating it to confirm his conquest. The territories not occupied by any Christian state, by the principle of the Roman law of Res Nullius, were susceptible to be taken and to initiate their settlement, for that reason Columbus and the following conquerors took the lands of their conquests in the name of the king by means of a pompous ceremony before a royal notary, legalizing with that procedure the fact. They also used to be taken in the name of the Christian religion, as it was clearly stated in the instructions given to the conquerors: “that by all means and ways he may seek and work to attract the inhabitants of the said islands and terra firma to convert to our holy faith”, that is, to evangelize them, although he did not clarify the method of evangelization.
As the colonization advanced, the news that reached Castile of abuse and mistreatment of the natives scandalized the monarchs. Such news was mainly carried by religious. Queen Isabella the Catholic came to draw attention to this subject in her own will of 1504, indicating her daughter Joan, future Queen of Castile:
“I charge and command the said Princess my daughter and the said Prince her husband, that they do so and fulfill it, and that this be their principal end, and that they take great care in it, and do not consent and give place to the Indians of Viña and the inhabitants of the said Indies and of the mainland, won and to be won, to receive any injury in their persons and goods; but I command that it be well and justly treated. And if they have received any wrong, let them remedy it and provide for it.
The queen also reacted negatively to Columbus when he, in view of the lack of really attractive wealth in the Caribbean islands, decided to enslave 400 Indians and send them to Seville for sale. The order was strict: “the Indians are subjects of Castile and therefore cannot be enslaved”, the natives already sold were sought and freed and all were sent back to the Indies. In 1500 the queen signed a charter prohibiting the enslavement of the natives, but after a few months she rectified this and only admitted the slaves in the event of a just war or refusal to admit the kings as sovereigns and the Christian God as the only true one.
Initiated in 1502 the government of Frey Nicolás de Ovando the situation did not have great advances. It tried to regularize the economy and the Indian society with the introduction of the encomiendas, in which a Spanish encomendero had the right to a portion of land and its exploitation by the indigenous labor that resided in that area in exchange for collecting the tribute, educating and evangelizing them. This system set the economy in motion but the problem of the Indians was still there and the protests of the religious people who saw the denigrating treatment that some encomenderos gave them began to grow stronger.
In the islands many were of the opinion that the Indians were barbarians, savages without soul and without capacity of reasoning and therefore to preach to them was not useful, nevertheless there were others who thought that they had capacity to know the word of God and to accept it freely.
The Laws of Burgos of 1512 and Valladolid of 1513
After Ovando’s government, Don Diego Colón, the new governor of the Indies and admiral, son of Christopher Columbus, arrived on the island of Hispaniola. This change of government did not alter things and the news of mistreatment and problems with the encomenderos continued. In 1511 a group of Dominicans arrived in Santo Domingo with the mission of beginning an effective evangelization of the Indies. The Franciscans had arrived a few years earlier but did not make much progress in this regard. The Dominican Anton de Montesinos opened a Pandora’s box when he criticized the Spanish colonists in his famous Advent sermon of December 1511. In that sermon the friar threatened general excommunication if they did not stop treating the natives of those islands badly and waging war against them. The uproar was great, and it meant a very serious questioning of the ethics of Indian colonization and also with the accusatory hand of the church itself, something much more painful.
The details of Montesinos’ sermon reached Ferdinand the Catholic and, in spite of the fact that he demanded that the Dominicans retract what was said and thus calm the disturbed mood on Hispaniola, he realized that things were not going well and that something had to be done. The legitimacy of the conquest was being questioned. So he convened the Junta de Burgos with several theologians and jurists to discuss from the legal and theological point of view what was happening in the Indies and to try to put some order. It was the first time in history that a political and military power was considering the ethics and justice of a conquest of its own and other important points such as the humanity and freedom of the natives of those conquered lands.
After several sessions at the end of December, the Laws of Burgos of 1512 were issued and sanctioned, consisting of 35 “Royal Ordinances given for the good Regiment and Treatment of the Indians” to which 4 more ordinances were added the following year in the city of Valladolid. These laws recognized the Indians as free men and holders of basic human rights such as freedom and property. Also, and for the sake of making a just war, the Requiem was created. This document had to be read in front of the natives to make them accept the authority of the pope, the Spanish kings and to be evangelized, thus becoming Christian subjects. If they accepted the proposal, their goods, properties and customs were respected, but if they refused, they could be attacked, deprived of their properties and even enslaved. In this way, according to the Castilian jurists, if war came, it would be just and adapted to law.
Bartolomé de las Casas
Despite the passing of the Burgos Laws of 1512, according to the Dominicans, mistreatment continued to occur on the Antillean islands. Bartolomé de las Casas resigned from his command of the island of Hispaniola and Cuba in 1514 in front of the governor Diego Velázquez. He had obtained these commendations as a reward for his performance in the wars of the Higüey and in the conquest of Cuba. From here Las Casas began to write memorials and letters that he sent to Spain asking for the elimination of the encomiendas and to deeply reform the Indies. He asked for the creation of communities of Indians run by the Dominicans in order to protect them from the encomenderos and slave traders. It was a super-regulated community in each and every one of its aspects.
He tried to create these communities on the island of Hispaniola, on the coast of Paria in Venezuela and in Guatemala, always ending up in failure because of the rejection they produced in the Indians or because of pressure from the encomenderos. With this he wanted to demonstrate that the Indians were capable of developing a complete and advanced society on their own, something that their ideological rivals denied.
In the 1930’s de las Casas dedicated himself to persecuting King Carlos I and trying to convince him to carry out a general reform of the government of the Indies, suspending the encomenderos and freeing the Indians from vassalage to the encomendero by becoming a subject of the crown. The New Laws of the Indies of 1542 were approved, which caused numerous disturbances, especially in Peru, and therefore some points had to be rectified.
Bartolomé de las Casas was not opposed to the conquest although he did oppose the use of the conquest with evangelizing objectives, he thought that the Indian should always be evangelized peacefully and then submitted to the political power of the king without taking away his goods or his lands.
Francisco de Vitoria and his Relections
Another person who had great weight in the Indian doubt was Francisco de Vitoria, philosopher, theologian, jurist and professor at the University of Salamanca, creator of the so-called School of Salamanca. He never wrote a book, but the transcription of his classes and his famous stories are preserved. These were oral lectures in which the teacher summarized the topics given during the year and added his own comments. The best known are the “de Indis”, in which he talks about the question of the Indians in the overseas territories, and the “de iure belli”, in which he talks about the just war.
In general terms Vitoria thought that natural law was above all, all men are born equal and have the same rights, even in religious matters he believed that one could not force someone to accept a religion, the individual has to choose and decide. He criticized political power, saying that this power could not be imposed by violence. War could only be just if it was used to obtain peace and also if someone did not allow other people or nations to exercise their natural right.
Specifically, in the delicate subject of the conquest, Vitoria expressed which were the just titles and which were the unjust ones, and thus it was made known to King Carlos I so that he could take them into account in his political decisions.
In his review “de Indis” Vitoria begins by stating that the Catholic Kings and the Emperor Charles V are very just and very religious and that they have no obligation to constantly investigate or doubt whether their action of government was or was not just, if all the leaders did so they would never finish investigating and doubting everything, therefore, to solve it, he believes that we must use the wise to solve these problems at once. For Vitoria, the Indian question is neither manifestly unjust nor undoubtedly just, and therefore it can be analysed and dealt with from the point of view of natural and divine law.
Illegitimate titles that deny the legitimacy of the conquest
Power and authority:
– The emperor does not own the entire orb, so he cannot conquer and give away territories even if they are unfaithful.
– The pope is not the civil or temporal owner of the whole world, either by natural right or by divine right, and even if he were, he cannot grant power to kings or secular princes, nor does he have power over barbarians or pagans, so he cannot decide about them.
– Just laws are useless if good ministers and administrators are not appointed for their execution, and it will be the king’s fault if this is not done.
Dominion and property:
– The Spaniards were not the first to arrive in America, it was already inhabited so there were kings and subjects living in that land so ius inventionis (right to discovery) or res nullius (no owner) are not legitimate or true.
– A person, being a pagan, cannot be deprived of his property or land unless it is proved that it was obtained by violent means.
– Being unfaithful or pagan does not justify war, that is, denying religion is not a reason to attack them or take their property.
– If among the heathen, princes and magistrates are legitimate, they cannot be attacked by a Christian prince except by insult.
– They can be preached to and a war will only be justified if they do not allow preaching because preaching is a right.
– A war can be waged if the barbarians do not want to receive the preachers and do not let them preach, and even more so if they kill or murder them.
– With the sovereignty achieved by just war, the natives cannot be taxed more heavily than Christians, nor can they be deprived of their freedom.
Crimes against the right of peoples and vices against naturam:
– Crimes against the law of nations: Human sacrifice and eating human flesh.
– Crimes against naturam: Incest, sodomy, homosexuality, lesbianism, bestiality, carnal trade in minors.
– Neither the pope nor the emperor can fight against these crimes, only the legitimate power of each people or nation can.
Acceptance or voluntary cession of sovereignty, acceptance of a foreign government and administration:
– Advocates of the legitimacy of conquest argue that the Indians largely accepted the king of Spain as their lord and that this makes it legitimate. The Indians already had their own rulers and could not, without reasonable cause, remove them to put a foreign king.
Providentialist thesis and the inevitable fate:
– Divine gift to the Spaniards as if they were a chosen people or a punishment to the barbarian peoples for their aberrations.
– The situation of underdevelopment of the peoples is not a justifiable cause for the civilized peoples to occupy them.
Legitimate titles approving the legitimacy of the conquest
Universal natural society and freedom of communication and trade:
– Freedom of movement: The Spanish have the right to navigate, explore and settle down as long as they do not harm the natives, who cannot forbid them to stay. The right to transit and travel through new territories is also protected by the Law of Nations and by the same Natural Law, and this right can only be limited by a just and serious cause by a human law.
– Freedom of trade: freedom of exchange of goods and products between peoples. Negotiate without harm.
– Freedom of communication of goods between nationals and foreigners. And if foreigners find goods or products before the natural ones, the res nullius can be applied by which the property passes to the first occupant.
– The children of Spaniards in America are Spanish.
– The Spaniards in America have the right to settle there without causing any damage, and if they try to prevent this, it can be a reason to use force.
Extension of Christianity and defense of its faithful:
– Christians have the right to preach and announce the gospel in the Indies, and freedom of entry and movement is based on this. In this way Vitoria recognizes that the Pope could send the Spaniards to preach and then the concession or cession of territories could be legitimate if it was for that use. It admits the use of the war to protect the right to preach and to announce the gospel.
– There is also the right to wage war to protect converts or even to change rulers, or also to prevent leaders from trying to return them to idolatry through violence.
The right to intervene in case of crimes against the human condition:
– It would be legitimate to attack tyrannical barbaric chiefs or by tyrannical laws to the detriment of innocent people.
– However, there are several steps to be taken: intimidate them so that they do not continue with these rites, if they do not desist, war can be waged against them, and if they still do not surrender, remove them from office by rulers who respect and protect human rights.
Voluntary cession and free acceptance:
– In this sense, he assures that if the aborigines themselves, “understanding the prudent administration and humanity of the Hispanics, would like to freely receive” both the chiefs and their subjects, and accept the sovereignty of the king of Spain, there would undoubtedly exist a title of dominion, which would also be of natural law and of people. This decision must be free and voluntary.
Agreements or pacts of friendship, cooperation and mutual defence:
– There are two requirements, first, that the mutual defense must be requested by the injured party; and second, that the damage or injury be real and of such an entity that alone would justify a just war. Once these two requirements are met, even a territorial occupation could be admitted, always respecting the law of war.
Need for protection and guardianship:
– The first is that the guardianship be necessary or at least very desirable ; the second is that it be for the benefit of the peoples under guardianship and never for their exploitation ; and the third is that it be temporary and never perpetual, so that, once they have achieved sufficient development, they may be allowed to govern and administer themselves. Once these conditions have been fulfilled, guardianship would no longer be necessary.
All these arguments weighed on King Charles I who, after the problems arising from the New Laws, decided to find a solution by calling a meeting in Valladolid in which the subject of the conquest and the Indians would be discussed from a theological and legal point of view and would provide solid foundations for the continuation of Spain’s work in the Indies.
The Valladolid Controversy (1550-1551)
The Junta of Valladolid met in August and September 1550, and the following year they also met for a couple of months. The Emperor called them together to find out the opinion of the experts on what would be the best method to convert the Indians and reduce them to the obedience of Spain without committing injustice and thus leave the imperial conscience alone. The debate was led on the one hand by Fray Bartolomé de las Casas and on the other by the priest Juan Ginés de Sepúlveda before a board of theologians composed of Domingo de Soto, Melchor Cano and Bartolomé de Carranza. Both religious shared the theses of Francisco de Vitoria but interpreted them in different ways.
Juan Ginés de Sepúlveda defended in this respect that it was necessary to submit the Indians to the emperor, and, once submitted, it is when they can be evangelized, which was obligatory because it was the main reason for the conquest. If the Indians do not accept vassalage to the king of Spain, force and all the resources of war can be used to achieve submission. It also justified Spanish action to prevent attacks on natural law in ritual sacrifice and other unacceptable conduct by Indians.
Bartolomé de las Casas defended that the Indians did not need to be protected as they were well capable of creating advanced civilizations such as the Mexica or the Inca. On the other hand, he supported the right of the Spaniards to travel without being disturbed but he did not grant them the right to conquer in a violent way and the evangelization of the Indians but not as a Spanish task but as a right of the Indians to receive the word of God in a peaceful way.
The result of the debate is not clear, some say that Las Casas won and others that Sepulveda did, but really all that was obtained were various reports on how the exploration of the Indies should continue always under religious supervision and without using violence unless it was strictly necessary. In fact, the expeditions of conquest had been suspended and were not allowed to resume until 1556 when instructions were sent to the Viceroy of Peru, Marquis de Cañete, again allowing the conquests but under the new rules of non-violence and religious direction.
The first legislative set that included the new dispositions and way to carry out the discoveries, settlements and pacification were the 1573 Ordinances of Felipe II. This legislation sought a balanced solution between the supporters of the use of just war and those of peaceful and evangelizing penetration. Now the term “conquest” disappears and the term “pacification” is used. The “new policy” is to unite Christian justice and morality with political and economic interests. Now the most important thing is to populate, to generate territory, not so much to trade or to achieve wealth. For the new conquerors to agree to capitulations, they were offered significant tax breaks, land and other benefits.
Francisco de Vitoria, Doctrine on the Indians, San Esteban Editorial, 2009.
Los justos títulos: fundamentos jurídicos y teológicos de la conquista de América, ActasHistoria.com.
The just war and the requirement, Art and History
Salvador Castellote, Vitoria in the face of the evangelization of America
Rah.es, Bartolomé de las Casas.
Miguel Alonso Baquer, La ética de la conquista y la moral de los conquistadores, Militaria, Revista Cultura Militar nº4, 1992.