Francisco De Vitoria on the Ius Gentium and the American Indios
Salas, Victor M., Jr., Ave Maria Law Review
In reading through the relections (1) of Francisco de Vitoria (c. 1483-1546), one easily conjures up the image of an author who is quintessentially Scholastic--an even-tempered and dispassionate intellectual who treats all questions with equanimity and is swayed only by the exigencies of reason itself. (2) Yet, in a letter sent to his religious superior that addresses the Spanish confiscation of Peruvian property, a clearly disgusted and horrified Vitoria reacts passionately against the Spaniards' actions and urges his superior, Miguel de Arcos, O.P., to have nothing to do with the matter. The calm and serene mood characteristic of Vitoria's relections is replaced with fury and outrage. "I must tell you, after a lifetime of studies and long experience," the Dominican writes, "that no business shocks me or embarrasses me more than the corrupt profits and affairs of the Indies. Their very mention freezes the blood in my veins." (3) Registering his contempt of the situation in the New World, Vitoria came to the defense of the American Indians in the only way he could, as a Scholastic, as an academic wielding the rich resources of the Catholic intellectual tradition in an effort to identify the intrinsic dignity of all peoples, a dignity that, in the territories of the New World, was being grossly and unjustly violated. Central to the Salamancan theologian's defense of the native peoples would be a theory of rights spelled out against the backdrop of the "natural law" and guaranteed to all persons according to the precepts of the "law of nations" or ius gentium. In this Article, I shall examine the picture of the ius gentium that emerges in Vitoria's relections and argue that, despite his appeal to traditional understandings or accounts of the ius gentium, Vitoria marks a significant development in human rights and international law as occasioned by the situation in the New World.
Perhaps the most salient works in which Vitoria's account of the ius gentium comes to light vis-a-vis the plight of the American Indians are his De Indis and De iure belli. In both works, Vitoria's arguments clearly come down on the side of the natives, highlighting their intrinsic dignity precisely as persons and consequently their right to dominium, that is, the right to self-governance, ownership of property, and moveable goods, etc. The first work, De Indis, develops an account of personal rights based on natural law that, by means of the law of nations, could be extended even to the Amerindians. These rights, as Vitoria understands them, follow upon the natives' human nature such that neither the Spanish crown nor the Papacy could suppress those rights except under the circumstances of a just war, and even then only with restraint and moderation. (4) The second work, De iure belli, picks up where the former relection leaves off and identifies the conditions under which a war could be justly waged, conditions that, relatively limited in themselves, are, according to Vitoria, wholly lacking in the Indies. In short, despite the subtlety and complexity of Vitoria's arguments, their conclusion is a relatively simple one: the Spanish conquest of the New World, at least as it was being realized at the time, was morally unjustifiable, and the evangelical counsel to "[g]o, therefore, and make disciples of all nations," (5) far from being advanced, was being egregiously compromised.
I. THE IUS GENTIUM: HISTORICAL BACKGROUND
Interestingly--and perhaps somewhat ironically--the only justification to be had for a war against the American Indians, according to Vitoria, would be that provided by the ius gentium, the violation of which could be grounds for war. (6) What, then, is this ius gentium or "law of nations"? What are its precepts and contents? How is it derived, and what serves as its ground? In his relections, Vitoria is none too clear about any of these questions and, apart from frequent allusions to the "law of nations," he never articulates an explicit or fully worked out account of the ius gentium but instead, takes it as a given. …