History of Colonization 8: The Birth of Aboriginal Rights
12. The Father of International Law & the Rights of Indigenous Americans
In 1532, forty years after Columbus first voyage, we hear for the first time some philosophic and legal objection to what had being occurring in the Americas. A cleric and academic by the name of Francisco de Vitoria in his lectures De Indis and De Jure Belli addressed the issue of whether Spain had a right to appropriate the lands of the indigenous Americans and to depose and replace their right to rule themselves.
Francisco de Vitoria was a Professor of Sacred Theology at the University of Salamanca in Spain. He is an important person, a true Renaissance figure, credited with being the Father of International Law, and his thinking represents the first substantial European statement of aboriginal rights.
Of course, that the indigenous people of the Americas had rights was acknowledged from the start, although sometimes indirectly. In his Santángel Letter of 1493, for instance, Columbus suggests the Indies as a source of slaves, but insists that persons so enslaved would be only “from among the idolaters” – implicitly acknowledging that he was not entitled to enslave them otherwise, that is, without just cause. There were also numerous statements from Isabella and Ferdinand objecting to the arbitrary enslavement of Tainos, etc. Such objections would not exist without an implicit recognition that these people had rights, rights which were capable of being violated.
In his lectures in 1532, Vitoria began by addressing the idea of whether the indigenous people of the Americas were capable of owning land and governing themselves. He put it this way, “I ask first whether the aborigines in question were true owners in both private and public law before the arrival of the Spaniards; that is, whether they were true owners of private property and possessions and also whether there were among them any who were the true princes and overlords of others.”
The first question that Vitoria asked was whether the indigenous Americans were natural slaves according to the concept of the philosopher Aristotle, that “Some are by nature slaves, those, to wit, who are better fitted to serve than to rule.” Slavery had always been an aspect of European culture to a greater or lesser extent, but in medieval jurisprudence it had been explained as the natural outcome of a “just war”, a war made against an enemy who had offended in some way and who thus, according to the doctrine of “just war”, might be legitimately punished by enslavement. In this respect the philosophy of Aristotle represented an innovation in European thought in regard to justifications for slavery.
Aristotle was a Greek, the pupil of Plato and the tutor of Alexander the Great. The Greeks were themselves a colonizing people, and consequently it was necessary for them in their own era to develop a rationalization to justify the act of colonizing and enslaving. In his first book of Politics, Aristotle wrote, “Humanity is divided into two: the masters and the slaves; or if one prefers it, the Greeks and the Barbarians, those who have the right to command; and those who are born to obey.” As we see, Aristotle’s justification for the institution of slavery was fundamentally a Greek supremacist one, a racist one, since all foreigners were barbarians to the Greeks. Conveniently for the Europeans studying Aristotle two millennia later, this Greek lesson in racism had the effect of bypassing the requirement of a “just war.”
It is difficult to find justice in a war against a people who had never done harm to any European, and who presented no danger to any country in Europe, or to any legitimate European enterprise abroad. On the other hand, it has always been easy for conquerors to come up with a reason why they are better than people who are less powerful than them. Thus, following Aristotle and the Greek example – and such a weighty and authoritative example it was – Europeans could always come up a reason why they were entitled to enslave indigenous Americans and Africans. During the Renaissance the Europeans took lessons from the Ancient Greeks in many subjects, and racism was among those subjects.
Of course, Greek authority had the effect merely of legitimizing a common vice of colonizing peoples. It was the fact of colonialism which engendered racism, not ancient authority. Still, it was convenient to get an okay and an all-clear from the iconic Greeks, a near mythic people whom the Europeans liked to consider their ancestors.
Francisco de Vitoria was himself not inclined to shortcuts, however, even when the shortcuts are provided by Aristotle. Simply asserting that there were master races and slave races was not sufficient in itself; evidence had to be presented and a case had to be made. As Vitoria said, “The people in question were in peaceable possession of their goods, both publicly and privately. Therefore, unless the contrary is shown, they must be treated as owners and not be disturbed in their possession unless cause be shown.”
Vitoria addresses two arguments denying the right of the peoples of the Americas to own land and govern themselves: one, that they were pagans, that is, not Christian; two, that they were brutes, incapable of having rights any more than an animal can have rights. To the first, the religious argument, Vitoria answers that heretics, such as the Lutherans in Germany, and infidels, such as the Moslems and Jews, were not disentitled to own land according to Christian law and practice. Therefore, Vitoria argues, pagans – people who through no fault of their own had never even heard of Christianity – could not be put in a worse position than those who knew of the true faith (in Vitoria’s context, Catholicism) but denied it.
To the second argument, that the people under discussion were brutes, incapable of reason, Vitoria answers, “They are not of unsound mind, but have, according to their kind, the use of reason. This is clear, because there is a certain method in their affairs, for they have polities which are orderly arranged and they have definite marriage and magistrates, overlords, laws, and workshops, and a system of exchange, all of which call for the use of reason; they also have a kind of religion. Further, they make no error in matters which are self-evident to others; this is witness to their use of reason.”
On this basis, Vitoria concludes, “The aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.”
 Quoted in Hugh Thomas, The Slave Trade: The History of the Atlantic Slave Trade 1440-1870, p. 28.
 Nor was the idea of the “master race” forgotten in subsequent eras, as the example of Hitler should make clear.