Vitoria studies the problems of America in his Relectiones de Indis: the general problems of war in De Jure Belli. Both these works, it is significant to note, form part of his Relectiones theologicæ et morales. A true creature of the will of Isabel, he has turned international problems into a problem of conscience. He denies independent form to his subject. The law of nations and of peoples is a moral law: it is outside the activities of lawyers. A question rises between the king of Spain and the Indians of Mexico. The “savages” are not subject to the king by human right. Their dealings with him cannot be determined by human law. Only a divine law, moving Spain as a theodicy, has brought about this juncture between the Indians and the king. Only divine law is competent to rule.
Vitoria expands his thesis. There exists this same divine law—jus inter gentes—between all States. The States are interdependent. There is a societas naturalis, a natural Society of Nations. The link is God. Free to the Spaniard to assume that God’s agent in the link be the king of Spain. The world is one society: and between peoples of one society peaceful intercourse may not be forbidden. France may not impede a Spaniard from visiting France, even from settling in France, provided he violate no law and cause no damage. If this is true between Frenchman and Spaniard, it is true between American and European. Through the fact of their civil rights in a society of nations the Indian cannot exclude the Spaniard. There exists therefore jus communicationis: the right of immigration. There exists also the freedom of the seas. Spain stands justified in her American penetration.
We are at the mere beginning of Vitoria’s subtle structure. Jus commercii—the right of commerce—applies not only to the exchange of merchandise between free peoples, but as well to the exchange of ideas. The Spaniard has the right to preach the Gospel to the Indian. The Indian has the right to preach heathenism to the Spaniard. Either may resist conversion (even as either may decline to purchase proffered goods).
Since no State may prevent a stranger from settling on its lands, nor even from becoming a lawful national, here are the Spaniards legally at home in the Americas. But strong Powers must defend by arms the menaced liberties of smaller States. That is a prerogative of a true society of nations. How much more readily therefore shall strong Powers defend the menaced liberties of individuals in every State! All States are “organs of human justice.” Spain shall protect the innocent from “religious sacrifice” and “from cannibalism in America.” If need be, to protect the innocent, a State may subjugate wholly an unjust nation.
The theologian brings to Spain her “cosmic place” in the Americas as Christ’s agent in the society of nations. But this is not enough. That she may be at peace in Zion, she must be alone. So Vitoria evolves in 1500 the modern theory of “spheres of influence.” Pope Alexander was divinely just in submitting to Spain and Portugal, as God’s best tools, the mission of Christianizing the Americas. But the Pope had no human right to partition the property of the red man. Vitoria with all the Dominicans behind him stands against Pope and king: declaring that “the Indian has as much right to possess property as the Catholic peasant.” The Indians, he holds, are potential equals of the Spaniards. They have the right to plebiscite. A majority of their votes alone can justify America’s annexation to the empire of Spain. Beyond the divine and human privileges that are general in a society of nations, “Spain must commit no act in the New World, except by treaty.”
The Dominican legists part company with the deeds of Spain. Already, Isabel had been misled when her adventurous “tools”—the Conquistadores—instead of saving the Indian, enslaved him. Now the followers of Vitoria raise their voices against the behavior of Cortés and Pizarro. Bartolomé de las Casas in his Brevissima relación de la destrucción de las Indias writes pages that are good reading in our own epoch of a “Society of Nations.” But the abstract logic of Vitoria was more useful to the State of Spain than the ethical conclusions of Las Casas. That supreme apologia for villainy and greed—International Law—is born and baptized under Christ.
Thus Vitoria: “War is justified when it is forced on a State in the rightful pursuit of commerce, in the rightful propaganda of ideas—and if the Spaniards have observed all precautions against taking their interests for principles, and their avarice for duty.” What empire since has not “taken these precautions?” Christianity had been theoretically pacifistic. Jesus was reported to have declared against all violence and the resisting of evil. Being the Son of God, of course, His words were not to be literally construed. Yet such men as Tertullian, the Manichees, Saint Francis, Wyclif, More, Erasmus, had declared unconditionally against warfare. Chiefly, that prophetic Berber, Augustine, took war to be a usable weapon of the just. Vitoria, his neighbor in race and land, leans on Saint Augustine. The anarchic and endemic sin of war is lifted at last from Europe’s conscience. Spain invents the Moral War.
“War,” says Vitoria, “is justified to right a wrong.” But Vitoria is careful:
“Difference of religion is no just cause for war.
“Aggrandizement of empire is no just cause for war.