In international law the right of discovery refers to the act of finding an unknown country. According to the principles of international law as understood by the European powers in the 16th century this meant that Indian tribes who happened to live in this unknown or vacant territory were deemed to be mere temporary occupants of the soil. Any European nation who claimed it upon discovery had absolute property rights. Permanent claims or titles to such possessions were then secured by right of conquest.
History is filled with stories of conquests great and small. The ancient history of Egypt and the Middle East is a long story of seemingly endless battles between one small kingdom or tribe and another. But these very early conquerors did not (I suspect) invoke any such right of discovery or conquest, they simply attacked and took what they wanted.
Again according to international law, which, incidentally, always seems to favour the stronger party, the right of conquest is a recognition of the fact that a conquest has already taken place, without any reference to the morality or the degree of violence of the invasion. The rights of conquest, therefore, are derived from force alone.The attacker cannot have any prior claim or title to the property; otherwise it would not, by definition, be a conquest. In short, it is simply the forcible acquisition of territory admitted to belong to the enemy.
The Conquest of Mexico in the 16th century is a special case history, for it illustrates fully the implications and consequences of the so-called right of conquest. Perhaps the most popular account of the exploits of Cortez and his Conquistadores is Prescott’s Conquest of Mexico. Well-written, colourful, dramatic, exciting, it reads more like an novel than a sober history. Unfortunately it is also extremely biased in favour of the conquerors. Much more information about the Indian side of the story has emerged since Prescott (1796-1859) wrote, but his treatment of the subject reflects the prevailing attitude of the European powers during their greatest expansion period.
In the minds of the Spanish invaders the right of conquest was justified on both religious and secular grounds. In the 16th century the Catholic church regarded the natives of the American continent as subject to conquest by reason of their paganism. Since they were not Christian they were therefore condemned to eternal hellfire unless converted to the true religion by the Catholic missionaries. Religious infidelity was a cardinal sin that had to be punished and corrected by any means whatsoever. Hence the infamous Spanish Inquisition. The newly redeemed converts could then be handed over to secular authorities to do with them as they pleased.
The religious justification for the conquest of Mexico was backed up by secular means, namely force of arms. In accordance with the European concept of property and commerce, the Spaniards had the right to enter unknown or vacant lands as peaceful merchants or explorers; but if opposed they then had the right of conquest on their side. All they had to do was designate the natives as enemies.
We cannot read our own feelings or convictions into the thoughts and actions of zealous Christian militants in 16th century Mexico. However, it made little difference whether Indians meekly accepted European domination or fought against it, their fate was almost always the same. The Spaniards were therefore justified in using extreme force. The hapless Aztecs are even blamed for their own suffering because they foolishly put up such a strong resistance.
Learned jurists write the laws, politicians interpret (or misinterpret) the laws, generals act on the orders of the politicians, and innocent people suffer the consequences in blood and misery. However you interpret the right of conquest, past or present, the conquered and oppressed have little or no say in the matter. The basic principle at work here, as always, is might is right.
