Week 3 Discussion

FRANCISCO DE VITORIA

FRANCISCO DE VITORIA (1486–1546), a Spanish Dominican, was one of the founders of the revival of scholastic philosophy during the sixteenth and seventeenth centuries. Vitoria’s ideas are preserved in notes on his lectures at the University of Salamanca, where he held the most prestigious chair of theology in late medieval Spain. Vitoria argued that the rights of sovereigns are derived from the universal laws governing the human community, and that the conduct of sovereigns must be judged by those laws. In his lecture “On the American Indians” (1539), Vitoria considers claims made on behalf of the Spanish conquest from the standpoint of this universal law.

From “On the American Indians”

Relection of the Very Reverend Father Friar Francisco de Vitoria, Master of Theology and Most Worthy Prime Professsor at the

University of Salamanca, Delivered in the Said University, A. D. 1539

The text to be re-read is ‘Go ye therefore, and teach all nations, baptizing them in the name of the Father, and of the Son, and of the Holy Ghost’ (Matt. 28:19). This raises the following problem: whether it is lawful to baptize the children of unbelievers against the wishes of their parents? The problem is discussed by the doctors on Lombards Sentences IV. 4. 9, and by Aquinas in ST [Summa Theologiae] II–II. 10.12 and III. 68.10.

This whole dispute and relection has arisen again because of these barbarians in the New World, commonly called Indians, who came under the power of the Spaniards some forty years ago, having been previously unknown to our world.

My present discussion of these people will be divided into three parts: first, by what right (ius) were the barbarians subjected to Spanish rule? Second, what powers has the Spanish monarchy over the Indians in temporal and civil matters? And third, what powers has either the monarchy or the Church with regard to the Indians in spiritual and religious matters? The conclusion to the last question will thus lead back to a solution of the question posed at the outset.

Question 1, Article 1: Whether these barbarians, before the arrival of the Spaniards, had true dominion, public and private?

That is to say, whether they were true masters of their private chattels and possessions, and whether there existed among them any men who were true princes and masters of the others. It may seem in the first place that they have no right of ownership (dominium rerum):

1. ‘A slave cannot own anything as his own’ (Institutions 11.9.3 Item vobis; Digest XXIX. 2. 79 Placet). Hence everything a slave acquires belongs to his master (Institutions I. 8.1 Nam apud omnes). But these barbarians are slaves by nature. This last point is proved by Aristotle, who says with elegant precision: ‘the lower sort are by nature slaves, and it is better for them as inferiors that they should be under the rule of a master’ (Politics 1254b20). By ‘lower sort’ he meant men who are insufficiently rational to govern themselves, but are rational enough to take orders; their strength resides more in their bodies than in their minds (1252a32). And if indeed it is true that there are such men, then none fit the bill better than these barbarians, who in fact appear to be little different from brute animals and are completely unfitted for government. It is undoubtedly better for them to be governed by others, than to govern themselves. Since Aristotle states that it is a natural law that such men should be slaves, they cannot be true masters. Furthermore, it is no objection to argue that before the Spaniards arrived the barbarians had no other masters; it is not impossible that a slave may be a slave even without a master, as stated by the Glossa on the law Si usum fructum (Digest XL. 12. 23); indeed, the law concerned expressly says so, and there is an actual case adduced in the law Quid seruum (Digest XLV. 3. 36 pr.) on the unclaimed slave abandoned by his master, which shows that such a slave may be appropriated by anyone. Therefore, if the barbarians were slaves, the Spaniards could appropriate them.

But on the other hand it may be argued that they were in undisputed possession of their property, both publicly and privately. Therefore, failing proofs to the contrary, they must be held to be true masters, and may not be dispossessed without due cause.

I reply that if the barbarians were not true masters before the arrival of the Spaniards, it can only have been on four possible grounds. To avoid wasting time, I omit any recapitulation here of the many writings of the theologians on the definition and distinctions of dominion (dominium), which I have quoted at length elsewhere (see my discussion of restitution in my lectures on Lombard’s Sentences

IV. 15 and ST II–II. 62). These four grounds are that they were either sinners (peccatores), unbelievers (infideles), madmen (amentes), or insensate (insensati).

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Question 1, Article 6: Whether madmen can be true masters

But what of madmen (I mean the incurably mad, who can neither have nor expect ever to have the use of reason)?

Let us answer with this third proposition: 3. These madmen too may be true masters. For a madman too can be the victim

of an injustice (iniuria); therefore he can have legal rights. I leave it to the experts on Roman law to decide whether madmen can have civil rights of ownership (dominium ciuile).

Whatever the answer to that, I conclude with this final proposition:

4. The barbarians are not prevented by this, or by the argument of the previous article, from being true masters. The proof of this is that they are not in point of fact madmen, but have judgment like other men. This is self-evident, because they have some order (ordo) in their affairs: they have properly organized cities, proper marriages, magistrates and overlords (domini), laws, industries, and commerce, all of which require the use of reason. They likewise have a form (species) of religion, and they correctly apprehend things which are evident to other men, which indicates the use of reason. Furthermore, “God and nature never fail in the things necessary’ for the majority of the species, and the chief attribute of man is reason; but the potential (potentia) which is incapable of being realized in the act (actus) is in vain (frustra).

Nor could it be their fault if they were for so many thousands of years outside the state of salvation, since they were born in sin but did not have the use of reason to prompt them to seekbaptism or the things necessary for salvation.

Thus if they seem to us insensate and slow-witted, I put it down mainly to their evil and barbarous education. Even amongst ourselves we see many peasants (rustici) who are little different from brute animals.

[Question 1, Conclusion]

The conclusion of all that has been said is that the barbarians undoubtedly possessed as true dominion, both public and private, as any Christians. That is to say, they could not be robbed of their property, either as private citizens or as

princes, on the grounds that they were not true masters (ueri domini). It would be harsh to deny to them, who have never done us any wrong, the rights we concede to Saracens and Jews, who have been continual enemies of the Christian religion. Yet we do not deny the right of ownership (dominium rerum) of the latter, unless it be in the case of Christian lands which they have conquered.

To the original objection one may therefore say, as concerns the argument that these barbarians are insufficiently rational to govern themselves and so on (1.1 ad 2):

1. Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights of ownership over their own bodies and possessions (dominium sui et rerum). Such slavery is a civil and legal condition, to which no man can belong by nature.

2. Nor did Aristotle mean that it is lawful to seize the goods and lands, and enslave and sell the persons, of those who are by nature less intelligent. What he meant to say was that such men have a natural deficiency, because of which they need others to govern and direct them. It is good that such men should be subordinate to others, like children to their parents until they reach adulthood, and like a wife to her husband. That this was Aristotle’s true intention is apparent from his parallel statement that some men are “natural masters’ by virtue of their superior intelligence. He certainly did not mean by this that such men had a legal right to arrogate power to themselves over others on the grounds of their superior intelligence, but merely that they are fitted by nature to be princes and guides.

Hence, granting that these barbarians are as foolish and slow-witted as people say they are, it is still wrong to use this as grounds to deny their true dominion (dominium); nor can they be counted among the slaves. It may be, as I shall show, that these arguments can provide legal grounds for subjecting the Indians, but that is a different matter.

For the moment, the clear conclusion to the first question is therefore that before arrival of the Spaniards these barbarians possessed true dominion, both in public and private affairs.

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Question 3: The just titles by which the barbarians of the New World passed under the rule of the Spaniards

I shall now discuss the legitimate and relevant titles by which the barbarians could have come under the control of the Spaniards.

Question 3, Article 1: First just title, of natural partnership and communication

My first conclusion on this point will be that the Spaniards have the right to travel and dwell in those countries, so long as they do no harm to the barbarians, and cannot be prevented by them from doing so.

The first proof comes from the law of nations (ius gentium), which either is or derives from natural law, as defined by the jurist: ‘What natural reason has established among all nations is called the law of nations’ (Institutions 1.2.1). Amongst all nations it is considered inhuman to treat strangers and travellers badly without some special cause, humane and dutiful to behave hospitably to strangers. This would not be the case if travellers were doing something evil by visiting foreign nations. Second, in the beginning of the world, when all things were held in common, everyone was allowed to visit and travel through any land he wished. This right was clearly not taken away by the division of property (diuisio rerum); it was never the intention of nations to prevent men’s free mutual intercourse with one another by this division. Certainly it would have been thought inhuman to do so in the time of Noah. Third, all things which are not prohibited or otherwise to the harm and detriment of others are lawful. Since these travels of the Spaniards are (as we may for the moment assume) neither harmful nor detrimental to the barbarians, they are lawful.

… My second proposition is that the Spaniards may lawfully trade among the barbarians, so long as they do no harm to their homeland. In other words, they may import the commodities which they lack, and export the gold, silver, or other things which they have in abundance; and their princes cannot prevent their subjects from trading with the Spaniards, nor can the princes of Spain prohibit commerce with the barbarians.

The proof follows from the first proposition. In the first place, the law of nations (ius gentium) is clearly that travellers may carry on trade so long as they do no harm to the citizens; and second, in the same way it can be proved that this is lawful in divine law. Therefore any human enactment (lex) which prohibited such trade would indubitably be unreasonable. Third, their princes are obliged by natural law to love the Spaniards, and therefore cannot prohibit them without due cause from furthering their own interests, so long as this can be done without harm to the barbarians. Fourth, to do so would appear to fly in the face of the old proverb, ‘do as you would be done by’.

In sum, it is certain that the barbarians can no more prohibit Spaniards from carrying on trade with them, than Christians can prohibit other Christians from doing the same. It is clear that if the Spaniards were to prohibit the French from trading with the Spanish kingdoms, not for the good of Spain but to prevent the French from sharing in any profits, this would be an unjust enactment, and contrary to Christian charity. But if this prohibition cannot justly be proscribed in law, neither can it be justly carried out in practice, since an unjust law becomes inequitable precisely when it is carried into execution. And ‘nature has decreed a certain kinship between all men’ (Digest I. 1.3), so that it is against natural law for one man to turn against another without due cause; man is not a ‘wolf to his fellow man’, as Ovid says, but a fellow.

… My fifth proposition is that if the barbarians attempt to deny the Spaniards in these matters which I have described as belonging to the law of nations (ius gentium), that is to say from trading and the rest, the Spaniards ought first to remove any cause of provocation by reasoning and persuasion, and demonstrate with every argument at their disposal that they have not come to do harm, but wish to dwell in peace and travel without any inconvenience to the barbarians. And they should demonstrate this not merely in words, but with proof. As the saying goes, ‘in every endeavour, the seemly course for wise men is to try persuasion first’ (Terence, Eunuchus 789). But if reasoning fails to win the acquiescence of the barbarians, and they insist on replying with violence, the Spaniards may defend themselves, and do everything needful for their own safety. It is lawful to meet force with force. And not only in this eventuality, but also if there is no other means of remaining safe, they may build forts and defences; and if they have suffered an offence, they may on the authority of their prince seek redress for it in war, and exercise the other rights of war. The proof is that the cause of the just war is to redress and avenge an offence, as said above in the passage quoted from St Thomas (ST II–II. 40.1; see above, 2.4 §11). But if the barbarians deny the Spaniards what is theirs by the law of nations, they commit an offence against them. Hence, if war is necessary to obtain their rights (ius suum), they may lawfully go to war.

But I should remark that these barbarians are by nature cowardly, foolish, and ignorant besides. However much the Spaniards may wish to reassure them and convince them of their peaceful intentions, therefore, the barbarians may still be understandably fearful of men whose customs seem so strange, and who they can see are armed and much stronger than themselves. If this fear moves them to mount an attack to drive the Spaniards away or kill them, it would indeed be lawful for the Spaniards to defend themselves, within the bounds of blameless self-defence;

but once victory has been won and safety secured, they may not exercise the other rights of war against the barbarians such as putting them to death or looting and occupying their communities, since in this case what we may suppose were understandable fears made them innocent. So the Spaniards must take care for their own safety, but do so with as little harm to the barbarians as possible since this is a merely defensive war. It is not incompatible with reason, indeed, when there is right on one side and ignorance on the other, that a war may be just on both. For instance, the French hold Burgundy in the mistaken but colourable belief that it belongs to them. Now our emperor Charles V has a certain right to that province and may seek to recover it by war; but the French may defend it. The same may be true of the barbarians. This is a consideration which must be given great weight. The laws of war against really harmful and offensive enemies are quite different from those against innocent or ignorant ones. The provocations of the Pharisees are to be met with quite a different response from the one appropriate to weak and childish foes.

My sixth proposition is that if all other measures to secure safety from the barbarians besides conquering their communities and subjecting them have been exhausted, the Spaniards may even take this measure. The proof is that the aim of war is peace and security, as St Augustine says in his letter to Boniface (Epistles 189.6). Therefore, once it has become lawful for the Spaniards to take up war or even to declare it themselves for the reasons stated above, it becomes lawful for them to do everything necessary to the aim of war, namely to secure peace and safety.

My seventh proposition goes further: once the Spaniards have demonstrated diligently both in word and deed that for their own part they have every intention of letting the barbarians carry on in peaceful and undisturbed enjoyment of their property, if the barbarians nevertheless persist in their wickedness and strive to destroy the Spaniards, they may then treat them no longer as innocent enemies, but as treacherous foes against whom all rights of war can be exercised, including plunder, enslavement, deposition of their former masters, and the institution of new ones. All this must be done with moderation, in proportion to the actual offence. The conclusion is evident enough: if it is lawful to declare war on them, then it is lawful to exercise to the full the rights of war. And is confirmed by the fact that all things are lawful against Christians if they ever fight an unjust war; the barbarians should receive no preferential treatment because they are unbelievers, and therefore can be proceeded against in the same way. It is the general law of nations (ius gentium) that everything captured in war belongs to the victor, as stated in the laws De captiuis and Si quid in bello (Digest XLIX. 15.28 and 24), in the canon Ius

gentium (Decretum D. 1.9), and more expressly still in the law Item ea quae ab hostibus (Institutions II. 1.17), which reads: “in the law of nations, anything taken from the enemy immediately becomes ours, even to the extent that their people become our slaves’. Furthermore, as the doctors explain in their discussions of war, the prince who wages a just war becomes ipso jure the judge of the enemy, and may punish them judicially and sentence them according to their offence.

The foregoing is confirmed by the fact that ambassadors are inviolable in the law of nations (ius gentium). The Spaniards are the ambassadors of Christendom, and hence the barbarians are obliged at least to give them a fair hearing and not expel them.

This, then, is the first title by which the Spaniards could have seized the lands and rule of the barbarians, so long as it was done without trickery or fraud and without inventing excuses to make war on them. But on these grounds, if the barbarians allowed the Spaniards to carry on their business in peace among them, the Spaniards could make out no more just a case for seizing their goods than they could for seizing those of other Christians.

Question 3, Article 2: Second possible title, for the spreading of the Christian religion

My first proposition in support of this is that Christians have the right to preach and announce the Gospel in the lands of the barbarians. This conclusion is clear from the passage ‘Go ye into all the world and preach the gospel to every creature’ (Mark 16: 15); and ‘the word of God is not bound’ (2 Tim. 2: 9). Second, it is clear from the preceding article, since if they have the right to travel and trade among them, then they must be able to teach them the truth if they are willing to listen, especially about matters to do with salvation and beatitude, much more so than about anything to do with any other human subject. Third, if it were not lawful for Christians to visit them to announce the Gospel, the barbarians would exist in a state beyond any salvation. Fourth, brotherly correction is as much part of natural law as brotherly love; and since all those peoples are not merely in a state of sin, but presently in a state beyond salvation, it is the business of Christians to correct and direct them. Indeed, they are clearly obliged to do so. Fifth and finally, they are our neighbours, as I have said above (3.1 §2 ad fin.), ‘and God gave them commandment, each man concerning his neighbour’ (Ecclus, 17:14). Therefore it is the business of Christians to instruct them in the holy things of which they are ignorant.

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My fourth conclusion is that if the barbarians, either in the person of their masters or as a multitude, obstruct the Spaniards in their free propagation of the Gospel, the Spaniards, after first reasoning with them to remove any cause of provocation, may preach and work for the conversion of that people even against their will, and may if necessary take up arms and declare war on them, insofar as this provides the safety and opportunity needed to preach the Gospel. And the same holds true if they permit the Spaniards to preach, but do not allow conversions, either by killing or punishing the converts to Christ, or by deterring them by threats or other means. This is obvious, because such actions would constitute a wrong committed by the barbarians against the Spaniards, as I have explained, and the latter therefore have just cause for war. Second, it would be against the interests of the barbarians themselves, which their own princes may not justly harm; so the Spaniards could wage war on behalf of their subjects for the oppression and wrong which they were suffering, especially in such important matters.

From this conclusion it follows that on this count too, if the business of religion cannot otherwise be forwarded, that the Spaniards may lawfully conquer the territories of these people, deposing their old masters and setting up new ones and carrying out all the things which are lawfully permitted in other just wars by the law of war, so long as they always observe reasonable limits and do not go further than necessary. They must always be prepared to forego some part of their rights rather than risk trespassing on some unlawful thing, and always direct all their plans to the benefit of the barbarians rather than their own profit, bearing constantly in mind the saying of St Paul: ‘all things are lawful unto me, but all things are not expedient’ (1 Cor. 6: 12). Everything that has been said so far is to be understood as valid in itself; but it may happen that the resulting war, with its massacres and pillage, obstructs the conversion of the barbarians instead of encouraging it. The most important consideration is to avoid placing obstructions in the way of the Gospel. If such is the result, this method of evangelization must be abandoned and some other sought. All that I have demonstrated is that this method is lawful perse. I myself have no doubt that force and arms were necessary for the Spaniards to continue in those parts; my fear is that the affair may have gone beyond the permissible bounds of justice and religion.

This, then, is the second possible legitimate title by which the barbarians may have fallen under the control of the Spaniards. But we must always keep steadfastly before us what I have just said, lest what is in substance lawful becomes by accident evil. Good comes from a single wholly good cause, whereas evil can come from many circumstances, according to Aristotle (Nicomachean Ethics 1106b35) and Dionysius the Pseudo-Areopagite (Divine Names 4.30).

Question 3, Article 5: Fifth just title, in defence of the innocent against tyranny

The next title could be either on account of the personal tyranny of the barbarians’ masters towards their subjects, or because of their tyrannical and oppressive laws against the innocent, such as human sacrifice practised on innocent men or the killing of condemned criminals for cannibalism. I assert that in lawful defence of the innocent from unjust death, even without the pope’s authority, the Spaniards may prohibit the barbarians from practising any nefarious custom or rite. The proof is that God gave commandment to each man concerning his neighbour (Ecclus. 17: 14). The barbarians are all our neighbours, and therefore anyone, and especially princes, may defend them from such tyranny and oppression. A further proof is the saying: ‘deliver them that are drawn unto death, and forbear not to deliver those that are ready to be slain’ (Prov.24: 11). This applies not only to the actual moment when they are being dragged to death; they may also force the barbarians to give up such rites altogether. If they refuse to do so, war may be declared upon them, and the laws of war enforced upon them; and if there is no other means of putting an end to these sacrilegious rites, their masters may be changed and new princes set up. In this case, there is truth in the opinion held by Innocent IV and Antonino of Florence, that sinners against nature may be punished. It makes no difference that all the barbarians consent to these kinds of rites and sacrifices, or that they refuse to accept the Spaniards as their liberators in the matter. This could therefore be the fifth legitimate title.

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Question 3, Article 8: An eighth possible title, the mental incapacity of the barbarians

There is one further title which may be mentioned for the sake of the argument, though certainly not asserted with confidence; it may strike some as legitimate, though I myself do not dare either to affirm or condemn it out of hand. It is this: These barbarians, though not totally mad, as explained before, are nevertheless so close to being mad, that they are unsuited to setting up or administering a commonwealth both legitimate and ordered in human and civil terms. Hence they have neither appropriate laws nor magistrates fitted to the task. Indeed, they are unsuited even to governing their own households (res familiaris); hence their lack of letters, of arts and crafts (not merely liberal, but even mechanical), of systematic

agriculture, of manufacture, and of many other things useful, or rather indispensable, for human use. It might therefore be argued that for their own benefit the princes of Spain might take over their administration, and set up urban officers and governors on their behalf, or even give them new masters, so long as this could be proved to be in their interest.

As I have said, this argument would be persuasive if the barbarians were in fact all mad; in that case, it is beyond doubt that such a course would be not merely lawful, but wholly appropriate, and princes would be bound to take charge of them as if they were simply children. In this respect, there is scant difference between the barbarians and madmen; they are little or no more capable of governing themselves than madmen, or indeed than wild beasts. They feed on food no more civilized and little better than that of beasts. On these grounds, they might be handed over to wiser men to govern. And an apparent confirmation of this argument is if some mischance were to carry of f all the adult barbarians, leaving alive only the children and adolescents enjoying to some degree the use of reason but still in the age of boyhood and puberty, it is clear that princes could certainly take them into their care and govern them for as long as they remained children. But if this is admitted, it seems impossible to deny that the same can be done with their barbarian parents, given the supposed stupidity which those who have lived among them report of them, and which they say is much greater than that of children and madmen among other nations. Such an argument could be supported by the requirements of charity, since the barbarians are our neighbours and we are obliged to take care of their goods.

But I say all this, as I have already made clear, merely for the sake of argument; and even then, with the limitation that only applies if everything is done for the benefit and good of the barbarians, and not merely for the profit of the Spaniards. But it is in this latter restriction that the whole pitfall to souls and salvation is found to lie.

In this connexion, what was said earlier about some men being natural slaves might be relevant. All these barbarians appear to fall under this heading, and they might be governed partly as slaves.

Conclusion

The conclusion of this whole dispute appears to be this: that if all these titles were inapplicable, that is to say if the barbarians gave no just cause for war and did not wish to have Spaniards as princes and so on, the whole Indian expedition and trade would cease, to the great loss of the Spaniards. And this in turn would mean a huge loss to the royal exchequer, which would be intolerable.

1. My first reply is that trade would not have to cease. As I have already explained, the barbarians have a surplus of many things which the Spaniards might exchange for things which they lack. Likewise, they have many possessions which they regard as uninhabited, which are open to anyone who wishes to occupy. Look at the Portuguese, who carry on a great and profitable trade with similar sorts of peoples without conquering them.

2. My second reply is that royal revenues would not necessarily be diminished. A tax might just as fairly be imposed on the gold and silver brought back from the barbarian lands, say of a fifth part of the value or more, according to the merchandise. This would be perfectly justifiable, since the sea passage was discovered by our prince, and our merchants would be protected by his writ.

3. My third reply is that it is clear that once a large number of bar-barians have been converted, it would be neither expedient nor lawful for our prince to abandon altogether the administration of those territories.