A Musical Note on Indigenous Leadership

•July 24, 2009 • Leave a Comment

Dad & Pop Before the War

No one essay, one book, nor even the life work and understanding of one human being, could ever encompass the reality and theory of Indigenous leadership. I will not make the attempt. Some preliminary observations do occur to me, though, which I will share.

In respect of Indigenous leadership, understand that I am talking from the Canadian context, a more or less arbitrary geographic category which loops itself around diverse nations of people who collectively speak fifty-something different Indigenous languages.  Still, in all of this diversity, among many inescapable differences, there are some ways in which the original nations of Canada converge.  One is in the nature of Indigenous governance.

To a greater or lesser degree, depending on the particular culture and its circumstance, the Indigenous peoples of Canada, prior to the institution of colonial rule, were guided by leaders rather than by administrators.  That is, their governance tended to be persuasive rather than coercive, and depended for its influence on the continuing acceptance of the leaders by the community.  By and large, Indigenous leaders remained leaders only so long as their communities were satisfied to follow them, and even when someone was the undoubted political leader of a community, the leader’s word was often still not law unless the community was satisfied to accept it as law.

Any damn fool can tell someone else what to do, and many damn fools do so, as anyone with wide employment experience could tell you.  But it takes a gifted leader to lead without coercion. A nd – here’s one of the points I want to make – the Indigenous experience shows that leadership is possible, can even flourish, without a power structure.  It shows that an effective leader doesn’t have to be a boss.

Let me give you an example from my own knowledge.

I remember my father used to talk about this fellow he knew in Port Essington – then a flourishing village at the mouth of the Skeena River, now a ghost town – who had a tin ear.  My father talked about how the fellow practiced and practiced, after a while he played a pretty good guitar.  He no longer had a tin ear.

That’s all I knew of the story until my father died.  Then somebody shared with me how my father had put up his own Gibson guitar (inevitably a very sweet instrument as any guitarist will tell you) for a prize which he would give to the first person in Port Essington who could play a real song.   I guess he was a little tired of hearing strummers and unambitious amateurs, and thought he would up the ante a little for music around town.   According to the person who told me this story, with the Gibson guitar as the goal, my dad had every guitar player in Port Essington practicing madly on their instruments.

The music got better. People with tin ears became musical.

That’s what I call leadership.

And not a threat or authority structure in sight.

Photo courtesy of Arthur Collins.

History of Colonization 9 – Taking Aboriginal Lands

•November 24, 2008 • Leave a Comment

13.  Were the Spanish Entitled to Take Aboriginal Lands?

Why, as described in the previous unit, did Francisco de Vitoria feel compelled to uphold the indigenous people of the Americas as property owners?   Because if they could not own property, then the Spanish could simply help themselves to what they wanted without resort to conscience, since you can’t steal what no one owns.  Because denying the indigenous people of the Americas the right to own property amounted to the legalization of theft.

Why did Vitoria find it necessary to assert that these people could govern themselves?   Because if they were not capable of governing themselves, then the Spanish, in asserting their right to rule the people the people they were in the process of conquering, were merely taking over what needed doing, like an adult moving in and assuming guardianship of a gang of orphan children.  They could claim that they were bringing law to a lawless land.  The fact that the Spanish conquests brought war, death, disease, disorder, mass slavery, institutionalized brutality and tyranny, was and is, of course, forgotten or ignored.

The arguments that Vitoria rejected in the first part of his Aboriginal rights discourses were arguments that the indigenous people of the Americas were so fundamentally inferior to Europeans as to be subhuman.  Some of the arguments that Vitoria addressed in the second part of his discourse asserted essentially that Europeans and European institutions, and the people representing these institutions, were so superior to the people in the Americas that the people of the Americas had no choice but to submit to their will.

“It being premised, then, that the Indian aborigines are or were true owners, it remains to inquire by what title the Spaniards could have come into possession of them and their country….The first allegation to consider is that the Emperor is lord of the whole world and therefore of these barbarians also.”

At first glance the idea that the Spanish King might have authority over the whole world might seem a naïve and fanciful assertion by unsophisticated early modern thinkers.  However, it is not very far, in fact, from the position taken by British and Canadian courts of the present day.   The British doctrine of the supremacy of Parliament, for instance, places no limits on the reach of British law.  Thus Britain’s bare assertion in 1843 of sovereignty over British Columbia has been deemed sufficient in Canadian courts to establish British sovereignty over British Columbia at that time, despite the fact that British presence in that territory in that era was nominal at best.

In 1532, however, Vitoria could find no way to support this assertion, stating that there was no basis in law or statute for upholding such a point of view.  And even if it were accepted that Charles V – then King of Spain and the Holy Roman Emperor – had lordship over the whole world as alleged, this lordship, Vitoria pointed out, would extend to jurisdiction over, not ownership of, the lands in question.  This is because kings govern the lands they rule, but they do not own them.

Again, although Vitoria’s analysis was and remains an accurate description of the difference between sovereignty and ownership under international law from medieval times to the present, this difference has had a difficult time being accepted under British/Canadian law in respect of Aboriginal people.   Thus in the 1991 Delgamuukw Supreme Court of British Columbia decision by Chief Justice Allan McEachern, the court states, “It is the law that aboriginal rights exist at the “pleasure of the Crown,” and they may be extinguished whenever the intention of the Crown to do so is clear and plain.”[1]

The essentially racist criteria underlying this aspect of British/Canadian law can be seen by comparing it to the wording of the notorious Dred Scott decision of the United States Supreme Court in 1857, “A Negro had no rights a white man was bound to respect.[2]

And an Indian had no property rights a White government was bound to respect, according to a well established principle of Canadian and British law.

“That the Pope has free power, on the footing of supreme temporal lord, to make the Kings of Spain rulers over the Indian aborigines.”

Well, if the King is not king over all, then perhaps the Pope was emperor over all, and could grant these rights to the king.

What was being questioned was of course the 1493 Papal bull “Inter Cetera,” which purported to grant all the lands in the Americas to Spain and Portugal.  Was this grant valid?  Could Spain rely on it to justify appropriating lands in the Americas?  Vitoria didn’t think so.

Vitoria pointed out that the Pope is the spiritual lord of the world (according to Catholic doctrine) but that his worldly powers extend only to defending the church and overseeing Christianity.  The Pope could not grant what he did not possess, and therefore he had no right to grant territories and sovereignty in the Americas to the Spanish.  Thus Vitoria concludes, “At the time of the Spaniards’ first voyages to America they took with them no right to occupy the lands of the indigenous population.”

Then what about the right of discovery?   No, said Vitoria, citing ancient Roman law – Justinian’s Institutes – which had come to be accepted as fundamental European law.  According to Justinian’s Institutes, any unclaimed, waste or unoccupied land, could be claimed by its first discoverer.  But the land in the Americas was occupied and already had owners, so this doctrine did not and could not apply.  If the right of discovery applied to occupied lands, argued Vitoria, then the people of the Americas would have as much right to claim lands in Europe as Europeans had to claim lands in the Americas.

Again, what seems like a naïve assertion in respect to the doctrine of discovery has a modern parallel in British/Canadian/United States law where the doctrine of discovery lives on.  The doctrine in the modern form states that the first European country to “discover” a territory controlled by an indigenous population, gets to keep that territory – like a game of tag, a “tag-you’re-it” doctrine for a game where only Europeans are allowed to win.

And indigenous populations are only permitted to lose.

And, given this established doctrine, none of these clever and sophisticated lawyers and jurists has to even pause to consider how anybody can “discover” territories that are already occupied.

Vitoria discusses a number of other – as I see it – increasingly less relevant assertions, of which I will mention only one, the right of power to do what it will. This basis of title is still asserted by many and so remains relevant.   To that assertion, Vitoria has an answer which also remains relevant:  “For, if this is enough to confer dominion, a robber has dominion over his victim even up to death, because he has power to kill him, and a thief has power to seize his victim’s money.”

All of which demonstrates to me that in terms of sophisticated thinking, many of those who today deny Aboriginal rights are simply showing themselves a long way behind the times.

Almost 500 years, in fact.


[1] Delgamuukw v. The Queen, p. ix.

 

[2] Quoted in Lies My Teacher Told Me, p. 150.

History of Colonization 8: The Birth of Aboriginal Rights

•November 13, 2008 • Leave a Comment
Plato, Aristotle & the School of Athens

Plato, Aristotle & the School of Athens

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.”[1] 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[2].

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.”


[1] Quoted in Hugh Thomas, The Slave Trade: The History of the Atlantic Slave Trade 1440-1870, p. 28.

[2] Nor was the idea of the “master race” forgotten in subsequent eras, as the example of Hitler should make clear.

1493 – The Santángel Letter – First News of the New World

•November 11, 2008 • Leave a Comment

The Santángel Letter written by Christopher Columbus in 1493, is the first news (aside from the Norse sagas) that Europeans had of the Americas.  It represents the first appearance in European discourse of the image of what would come to be referred to as ‘the noble savage,’ and also introduces us — in company with Amazons and people born with tails — to the Caribs, characterized by Columbus as cannibals.  He hadn’t, in fact, encountered any Caribs on this voyage. Or humans with puppy-dog tails either, for that matter.

encounter

Sir:

Since I know that you will be pleased by the great victory which Our Lord has given me on my voyage, I am writing you this letter, from which you will learn how in twenty days[1] I crossed to the Indies with the fleet which the King and Queen, our most illustrious sovereigns, gave me.  I found there very many islands inhabited by people without number, and I have taken possession of them all on behalf of Their Highnesses by proclamation and by unfurling the royal standard, and I was not contradicted.

To the first island I found I gave the name San Salvador in memory of His High Majesty who miraculously has given all this; the Indians call it Guanahaní.  To the second I gave the name the island of Santa María de Concepción; to the third, Fernandina; to the fourth, Isabela; to the fifth, the island of Juana, and so on, to each a new name.

When I reached Juana[2] I followed the coast to the west and I found it to be so large that I thought it must be the mainland, the province of Cathay; and since I found no towns or villages on the coast except small settlements with whose inhabitants I could not speak because they all immediately fled, I continued on that course thinking that I could not fail to find great cities or towns.

After many leagues, having seen that there was nothing new and that the coast was carrying me northwards, which was not the course I wished to take because winter was now drawing on and I proposed to make to the south, and as moreover the wind was carrying me forward, I decided to wait no longer and I turned round and made for a fine harbour.  From there I sent two men inland to find out if there was a king or any great cities.  They travelled for three days and found an infinite number of small villages and countless people, but no sign of authority; for which reason they returned.  I understood well enough from some other Indians I had already taken that the whole of this coast was an island; and so I followed the coast one hundred and seven leagues to the east to where it ended.

From that cape I sighted another island to the east, eighteen leagues distant, to which I then gave the name Española,[3] and I went there and followed the north coast due east as I had done in Juana for a good hundred and eighty-eight leagues, in a straight line to the east as I had in Juana.  That coast like all the others is very rocky, and this one is particularly so.  There are many harbours on the sea coast beyond comparison with any I know in Christendom, and so many good, wide rivers that it is a marvel.  The land is high and there are many sierras and high mountains beyond comparison with the island of Tenerife, all most beautiful and of a thousand different shapes and all accessible and covered in trees of a thousand kinds and so high that they seem to reach the sky; and I am told that they never lose their leaves as far as I can understand, for I saw that they were as green and as beautiful as they are in Spain in May, and some were in flower and some in fruit, and some at another stage according to their nature, and there where I travelled the nightingale and other birds of a thousand kinds were singing in November.  There are six or eight kinds of palms which are a wonder to behold for their beautiful variety, as too with the other trees and fruits and plants.  There are marvellous pine groves and broad meadows, and there is honey and there are many different kinds of birds and many varieties of fruit.   In the interior there are many mines of metal and incalculable numbers of people.

Española is a marvel; the sierras and the mountains and the plains and the fields and the land are so beautiful and rich for planting and sowing, for raising all kinds of cattle, for building towns and villages.  The harbours are beyond the belief of anyone who has not seen them, and the many great rivers give good waters of which the majority bear gold.  There are great differences between the trees and fruit and plants and those of Juana.  On this island there are many spices and great mines of gold and other metals.[4]

All the people on this island and all the others I have found or have learned of go naked, men and women alike, just as their mothers bear them, although some women cover themselves in one place with a leaf from a plant or a cotton garment which they make for the purpose.

They have no iron or steel or weapons, nor are they that way inclined, not because they are not well built and of fine bearing, but because they are amazingly timid.  They have no other weapons than those made from canes cut when they are in seed, to the ends of which they fix a sharp stick; and they dare not use them, for many times I have happened to send two or three men ashore to some town to speak to them and a great number of them have come out, and as soon as they see the men coming they run off, parents not even waiting for children, and not because any harm has been done to any of them; on the contrary, everywhere I have been and have been able to speak to them I have given them some of everything I had, cloth and many other things, without receiving anything in exchange; but they are simply incurably timid.

The truth is that, once they gain confidence and lose this fear, they are so lacking in guile and so generous with what they have that no-one would believe it unless they saw it.  They never refuse to give whatever they have, whenever they are asked; rather, they offer it willingly and with such love that they would give their hearts, and whether it is something of value or of little worth, they are happy with whatever they are given in return, however it is given.  I forbade the men to give them such worthless things as pieces of broken crockery and pieces of broken glass and the ends of laces, even though when they could get hold of them they seemed to think they had the most precious jewel in the world.  There was a sailor who had a piece of gold weighing two and a half castellanos in exchange for a lace, and others got things worth much more for much less; for new blancas they would give everything they had, even if it was gold worth two or three castellanos or an arroba or two of spun cotton.  They would even take broken hoops from the wine barrels and give what they had, like animals.  All this seemed wrong to me and I put a stop to it and I gave them thousands of pretty things I carried with me so that they would be well disposed and, moreover, would become Christians, inclined to the love of Their Highnesses and the whole Castilian nation, and help us by giving us the things they have in abundance and of which we have need.

They knew no sect and were not idolaters, except that they all believe that power and good come from heaven, and they believed very firmly that I and these ships and crew came from heaven and in this belief they received me everywhere, once they had overcome their fear.  And this is not because they are ignorant; rather, they are of subtle intelligence and can find their way around those seas, and give a marvellously good account of everything; it is only because they have never seen men clothed or ships of that kind.  When I arrived in the Indies, at the first island I found I took some of them by force so that they could learn and give me information about what there was in those parts, and in that way they soon understood us and we them, whether by word or by sign; and they have been very useful to us.  I still have them with me, and they still insist that I come from heaven, in spite of all the exchanges they have had with me, and they were the first to announce this wherever I went, and the others would run from house to house and to the nearby towns shouting: “Come, come and see the people from heaven.”  In this way they all flocked in, men and women alike, great and small, once they were confident about us; none were left behind, and they all brought something to eat and drink, which they gave with marvellous affection.

On all the islands they have very many canoes like galleys with oars, some large, some small; and some, indeed many, are larger than a galley with eighteen benches.  They are not as broad because they are made from a single tree-trunk, but a galley could not compete with them by rowing, because they travel incredibly fast.   And with these they sail around all those islands, which are countless, and trade in their merchandise.  I have seen some of these canoes with seventy and eighty men in them, each one with an oar.

Throughout the islands I did not find much variety in the appearance of the people, nor in their customs or language; rather, they can all understand each other, which is very unusual and for which reason I hope that Their Highnesses will decide to undertake their conversion to our holy faith, to which they are well disposed.

I have already mentioned that I had sailed one hundred and seven leagues along the sea coast in a straight line from west to east along the island of Juana, from which course I can say that this island is larger than England and Scotland together, because, apart from these hundred and seven leagues, to the west of me were two provinces which I have not visited, one of which they call Avan,[5] where the people are born with tails.  These provinces cannot be less than fifty or sixty leagues in length, as far as I can understand from the Indians I have with me who know all the islands.

This other island of Española is larger in circumference than Spain from Collioure in Catalunya round the coast to Fuenterrabía in Vizcaya, since I sailed along one side of it for a good hundred and eighty-eight leagues in a straight line from west to east.

This island is much to be desired and, once seen, never to be left.  Since I have taken possession of them all in Their Highnesses’ name and since they are better endowed than I can possibly say and I hold them all as Their Highnesses’ possessions for them to dispose of entirely as they would the kingdoms of Castile, on this island of Española, in the most suitable place, most conveniently situated for the gold mines and for all trade from the mainland here as well as from the land of the Great Khan which will bring very great trade and profit, I have taken possession of a large town to which I gave the name the town of Navidad[6] and I have made a fortress, the building of which should by now be finished and I have left there sufficient men for the purpose,[7] together with arms and artillery and supplies for more than a year, and a boat and a shipwright to build  others,  and  with  the  firm friendship of the king of that land, so much so that he took great pride in calling me his brother and treating me as such.  And even if he were to change his attitude to one of hostility towards these men, neither he nor his people know what weapons are and they go naked as I have already said.  They are the most timid people in the world; in fact, the men left there would be enough to destroy the whole of that land, and it is an island which offers no danger to them if they know how to govern it.

On all these islands it seems that all the men are content with one woman and that to their leader or king they give as many as twenty.  The women seem to me to work harder than the men.  I have not been able to determine if they have private property, for it appeared from what I could see that what one person had was shared among everybody, especially in the case of food.

On these islands until now I have not found any monstrous men, as many expected; rather, they are all people of very beautiful appearance and are not black as in Guinea but have long flowing hair, and where they live the sun’s rays are not too intense; it is true that the sun is very fierce there, although it is twenty-six degrees north of the equator.  On these islands where there are large mountains the cold was very harsh there this winter; but they are used to it, and withstand it with the help of their food which they eat heavily seasoned with hot spices.

So I have found no monsters, nor heard of any except on an island here which is the second one as you approach the Indies and which is inhabited by people who are held in all the islands to be very ferocious and who eat human flesh.[8] These people have many canoes in which they sail around all the islands of India robbing and stealing whatever they want; they are no more malformed than the others except that they wear their hair long like women and they carry bows and arrows made from the same cane stems with a small stick at the end for want of iron which they do not have.  They are ferocious with these other people who are excessively cowardly, but I take no more account of them than of the rest.

These are the people who have relations with the women of Matinino, which is the first island on the way from Spain to the Indies, and on which there are no men.  These women do not behave like women but carry bows and cane arrows like those I have already described, and they arm and protect themselves with plates of copper, of which they have a great deal.

There is another island which they assure me is larger than Española whose inhabitants have no hair.  On this island there is gold beyond measure and I have Indians with me as witnesses about this and other islands.

In conclusion, to speak only of what has been achieved on this voyage, which was very rapid, Their Highnesses can see that I will give them as much gold as they require if Their Majesties will give me only a very little help; as much spice and cotton as Their Majesties may order to be shipped, as much mastic as they may order to be shipped, which until now has only been found in Greece, on the island of Chios, and the Genoese government sells it for whatever it likes, and as much aloe as they may order to be shipped and as many slaves[9] as they may order to be shipped, and who will be from among the idolaters.  I believe that I have found rhubarb and cinnamon and that I will find a thousand other things of value which the men I have left there will have discovered; for I have not delayed at any point whenever the wind gave me the opportunity to sail, except at the town of Navidad for as long as I might leave it safe and secure.  And in truth I could have done a great deal more if the ships had served me as reason demanded.

That is enough.  Eternal God, our Lord, gives to all those who follow His path victory over things which appear impossible, and this was a very notable example. For, although these lands may have been spoken or written of, that was all conjecture, without eye-witness, and those who heard the stories listened to them and judged them more as fables than as having the least vestige of truth.  Therefore, since Our Redeemer gave to our most illustrious King and Queen and to their famous kingdoms this victory in such great matters, the whole of Christendom should be joyful and hold great celebrations and give solemn thanks to the Holy Trinity with many solemn prayers for the great exultation they will have when so many people return to our holy faith and for the temporal benefits which will bring solace and profit not only to Spain but to all Christians.  This is a brief account of what has been achieved.

Dated on board the caravel, off the islands of the Canaries, 15 February in the year 1493.

Your obedient servant. The Admiral.

Enclosure with the letter.

After writing this and being at sea off Castile, such a great wind blew up from the south-south-west that I was obliged to lighten ship.  But I ran into this port of Lisbon today, which was the greatest marvel in the world, and I decided to write to Their Majesties.  Throughout the Indies, to which I sailed in thirty-three days and returned in twenty-eight, I have always found the weather to be as in May, except for these storms which have detained me for fourteen days beating about on this sea.  All the seamen here say that there has never been such a bad winter nor so many ships lost. Dated 14 March.

This letter was sent by Columbus to the Controller of the Household[10] about the islands discovered in the Indies, enclosed in another to Their Majesties.


[1] The voyage actually took 33 days, as Columbus himself notes later.

 

[2] Juana is Cuba, sighted by Columbus on October 28th.

[3] Haiti, also known in that era as Hispaniola.

[4] Columbus, in exaggerating what he has found, (which is clearly not the riches of Cathay) is making a bid for honours and further funding.  But his tales of riches and people easily conquered drew many adventurers and seekers of fortune to the New World.

[5] Havanna, the Taino name for a district of Cuba.

[6] Columbus had sunk the Santa Maria and had to leave crew behind when he returned to Spain.  Making the best of the situation, here he claims it as part of a plan.  The Santa Maria was sunk on Christmas day, hence the name of the town (which means Christmas.)

[7] The 39 men whom Columbus had to abandon when he sank the Santa Maria were never heard from again.

[8] Thus the myth of the Caribs is launched.  It is curious that so few historians have ever questioned the myth given its provenance in a letter filled with tales of Amazon women, Cubans with tails, people without hair and other more mundane lies concerning gold and riches.

[9] Columbus here indicates that he has no real cause to enslave the people of the Indies, so he invents one for the purpose.  Some historians have taken his excuses as fact.

[10] Luis de Santángel.

This version of the Santángel Letter by Christopher Columbus can be found at

http://www.ems.kcl.ac.uk/content/etext/e022-copyright.html

Another version can be found here

http://www.gutenberg.org/files/18571/18571-h/18571-h.htm

The notes are my own.

History of Colonization 7: Papal Generosity & the Laws of the Colonizer

•October 31, 2008 • 1 Comment

11.  The Requirement and the Papal Donation of 1493

In 1513, Spain issued the Laws of Burgos which are notable for two things:  they officially incorporated and made part of Spanish law the institution created by Columbus, the incomienda, whereby land grants to settlers included, as an extra added benefit, the right to enslave the people who lived on that land.  Of course, the incomienda system was the status quo in New Spain anyway, but it is always useful to have royal sanction.

The other notable thing about the new laws was the attempt to define the responsibilities of the encomenderos – the holders of incomiendas – towards their new slaves.  In theory, the indigenous people had become de facto Spanish citizens – albeit of low status – and were not supposed to be slaves at all.  But the inconvenient notion that the encomenderos had responsibility towards the people they considered their property, the unnecessary – to them – notion that these people had rights, and that the settler’s powers over them was limited in any way, these ideas were not likely to be taken seriously.  Those aspects of the Laws of Burgos were merely ignored on these islands and territories so distant from royal scrutiny and reach.  And so the incomienda system continued as it had been, simply slavery by another name.

But now with royal stamp and approval.

Also in 1513, a Spanish lawyer by the name of Palacios Rubios crafted a document known as the Requerimiento or the Requirement.  The document declared that the world was 5000 years old, that God had made the Pope the lord of this world, and that the Pope – as universal king – had given the Americas to Spain.  Therefore the lands upon which the indigenous Americans dwelt were Spanish lands, and all the people presently living upon these lands owed their allegiance to the Spanish.

The Requirement asked the indigenous Americans to acknowledge Spanish ownership of their territories and possessions, and to acknowledge the right of the Spanish to rule them.  And it stated that if they did not do so, then the Spanish “shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses; we shall take you and your wives and your children, and shall make slaves of them, and as such shall sell and dispose of them as their Highnesses may command; and we shall take away your goods, and shall do you all the mischief and damage that we can, as to vassals who do not obey, and refuse to receive their lord, and resist and contradict him; and we protest that the deaths and losses which shall accrue from this are your fault…”

Why craft such a document?  Ronald Wright in Stolen Continents explains, “the Spanish king, to save his mortal soul, had accepted the principle that foreign peoples, even pagans, could not be attacked without first being given a chance to submit.”[1] And were they given such a chance, and was the chance legitimately offered?  When Cortés spoke to Moctezuma in 1519 after entering Tenochtitlan – Mexico City – Cortés had the Requirement translated and read, and Moctezuma, the Aztec emperor, believing Cortés to represent the prophesized return of the Mesoamerican culture hero Quetzalcoatl, in fact submitted and surrendered his throne to Cortés.  Yet the Spanish brought war and destruction anyway, indicating that the Requirement had as little functional meaning to those who read it out as to its intended audience.

And the conquistadors were not always, or even particularly, scrupulous in ensuring that the indigenous people had a chance to submit.  The Requirement was read to empty streets, from ships at sea, outside of sleeping villages, and, even when it had an actual audience to hear it, often no attempt at translation was made, even as much – given its particular and uniquely European worldview – as it could be translated and understood outside of a specifically European context.

Ronald Wright remarks:

Reading this document now, one wonders, like the humanitarian Las Casas, “whether to laugh or cry.”  It is at once primitive in conception and maniacal in grasp.  Nothing proclaims more loudly the arrogance of European man and the meanness of the mental prison he inhabited.  One can imagine the smiles of the Maya, who knew the scale of eternity, on being told that the world was made “five thousand and some years ago.”  And one applauds the chiefs of Sinú, among the first to hear the document, when they answered, “The holy father has indeed been generous with others’ property.”[2]

It was the papal donation of the lands in the Americas which formed the legal underpinning of the Requirement.  This donation was made to Spain on May 4, 1493, in the papal bull “Inter Caetera” by Pope Alexander VI, a Spanish member of the Borgia family.  The donation was in part a reward for the successful efforts of Isabella of Castile and Ferdinand of Aragon in finally defeating, in 1492, the Muslim enclave of Granada in southern part of the Iberian Peninsula, an enterprise which had been heavily financed by the church under the rubric of “crusade,” and which had resulted in the flow of a considerable amount of Moslem gold into Christian hands, as well as a satisfactory expansion of Christian territory.

Donations made by prior popes to the kingdom of Portugal were contradicted in some aspects by the Inter Caetera of 1493, and the Portuguese were not pleased about it.  But they resolved the issue in 1494 with the Treaty of Tordesillas, negotiated with Spain.  The treaty redrew the boundary line of the Inter Caetera westward, which had the eventual effect of conceding to Portugal the right to exploit Brazil, and of reserving the rest of the Americas for Spain.  Of course, in 1494 nobody in Europe knew about Brazil, or about the Americas for that matter, but that is how matters turned out, and it explains why most of the Americas south of the Rio Grande today speaks Spanish while Brazil speaks Portuguese.

Credit a pope who was generous in distributing what was not his to give.


[1] Ronald Wright, Stolen Continents: The “New World” Through Indian Eyes, 1993, Penguin, Toronto, p. 29.

[2] Wright, p. 66.

Francisco de Vitoria & the Rights of the Indians, Pt. II – De Indis, cont.

•October 30, 2008 • Leave a Comment

Francisco de Vitoria, having concluded in Part I of De Indis that the indigenous people of the Americas were the true owners of their own land with the right to govern themselves, goes on to discuss some of the justifications the Spanish have used to deprive them of these rights.  De Indis, Part II, represents Vitoria’s original discussion of the matter, which was not favourable to the Spanish crown.  Part III — in my opinion rather less persuasive than part II, relying as it does upon purely speculative circumstances — represents Vitoria’s efforts to backtrack somewhat on his original conclusions in the face of royal displeasure.

As before, this is a heavily edited version, leaving out many repetitive arguments and statements and omitting most of Vitoria’s authorities, but retaining, I hope, most of his basic arguments intact.  The full version may be found at the locations previously cited.


De Indis, Pt. II

It being premised, then, that the Indian aborigines are or were true owners, it remains to inquire by what title the Spaniards could have come into possession of them and their country.

And first, I shall advert to the titles which might be alleged, but which are not adequate or legitimate.  Secondly, I shall set out the legitimate titles under which the aborigines could have come under the sway of the Spaniards.

Now, there are seven titles, which might be alleged, but which are not adequate, and seven or eight others, which are just and legitimate.

The first allegation to consider is that the Emperor is lord of the whole world and therefore of these barbarians also…. Now, this contention is baseless. Let our first conclusion, then, be:  The Emperor is not the lord of the whole earth. … because either this would be by the sole authority of some law, and there is none such; or, if there were, it would be void of effect, inasmuch as law presupposes jurisdiction.  If, then, the Emperor had no jurisdiction over the world before the law, the law could not bind one who was not previously subject to it.  Nor, on the other hand, had the Emperor this position by lawful succession or by gift or by exchange or by purchase or by just war or by election or by any other legal title, as is admitted.  Therefore the Emperor never was the lord of the whole world.

Second conclusion: Granted that the Emperor were the lord of the world, still that would not entitle him to seize the provinces of the Indian aborigines and erect new lords there and put down the former ones or take taxes.  The proof is herein, namely, that even those who attribute lordship over the world to the Emperor do not claim that he is lord in ownership, but only in jurisdiction, and this latter right does not go so far as to warrant him in converting provinces to his own use or in giving towns or even estates away at his pleasure. This, then, shows that the Spaniards can not justify on this ground their seizure of the provinces in question.

A second alleged title to the lawful possession of these lands, …it is claimed that the Pope is temporal monarch, too, over all the world and that he could consequently make the Kings of Spain sovereign over the aborigines in question, and that so it has been done.
…. This, then, being laid as a basis, the authors of this opinion say as follows: In the first place, that the Pope has free power, on the footing of supreme temporal lord, to make the Kings of Spain rulers over the Indian aborigines.  Secondly, they say that, even if it be assumed that he could not do this, at any rate if these aborigines refused to recognize the temporal power of the Pope over them, this would warrant him in making war on them
and in putting rulers over them.  Now, each of these things has been done.  For, first, the Supreme Pontiff granted the provinces in question to the Kings of Spain.  Secondly, the aborigines were notified that the Pope is the vicar of God and His vicegerent on earth and it was claimed that they should, therefore, recognize him as their superior, and their refusal furnishes a good ground for making war on them and seizing their lands, etc….

First: The Pope is not civil or temporal lord of the whole world in the proper sense of the words “lordship” and “civil power.” … And the proof is sufficient, like that given above concerning the Emperor, for no lordship can come to him save either by natural law or by divine law or by human law.  Now, it is certain that none comes to him by natural or by human law, and none is shown to come to him by divine law. Therefore the assertion is ungrounded and arbitrary.

Second proposition: Even assuming that the Supreme Pontiff had this secular power over the whole world, he could not give it to secular princes.  This is obvious, because it would be annexed to the Papacy.  Nor can any Pope sever it from the office of Supreme Pontiff or deprive his successor of that power, for the succeeding Supreme Pontiff can not be less than his predecessor; and, if some one Pontiff had made a gift of this power, either the grant would be null or the succeeding Pontiff could cancel it.

Third proposition: The Pope has temporal power only so far as it is in subservience to matters spiritual, that is, as far as is necessary for the administration of spiritual affairs.

Fourth conclusion: The Pope has no temporal power over the Indian aborigines or over other unbelievers.  This is clear from propositions I and III.  For he has no temporal power save such as subserves spiritual matters.  But he has no spiritual power over them (I Corinth., ch. 5, v. 12).  Therefore he has no temporal power either.

The corollary follows that even if the barbarians refuse to recognize any lordship of the Pope, that furnishes no ground for making war on them and seizing their property. This is clear, because he has no such lordship. . . . Of a truth, Saracens dwelling among Christians have never been deprived of their property on any such pretext or made to suffer any harm.  Why, if this pretext be enough to justify making war on them, it is as much as to say that they can be deprived by reason of their unbelief. …  But there is no doctor even among our opponents who would allow that they can be deprived on the mere ground of unbelief. …

This shows that the title under discussion can not be set up against the barbarians and that Christians have no just cause of war against them either on the ground that the Pope has made a gift of their lands on the footing of absolute lord or that they do not recognize the lordship of the Pope. …. What has been said demonstrates, then that at the time of the Spaniards’ first voyages to America they took with them no right to occupy the lands of the indigenous population.

Accordingly, there is another title which can be set up, namely, by right of discovery; and no other title was originally set up, and it was in virtue of this title alone that Columbus the Genoan first set sail. And this seems to be an adequate title because those regions which are deserted become, by the law of nations and the natural law, the property of the first occupant (Inst., 2, 1, 12).  …

Not much, however, need be said about this third title of ours, because, as proved above, the barbarians were true owners, both from the public and from the private standpoint.  ….  And so, as the object in question was not without an owner, it does not fall under the title which we are discussing.  Although, then, this title, when conjoined with another, can produce some effect here (as will be said below), yet in and by itself it gives no support to a seizure of the aborigines any more than if it had been they who had discovered us.

Accordingly, a fourth title is set up, namely, that they refuse to accept the faith of Christ, although it is set before them and although they have been adjured and advised to accept it. … Therefore… Christian princes can compel them to obedience; for the cause of God ought not to be in worse condition than the cause of men. …

By way of answer let my first proposition be:  Before the barbarians heard anything about Christianity, they did not commit the sin of unbelief by not believing in Christ. … Such as have never heard anything, however much they may be sinners in other respects, are under an invincible ignorance; therefore, their ignorance is not sin.  Therefore, if the faith has not been preached to them, their ignorance is invincible, for it was impossible for them to know. …

Second proposition: The Indians in question are not bound, directly the Christian faith is announced to them, to believe it, in such a way that they commit mortal sin by not believing it … without miracle or any other proof or persuasion. …

For if before hearing anything of the Christian religion they were excused, they are put under no fresh obligation by a simple declaration and announcement of this kind, for such announcement is no proof or incentive to belief…. For a believer would not believe unless he saw that the things were worthy of belief either because of the evidence of signs or for some other reason of this kind.  Therefore, where there are no such signs nor anything else of persuasive force, the aborigines are not bound to believe.  …

From this proposition it follows that, if the faith be presented to the Indians in the way named only and they do not receive it, the Spaniards can not make this a reason for waging war on them or for proceeding against them under the law of war. … Therefore this would not be a legitimate title to seize the lands of the aborigines or to despoil the former owners.

Third proposition: If the Indians, after being asked and admonished to hear the peaceful preachers of religion, refused, they would not be excused of mortal sin. The proof lies in the supposition that they have very grave errors for which they have no probable or demonstrable reasons. Therefore, if any one admonishes them to hear and deliberate upon religious matters, they are bound at least to hear and to enter into consultation. …

Fourth proposition: If the Christian faith be put before the aborigines with demonstration, that is, with demonstrable and reasonable arguments, and this be accompanied by an upright life, well-ordered according to the law of nature (an argument which weighs much in confirmation of the truth), and this be done not once only and perfunctorily, but diligently and zealously, the aborigines are bound to receive the faith of Christ under penalty of mortal sin. …

Fifth proposition: It is not sufficiently clear to me that the Christian faith has yet been so put before the aborigines and announced to them that they are bound to believe it or commit fresh sin. I say this because (as appears from my second proposition) they are not bound to believe unless the faith be put before them with persuasive demonstration.  Now, I hear of no miracles or signs or religious patterns of life; nay, on the other hand, I hear of many scandals and cruel crimes and acts of impiety. Hence it does not appear that the Christian religion has been preached to them with such sufficient propriety and piety that they are bound to acquiesce in it, although many religious and other ecclesiastics seem both by their lives and example and their diligent preaching to have bestowed sufficient pains and industry in this business, had they not been hindered therein by others who had other matters in their charge.

Sixth proposition: Although the Christian faith may have been announced to the Indians with adequate demonstration and they have refused to receive it, yet this is not a reason which justifies making war on them and depriving them of their property. … The proof lies in the fact that belief is an operation of the will. Now, fear detracts greatly from the voluntary (Ethics, bk. 3), and it is a sacrilege to approach under the influence of servile fear as far as the mysteries and sacraments of Christ. …. Further, war is no argument for the truth of the Christian faith. Therefore the Indians can not be induced by war to believe, but rather to feign belief and reception of the Christian faith, which is monstrous and a sacrilege. … It is clear, then, that the title which we are now discussing is not adequate and lawful for the seizure of the lands of the aborigines.

Another, and a fifth, title is seriously put forward, namely, the sins of these Indian aborigines. …  And on the same principle the Indians can be punished by Christian princes under the authority of the Pope.

I, however, assert the following proposition: Christian princes can not, even by the authorization of the Pope, restrain the Indians from sins against the law of nature or punish them because of those sins. My first proof is that the writers in question build on a false hypothesis, namely, that the Pope has Jurisdiction over the Indian aborigines, as said above.  My second proof is as follows:  They mean to Justify such coercion either
universally for sins against the law of nature, such as theft, fornication, and adultery, or particularly for sins against nature…. Now… they are open to the argument that homicide is just as grave a sin, and even a graver sin ….

Further, this is as much as to say that the aborigines may be warred into subjection because of their unbelief, for they are all idolaters.  … it would be a strange thing that the Pope, who can not make laws for unbelievers, can yet sit in judgment and visit punishment upon them….  The aborigines in question are either bound to submit to the punishment awarded to the sins in question or they are not.  … And it would indeed be strange that the barbarians could with impunity deny the authority and jurisdiction of the Pope, and yet that they should be bound to submit to his award.  Further, they who are not Christians can not be subjected to the judgment of the Pope, for the Pope has no other right to condemn or punish them than as vicar of Christ. …

…  There remains another, a sixth title, which is put forward, namely, by voluntary choice.  For on the arrival of the Spaniards we find them declaring to the aborigines how the King of Spain has sent them for their good and admonishing them to receive and accept him as lord and king; and the aborigines replied that they were content to do so. … I, however, assert the proposition that this title, too, is insufficient.  This appears, in the first place, because fear and ignorance, which vitiate every choice, ought to be absent. But they were markedly operative in the cases of choice and acceptance under consideration, for the Indians did not know what they were doing; nay, they may not have understood what the Spaniards were seeking.  Further, we find the Spaniards seeking it in armed array from an unwarlike and timid crowd.  …  Seeing, then, that in such cases of choice and acceptance as these there are not present all the requisite elements of a valid choice, the title under review is utterly inadequate and unlawful for seizing and retaining the provinces in question.

There is a seventh title which can be set up, namely, by special grant from God…. I am loath to dispute hereon at any length, for it would be hazardous to give credence to one who asserts a prophecy against the common law and against the rules of Scripture, unless his doctrine were confirmed by miracles.  …  Accordingly, where faith or authority or providence shows what ought to be done, recourse should not be had to gifts.

Let this suffice about false and inadequate titles to seize the lands of the Indians.  But it is to be noted that I have seen nothing written on this question and have never been present at any discussion or council on this matter.  Hence it may be that others may found a title and base the justice of this business and overlordship on some of the passages cited and not lack reason in so doing.  I, however, have up to now been unable to form any other
opinion than what I have written….

De Indis, Part III

I will now speak of the lawful and adequate titles whereby the Indians might have come under the sway of the Spaniards. (1) The first title to be named is that of natural society and fellowship. And hereon let my first conclusion be: (2) The Spaniards have a right to travel into the lands in question and to sojourn there, provided they do no harm to the natives, and the natives may not prevent them.  …

Second proposition: The Spaniards may lawfully carry on trade among the native Indians, so long as they do no harm to their country… Neither may the native princes hinder their subjects from carrying on trade with the Spanish; nor, on the other hand, may the princes of Spain prevent commerce with the natives. This is proved by means of my first proposition.

Third proposition: If there are among the Indians any things which are treated as common both to citizens and to strangers, the Indians may not prevent the Spaniards from a communication and participation in them. …. For if the Spaniards may travel and trade among them, they may consequently make use of the laws and advantages enjoyed by all foreigners.

Fourth proposition: If children of any Spaniard be born there and they wish to acquire citizenship, it seems they can not be barred either from citizenship or from the advantages enjoyed by other citizens — I refer to the case where the parents had their domicile there. …

Fifth proposition: If the Indian natives wish to prevent the Spaniards from enjoying any of their above-named rights under the law of nations, for instance, trade or other above-named matter, the Spaniards ought in the first place to use reason and persuasion in order to remove scandal and ought to show in all possible methods that they do not come to the hurt of the natives, but wish to sojourn as peaceful guests and to travel without doing the natives any harm; -and they ought to show this not only by word, but also by reason…  But if, after this recourse to reason, the barbarians decline to agree and propose to use force, the Spaniards can defend themselves and do all that consists with their own safety, it being lawful to repel force by force.  And not only so, but, if safety can not otherwise be had, they may build fortresses and defensive works, and, if they have sustained a wrong, they may follow it up with war on the authorization of their sovereign and may avail themselves of the other rights of war. …  Therefore, if it be necessary, in order to preserve their right, that they should go to war, they may lawfully do so.

It is, however, to be noted that the natives being timid by nature and in other respects dull and stupid, however much the Spaniards may desire to remove their fears and reassure them with regard to peaceful dealings with each other, they may very excusably continue afraid at the sight of men strange in garb and armed and much more powerful than themselves.  And therefore, if, under the influence of these fears, they unite their efforts to drive out the Spaniards or even to slay them, the Spaniards might, indeed, defend themselves but within the limits of permissible self-protection, and it would not be right for them to enforce against the natives any of the other rights of war (as, for instance, after winning the victory and obtaining safety, to slay them or despoil them of their goods or seize their cities), because on our hypothesis the natives are innocent and are justified in feeling afraid. Accordingly, the Spaniards ought to defend themselves, but so far as possible with the least damage to the natives, the war being a purely defensive one…. For the rights of war which may be invoked against men who are really guilty and lawless differ from those which may be invoked against the innocent and ignorant….

Sixth proposition: If after recourse to alt other measures, the Spaniards are unable to obtain safety as regards the native Indians, save by seizing their cities and reducing them to subjection, they may lawfully proceed to these extremities. … And since it is now lawful for the Spaniards, as has been said, to wage defensive war or even if necessary offensive war, therefore, everything necessary to secure the end and aim of war, namely, the obtaining of safety and peace, is lawful,

Seventh proposition: If, after the Spaniards have used all diligence, both in deed and in word, to show that nothing will come from them to interfere with the peace and well-being of the aborigines, the latter nevertheless persist in their hostility and do their best to destroy the Spaniards, then they can make war on the Indians, no longer as on innocent
folk, but as against forsworn enemies, and may enforce against them all the rights of war, despoiling them of their goods, reducing them to captivity, deposing their former lords and setting up new ones, yet withal with observance of proportion as regards the nature of the circumstances and of the wrongs done to them.  This conclusion is sufficiently apparent from the fact that, if it be lawful to declare the war, it is consequently lawful to pursue the rights of war. … Everything said above receives confirmation from the fact that ambassadors are by the law of nations inviolable and the Spaniards are the ambassadors of Christian peoples. Therefore, the native Indians are bound to give them, at least, a friendly hearing and not to repel them. This, then, is the first title which the Spaniards might have for seizing the provinces and sovereignty of the natives, provided the seizure be without guile or fraud and they do not look for imaginary causes of war.

Another possible title is by way of propagation of Christianity.  In this connection let my first proposition be: Christians have a right to preach and declare the Gospel in barbarian lands. This proposition … is clear from what has been already said, for if the Spaniards have a right to travel and trade among the Indians, they can teach the truth to those willing to hear them … because the natives would otherwise be outside the pale of salvation, if Christians were not allowed to go to them carrying the Gospel message. … Since, then, the Indians are all not only in sin, but outside the pale of salvation, therefore, it concerns Christians to correct and direct them; nay, it seems that they are bound to do so. …

Second proposition: Although this is a task common and permitted to all, yet the Pope might entrust it to the Spaniards and forbid it to all others.  The proof is in the fact that, although (as said above) the Pope is not temporal lord, yet he has power in matters temporal when this would subserve matters spiritual. Therefore, as it is the Pope’s concern to bestow especial care on the propagation of the Gospel over the whole world, he can entrust it to the Spaniards to the exclusion of all others, if the sovereigns of Spain could render more effective help in the spread of the Gospel in those parts; and not only could the Pope forbid others to preach, but also to trade there, if this would further the propagation of Christianity, for he can order temporal matters in the manner which is most helpful to spiritual matters…. But it seems that in this case this is the course most conducive to spiritual welfare, because, if there was to be an indiscriminate inrush of Christians from other parts to the part in question, they might easily hinder one another and develop quarrels, to the banishment of tranquillity and the disturbance of the concerns of the faith and of the conversion of the natives. Further, inasmuch as it was the sovereigns of Spain who were the first to patronize and pay for the navigation of the intermediate ocean, and as they then had the good fortune to discover the New World, it is just that this travel should be forbidden to others and that the Spaniards should enjoy alone the fruits of their discovery. …

Third proposition: If the Indians allow the Spaniards freely and without hindrance to preach the Gospel, then whether they do or do not receive the faith, this furnishes no lawful ground for making war on them and seizing in any other way their lands. …

Fourth proposition: If the Indians — whether it be their lords or the populace — prevent the Spaniards from freely preaching the Gospel, the Spaniards, after first reasoning with them in order to remove scandal, may preach it despite their unwillingness and devote themselves to the conversion of the people in question, and if need be they may then accept or even make war, until they succeed in obtaining facilities and safety for preaching the Gospel.  And the same pronouncement must be made in the case where they allow preaching, but hinder conversion either by killing or otherwise punishing those who have been converted to Christ or by deterring others by threats and fears.  … This proposition demonstrates that, if there is no other way to carry on the work of religion, this furnishes the Spaniards with another justification for seizing the lands and territory of the natives and for setting up new lords there and putting down the old lords and doing in right of war everything which it is permitted in other just wars, but always with a regard for moderation and proportion, so as to go no further than necessity demands, preferring to abstain from what they lawfully might do rather than transgress due limits, and with an intent directed more to the welfare of the aborigines than to their own gain.

… It may be that these wars and massacres and spoliations will hinder rather than procure and further the conversion of the Indians.  Accordingly, the prime consideration is that no obstacle be placed in the way of the Gospel, and if any such be so placed, this method of evangelization must be abandoned and another one sought for….

Another title there may be, which is derived from the foregoing, namely: If any of the native converts to Christianity be subjected to force or fear by their princes in order to make them return to idolatry, this would justify the Spaniards, should other methods fail, in making war and in compelling the barbarians by force to stop such misconduct, and in employing the rights of war against such as continue obstinate, and consequently at
times in deposing rulers as in other just wars…

Another possible title is the following: Suppose a large part of the Indians were converted to Christianity, and this whether it were done lawfully or unlawfully (as by means of threats or fear or other improper procedure), so long as they really were Christians, the Pope might for a reasonable cause, either with or without a request from them, give them a Christian sovereign and depose their other unbelieving rulers.  The proof hereof is in the fact that, if this were expedient in order to preserve Christianity because of a fear that under unbelieving rulers converts would apostatize, that is, would lapse from the faith, or that their rulers would seize the opportunity to harass them, the Pope can change rulers in the interests of the faith. … Therefore also the Church, in the interests of the faith and to avoid risks, may free an Christians from obedience and subjection to unbelieving lords, provided this be done without scandal. So we justify this fourth legal title.

Another possible title is founded either on the tyranny of those who bear rule among the aborigines of America or on the tyrannical laws which work wrong to innocent folk there, such as that which allows the sacrifice of innocent people or the killing in other ways of uncondemned people for cannibalistic purposes.  I assert also that without the Pope’s authority the Spaniards can stop all such nefarious usage and ritual among the aborigines, being entitled to rescue innocent people from an unjust death. … And it is immaterial that all the Indians assent to rules and sacrifices of this kind and do not wish the Spaniards to champion them, for herein they are not of such legal independence as to be able to consign themselves or their children to death. So we may find a fifth lawful title here.

Another possible title is by true and voluntary choice, as if the Indians, aware alike of the prudent administration and the humanity of the Spaniards, were of their own motion, both rulers and ruled, to accept the King of Spain as their sovereign. This could be done and would be a lawful title, by the law natural too, seeing that a State can appoint any one it will to be its lord, and therefor the consent of all is not necessary, but the consent of the majority suffices….  Accordingly, if the majority of any city or province were Christians and they, in the interests of the faith and for the common weal, would have a prince who was a Christian, I think that they could elect him even against the wishes of the others and even if it meant the repudiation of other unbelieving rulers, and I assert that they could choose a prince not only for themselves, but for the whole State… This, then, can be put forward as a sixth title.

Another title may be found in the cause of allies and friends. For as the Indians themselves sometimes wage lawful wars with one another and the side which has suffered a wrong has the right to make war, they might summon the Spaniards to help and share the rewards of victory with them. This is what the Tlaxcaltecs are said to have done against the Mexicans, the former arranging with the Spaniards to help them to overcome the latter and to receive whatever could fall to them under the law of war. For there is no doubt … that the cause of allies and friends is a just cause of war, a State being quite properly able, as against foreign wrongdoers, to summon foreigners to punish its enemies.  … This is the seventh and the last title whereby the Indians and their lands could have come or might come into the possession and lordship of Spain.

There is another title which can indeed not be asserted, but brought up for discussion, and some think it a lawful one.  I dare not affirm it at all, nor do I entirely condemn it.  It is this:  Although the aborigines in question are (as has been said above) not wholly unintelligent, yet they are little short of that condition, and so are unfit to found or administer a lawful State up to the standard required by human and civil claims.  Accordingly they have no proper laws nor magistrates, and are not even capable of controlling their family affairs; they are without any literature or arts, not only the liberal arts, but the mechanical arts also; they have no careful agriculture and no artisans; and they lack many other conveniences, yea necessaries, of human life.  It might, therefore, be maintained that in their own interests the sovereigns of Spain might undertake the administration of their country, providing them with prefects and governors for their towns, and might even give them new lords, so long as this was clearly for their benefit.  ..  Let this, however, as I have already said, be put forward without dogmatism and subject also to the limitation that any such interposition be for the welfare and in the interests of the Indians and not merely for the profit of the Spaniards…. And herein some help might be gotten from the consideration, referred to above, that some are by nature slaves, for all the barbarians in question are of that type and so they may in part be governed as slaves are.

Now, it seems to follow from all this discussion that, if there be no force in any of the titles which have been put forward, so that the native Indians neither gave cause for just war nor wished for Spanish rulers, etc., all the travel to, and trade with, those parts should be stopped, to the great loss of the Spaniards and also to the grave hurt of the royal treasury (a thing intolerable). My first answer to this is: There would be no obligation to stop trade, for, as already said, there are many commodities of which the natives have a superfluity and which the Spaniards could acquire by barter.  Also there are many commodities which the natives treat as ownerless or as common to all who like to take them, and the Portuguese, to their own great profit, have a big trade with similar people without reducing them to subjection. Secondly, there would probably be no diminution in the amount of the royalties, for a tax might quite fairly be placed on the gold and silver which would be brought away from the Indians, as much as a fifth or even more, according to quality, and it would be well-earned, inasmuch as the maritime discovery was made by our sovereign and it is under his authority that trade is carried on in safety. Thirdly, it is evident, now that there are already so many native converts, that it would be neither expedient nor lawful for our sovereign to wash his hands entirely of the administration of the lands in question.

Francisco de Vitoria & the Rights of the Indians, Pt. I: De Indis, 1532

•October 28, 2008 • Leave a Comment

The following is an edited and abridged form of the work De Indis attributed to Francisco de Vitoria, but in fact compiled from his lecture notes by students and subsequently published.  Francisco de Vitoria was a professor of sacred theology at the University of Salamanca and presented the following arguments in 1532.  The highlights and section headings (except the first) have been supplied by me, the editor, in the interests of clarification and readability.

Of the Indians Lately Discovered

The premises, then, establish the following propositions:

FIRST. In doubtful matters a man is bound to seek the advice of those whose business it is to give it, otherwise he is not safe in conscience, whether the doubt be about a thing in itself lawful or unlawful.

SECOND. If after a consultation in a doubtful matter it be settled by the wise that the thing is unlawful, a man is bound to follow their opinion, and if he act contrary thereto he is without excuse, even if the thing be otherwise lawful.

THIRD. On the other hand, if after such consultation it be settled by the wise that the thing is lawful, he who follows their opinion is safe, even if it be otherwise unlawful.

When, then, we return to the question before us, namely, the matter of the barbarians, we see that it is not in itself so evidently unjust that no question about its justice can arise, nor again so evidently just that no doubt is possible about its injustice, but that it has a look of both according to the standpoint. For, at first sight, when we see that the whole
of the business has been carried on by men who are alike well-informed and upright, we may believe that everything has been done properly and justly.  But then, when we hear of so many massacres, so many plunderings of otherwise innocent men, so many princes evicted from their possessions and stripped of their rule, there is certainly ground for doubting whether this is rightly or wrongly done.

*                      *                      *

Returning now to our main topic, in order that we may proceed in order, 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 answer might seem to be No, the reason being that slaves own no property, “for a slave can have nothing of his own” (Inst., 2, 9, 3, and Dig., 29, 2, 79), and so all his acquisitions belong to his master (Inst., 1, 8, 1).  But the aborigines in question are slaves.  Therefore the matter is proved; for as Aristotle (Politics, bk. l) neatly and correctly says, “Some are by nature slaves, those, to wit, who are better fitted to serve than to rule.”  Now these are they who have not sufficient reason to govern even themselves, but only to do what they are bidden, and whose strength lies in their body rather than in their mind.  But, of a surety, if there be any such, the aborigines in question are preeminently such, for they really seem little different from brute animals and are utterly incapable of governing, and it is unquestionably better for them to be ruled by others than to rule themselves.  Aristotle says it is just and natural for such to be slaves.
Therefore they and their like can not be owners.  And it is immaterial that before the arrival of the Spaniards they had no other masters, for there is no inconsistency in a slave having no master… Nay, the statement is expressly made … that a slave who has been abandoned by his master and not taken into possession by any one else can be taken into possession by any one.  If, then, these were slaves, they could be taken into possession by the Spaniards.

On the opposite side we have the fact that 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.

*                      *                      *

If the aborigines had not dominion, it would seem that no other cause is assignable therefor except that they were sinners or were unbelievers or were witless or irrational.

Now, some have maintained that grace is the title to dominion and consequently that sinners, at any rate those in mortal sin, have no dominion over anything. … [So the argument goes] all dominion is by divine authority, for God himself is the creator of everything, and none but they to whom He has given dominion can have it.  Now it is not agreeable to reason that He should give it to the disobedient and transgressors of his commandments, just as human princes do not give their property, such as towns and strongholds, to rebels, and if they have given it to them, they confiscate it.  But we ought to judge about divine things through the medium of human things (Romans, ch. l).  Therefore God does not give dominion to the disobedient. …Therefore … the barbarians had no dominion, because they were always in mortal sin.

But against this doctrine I advance the proposition that mortal sin does not hinder civil dominion and true dominion.

Query: What Are the Rights of  Pagans?

Although the offense be manifest, the fisc can not seize the property of a heretic before
condemnation. … Nay, it would be contrary to the divine law and to natural law for a penalty to be enforced before condemnation has issued.

Nevertheless a heretic continues to be owner in the forum of conscience until he is condemned. … The proposition is proved, first, by the fact that this deprivation in the forum of conscience is a penalty; therefore, it ought in no wise to be inflicted before condemnation.  Nor am I sure whether human law could effect this at all. It is also proved … that property is confiscated in the same way by the very fact of an incestuous marriage; as also when a free woman who has been ravished marries her ravisher.  Nay, if any one fails to pay the accustomed dues on imported merchandise, the goods are forfeit by the very fact; as also in the case of an exporter of contraband merchandise, such as arms and iron, to the Saracens. … The Pope expressly says … that, just as confiscation takes place in the cases named, so he intends it to take place in a case of heresy.  But no one denies that an incestuous person and a ravisher and one who supplies the Saracens with arms and one who does not pay customs remain true owners of their property in the forum of conscience.   Why, then, does not a heretic also?   Conrad himself treats as identical the cases named and the case of a heretic.

It follows as a corollary that a heretic may lawfully live of his own property.

Thus, if some heretic were in Germany, a Catholic could lawfully buy from him.  For it
would be oppressive if a Catholic could not buy land from a heretic or sell land to him in a Lutheran state; yet it would be necessary to say this, if a heretic were utterly disabled from ownership in the forum of conscience.

From all this the conclusion follows that the barbarians in question can not be barred from being true owners, alike in public and in private law, by reason of the sin of unbelief or any other mortal sin, nor does such sin entitle Christians to seize their goods and lands ….

Query:  Are the People of the Indies Rational Enough to Possess Rights?

It remains to ask whether the Indians lacked ownership because of want of reason or unsoundness of mind.  This raises the question whether the use of reason is a precondition of capacity for ownership in general. …

I answer by the following propositions:

First: Irrational creatures can not have dominion.  This is clear, because dominion is a right…. But irrational creatures can not have a right.  Therefore they can not have dominion. …
Also, wild beasts themselves and all irrational animals are more fully within the ownership of man than slaves are.  Therefore, if slaves can not have anything of their own, much less can irrational animals.

*                      *                      *

If, then, the brutes have not dominion over their acts, they have it not over other things.  And although this seems to be a dispute about a name, it is assuredly a highly improper and unusual mode of speech to attribute dominion to things irrational.   For we do not ordinarily say that a man has dominion save over that which is placed within his control. … Now, as the brutes are rather moved than move themselves, … they for that reason have no dominion.
Nor is there any force in Sylvester’s remark that dominion sometimes does not signify right, but only power …. For, if this is enough to confer dominion, a robber has dominion over his victim even up to death, because he has power to kill him, and a thief has power to seize his victim’s money.

*                      *                      *

There might seem some doubt whether a boy, who has not yet the use of reason, can have dominion, inasmuch as he seems to differ little from irrational animals. And the Apostle says (Galatians, ch. 4): “The heir, as long as he is a child, differeth nothing from a slave”; but a slave has not dominion; therefore, etc.  But let our second proposition be: Boys, even before they have the use of reason, can have dominion.  This is manifest, because they can suffer wrong; therefore they have rights over things; therefore also they have dominion, which is naught else than a right.  Also, the property of wards is not part of the guardian’s property; but it has owners and no others are its owners; therefore the wards are the owners.  Also, boys can be heirs; but an heir is one who succeeds to the rights of
the deceased and who has dominion over the inheritance (Dig., 44, 3, 11, and Inst., 2, 19, 7). Also, as already said, the basis of dominion is in the possession of the image of God, and children already possess that image. The Apostle, moreover, says in the passage of Galatians just cited, “The heir, as long as he is a child, differeth nothing from a slave, though he be lord of all.”  The same does not hold good of an irrational creature, for a boy does not exist for the sake of another, as does a brute, but for his own sake.

But what about those suffering from unsoundness of mind? I mean a perpetual unsoundness whereby they neither have nor is there any hope that they will have the use of reason. Let our third proposition be: It seems that they can still have dominion, because they can suffer wrong; therefore they have a right, but whether they can have civil dominion is a question which I leave to the jurists.

*                      *                      *

However this may be, let our fourth proposition be:

The Indian aborigines are not barred on this ground from the exercise of true dominion. This is proved from the fact that the true state of the case is that 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.  Also, God and nature are not wanting in the supply of what is necessary in great measure for the race.  Now, the most conspicuous feature of man is reason, and power is useless which is not reducible to action.  Also, it is through no fault of theirs that these aborigines have for many centuries been outside the pale of salvation, in that they have been born in sin and void of baptism and the use of reason whereby to seek out the things needful for salvation. Accordingly I for the most part attribute their seeming so unintelligent and stupid to a bad and barbarous upbringing, for even among ourselves we find many peasants who differ little from brutes.

…. The upshot of all the preceding is, then, that the aborigines undoubtedly had true dominion in both public and private matters, just like Christians, and that neither their princes nor private persons could be despoiled of their property on the ground of their not being true owners.  It would be harsh to deny to those, who have never done any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity.   We do not deny that these latter peoples are true owners of their property, if they have not seized lands elsewhere belonging to Christians.

It remains to reply to the argument of the opposite side to the effect that the aborigines in question seem to be slaves by nature because of their incapability of self-government.  My answer to this is that Aristotle certainly did not mean to say that such as are not over-strong mentally are by nature subject to another’s power and incapable of dominion alike over themselves and other things; for this is civil and legal slavery, wherein none are slaves by nature.  Nor does the Philosopher mean that, if any by nature are of weak mind, it is permissible to seize their patrimony and enslave them and put them up for sale; but what he means is that by defect of their nature they need to be ruled and governed by others and that it is good for them to be subject to others, just as sons need to be subject to their parents until of full age, and a wife to her husband.  And that this is the Philosopher’s intent is clear from his corresponding remark that some are by nature masters, those, namely, who are of strong intelligence.  Now, it is clear that he does not mean hereby that such persons can arrogate to themselves a sway over others in virtue of their superior wisdom, but that nature has given them capacity for rule and government.  Accordingly, even if we admit that the aborigines in question are as inept and stupid as is
alleged, still dominion can not be denied to them, nor are they to be classed with the slaves of civil law.  True, some right to reduce them to subjection can be based on this reason and title, as we shall show below.  Meanwhile the conclusion stands sure, that the aborigines in question were true owners, before the Spaniards came among them, both from the public and the private point of view.

———————–

The full text of De Indis may be found here:

http://en.wikisource.org/wiki/De_Indis_De_Jure_Belli

The version found at the above site is taken from CLASSICS OF INTERNATIONAL LAW, James Brown Scott, ed., reprinted 1964, OCEANA PUBLICATIONS INC. WILDY & SONS LTD., NEW YORK, LONDON.