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

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.

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~ by fathertheo on October 28, 2008.

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