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

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.

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~ by fathertheo on October 30, 2008.

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