THE FIRST RELECTIO Of the Reverend Father, Brother Franciscus de Victoria, ON THE INDIANS LATELY DISCOVERED.
The passage to he discussed is from St. Matthew s Gospel: “ Teach ali nations, baptizing them in the name of the F ather and Son and Holy Spirit,” last chapter.
1.
2. 3- 8.
9- SUMMARY OF THE FIRST SECTION.
How a person in doubt on any matter, to obtain safety of conscience, should consuit those whose business it is to give instruction in such matters.
After one in doubt has taken such ad vice he ought to follow what the wise have laid down, else he will not be safe.., Whether one in doubt ought, consistently with safety of conscience, to tollow the advice given by the wise in a doubtful matter when they lay down that to be now lawful which in other circumstances is unlawful.
Whether the Indian aborigines before the arrival of the Spamards were true owners in public and in private law; and whether there were among them any true princes and overlords..
Examination of the error of those who assert that persons living in mortal sin can not have ownership of anything at ali.
Mortal sin does not preclude civil ownership of the true kind.
Whether ownership is lost by reason of unbelief.,,., The divine law does not make heresy a cause of forfeiture 01 the heretic s property.
Whether heresy causes loss of ownership by human law.
A heretic incurs the penalty of confiscation of his property as from the date of the commission of his offense..
But although the heretic’ s offense is patent, the nsc may not seize his property before condemnation..,,, r c Even though condemnation issues after the heretic s death, conhscation of property dates back to the time of the commission of the offense, no matter who is vested with the property..., Sales, gifts, and ali other modes of alienation by a heretic are void as from the date of the commission of the offense, etc..
Whether a heretic before condemnation is the owner of his property in the torum of conscience.
A heretic may lawfully live of his own property.
A heretic may make a gratuitous conveyance of his property, as by way of gitt.
A heretic whose offense has rendered him liable to process may not convey his property for value, as by way of sale or dowry.
In what case a heretic may lawfully alienate his property for value.
Barbarians are note preluded by the sin of unbelief orby any other mortal sins from being true owners alike in public and in private law.
Whether the use of reason is a pre-requisite of capacity for ownership.
Whether a boy can be an owner before he has the use of reason.
Whether a person of unsound mind can be an owner.
Inasmuch as the Indian aborigines were not of unsound mind, they are not precluded from being true owners on the pretext of unsoundness ot mind.
These aborigines were true owners alike in public and in private law before the advent of the Spaniards among them.
iiS Franciscus de Victoria Threefold nature of this discussion.
Whether this inquiry is en- tirely useless.
Lengthy reply of the author.
“Teach ali nations, baptizing them in the name of the Father and Son and Holy Spirit” (St. Matthew, last chap.). This passage raises the question whether the children of unbelievers may be baptized against the wishes of their parents. This question is discussed by the doctors on the fourth book of the Sententiae, dist. 4, and by St. Thomas, Secunda Secundae, qu. 10, art.
12, and Tertia Pars, qu. 68, art. 10. The whole of this controversy and dis¬ cussion was started on account of the aborigines of the New World, commonly called Indians, who came forty years ago into the power of the Spaniards, not having been previously known to our world. This present disputation about them will fall into three parts. In the first part we shall inquire by what right these Indian natives came under Spanish sway. In the second part, what rights the Spanish sovereigns obtained over them in temporal and civil matters. In the third part, what rights 306 these sovereigns or the Church obtained over them in matters spiritual and touching religion, in the course of which an answer will be given to the question before us.
As regards the first part, it might seem at the very outset that the whole of this discussion is useless and futile, not only for us who have no concern either to inquire whether the men in question have conducted their adminis- tration with propriety in every detail or to raise any doubts about that business or to correct any fault that may have been committed, but also for those whose concern it is to attend to and administer these matters. Firstly, this may so seem because neither the sovereigns of Spain nor those at the head of their councils are bound to make completely fresh and exhaustive examination of rights and tities which have already been else- where discussed and settled, especially as regards things of which the sov¬ ereigns are in bona fide occupation and peaceful possession; this is so because, as Aristotle says (Ethics, bk. 3), “if any one were to be continually inquir- ing, settlement would be indefinitely postponed”; and sovereigns and their advisers could not attain security and certitude of conscience, and, if they had to trace the title of their rule back to its origin, they could not keep anything they had discovered. Moreover, inasmuch as our sovereigns, namely Ferdinand and Isabella, who were the first to occupy those regions, 307 were most Christian, and the Emperor Charles V was a most just and scrupulous sovereign, it is not to be believed that they did not make a thoroughly complete and exact investigation into everything that could affect the security of their estate and conscience, especially in such a great matter. On these accounts, then, it may seem not only useless but also presumptuous to raise any question about the matter; it is like iooking for a knot in a bulrush and for wickedness in the abode of the righteous.
In meeting this objection we must bear in mind what Aristotle says (Ethics, bk. 3), namely, that just as there can be no questioning or deliberation about matters either impossible or necessary, so also there can be no moral investigation about those which are certainly and notori- ously lawful and seemly, or, on the other hand, about those which are certainly and notoriously unlawful and unseemly. For no one can prop- On the Indians, Sect. I.
erly raise a question whether we ought to live a temperate and brave and upright life or a wicked and base life, nor whether we ought to commit adultery or perjury, or cherish our parents, and other matters of this kind.
Certainly such discussion would not be Christian. When, however, some wha^matters project is on foot concerning which there is a genuine doubt whether it be suitation.
308 good or bad, just or unjust, it is then advantageous to take advice and to deliberate and to abstain from premature action before finding out and determining how far it is or is not lawful. Such is the case with matters which, when viewed from different sides, look good or bad, as happens in manv kinds of barter and contract and other businesses. And in ali these in doubtfui cases the circumstances are such that, even it the thing in question were stainfromac- in itself lawful, it would be sinful for any one to do it before deliberating and «onuruuu^ assuring himself of lts lawfulness; and he would not be excused on the ascertained: eround of ignorance, for the ignorance would mamfestly not be mvincible, to act other- since he does not do what in him lies to inquire into the lawfulness or unlawfulness of the matter. For in order that an act, the goodness of which is otherwise uncertain, be good, it must be done in accordance with the investigation and determination of the wise, it being ( Ethics, bk. 2) one of the conditions of a good act that it be done in accordance therewith. Accordingly, when, in a doubtfui case, the doer omits to take the advice of the wise, he is without excuse. Nay, even if we grant that the act in question is lawful in itself, yet, if there be any doubt thereon, the doer is bound to take the advice, and to act in accordance with the award, of the wise, even though they be themselves in error.
309 Accordingly, if anyone, without Consulting the doctors, were to make Con^the^ a contract, concerning the lawfulness or unlawfulness of which men were may know doubtfui, he would undoubtedly sin, even though the contract were other- whaUs lawful wise lawful and even if the doer thought so, not, however, on the authonty ters; act in of the wise, but of his own inclination and judgment. And on the same accord with principle, were one in a doubtfui matter to consuit the wise and they ment> were to rule against its lawfulness and yet he were to follow his own judgment and do the thing, he would sin even though the thing were other- Smfui to do wise lawful in itself. For example, suppose a man is in doubt whether doubtfui so-and-so is his wife and he seeks advice whether he is bound to render the «attera with- marital debt or whether it is right for him to do so, or whether he may the wise, even exact it from her, and the doctors reply that it is not at ali right, and yet though the act he be led by his wife’s affection and his own desire to refuse to accept that iawfuj. reply and thinks that his act is lawful, it is certainly sinful for him to approach his wife, although such approach be lawful in itself (as it really is), because he is acting contrary to the conscience which he ought to have. For in those matters which belong to his salvation a man is bound to yield credence to the teachers appointed by the Church, and in a doubtfui matter their ruling is law. For just as in the contentious forum the judge is bound to judge in accordance with what is alleged and proved, so in the forum of conscience a man is bound to base his judgment, not on his own sentiments, but on demonstrable reason or on the authonty of the wise, Let mer- chants take heed hereto.
Cajetan criti- cized.
Let women heed this.
He who fol- lows the ad- vice of the wise is safe in conscience so long as he has no reason for doubting or believing the contrary.
else his judgment is presumptuous and exposes him to the risk of going 310 wrong, and indeed he does err in the very fact. This accords with what was laid down in the Old Testament ( Deuteronomy, ch. 17): “If there arise a matter too hard for thee in judgment, between blood and blood, between plea and plea, between leprosy and not leprosy, being matters of controversy within thy gates (saith the Lord), thou shalt arise and get thee up to the place which the Lord thy God shall choose, and thou shalt come unto the priests the Levites and unto the judges that shall be in those days and enquire, and they shall show thee the sentence of judg¬ ment, and thou shalt do according to the sentence which they of authority in that place shall show thee, and according to the judgment which they shall teli thee thou shalt do, not declining to the right hand or to the left.”
I accordingly assert that in doubtful matters a man is bound to seek the advice of those whom the Church has appointed for that purpose, such as prelates, preachers, and confessors, who are people skilled in divine and human law. For in the Church some are eyes, some feet, and so on (I Corin- thians, ch. 12); and in Ephesians, ch. 4, “And he gave some, apostles; ...some, evangelists; and some, pastors and teachers,” and in St.
Matthezv, ch. 23, “The Scribes and the Pharisees sit in Moses’ seat; all therefore whatsoever they bid you observe, that observe and do.” And Aristotle ( Ethics, bk. 1) lays this down as a precept, following Hesiod, “The man who is ignorant in himself, yet does not listen to another in order 311 to know what is good, is a foolish and empty person.”
It is, therefore, not enough for security of life and conscience that a man should deem himself to be doing right, but in doubtful matters he must needs rely on the authority of others whose business is therewith. For it is not enough that merchants should abstain from doing what they them- selves deem wrong, if they nevertheless enter into illegal contracts without the advice of the wise. And so I do not agree with Cardinal Cajetan when he says that if a doubt arises about something which really is lawful in itself and some preachers or confessors who otherwise have authority to pronounce thereon declare it unlawful or declare it mortal sin when it is venial, yet the man who, following his own inclination in the matter, disbelieves them and determines in his own conscience that it is not a mortal sin, does not sin.
As an example, Cajetan takes the use by women of paint and other super- fluous adornments, a thing really not a mortal sin, butwhich he assumes might be pronounced a mortal sin by preachers and confessors. If, says he, a woman is so given to such adomment that she does not yield assent to them, but thinks it lawful or not a mortal sin, she does not commit a mortal sin when she 312 resorts to such adornment. Now this I declare dangerous. For in those matters which are necessary to salvation a woman is bound to yield assent to the wise and she exposes herself to danger if contrariwise she does what the wise pronounce to be a mortal sin. And, on the other hand, if in a doubtful matter a man has taken counsel with the wise and has accepted their ruling that the thing is lawful, he is safe in conscience — at any rate until he receives a second opinion and is driven to doubt or to believe the contrary by a On the Indians, Sect. 1.
person of such authority, or by reasons of such cogency, as ought to aftect his judgment. This is notorious, for he does ali that in him lies and so his ignorance is invincible.
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 313 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 agam 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. And in this way the discussion in question does not seem at all superfluous and so we get a ciear answer to the objection. Moreover, even if it be granted that there is no doubt about the whole question, it is no novelty for theological discussions to be instituted on points of certainty. For we discuss about the Incarnation of our Lord and other articles of faith. For not always are theological discussions of the deliberative sort, but frequently they are of the demonstrative sort, that is, entered upon, not for purposes of deliberation, but of instruction.
314 But some one may come forward and say: Although there were at one time some elements of doubt in this business, yet they have now been discussed and settled by the wise and so everything is now being admin- istered in accordance with their advice and we have no need of a fresh enquiry. To such a person I answer first, God be blessed if it is so; our discussion raises no obstacle thereto; nor would I raise any new com- plaints. Secondly, I assert that it is not for jurists to settle this question or at any rate not for jurists only, for since the barbarians in question, as I shall forthwith show, were not in subjection by human law, it is not by human, but by divine law that questions concerning them are to be deter- mined. Now, jurists are not skilled enough in the divine lawto be able by themselves to settle questions of this sort. Nor am I sure that in the dis¬ cussion and determination of this question theologians have ever been called competent to pronounce on so grave a matter. And as the issue concerns Three propo- sitions de- duced from the premises. Proposition I.
Proposition II.
Proposi¬ tion III.
The author adapts the foregoing to the doubt raised about the Indians, and answers it.
He meets an objection.
Firstly.
Secondly.
The decision of this case is not for jurists, but for theologians.
Franciscus de Victoria The first question about the Indians.
Case for a negative an- swer.
And therefore the forum of conscience, its settlement belongs to the priests, that is, to the thauTforW Church. Accordingly in Deuteronomy, ch. 17, it is enjoined on the king Church. that he take a copy of the law from the hand of the priest. Thirdly, in order that the whole of the matter be adequately examined and assured, is it not possible that so weighty a business may produce other special doubts deserving of discussion? Accordingly I think I shall be doing some- 315 thing which is not only not futile and useless, but well worth the trouble, if I am enabled to discuss this question in a manner befitting its importance.
Fourth. 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 ^glaves 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 aborgines in question are slaves. Therefore the matter is proved; for as Aristotle ( Politics, bk. 1) 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 gov- ern 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 316 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, as the glossator on Dig., 40, 12, 23, notes. Nay, the statement is expressly made in that passage of the Digest and it is the expressed case set out in Dig., 45, 3, 36, pr., where it is said 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.
affirmative11 On t^e °PPos^te s*^e we have the fact that the people in question were answer. in peaceable possession of their goods, both publicly and privately. There¬ fore, unless the contrary is shown, they must be treated as owners and not be disturbed in their possession unless cause be shown. a distinction. In aid of asolution I amloath to recall to notice the numerous utterances if the barba- of the doctors on the nature of dominion. I have set them out at length when dominion! n<>t commenting on Restitution, 4, dist. 15, and on Prima Secundae, qu. 62, and I different pass them by here for fear they should lead me to omit things of greater moment. 317 canUbeas-at And so let me Pass them over in order to observe that, if the aborigines had signed there- 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.
for.
On the Indians, Sect. I.
Fifth. Now, some have maintained that grace is the title to dominion Error of the and consequently that sinners, at any rate those in mortal sin, have no Wycliffe> and dominion over anything. That was the error of the poor folk of Lyons, or Armachanus Waldenses, and afterwards of John Wycliflfe. One error of his, namely, that g^und!16;0^, “no one is a civil owner, while he is in mortal sin,” was condemned by the sin.
Council of Constance. This opinion was also held by Armachanus (bk. io, Adversus errores Armenorum, c. 4) and in the Dialogue, Defensorium pacis; and Waldensis wrote to controvert him in his Doctrinale antiquitatum fidei, vol. 1, bk. 2, ch. 81 and 82, and vol. 11, ch. 3. Armachanus relies on the in favor of the fact that such dominion is reprobated by God: “They have set up Kings Armachanus but not by me; they have made princes and I knew it not” {Rosea, ch. 8); andtheothers and then is added the indictment, “Of their silver and their gold have they made them idols that they may be cut off.” And so, says he, such persons have no lawful dominion in the eyes of God. It is certain, however, that ali Argument 1.
dominion is by divine authority, for God himself is the creator of every- 318 thing, 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 tnings through the medium of human things ( Romans, ch. 1). Therefore God does not give dominion to the disobedient. And in token hereof God at times removes such from their exalted position, as in the cases of Saul (I Sam., ch. 15 and 16), and of Nebuchadnezzar and Balthazar ( Daniel, ch. 4 and 5). Again ( Genesis, ch. 1), “Let us make man in our own image Argumenta, and likeness that he may have dominion over the fish of the sea,” etc. It appears therefore that dominion is founded on the image of God. But the sinner displays no such image. Therefore he has no dominion. Further, Argument 3 such a one commits the crime of treason. Therefore he deserves to lose his dominion. Likewise, St. Augustine says that the sinner is not worthy of the bread he eats. Also, the Lord had given our first parents dominion over Argument 4. paradise and then deprived them of it because of their sin ( Genesis, ch. 1).
Therefore, etc.
It is true that both Wycliffe and Armachanus speak without distin- guishing and seem to be speaking rather of the dominion of sovereignty 319 which belongs to princes. But because their reasoning applies equally to all dominion, they seem to have in view ali kinds of dominion generally.
And that is how Conrad (bk. 1, qu. 7) understands their teaching, and Armachanus is sufficiently ciear in that sense. Those who would follow their teaching may, therefore, say that the barbarians had no dominion, because they were always in mortal sin.
Sixth. But against this doctrine I advance the proposition that mortal Jep®ieasu^y0trhis sin does not hinder civil dominion and true dominion. Although this proposition. proposition was established in the Council of Constance, yet Almain (4, Aimain’s rea- Dist. 15, qu. 2), following Ailly, bases an argument in favor of it, on the a^Trejected! fact that a person already in mortal sin who finds himself in extreme need Franciscus de Victoria The author’s reasoning or proof i.
Proof 2.
Proof 3.
Proof 4.
Proof 5.
Proof 6.
Proof 7.
Proof 8.
would be in a dilemma, inasmuch as he must eat bread, and if he can not own any himself he takes another’s. Therefore he can not escape mortal sin. This reasoning is, however, unsatfactory, in the first place, because neither Armachanus nor Wycliffe seems to be speaking of natural domin- ion, but of civil; and, secondly, the consequence is denied, it being retorted that in case of necessity a man could take what is another’s; and, thirdly, he is in no dilemma, because he can repent. The argument, therefore, must be differently framed.
First, if a sinner has not civil dominion (which is what they seem to 320 be speaking of), he, therefore, has not natural dominion; but the conse- quent is untrue; therefore, etc. I prove the consequence; for natural dominion is a gift of God, just as civil dominion is, nay, more so, for civil dominion seems an institute of human law. Therefore, if for an offense against God a man loses civil dominion, he would for the same reason lose his natural dominion also. But the falsity of the consequent is demon- strated by the fact that the man in question does not lose dominion over his own acts and over his own limbs, for a sinner has a right to defend his own life.
Secondly, Holy Scripture often names as kings those who were wicked and sinners, as appears in the case of Solomon and Ahab and many others; but one can not be a king without having dominion; therefore, etc.
Thirdly, I employ against the opposing party their own argument: Dominion is founded on the image of God; but man is God’s image by nature, that is, by his reasoning powers; therefore, dominion is not lost by mortal sin. The minor is proved from St. Augustine {De Trinitate, bk. 9), and from the doctors.
Fourthly, David called Saul his lord and king even when he was persecuting him (I Sam., ch. 16, and elsewhere). Nay, David himself sinned at times, yet did not lose his kingdom on that account.
Fifthly {Genesis, ch. 49), “The sceptre shall not depart from Judah, 321 nor a leader from between his feet, until he that is to be sent shall come,” etc.; yet there were many bad kings; therefore, etc.
Sixthly, spiritual power is not lost by mortal sin; therefore not civil, for it seems much less assuredly to be founded in grace than spiritual power is. Now, the antecedent is obvious, because a bad priest consecrates the Eucharist and a bad bishop consecrates a priest, beyond all doubt. Although Wycliffe denies this, Armachanus admits it.
Seventhly, it is not at all likely, seeing that we are bidden to obey princes {Romans, ch. 13; and I Peter, ch. 2: “Be subject to your masters, not only to the good but also to the forward”), and not to take what belongs to another, that God meant that there should be any uncertainty as to who were true princes and owners.
And, in sum, this is a manifest heresy. And in the same way that God makes His sun to rise on the good and on the bad and sends His rain on the just and on the unjust, so also He has given temporal goods alike to good and to bad. Nor is this subject discussed, because it is in doubt, but in order On the Indians, Sect. I.
that from one crime, to wit, from this insensate heresy, we may learn the character of ali heretics.
Seventh. Now it remains to consider whether at any rate dominion The second 322 may be lost by reason of unbelief. It might seem to be so, on the ground fo^ofdomin- that heretics have no dominion, and therefore other unbelievers have not, ion is now inasmuch as their condition is not better than that of heretics. The antece- the question dent is evident from the chapter cum secundum leges (5, 2, 19, in vi), where is whether it it is ruled that the goods of heretics are confiscated by the very fact. My