16. 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 376 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, such as those which St. Thomas deals with ( Secunda Secundae, qu. 154, arts. 11, 12), the phrase “sin against nature” being employed not only of what is contrary to the law of nature, but also of what is against the natural order and is called uncleanness in II Corinthians, ch. 12, according to the commentators, such as intercourse with boys and with animals or intercourse of woman with woman, whereon see Romans, ch. 1. Now, if they limit themselves to the second meaning, they are open to the argument that homicide is just as grave a sin, and even a graver sin, and, therefore, it is ciear that, if it is lawful in the case of the sins of the kind named, therefore it is lawful also in the case of homicide. Similarly, blasphemy is a sin as grave and so the same is ciear; therefore. If, however, they are to be understood in the first sense, that is, as speaking of all sin against the law of nature, the argument against them is that the coercion in question is not lawful for fornication; therefore not for the other sins which are contrary to the law of nature.
The antecedent is ciear from I Corinthians, ch. 5: “I wrote to you in an epistle not to company with fornicators,” and besides “If any brother among you is called a fornicator or an idolater,” etc.; and lower down: “For what have I to do to judge them also that are without?” Whereon 377 St. Thomas says: “The prelates have received power over those only who have submitted themselves to the faith.” Hence it clearly appears that St. Paul declares it not his business to pronounce judgment on unbelievers and fornicators and idolaters. So also it is not every sin against the law of nature that can be clearly shown to be such, at any rate to every one.
On the Indians, Sect. II.
Further, this is as much as to say that the aborigines may be warred into subjection because of their unbelief, for they are ali idolaters. Further, the Pope can not make war on Christians on the ground of their being forni- cators or thieves or, indeed, because they are sodomites; nor can he on that ground confiscate their land and give it to other princes; were that so, there would be daily changes of kingdoms, seeing that there are many sinners in every realm. And this is confirmed by the consideration that these sins confirmation. are more heinous in Christians, who are aware that they are sins, than in barbarians, who have not that knowledge. Further, it would be a strange Proof 3- thing that the Pope, who can not make laws for unbelievers, can yet sit in judgment and visit punishment upon them.
A further and convincing proof is the following: The aborigines in Proof 4. question are either bound to submit to the punishment awarded to the sins in question or they are not. If they are not bound, then the Pope can not award such punishment. If they are bound, then they are bound to recognize the Pope as lord and lawgiver. Therefore, if they refuse such recogni- 378 tion, this in itself furnishes a ground for making war on them, which, however, the writers in question deny, as said above. 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 Proof 5. judgment of the Pope, for the Pope has no other right to condemn or punish them than as vicar of Christ. But, the writers in question admit — both Innocent and Augustinus of Ancona, and the Archbishop and Sylvester, too — that they can not be punished because they do not receive Christ.
Therefore not because they do not receive the judgment of the Pope, for the latter presupposes the former.
The insufficiency alike of this present title and of the preceding one, Refutation is shown by the fact that, even in the Old Testament, where much was done th”“nd the by force of arms, the people of Israel never seized the land of unbelievers just^preced- either because they were unbelievers or idolaters or because they were guilty of other sins against nature (and there were people guilty of many such sins, in that they were idolaters and committed many other sins against nature, as by sacrificing their sons and daughters to deviis), but because of either a special gift from God or because their enemies had hindered their passage or had attacked them. Further, what is it that the writers in 2. question call a profession of the law of nature? If it is mere knowledge, 379 they do not know it ali; if it is a mere willingness to observe the law of nature, then the retort is that they are also willing to observe the whole divine law; for, if they knew that the law of Christ was divine, they would be willing to observe it. Therefore, they make no more a profession of the law of nature than they make of the law of Christ. Further, we certainly 3. possess clearer proofs whereby to demonstrate that the law of Christ is from God and is true than to demonstrate that fornication is wrong or that other things which are also forbidden by natural law are to be shunned.* *Otherwise to be blamed.
Franciscus de Victoria Sixth title set out.
The author’s answer. Proof 1.
Proof 2.
Proof 3.
Seventh title.
The author’8 refutation.
1.
2.
3- 4- Therefore, if the Indians can be compelled to observe the law of nature because it admits of proof, they can therefore, be compelled to observe the Gospel law.
There remains another, a sixth title, which is put forward, namely, by voluntary choice. For on the arrival of the Spaniards we find them declar- ing 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. Now, “there is nothing so natural as that the intent of an owner to transfer his property to another should have effect given to it” ( Inst., 2, 1, 40). 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 380 Spaniards were seeking. Further, we find the Spaniards seeking it in armed array from an unwarlike and timid crowd. Further, inasmuch as the aborigines, as said above, had real lords and princes, the populace could not procure new lords without other reasonable cause, this being to the hurt of their former lords. Further, on the other hand, these lords themselves could not appoint a new prince without the assent of the populace. Seeing, then, that in such cases of choice and acceptance as these there are not present ali 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. For some (I know not who) assert that the Lord by His especial judgment condemned all the barbarians in question to perdition because of their abominations and delivered them into the hands of the Spaniards, just as of old He delivered the Canaanites into the hands of the Jews. 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. Now, no such are adduced by prophets of this type. Further, even assuming that it is true that the Lord had determined to bring the barbarians to 381 perdition, it would not follow, therefore, that he who wrought their ruin would be blameless, any more than the Kings of Babylon who led their army against Jerusalem and carried away the children of Israel into captivity were blameless, although in actual fact all of this was by the especial provi- dence of God, as had often been foretold to them. Nor was Jeroboam right in drawing Israel away from Rehoboam, although this was done by God’s design, as the Lord had also threatened by his prophet. And, would that, apart from the sin of unbelief, there might be no greater sins in morals among certain Christians than there are among those barbarians! It is also written (I St. John, ch. 4): “Believe not every spirit, but try the spirits whether they be of God;” and as St. Thomas says ( Prima Secundae, qu. 68), On the Indians, Sect. II.
“Gifts are given by the Holy Spirit for the perfecting of virtues.” Accord- ingly, 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 tities to seize the lands of the Indians. But it is to be noted that I have seen nothing written on The author this question and have never been present at any discussion or council on j^mseif. this matter. Hence it may be that others may found a title and base the 382 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. And so, if there be no other tities than those which I have discussed, it would certainly be of ill omen for the safety of our princes, or rather of those who are charged with the disco very of these matters; for princes follow ad vice given by others, being unable to examine into these matters for themselves. “What is a man advantaged” so saith the Lord, “if he gain the wholeworld and lose him- self, or becast away?” (St. Matthew, ch. 16; St. Mark, ch. 8; St. Luke, ch.9.)
SUMMARY OF THE THIRD SECTION.
On the laivful tities zvhereby the aborigines of America could have come into the poiver of Spain.
1. How the aborigines might have come into the power of the Spaniards on the ground of natural society and fellowship.
2. The Spaniards have a right to travel to the lands of the Indians and to sojourn there so long as they do no harm, and they can not be prevented by the 383 Indians.
3. The Spaniards may carry on trade among the Indian aborigines, so long as they do no harm to their own country, by importing the goods which the aborigines lack, etc., and taking away gold and silver and other articles in which the Indians abound; and the princes of the Indians can not prevent their subjects from trading with the Spaniards, etc.
4. The Indians can not prevent the Spaniards from a communication and participation in those things which they treat as common alike to natives and to strangers.
5. Any children born to Spanish parents domiciled in those parts who wish to become citizens thereof can not be excluded from citizenship or from the advantages enjoyed by other citizens.
6. Whatcourse ought to beadopted if the aborigines desire to prevent the Spaniards trading with them, etc.
7. If the Spaniards, after resort to ali moderate measures, can not attain security among the aborigines or Indians save by seizing their cities and reducing them to subjection,^whether they can lawfully do this.
8. When and in what case the Spaniards can resort to severe measures against the 384 Indians, treating them as faithless foes, and employ ali the rights of war against them and take away their property and even reduce them to captivity, aye, and depose their former lords also and set up new lords.
9. Whether the Indians could have come under the sway of the Spaniards, in the interest of the spread of Christianity. Christians have a right to preach and publish the Gospel in the lands of barbarians.
10. The Pope could entrust to the Spaniards alone the task of converting the Indian aborigines and could forbid to all others not only preaching, but trade too, if the propagation of Christianity would thus be furthered.
1 1. The Indians are not to be warred into subjection or despoiled of their property, if they give the Spaniards unhindered freedom to preach the Gospel, and this whether they accept the faith or not.
12. How the aborigines who hinder the spread of the Gospel, whether it be their lords or the populace, may be coerced by the Spaniards, so long as no scandal is caused. And what is to be said of those who, while admitting preaching, prevent conversion, either by killing or punishing or terrorizing 385 those who have been converted to Christianity?
13. How the Indians might have come under the sway of the Spaniards by the fact that, when they had been converted and become Christians, their princes desired to bring them back to idolatry by force or by fear, and so they were taken into the protection and guardianship of the Spaniards.
14. The Indians might have come under the sway of the Spaniards by the fact that, after the conversion of a large part of them to Christianity, the Pope, either with or without a request on their part, might on reasonable grounds have given them a Christian prince, such as the King of Spain, and driven out their infidel lords.
On the Indians, Sect. III.
I5i 15. Whether the Indians could have come under the sway of the Spaniards because of the tyranny of their lords or because of tyrannical laws which injured innocent folk.
16. The Indian aborigines could have come under the sway of the Spaniards through true and voluntary choice.
17. The Indians might have come under the sway of the Spaniards by a title of alliance and friendship.
18. Whether the Spaniards could have reduced the Indians into their power, if it were certainly ciear that they were of defective intelligence.
386 I will now speak of the lawful and adequate tities whereby the Indians might have come under the sway of the Spaniards. (1) The first title to be JuUit\e! law' named is that of natural society and fellowship. And hereon let my first Proposition 1.
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. Proof of this may in the first place Proof Ibe derived from the law of nations (Jus gentium), which either is natural law or is derived from natural law ( Inst., 1, 2, 1): “What natural reason has established among all nations is called the jus gentium For, congruently herewith,it is reckoned among all nations inhumane to treat Visitors and foreigners badly without some special cause, while, on the other hand, it is humane and correct to treat visitors well; but the case would be different, if the foreigners were to misbehave when visiting other nations.
Secondly, it was permissible from the beginning of the world (when Proof 2. everything was in common) for any one to set forth and travel wheresoever he would. Now this was not taken away by the division of property, for it was never the intention of peoples to destroy by that division the reci- procity and common user which prevailed among men, and indeed in the days of Noah it would have been inhumane to do so.
Thirdly, everything is lawful which is not prohibited or which is not Proof 3.
387 injurious or hurtful to others in some other way. But (so we suppose) the travel of the Spaniards does no injury or harm to the natives. There- fore it is lawful.
Fourthly, it would not be lawful for the French to prevent the Spanish Proof 4- from traveling or even from living in France, or vice versa, provided this in no way enured to their hurt and the visitors did no injury. Therefore it is not lawful for the Indians.
Further, fifthly, banishment is one of the capital forms of punishment.
Therefore it is unlawful to banish strangers who have committed no fault.
Further, sixthly, to keep certain people out of the city or province as being enemies, or to expel them when already there, are acts of war.
Inasmuch, then, as the Indians are not making a just war on the Spaniards (it being assumed that the Spaniards are doing no harm), it is not lawful for them to keep the Spaniards away from their territory.
Further, seventhly, there is the Poet’s verse, Proof 7- Proof 5.
Proof 6.
Quod genus hoc hominum? quaeve hunc tam barbara morem Permittit patria? hospitio prohibemur arenae.
[What race of men is this? or what country is barbarous enough to allow this usage? We are driven off from the hospitality of its shore.]
Franciscus de Victoria Proof 8.
Proof 9.
Proof 10.
Proof 11.
Proof 12.
Proof 13.
Proof 14.
Proposi¬ tiori II.
Proof 1.
Proof 2.
Proof 3.
Also, eighthly, “Every animal loveth its kind” ( Ecclesiasticus, ch. 15). Therefore, it appears that friendship among men exists by natural law and it is against nature to shun the society of harmless folk.
Also, ninthly, there is the passage (St. Matthezv, ch. 25): “I was a stranger and ye took me not in.” Hence, as the reception of strangers seems to be by natural law, that judgment of Christ will be pronounced with universal application. 388 Tenthly, “by natural law runningwater and the sea are common to ali, so are rivers and harbors, and by the law of nations ships from all parts may be moored there” ( Inst., 2, 1); and on the same principle they are public things. Therefore it is not lawful to keep any one from them. Hence it follows that the aborigines would be doing a wrong to the Spaniards, if they were to keep them from their territories.
Also, eleventhly, these very persons admit all other barbarians from all parts. Therefore, they would be doing a wrong, if they were not to admit the Spaniards.
Also, twelfthly, if it were not lawful for the Spaniards to travel among them, this would be either by natural law or by divine law or by human law. Now, it is certainly lawful by natural and by divine law. And if there were any human law which without any cause took away rights conferred by natural and divine law, it would be inhumane and unreason- able and consequently would not have the force of law.
Thirteenthly, either the Spaniards are subjects of the Indians or they are not. If they are not, then the Indians can not keep them away. If they are, then the Indians ought to treat them well.
Also, fourteenthly, the Spaniards are the neighbors of the barbarians, as appears from the Gospel parable of the Samaritan (St. Luke, ch. 10).
But they are bound to love their neighbors as themselves (St. Matthezv, ch. 22). Therefore they may not keep them awayfrom their country without cause: “When it is said ‘Love thy neighbour,’ it is ciear that every man is 389 our neighbour” (St. Augustine’s De doctrina Christiana).
3. Second proposition: The Spaniards may lawfully carry on trade among the native Indians, so long as they do no harm to their country, as, for instance, by importing thither wares which the natives lack and by exporting thence either gold or silver or other wares of which the natives have abundance. 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.
Firstly, because it is an apparent rule of t\\&jus gentium that foreigners may carry on trade, provided they do no hurt to citizens.
Also, secondly, a similar proof lies in the fact that this is permitted by the divine law. Therefore a law prohibiting it would undoubtedly not be reasonable.
Also, thirdly, the sovereign of the Indians is bound by the law of nature to love the Spaniards. Therefore the Indians may not causelessly prevent On the Indians, Sect. III.
the Spaniards from making their profit where this can be done without injury to themselves.
A fourth reason is that such conduct would be against the proverb: Proof4- “Thou sbalt not do to another what thou wouldest not wish done to thyself.”
And, in sum, it is certain that the aborigines can na more keep off the Proof 5- Spaniards from trade than Christians can keep off other Christians. Now, it is ciear that if the Spaniards kept off the French from trade with the Span¬ iards, and this not for the good of Spain, but in order to prevent the French 390 from sharing in some advantage, that practice would offend against right- eousness and charity. If, then, there can be no just legal ordinance to this effect, it also can not be accomplished in actual fact (for the injustice of a law consists solely in the execution of thelaw). And, as is said in Dig., 1, 1, 3, “Nature has established a bond of relationship between all men,” and so it is contrary to natural law for one man to dissociate himself from another without good reason. “Man,” says Ovid, “is not a wolf to his fellow man, but a man.”
4. 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.
If, for example, other foreigners are allowed to dig for gold in the land of the community or in rivers, or to fish for pearls in the sea or in a river, the natives can not prevent the Spaniards from doing this, but they have the same right to do it as others have, so long as the citizens and indigenous population are not hurt thereby. This is proved by my first and second propositions. Proof 1. For if the Spaniards may travel and trade among them, they may conse- quently make use of the laws and advantages enjoyed by all foreigners.
Secondly, inasmuch as things that belong to nobody are acquired by Proof 2- the first occupant according to the law of nations ( [Inst., 2, 1, 12), it follows that if there be in the earth gold or in the sea pearls or in a river anything 391 else which is not appropriated by the law of nations those will vest in the first occupant, just as the fish in the sea do. And, indeed, there are many things in this connection which issue from the law of nations, which, because it has a sufficient derivation from natural law, is clearly capable of conferring rights and creating obligations. And even if we grant that it is not always derived from natural law, yet there exists clearly enough a consensus of the greater part of the whole world, especially in behalf of the common good of all. For if after the early days of the creation of the world or its recovery from the flood the majority of mankind decided that ambassadors should everywhere be reckoned inviolable and that the sea should be common and that prisoners of war should be made slaves, and if this, namely, that strangers should notbe driven out, weredeemed a desirable principle, it would certainly have the force of law, even though the rest of mankind objected thereto.
5. Fourth proposition: If children of any Spaniard be born there and p™p°*1' 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 Franciscus de Victoria Proof.
Confirmation.
Corollary.
Proposi- tion V.
Proof.
Note!
case where the parents had their domicile there. The proof of this is fur- nished by the rule of the law of nations, that he is to be called and is a citizen who is born within the state ( Cod., 7, 62, 11). And the confirmation lies in the fact that, as man is a civil animal, whoever is born in any one state is not a citizen of another state. Therefore, if he were not a citizen of the state referred to, he would not bea citizen of any state, to the prej udice of his rights under both natural law and the law of nations. Aye, and if there be any per- 392 sons who wish to acquire a domicile in some state of the Indians, as by marri- age or in virtue of any other fact whereby other foreigners are wont to become citizens, they can not be impeded any more than others, and consequently they enjoy the privileges of citizens just as others do, provided they also submit to the burdens to which others submit. And the passages wherein hospitality is commended are to the same effect (I St. Peter, ch. 4): “Use hos- pitality one to another”; and (I Timothy, ch. 3, about a bishop): “A bishop must be given to hospitality.” Hence, on the other hand, refusal to receive strangers and foreigners is wrong in itself.
6. Fifth proposition: If the Indian natives wish to prevent the Span- iards 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 ali 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, according to the saying, “It behoveth the prudent to make trial of everything by words first.” But if, after this recourse to reason, the barbarians decline to agree and propose to use force, the Span¬ iards 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 393 of their sovereign and may avail themselves of the other rights of war. The proof hereof lies in the fact that warding-off and avenging a wrong make a good cause of war, as said above, following St. Thomas ( Secunda Secunda, qu. 40). But when the Indians deny the Spaniards their rights under the law of nations they do them a wrong. 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 per- missible self-protection, and it would not be right for them to enforce against On the Indians, Sect. III.
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.
There is no inconsistency, indeed, in holding the war to be a just war Sometimes a