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 unreasonable 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 righteousness 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 consequently make use of the laws and advantages enjoyed by all foreigners.
Secondly, inasmuch as things that belong to nobody are acquired by Proof 2the 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.
Proposition V.
Proof.
Note!
case where the parents had their domicile there. The proof of this is furnished 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 marriage 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 hospitality 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 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 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 permissible 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 394 on both sides, seeing that on one side there is right and on the other side onVoth there is invincible ignorance. For instance, just as the French hold the sides, province of Burgundy with demonstrable ignorance, in the belief that it belongs to them, while our Emperor’s right to it is certain, and he may make war to regain it, just as the French may defend it, so it may also befall in the case of the Indians — a point deserving careful attention. 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, just as the scandal of the Pharisees is to be avoided in a different way from that of the self-distrustful and weak.
7. Sixth proposition: If after recourse to all 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. The proof lies in the fact that “peace and Proofsafety are the end and aim of war,” as St. Augustine says, writing to Boniface. 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.
8. 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 395 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 Proof «• the fact that, if it be lawful to declare the war, it is consequently lawful to pursue the rights of war. And it is confirmed by the consideration that the aborigines ought not to hold a better position merely because they are unbelievers. But all the things enumerated would be lawful against Christians, when once a just war has arisen. Therefore they are lawful against the aborigines, too. Also, it is a universal rule of the law of nations Proof a. that whatever is captured in war becomes the property of the conqueror, as is laid down in Dig., 49» 28 and 24* and in Decretum, pt. i,^dist. 1, can. 9, and more expressly in Inst., 2, 1, 17, where it is said that “by the law of nations whatever we take from the enemy becomes ours at once, Proof 3.
Confirmation.
Second lawful title. Proposition I. Proof 1.
Proof 2.
Proof 3.
Proof 4.
Proof 5.
Proposi¬ tion II.
Proof 1.
156 Franciscus de Victoria to such an extent that even men may be brought into slavery to us.” Further (as the doctors say on the topic of war), a prince who has on hand a just war is ipso jure the judge of his enemies and can inflict a legal punishment on them, condemning them according to the scale of their wrongdoing. Everything said above receives confirmation from the fact that ambassadors are by the law of nations inviolable and the Spaniards 396 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. For if the natives allow the Spaniards to traffic peaceably among them, the Spaniards could not allege in this connection any just cause for seizing their goods any more than the goods of Christians.
9. 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 manifest from the passage: “Preach the Gospel to every creature,” etc.,1 and also, “The word of the Lord is not bound” (II Timothy, ch. 2). Secondly, our proposition is ciear 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, especially as regards matters pertaining to salvation and happiness, much more than as regards matters pertaining to any human subject of instruction. Thirdly, because the natives would otherwise be outside the pale of salvation, if Christians were not allowed to go to them carrying the Gospel message. Fourthly, because brotherly 397 correction is required by the law of nature, just as brotherly love is. 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. Fifthly and lastly, because they are our neighbors, as said above: “Now the Lord has laid a command on everyone concerning his neighbour” ( Ecclesiasticus, ch. 17). Therefore it concerns Christians to instruet those who are ignorant of these supremely vital matters.
10. 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 hecanordertemporal matters inthe mannerwhich is most helpful to spiritual On the Indians, Sect. III.
matters. And if in this case that is how spiritual matters would be best helped, it consequently falis within the authority and power of the supreme 398 Pontiff. 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 Proof 2. 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. For, just as in the interests of the preservation of the peace among princes and of the spread of religion the Pope could make such a distribution of the land of the Saracens among Christian princes as would prevent one from Crossing over the lands of another, so also for the good of religion he could appoint princes, especially where there were aforetime no Christian princes.
11. Third proposition: If the Indians allow the Spaniards freely and ^°PjIsI1' 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. This has been proved above,1 where we confuted the fourth alleged title, and it is self-evident, seeing 399 that there can not be a just war where no wrong has previously been done {Secunda Secundae, qu. 40, art. 1).
12. Fourth proposition: If the Indians — whether it be their lords Proposior the populace — prevent the Spaniards from freely preaching the Gospel, tl0n IV' 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 is ciear, because herein the Proof r Indians would be doing an injury to the Spaniards (as appears from what has already been said) and these would have a just cause of war. A Proo{2 second reason is that an obstacle would thereby be put in the way of the welfare of the Indians themselves such as their princes have no right to put there. Therefore, in favor of those who are oppressed and suffer wrong, the Spaniards can make war, especially as such vitally important interests are at stake. This proposition demonstrates that, if there is no other way to Coroiiary. 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 400 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 ’In the immediately preceding section.
Franciscus de Victoria Note!
Third lawful title.
Proof.
Fourth lawful title.
Proof.
for moderatiori 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.
Careful attention must, however, be paid to what St. Paul says (I Corinthians, ch. 6): “Ali things are lawful unto me, but not all things are expedient.” So everything said above must be taken as spoken absolutely.
For 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. What we have been showing is what is lawful in itself. I personally have no doubt that the Spaniards were bound to employ force and arms in order to continue their work there, but I fear measures were adopted in excess of what is allowed by human and divine law. The title under consideration might, then, be a second lawful title whereby the Indians might fall into the power of Spain. But regard must ever be had to what has just been said lest what in itself is lawful be made in the circumstances wrong, for goodness springs from the one com¬ plete1 cause, but badness from individual defects, according to Aristotle 401 (Ethics, bk. 3) and Dionysius ( De divinis nominibus, ch. 4).
13. 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. This can be reckoned a third just title, a title based not only on religion, but on human friendship and alliance, inasmuch as the native converts to Christianity have become friends and allies of Christians and we are under an obligation to do “good unto all men, especially unto such as are of the household of faith ” ( Galatians, ch. 6).
14. 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 Christi- 402 anity 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 JThe reference to Aristotle can not be traced with certainty; but the text follows Dionysius elosely. He wrote, literaliy translated, “The good is from the one and complete (/«& Kai 0X17) cause, but the bad from many and partial defects.” — Transl.
# On the Indians, Sect. III. 159 of the faith. And confirmation is found in the fact that, as the doctors assert and as St. Thomas expressly says ( Secunda Secundae, qu. 10. art. 10), the Church could free ali Christian slaves who are in bondage to unbelievers even if that bondage was in other respects lawful. Innocent expressly declares this, in the above-mentioned X, 3, 34, 8. Therefore much more will he be able to free other Christians who have been reduced to bondage but not as stringently as slaves. Confirmation hereof is also to be found in the fact that a wife is as much bound to her husband as a bondsman is to his lord, and even more so, seeing that marriage is a tie of the divine law and bondage is not. But in the interests of the faith a believing wife is freed from an unbelieving husband, if he persecutes her for her religion, as appears from I Corinthians, ch. 7, and X, 4, 19, 7. Aye, the custom now is that by the very fact of one spouse being converted to the faith he or she is freed from the other who is an unbeliever. Therefore also the Church, in the interests of the faith and to avoid risks, may free all Christians from obedience and subjection to unbelieving lords, provided this be done without scandal. So we justify this fourth legal title.
403 15. 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. This is proved by the fact that “God has laid a charge on every individual concerning his neighbor,”1 and they all are our neighbors. Therefore, any one may defend them from such tyrannical and oppressive acts, and it is especially the business of princes to do so. A further proof is given by Proverbs, ch. 24: “Deliver them that are drawn unto death, and forbear not to free those that are being dragged to destruction.” This passage is not to be taken as applying only when victims are actually being dragged to death, but the natives can also be compelled to abstain from such ritual.
And if they refuse, it is a good ground for making war on them and proceeding against them under the law of war, and if such sacrilegious rites can not otherwise be stopped, for changing their rulers and creating a new sovereignty over them. In this connection we find the opinion of Innocent and the Archbishop to be sound, namely, that punishment can be inflicted for sins against nature. And it is immaterial that all the Indians assent to 404 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.
16. 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 Confirma¬ tion x.
Confirma¬ tion 2.
Fifth lawful title.
Proof 1.
Proof 2.
Sixth lawful title.
Proof.
Seventh lawful title.
Proof.
Confirmation Eighth title is doubtful.
160 Franciscus de Victoria 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 herefor the consent of ali is not necessary, but the consent of the majority suffices. For, as I have argued elsewhere, in matters touching the good of the State the decisions of the majority bind even when the rest are of a contrary mind; otherwise naught could be done for the welfare of the State, it being difficult to get ali of the same way of thinking. 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, just as the Franks for the good of their State changed their 405 sovereigns and, deposing Childeric, put Pepin, the father of Charlemagne, in his place, a change which was approved by Pope Zacharias. This, then, can be put forward as a sixth title.
17. 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, as Cajetan also asserts ( Secunda Secundae, qu. 40, art. 1), 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. And this is confirmed by the fact that this was a method very much in vogue among the Romans for the extension of their Empire; that is, they brought aid to their allies and friends and so making a just war came, by right of war, into possession of fresh provinces.
Yet the Roman Empire is approved by St. Augustine ( De civitate Dei, 406 bk. 5) and by St. Thomas ( Opusculum 21) as a lawful one. And Sylvester reckoned Constantine the Great as Emperor, as St. Ambrose did Theodosius. Now, there does not seem any other juridic title whereby the Romans came into possession of the world, save in right of war, and the most especial cause of their wars was the defense and protection of their friends. In just the same way Abraham championed the cause of the King of Salem and of other kings who had struck a treaty with him, and he fought against four kings of that region, though they had done him personally no wrong ( Genesis, ch. 14). 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.
18. 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 ali, 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 On the Indians, Sect. III.
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 407 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 Pr°b?ble their own interests the sovereigns of Spain might undertake the adminis- pnnciple‘ tration 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. I say there would be some force in this contention; for if they were ali wanting in intelligence, there is no doubt that this would not only be a permissible, but also a highly proper, course to take; nay, our sovereigns would be bound to take it, just as if the natives were infants.
The same principle seems to apply here to them as to people of defective intelligence; and indeed they are no whit or little better than such so far as self-government is concerned, or even than the wild beasts, for their food is not more pleasant and hardly better than that of beasts. Therefore their governance should in the same way be entrusted to people of intelligence.