De Indis De Jure Belli/Part 2
THE FIRST RELECTIO
OF THE REVEREND FATHER, BROTHER FRANCISCUS DE VICTORIA,
ON THE INDIANS LATELY DISCOVERED.
The passage to be discussed is from St. Matthew's Gospel: "Teach all
nations, baptizing them in the name of the Father and Son and Holy Spirit,"
SUMMARY OF THE FIRST SECTION.
1. How a person in doubt on any matter, to obtain safety of conscience,
should consult those whose business it is to give instruction in such
2. After one in doubt has taken such advice he ought to follow what the
wise have laid down, else he will not be safe.
3. Whether one in doubt ought, consistently with safety of conscience, to
follow 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.
4. Whether the Indian aborigines before the arrival of the Spaniards were
true owners in public and in private law; and whether there were among them
any true princes and overlords.
5. Examination of the error of those who assert that persons living in
mortal sin can not have ownership of anything at all.
6. Mortal sin does not preclude civil ownership of the true kind.
7. Whether ownership is lost by reason of unbelief.
8. The divine law does not make heresy a cause of forfeiture of the
9. Whether heresy causes loss of ownership by human law.
10. A heretic incurs the penalty of confiscation of his property as from
the date of the commission of his offense.
11. But although the heretic's offense is patent, the fisc may not seize
his property before condemnation.
12. Even though condemnation issues after the heretic's death, confiscation
of property dates back to the time of the commission of the offense, no
matter who is vested with the property.
13. Sales, gifts, and all other modes of alienation by a heretic are void
as from the date of the commission of the offense, etc.
14. Whether a heretic before condemnation is the owner of his property in
the forum of conscience.
15. A heretic may lawfully live of his own property.
16. A heretic may make a gratuitous conveyance of his property, as byway of
17. A heretic whose offense has rendered him liable to process may not
convey his property for value, as by way of sale or dowry.
18. In what case a heretic may lawfully alienate his property for value.
19. Barbarians are note preluded by the sin of unbelief or by any other
mortal sins from being true owners alike in public and in private law.
20. Whether the use of reason is a pre-requisite of capacity for ownership.
21. Whether a boy can be an owner before he has the use of reason.
22. Whether a person of unsound mind can be an owner.
23. Inasmuch as the Indian aborigines were not of unsound mind, they are not
precluded from being true owners on the pretext of unsoundness of mind.
24. These aborigines were true owners alike in public and in private law
before the advent of the Spaniards among them.
"Teach all 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
discussion 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 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
administration 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 titles which have already been
elsewhere discussed and settled, especially as regards things of which the
sovereigns 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 inquiring, 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, 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 presumptious to raise any question about the matter; it is like looking
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 notoriously lawful and
seemly, or, or the other hand, about those which are certainly and
notoriously unlawful and unseemly. For no one can properly 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 project is on foot
concerning which there is a genuine doubt whether it be 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 many kinds of barter and
contract and other businesses. And in all these cases the circumstances are
such that, even if the thing in question were in itself lawful, it would be
sinful for any one to do it before deliberating and assuring himself of its
lawfulness; and he would not be excused on the ground of ignorance, for the
ignorance would manifestly not be invincible, 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 doubtful 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
Accordingly, if anyone, without consulting the doctors, were to make a
contract, concerning the lawfulness or unlawfulness of which men were
doubtful, he would undoubtedly sin, even though the contract were otherwise
lawful and even if the doer thought so, not, however, on the authority of
the wise, but of his own inclination and judgment. And on the same
principle, were one in a doubtful matter to consult the wise and they 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 otherwise lawful
in itself. For example, suppose a man is in doubt whether so-and-so is his
wife and he seeks advice whether he is bound to render the marital debt or
whether it is right for him to do so, or whether he may exact it from her,
and the doctors reply that it is not at all right, and yet he be led by his
wife's affection and his own desire to refuse to accept that 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 doubtful 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 authority of the wise; else his
judgment is presumptuous and exposes him to the risk of going 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 judgment,
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 tell
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
Corinthians, ch. 12); and in Ephesians, ch. 4, "And he gave some, apostles;
... some, evangelists; and some, pastors and teachers," and in St. Matthew,
ch. 23, "The Scribes and the Pharisees sit in Moses' sent; all therefore
whatsoever they bid you observe, that observe and do." And Aristotle
(Ethics, bk. l) lays this down as a precept, following Hesiod, "The man who
is ignorant in himself, yet does not listen to another in order 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 themselves 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, vet 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 superfluous
adornments, a thing really not a mortal sin, but which he assumes might be
pronounced a mortal sin by preachers and confessors. If, says he a woman is
so given to such adornment 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 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 person of such authority, or by reasons of such cogency, as ought to
affect his judgment. This is notorious, for he does all 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
THIRD. On the other hand, if after such consultation it be settled by the
wise that the thing is lawful, he who follows their opinion is safe, even
if it be otherwise unlawful.
When, then, we return to the question before us, namely, the matter of the
barbarians, we see that it is not in itself so evidently unjust that no
question about its justice can arise, nor again so evidently just that no
doubt is possible about its injustice, but that it has a look of both
according to the standpoint. For, at first sight, when we see that the whole
of the business has been carried on by men who are alike well-informed and
upright, we may believe that everything has been done properly and justly.
But then, when we hear of so many massacres, so many plunderings of
otherwise innocent men, so many princes evicted from their possessions and
stripped of their rule, there is certainly ground for doubting whether this
is rightly or wrongly done. And in this way the discussion in question does
not seem at all superfluous and so we get a clear 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.
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 administered 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 complaints. 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 determined. Now,
jurists are not skilled enough in the divine law to be able by themselves to
settle questions of this sort. Nor am I sure that in the discussion and
determination of this question theologians have ever been called competent
to pronounce on so grave a matter. And as the issue concerns the forum of
conscience, its settlement belongs to the priests, that is, to the Church.
Accordingly in Deuteronomy, ch. 17, it is enjoined on the king 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 something 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 slaves own no
property, "for a slave can have nothing of his own" (Inst., 2, 9, 3, and
Dig., 29, 2, 79), and so all his acquisitions belong to his master (Inst.,
1, 8, 1). But the aborigines in question are slaves. Therefore the matter is
proved; for as Aristotle (Politics, bk. l) neatly and correctly says, "Some
are by nature slaves, those, to wit, who are better fitted to serve than to
rule." Now these are they who have not sufficient reason to govern even
themselves, but only to do what they are bidden, and whose strength lies in
their body rather than in their mind. But, of a surety, if there be any
such, the aborigines in question are preeminently such, for they really seem
little different from brute animals and are utterly incapable of governing,
and it is unquestionably better for them to be ruled by others than to rule
themselves. Aristotle says it is just and natural for such to be slaves.
Therefore they and their like can not be owners. And it is immaterial that
before the arrival of the Spaniards they had no other masters, for there is
no inconsistency in a slave having no master, 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
On the opposite side we have the fact that the people in question were in
peaceable possession of their goods, both publicly and privately.
Therefore, unless the contrary is shown, they must be treated as owners and
not be disturbed in their possession unless cause be shown.
In aid of a solution I am loath to recall to notice the numerous utterances
of the doctors on the nature of dominion. I have set them out at length when
commenting on Restitution, 4, dist. 15, and on Prima Secundae, qu. 62, and I
pass them by here for fear they should lead me to omit things of greater
moment. And so let me pass them over in order to observe that, if the
aborigines had not dominion, it would seem that no other cause is assignable
therefor except that they were sinners or were unbelievers or were witless
FIFTH. Now, some have maintained that grace is the title to dominion and
consequently that sinners, at any rate those in mortal sin, have no
dominion over anything. That was the error of the poor folk of Lyons, or
Waldenses, and afterwards of John Wycliffe. One error of his, namely, that
"no one is a civil owner, while he is in mortal sin," was condemned by the
Council of Constance. This opinion was also held by Armachanus (bk. 10,
Adversus errores Armenorum, c. 4) and in the Dialogue, Defensorium pacis;
and Waldensis wrote to controvert him in his Doctrinale antiquitatum fidei,
vol. I bk. 2, ch. 81 and 82, and vol. II, ch. 3. Armachanus relies on the
fact that such dominion is reprobated by God: "They have set up Kings but
not by me; they have made princes and I knew it not" (Hosea, ch. 8); 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 all
dominion is by divine authority, for God himself is the creator of
everything, and none but they to whom He has given dominion can have it. Now
it is not agreeable to reason that He should give it to the disobedient and
transgressors of his commandments, just as human princes do not give their
property, such as towns and strongholds, to rebels, and if they have given
it to them, they confiscate it. But we ought to judge about divine things
through the medium of human things (Romans, ch. l). Therefore God does not
give dominion to the disobedient. 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 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, 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 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 distinguishing
and seem to be speaking rather of the dominion of sovereignty which belongs
to princes. But because their reasoning applies equally to all dominion,
they seem to have in view all kinds of dominion generally. And that is how
Conrad (bk. I, qu. 7) understands their teaching, and Armachanus is
sufficiently clear 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 sin
does not hinder civil dominion and true dominion. Although this proposition
was established in the Council of Constance, yet Almain (4, Dist. 15, qu.
2), following Ailly, bases an argument in favor of it, on the fact that a
person already in mortal sin who finds himself in extreme need their
property by civil law, and the Pope rules that the same is to hold for the
crime of heresy. And Joannes Andreae seems to hold the same opinion, in his
comment on the afore-mentioned chapter cum secundum leges. And it seems to
be had from the law Manichaeos (Cod., 1, 5, 4), whereby heretics are
precluded from sale or gift or any dealing with their property. Also, civil
laws bind in the forum of conscience, as St. Thomas teaches (Prima Secundae,
qu. 96, art. 4).
TENTH. Let the third proposition in the course of our exposition be:
A heretic incurs confiscation of his property from the day of the
commission of his offense. This is commonly held by the doctors and is the
ruling in the Directorium inquisitorum (bk. 3, tit. 9), and also in the
Summa of Baptista de Salis on the word absolutio (§ 17), and it seems
settled in the afore-mentioned chapter cum secundum leges and in the
afore-mentioned law Manichaeos (Cod., 1, 5, 4).
ELEVENTH. A fourth proposition: Nevertheless, although the offense be
manifest, the fisc can not seize the property of a heretic before
condemnation. This is also generally received, and is the ruling of the
aforenamed chapter cum secundum leges. Nay, it would be contrary to the
divine law and to natural law for a penalty to be enforced before
condemnation has issued.
TWELFTH. It follows from the third conclusion that, when condemnation has
taken place, even though this be after death, the confiscation dates back to
the time of the commission of the offense, no matter into whose control the
property has come. This corollary is also generally admitted and especially
by Panormitanus in his comment on 3, 5, 1 in VI.
THIRTEENTH. And a second consequence is that every sale or gift of or other
dealing with such property is void as from the day of the commission of the
offense. And so, when condemnation has taken place, all such dealings are
rescinded by the fisc and the property is taken by the same fisc, even
without any repayment of the price to the purchasers. This, too, is
generally admitted, and expressly so by Panormitanus in the passage just
named, and is manifest from the afore-named law Manichaeos (Cod., 1, 5, 4).
FOURTEENTH. A fifth proposition: Nevertheless a heretic continues to be
owner in the forum of conscience until he is condemned. This proposition
seems to be at variance with Conrad and with the Directorium inquisitorum
and Joannes Andreae; it is, however, the proposition of Sylvester, under the
word haeresis, I, § 8. Adrian also maintains it, discussing the matter at
some length (Quotlibeta, 6, qu. 2), and Cajetan seems to hold the same view
in his Summa, under the word poena. The proposition is proved, first, by the
fact that this deprivation in the forum of conscience is a penalty;
therefore, it ought in no wise to be inflicted before condemnation. Nor am I
sure whether human law could effect this at all. It is also proved by what
is clear from the above-named chapter cum secundum leges, namely, that
property is confiscated in the same way by the very fact of an incestuous
marriage; as also when a free woman who has been ravished marries her
ravisher. Nay, if any one fails to pay the accustomed dues on imported
merchandise, the goods are forfeit by the very fact; as also in the case of
an exporter of contraband merchandise, such as arms and iron, to the
Saracens. All the details will be found in the above-named chapter cum
secundum leges and in Cod., 5, 5, 3, and Cod., 9, 13, 1, and in X, 5, 6, 6,
and in Dig., 39, 4, 16 (?). Aye, and the Pope expressly says in the
afore-named chapter cum secundum leges that, just as confiscation takes
place in the cases named, so he intends it to take place in a case of
heresy. But no one denies that an incestuous person and a ravisher and one
who supplies the Saracens with arms and one who does not pay customs remain
true owners of their property in the forum of conscience. Why, then, does
not a heretic also? Conrad himself treats as identical the cases named and
the case of a heretic. It would, moreover, be over severe to require a man
who has just been converted from heresy to give up his property to the fisc.
FIFTEENTH. It follows as a corollary that a heretic may lawfully live of
his own property.
SIXTEENTH. Secondly, it follows also that he can make a gratuitous
conveyance of his property, as by way of gift.
SEVENTEENTH. It follows, thirdly, that if his offense can be brought before
the tribunals, he can not convey his property for value, as by way of sale
or dowry. This is manifest, because he would defraud the buyer, making him
incur the risk of loss of both the thing and the price, should he, the
seller, be condemned.
EIGHTEENTH. Lastly, it follows that, if there were in fact no risk of
confiscation, he might even make a conveyance for value. Thus, if some
heretic were in Germany, a Catholic could lawfully buy from him. For it
would be oppressive if a Catholic could not buy land from a heretic or sell
land to him in a Lutheran state; yet it would be necessary to say this, if
a heretic were utterly disabled from ownership in the forum of conscience.
NINETEENTH. From all this the conclusion follows that the barbarians in
question can not be barred from being true owners, alike in public and in
private law, by reason of the sin of unbelief or any other mortal sin, nor
does such sin entitle Christians to seize their goods and lands, as Cajetan
proves at some length and neatly (Secunda Secundae, qu. 66, art. 8).
TWENTIETH. It remains to ask whether the Indians lacked ownership because of
want of reason or unsoundness of mind. This raises the question whether the
use of reason is a precondition of capacity for ownership in general.
Conrad, indeed (bk. I, qu. 6), propounds the conclusion that ownership is
competent to irrational creatures, alike sensible and insensible. The proof
consists in the fact that ownership is nothing more than the right to put a
thing to one's own use. But brutes have this right over the herbs and plants
(Genesis, ch. 1): "Behold I have given you every herb bearing seed which is
upon the face of all the earth and every tree in the which is the fruit of a
tree yielding seed; to you it shall be for meat and to every beast of the
earth." The stars, too, have the right to shine for light (Genesis, ch. 1),
"And God set them in the firmament of the heaven to give light upon the
earth and to rule over the day and over the night." And the lion has
dominion over all animals that walk, whence he is called the king of beasts.
And the eagle is lord among the birds whence in Psalm 103 the verse about
his house being their leader. Sylvester (under the word dominium, at the
beginning) is of the same opinion as Conrad, saying that the "elements
exercise dominion one over the other."
I answer by the following propositions:
First: Irrational creatures can not have dominion. This is clear, because
dominion is a right, as even Conrad admits. But irrational creatures can
not have a right. Therefore they can not have dominion. The proof of the
minor is that they can not suffer a wrong and therefore can have no right.
The proof of this assumption is that he who kept off a wolf or a lion from
its prey or an ox from its pasture would not do it a wrong, nor would he who
shut a window to prevent the sun from shining in do the sun a wrong. And
this is confirmed by the fact that, if the brutes have dominion, he who took
away the grass from a stag would commit theft, for he would be taking what
belongs to another against the owner's will.
Also, wild beasts have not dominion over themselves. Therefore much less
over other things. The proof of the assumption is that they may be killed
with impunity, even for pleasure; and so Aristotle (Politics, 1) says that
the chase of wild beasts is just and natural.
Also, wild beasts themselves and all irrational animals are more fully
within the ownership of man than slaves are. Therefore, if slaves can not
have anything of their own, much less can irrational animals.
Our proposition is also confirmed by the authority of St. Thomas Aquinas
(Prima Secundae, qu. 1, art. 1 and 2, and qu. 6, art. 2, and Contra
Gentiles, bk. 3, c. 110), to the effect that only rational creatures have
dominion over their acts, the test of a roan's being master of his acts
being (as St. Thomas says, Prima Pars, qu. 82, art. 1, on obj. 3) that he
has the power of choice. Hence (as he says in the same place) we are not
masters of our appetite as regards its final end. If, then, the brutes have
not dominion over their acts, they have it not over other things. And
although this seems to be a dispute about a name, it is assuredly a highly
improper and unusual mode of speech to attribute dominion to things
irrational. For we do not ordinarily say that a man has dominion save over
that which is placed within his control. For when we have not dominion, we
speak thus: "It is not within my control," "It is not in my power." Now, as
the brutes are rather moved than move themselves, as St. Thomas says (Prima
Secundae, as above), they for that reason have no dominion.
Nor is there any force in Sylvester's remark that dominion sometimes does
not signify right, but only power, in which sense we say that fire has
dominion over water. For, if this is enough to confer dominion, a robber
has dominion over his victim even up to death, because he has power to kill
him, and a thief has power to seize his victim's money. Further, as regards
the statement that the stars exercise dominion and that the lion is king of
beasts, obviously this is said metaphorically and by way of figure.
TWENTY-FIRST. There might seem some doubt whether a boy, who has not yet the
use of reason, can have dominion, inasmuch as he seems to differ little from
irrational animals. And the Apostle says (Galatians, ch. 4): "The heir, as
long as he is a child, differeth nothing from a slave"; but a slave has not
dominion; therefore, etc. But let our second proposition be: Boys, even
before they have the use of reason, can have dominion. This is manifest,
because they can suffer wrong; therefore they have rights over things;
therefore also they have dominion, which is naught else than a right. Also,
the property of wards is not part of the guardian's property; but it has
owners and no others are its owners; therefore the wards are the owners.
Also, boys can be heirs; but an heir is one who succeeds to the rights of
the deceased and who has dominion over the inheritance (Dig., 44, 3, 11, and
Inst., 2, 19, 7). Also, as already said, the basis of dominion is in the
possession of the image of God, and children already possess that image. The
Apostle, moreover, says in the passage of Galatians just cited, "The heir,
as long as he is a child, differeth nothing from a slave, though he be lord
of all." The same does not hold good of an irrational creature, for a boy
does not exist for the sake of another, as does a brute, but for his own
TWENTY-SECOND. But what about those suffering from unsoundness of mind? I
mean a perpetual unsoundness whereby they neither have nor is there any hope
that they will have the use of reason. Let our third proposition be: It
seems that they can still have dominion, because they can suffer wrong;
therefore they have a right, but whether they can have civil dominion is a
question which I leave to the jurists.
TWENTY-THIRD. However this may be, let our fourth proposition be:
The Indian aborigines are not barred on this ground from the exercise of
true dominion. This is proved from the fact that the true state of the case
is that they are not of unsound mind, but have, according to their kind, the
use of reason. This is clear, because there is a certain method in their
affairs, for they have polities which are orderly arranged and they have
definite marriage and magistrates, overlords, laws, and workshops, and a
system of exchange, all of which call for the use of reason; they also have
a kind of religion. Further, they make no error in matters which are
self-evident to others; this is witness to their use of reason. Also, God
and nature are not wanting in the supply of what is necessary in great
measure for the race. Now, the most conspicuous feature of man is reason,
and power is useless which is not reducible to action. Also, it is through
no fault of theirs that these aborigines have for many centuries been
outside the pale of salvation, in that they have been born in sin and void
of baptism and the use of reason whereby to seek out the things needful for
salvation. Accordingly I for the most part attribute their seeming so
unintelligent and stupid to a bad and barbarous upbringing, for even among
ourselves we find many peasants who differ little from brutes.
TWENTY-FOURTH. The upshot of all the preceding is, then, that the aborigines
undoubtedly had true dominion in both public and private matters, just like
Christians, and that neither their princes nor private persons could be
despoiled of their property on the ground of their not being true owners. It
would be harsh to deny to those, who have never done any wrong, what we
grant to Saracens and Jews, who are the persistent enemies of Christianity.
We do not deny that these latter peoples are true owners of their property,
if they have not seized lands elsewhere belonging to Christians.
It remains to reply to the argument of the opposite side to the effect that
the aborigines in question seem to be slaves by nature because of their
incapability of self-government. My answer to this is that Aristotle
certainly did not mean to say that such as are not over-strong mentally are
by nature subject to another's power and incapable of dominion alike over
themselves and other things; for this is civil and legal slavery, wherein
none are slaves by nature. Nor does the Philosopher mean that, if any by
nature are of weak mind, it is permissible to seize their patrimony and
enslave them and put them up for sale; but what he means is that by defect
of their nature they need to be ruled and governed by others and that it is
good for them to be subject to others, just as sons need to be subject to
their parents until of full age, and a wife to her husband. And that this is
the Philosopher's intent is clear from his corresponding remark that some
are by nature masters, those, namely, who are of strong intelligence. Now,
it is clear that he does not mean hereby that such persons can arrogate to
themselves a sway over others in virtue of their superior wisdom, but that
nature has given them capacity for rule and government. Accordingly, even if
we admit that the aborigines in question are as inept and stupid as is
alleged, still dominion can not be denied to them, nor are they to be
classed with the slaves of civil law. True, some right to reduce them to
subjection can be based on this reason and title, as we shall show below.
Meanwhile the conclusion stands sure, that the aborigines in question were
true owners, before the Spaniards came among them, both from the public and
the private point of view.
SUMMARY OF THE SECOND SECTION.
On the illegitimate titles for the reduction of the aborigines of the New
World into the power of the Spaniards.
1. The Emperor is not the lord of the whole world.
2. Even if the Emperor were the lord of the world, that would not entitle
him to seize the provinces of the Indian aborigines and to erect new lords
and put down the former lords or to levy taxes.
3. The Pope is not civil or temporal lord of the whole world, in the proper
sense of civil lordship and power.
4. Even if the Supreme Pontiff had secular power over the world, he could
not give that power to secular princes.
5. The Pope has temporal power, but only so far as it subserves things
6. The Pope has no temporal power over the Indian aborigines or over other
7. A refusal by these aborigines to recognize any dominion of the Pope is
no reason for making war on them and for seizing their goods.
8. Whether these aborigines were guilty of the sin of unbelief, in that
they did not believe in Christ, before they heard anything of Christianity.
9. What is required in order that ignorance may be imputed to a person as,
and be, sin, that is, vincible ignorance. And what about invincible
10. Whether the aborigines are bound to hearken to the first messengers of
Christianity so as to commit mortal sin in not believing Christ's Gospel
merely on its simple announcement to them.
11. If the faith were simply announced and proposed to them and they will
not straightway receive it, this is no ground for the Spaniards to make war
on them or to proceed against them under the law of war.
12. How the aborigines, if they refuse when asked and counselled to hear
peaceably preachers of religion, can not be excused from mortal sin.
13. When the aborigines would be bound to receive Christianity under penalty
of mortal sin.
14. In the author's view it is not sufficiently dear whether Christianity
has been so proposed and announced to these aborigines that they are bound
to believe it under the penalty of fresh sin.
15. Even when Christianity has been proposed to them with never so much
sufficiency of proof and they will not accept it, this does not render it
lawful to make war on them and despoil them of their possessions.
16. Christian princes can not, even on the authority of the Pope, restrain
these aborigines from sins against the law of nature or punish them
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 title that might be alleged, then, is that the Emperor is the
lord of the world, and in such a way that, even if it be granted that in
time past there was a defect in his claim, it would by now be purged as
regards our present, most Christian Emperor. For, even if we assume that the
Indian aborigines may be true owners, yet they might have superior lords,
just as inferior princes have a king and as some kings have the Emperor over
them. There can in this way be many persons having dominion over the same
thing; and this accounts for the well-worn distinction drawn by the jurists
between dominion high and low, dominion direct and available, dominion pure
and mixed. The question, therefore, is whether the aborigines had any
superior lord. And, as this question can only arise with regard to either
the Emperor or the Pope, let us speak of these.
The first allegation to consider is that the Emperor is lord of the whole
world and therefore of these barbarians also. This is supported, firstly, by
the appellation, "Lord of the world," commonly given to the late Emperor
Maximilian or to the present Emperor Charles, ever August. Also (Luke, ch.
2), "There went out a decree from Caesar Augustus that a census should be
taken of all the world"; but Christian Emperors ought not to be in any
worse condition than he; therefore, etc. Also, our Lord seems to have
pronounced Caesar to be the true lord of the Jews. "Render unto Caesar,"
said he, "the things that are Caesar's," etc. (St. Luke, ch. 20). But it
does not seem that Caesar could have this right, save as Emperor. Therefore
Bartolus, commenting on the Extravagans of Henry VII, Ad reprimendum,
expressly holds that "the Emperor is the rightful lord of the whole world."
And this is also the opinion of the glossator on X, 4, 17, 13. So, too, the
glossator on X, 1, 6, 34.
And they prove the allegation first from can. 41, C. 7, qu. 1, where
Gregory says that there is one king among bees, and in the world one
Emperor, and also from Dig., 14, 2, 9, where the Emperor Antoninus says:
I indeed am lord of the earth," and Cod., 7, 37, 3, § 1, "everything is
understood to belong to the Emperor."
The allegation might also be supported by the fact that Adam first and then
Noah seem to have been lords of the world: " Let us make man in our image,
after our likeness, and let them have dominion over the fish of the sea and
over the fowl of the air and over all the earth," etc. (Genesis, ch 1) and a
little later on, "Be fruitful and multiply and replenish the earth and
subdue it, etc.; and there is a similar pronouncement made to Noah (Genesis,
ch. 8). But these two had successors. Therefore.
Also, there is a proof in the incredibility of God's having instituted in
the world anything but the best system of government: "In wisdom hast thou
made them all" (Psalm 104). But monarchy is the best system, as St. Thomas
admirably shows (De regimine principum, bk. 1, ch. 2), and as Aristotle
seems to hold (Politics, bk. 3). Therefore, it seems to be in accordance
with divine institution that there should be one Emperor in the world.
Also, the things which are outside nature ought to imitate things natural.
But in things natural there is always one governor; as in the body, it is
the heart; in the soul, it is reason. Therefore in the world there ought to
be one governor, just as there is one God.
1. Now, this contention is baseless. Let our first conclusion, then, be:
The Emperor is not the lord of the whole earth. This is proved from the
fact that dominion must be founded either on natural or divine or human law;
but there is no lord of the earth in any of these; therefore, etc. The minor
is proved, first as regards natural law, by what St. Thomas well says (Prima
Pars, qu. 92, art. 1, on obj. 2, and qu. 96, art. 4), namely, that by
natural law mankind is free save from paternal and marital dominion -- for
the father has dominion over his children and the husband over the wife by
natural law; therefore no one by natural law has dominion over the world.
And, as St. Thomas also says (Secunda Secundae, qu. 10, art. 10), dominion
and preeminence were introduced by human law; they, therefore, were not by
natural law. Nor would there be any greater reason why this dominion should
be more proper for Germans than for Gauls. And Aristotle (Politics, bk. 1)
says, Power is of two kinds, the one originates in the family, like that of
the father over his sons and that of the husband over the wife, and this is
a natural power; the other is civil, for, although it may take its rise in
nature and so may be said to be of natural law, as St. Thomas says (De
regimine principum, bk. 1, ch. 2), yet, man being a political animal, it is
founded not on nature, but on law.
Now, as regards divine law, we do not read that before the coming of our
Saviour Christ the Emperors were lords of the whole world, although in the
gloss mentioned on the Extravagans, Ad reprimendum, Bartolus adduces the
passage in Daniel, ch. 2, about Nebuchadnezzar, of whom it is said: "Thou, O
King, art a King of Kings; for the God of Heaven hath given thee a Kingdom
and power and strength and glory. And wheresoever the children of men dwell,
He hath given thee all." It is, however, certain that Nebuchadnezzar
received his sovereignty from God by no special grant, but in the same way
as other princes (Romans, ch. 13):
"There is no power but of God"; and (Proverbs, ch. 8): "By me kings reign
and princes decree justice." Further, Nebuchadnezzar had not a legal rule
over the whole earth, as Bartolus thinks, for the Jews were not legal
subjects of his.
Another proof that there was by divine law no ruler over the whole world
lies in the fact that the Jewish nation was free from the foreigner; nay,
the Jews were forbidden by their law to have any foreigner as their lord
(Deuteronomy, ch. 17): "Thou mayest not set a stranger to be king over
thee." And, although St. Thomas (De regimine principum, bk. 3, ch. 4 and 5)
says that the Romans were entrusted with empire by God because of their
justice and their patriotism and the excellence of their laws, yet this is
not to be taken to mean that they had their empire by divine grant or
institution, as St. Augustine also says (De civitate Dei, ch. 18), but that
in the divine providence it befell that they should obtain the sovereignty
of the world. This, however, was not in the way in which Saul or David had
his kingdom from God, but in some other way, such as by just war or other
This will be plain to any one who considers the titles and modes of
succession whereby sovereignty and lordship in the world have come down to
our own day. For, to omit everything that happened before the flood, the
world was certainly divided after Noah into different provinces and
kingdoms, whether this were by ordinance of Noah himself -- for he survived
the flood three hundred and fifty years (Genesis, ch. 9), and sent colonies
into different regions, as appears in Berosus of Babylon -- or whether, as
is more likely, different family-groups by the common agreement of mankind
occupied different provinces, as (Genesis, ch. 13) "Abram said unto Lot:
'... Is not the whole land before thee? ... If thou wilt take the left hand,
then I will go to the right, or if thou depart to the right hand, then I
will go to the left." We are, accordingly, told (Genesis, ch. 10) that
through the descendants of Noah came diversities of peoples and countries,
whether in some regions they first assumed lordship by usurpation, as Nimrod
seems to have done, of whom Genesis, ch. 10, v. 8, says that he was the
first to be a mighty one in the earth, or whether by accord of several to
unite in one State they appointed a prince over themselves by common
agreement. For it is sure that either in these or in other like modes
sovereignty and lordship began in the world and that afterwards, either by
right of inheritance or of war or by some other such title, they were
continued unto our own day, or at any rate up to the time of the Saviour's
coming. Herein it is manifest that before the coming of Christ no one was
vested with world-wide sway by divine law and that the Emperor can not at
the present day derive therefrom a title to arrogate to himself lordship
over the whole earth, and consequently not over the barbarians.
It might, however, be alleged that after our Lord's coming there was one
Emperor over the world by express grant of Christ, in that He, as regards
His manhood, was Lord of the world, according to St. Matthew, ch. 28: "All
power is given unto me," etc., which, according to St. Augustine and St.
Jerome, is to be understood as regards His manhood. Also, as the Apostle
declares (I Corinthians, ch. 15), "He hath put all things under his feet."
Therefore, just as He left on earth one vicar in matters spiritual, so also
in matters temporal, and in the latter case it is the Emperor. St. Thomas,
too, says (De regimine principum, bk. 3, ch. 13) that Christ was from His
nativity the true Lord and monarch of the world and that Augustus though
unwitting thereof, was acting as His deputy. Now, it is clear that this
deputyship was not in matters spiritual, but in matters temporal. Seeing,
then, that Christ's Kingdom, if it were temporal, was over the whole world,
Augustus was, on that showing, lord of the world and so on the same
principle his successors were.
This reasoning is, however, quite inadmissible: In the first place, because
of the doubt attaching to the statement that Christ as regards His manhood
was temporal Lord of the world. The probability indeed is that He was not,
and our Lord seems to have asserted as much in the passage: "My Kingdom is
not of this world." Accordingly. St. Thomas remarks in this connection
that Christ's dominion is directly appointed for the soul's salvation and
for spiritual profit, although it is not excluded in matters temporal in the
same fashion as it is appointed in matters spiritual. This shows that in St.
Thomas's view His Kingdom was not of the same sort as a civil and temporal
kingdom, but that, while He had all kinds of power, even in matters
temporal, which would subserve the aim of redemption, yet apart from that
aim He had none. Further, even if we grant that He was temporal Lord, it is
guess-work to say that He bequeathed that power to the Emperor, there being
no mention of any such thing in the whole Bible. And as regards St. Thomas's
statement that the Emperor Augustus was Christ's vicegerent, firstly, he
does indeed make it in the passage referred to, but in his Tertia Pars,
where he is professedly discussing the power of Christ, he makes no mention
of this temporal power.
Secondly, St. Thomas's meaning is that the Emperor was Christ's vicegerent
to the extent that temporal power is subordinate and subservient to
spiritual power. In this sense, of a truth, kings are the servants of
bishops, just as the smith's art is subject to the knight's and the
soldier's, while all the time neither the soldier nor his superior officer
is a smith, but is only concerned to give the smith orders about the making
of armor. Again, St. Thomas, writing on that passage in St. John, ch. 18,
expressly says that Christ's Kingdom is not temporal or such a kingdom as
Pilate conceived, but a spiritual kingdom, inasmuch as our Lord declares in
that passage: "Thou sayest that I am a King. To this end was I born and for
this cause came I into the world, that I should bear witness unto the
truth." This shows it to be a mere fiction to say that by express grant of
Christ there is one Emperor and lord of the world.
A consideration which palpably confirms this is the following: If there had
been any such institution by divine law, how comes it that the Empire was
divided into Eastern and Western, first among the sons of Constantine the
Great and then, later, by Pope Stephen, who conferred the Empire of the West
on the Germans, as is held in X, 1, 6, 34? For the assertion that the Greeks
thereafter were not Emperors is inept and ignorant, as the glossator hereon
points out, seeing that the German Emperors never claimed in virtue of this
grant to be Lords of Greece, and John Palaeologus, Emperor of
Constantinople, was held to be lawful Emperor at the Council of Florence.
Moreover, the patrimony of the Church (as the jurists themselves, and even
Bartolus, confess) is not subject to the Emperor. Now, if all things were
subject to the Emperor by divine law, no imperial gift or any other title
could divest the Emperors of them, any more than the Pope can release any
one from the power of the Popes. Also, the Kingdom of Spain is not subject
to the Emperor, nor is France, as is also held in X, 1, 6, 34
abovementioned, although the glossator adds out of his own head that this is
not so much a matter of law as of fact. Also, the doctors agree that States,
which have in times past been subject to the Empire, might be freed from
that subjection by prescription; which would not be the case, if this
subjection were in virtue of a divine law.
Now, in point of human law, it is manifest that the Emperor is not lord of
the world, 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.
2. 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, and one
which is vehemently asserted, is traced through the Supreme Pontiff. For 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.
In this matter there are some jurists, who hold that the Pope has full
jurisdiction in temporal matters over the whole earth, and they even add
that the power of all secular princes comes to them from the Pope. This is
the tenet of Hostiensis on X, 3, 34, 8; also of the Archbishop (pt. 3, tit.
22, ch. 5, § 8); and also of Augustinus Anconitanus. Sylvester holds the
same doctrine, making a much more ample and liberal concession of this power
to the Pope, under the word infidelitas (§ 7) and under the word Papa (§§ 7,
10, 11 and 14), and under the word legitimus (§ 4). He has some singular
remarks on this topic in the passages mentioned, as, for example, that "the
power of the Emperor and all other princes is sub-delegated as regards the
Pope, being derived from God through the medium of the Pope," and that "all
their power is dependent on the Pope," and that "Constantine gave lands to
the Pope in recognition of his temporal power," and on the other hand that
"the Pope gave the Empire to Constantine to his use and profit," nay, that
"Constantine's act was really not a gift, but merely the return of what had
previously been taken away," and that, "if the Pope does not exercise
jurisdiction in temporal matters outside the patrimony of the Church, this
is not for want of authority, but in order to avoid the scandal of the Jews
and in order to promote peace"; and many other things even more empty and
absurd than these. The sole proof that he gives herefor is in the passages
"The earth is the Lord's and the fulness thereof," and "All power is
given unto me, both in heaven and in earth," and the Pope is the vicar of
God and of Christ, and (Philippians, ch. 2) Christ "for our sake became
obedient even unto death," etc. Bartolus, too, seems to be of this opinion
in his comment on the Extravagans, Ad reprimendum, and St. Thomas seems to
favor it at the end of the second book of the Sententiae, the closing words
of which are by way of solution of the fourth argument, which is the last of
the whole book, namely, that the Pope holds the summit of both kinds of
power, both secular and spiritual, and Herveus is of the same opinion in his
De potestate Ecclesiae.
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.
Hostiensis, place cited, expressly makes this point, so does Angelus in his
Now, inasmuch as I have fully discussed the temporal power of the Pope in my
Relectio de Potestate Ecclesiastica, I will put my answer to the above into
a few brief propositions:
3. First: The Pope is not civil or temporal lord of the whole world in the
proper sense of the words "lordship" and "civil power." This is the
conclusion arrived at by Torquemada (bk. 2, ch. 113), and by Joannes Andreae
and by Hugo, on can. 6, Disc. 96. And the most learned Innocent admits, in
the above cited X, 1, 6, 34, that he has not temporal power over the Kingdom
of France. And it seems the definite opinion of St. Bernard in the second
book of his De consideratione, addressed to Pope Eugenius III. The opposite
opinion seems contrary to the precept of our Lord who, (St. Matthew, ch. 20,
and St. Luke, ch, 22), says, "Ye know that the princes of the Gentiles
exercise lordship over them," etc. "But it shall not be so among you." And
contrary also to the precept of the Apostle Peter, "neither as being lords
over [God's] heritage but being ensamples to the flock," And if Christ
the Lord had not temporal power, as has been shown in the foregoing
discussion to be more probable and as is also the opinion of St. Thomas,
much less has the Pope it, he being Christ's vicar. The above-mentioned
thinkers attribute to the Pope that which he has never claimed for himself;
nay, he admits the contrary in many passages, as I have shown in the
Relectio referred to. 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.
Further, our Lord's injunction to Peter, "Feed my sheep," clearly shows
that power in spiritual and not in temporal matters is meant. It is,
moreover, demonstrable that the Pope has not the whole world for his sphere.
For our Lord said (St. John, ch. 10) that there should be "one flock and one
shepherd" at the end of the age. This is sufficient proof that at the
present day all are not sheep of this flock. Again, assuming that Christ had
this power, it is manifest that it has not been entrusted to the Pope. This
appears from the fact that the Pope is no less vicar of Christ in spiritual
than in temporal matters. But the Pope has no spiritual jurisdiction over
unbelievers, as even our opponents admit, and, as seems (I Corinthians, ch.
5) to have been the express teaching of the Apostle: "For what have I to do
to judge them also that are without?" Therefore he has it not also in
temporal matters. And of a truth there is nothing in the argument that, as
Christ had temporal power over the world, therefore the Pope also has it.
For Christ undoubtedly had spiritual power over the whole world, not less
over believers than over unbelievers and could make laws which bound the
whole world, as he did with regard to baptism and the articles of faith. And
yet the Pope has not that power over unbelievers and may not excommunicate
them or forbid their marriage within the degrees permitted by the divine
law. Therefore. Also, the fact that, according to the doctors, Christ did
not entrust supremacy in power even to the Apostles shows that there is no
force in the consequence: Christ had temporal power over the world;
therefore the Pope has it too.
4. 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
5. 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. This is also the view of Torquemada
(as above, ch. 114), and of all the doctors. And the proof of it lies in the
tact that an art to which a higher end pertains is imperative and preceptive
as regards the arts to which lower ends pertain (Ethics, bk. 1). But the end
of spiritual power is ultimate felicity, while the end of civil power is
political felicity. Therefore, temporal power is subject to spiritual power
This is the reasoning adopted by Innocent in X, 1, 33, 6; and it receives
confirmation from the consideration that, whenever anybody is entrusted with
the charge of any office, he is impliedly granted everything without which
the duties of the office can not rightly be discharged (X, 1, 29, 1)
Inasmuch, then. as the Pope is a spiritual pastor by Christ's commission
and the discharge of the duties of this office can not be hindered by the
civil power (there being no lack in the provision of things necessary either
by God or by Nature), it is beyond doubt that power over things temporal has
also been left to him so far as is necessary for the government of things
spiritual. And on this principle the Pope can infringe civil laws which
tend to breed sinners, just as he has infringed the laws with regard to
prescription by a party acting in bad faith, as is clear from X, 2, 26, 20.
And on this principle also, when princes are at variance with one another
about some right of sovereignty and are rushing into war, he can act as
judge and inquire into the claims of the parties and deliver judgment, a
judgment which the princes are bound to respect, lest those numerous
spiritual evils should befall which are the inevitable results of a war
between Christian princes. And although the Pope does not do this or does
not do it often, it is not because he can not, as Master Durandus says, but
because, for fear of scandal, he wishes to prevent the princes from thinking
his motive is ambition or because he is afraid of a revolt from the
Apostolic See on the part of the princes. And on this principle the Pope can
sometimes depose kings and even set up new kings, as at times has been done.
And certainly no one rightly calling himself Christian should deny this
power to the Pope. This is the view held by Paludanus and Durandus (De
jurisdictione ecclesiastica), and by Henricus Gandavensis (Quodlibeta, 6,
art. 23). It is in this sense, also, that those numerous rules are to be
interpreted which say that the Pope has both swords. The earlier doctors
make the same assertion, as also does St. Thomas in the second book of the
Sententiae, as above quoted.
Aye, and there is no doubt that in this way bishops have temporal authority
within their bishoprics on the same principle that the Pope has authority
in the world. And so they err in speech and in deed, whether princes or
magistrates, who strive to prevent bishops from deterring laymen from sin
by fines or exile or other temporal punishments. For this is not in excess
of their power, provided they do not do it from greed or for gain, but of
necessity and for profit in things spiritual. And herein we find a further
argument in support of our first conclusion; for if the Pope were lord of
the world, a bishop would also be temporal lord in his bishopric, seeing
that within his bishopric he also is a vicar of Christ, but this our
6. Fourth conclusion: The Pope has no temporal power over the Indian
aborigines or over other unbelievers. This is dear 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.
7. 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 dear, because he has no such lordship.
And it receives manifest confirmation from the fact (as will be asserted
below and as our opponents admit) that, even if the barbarians refuse to
accept Christ as their lord, this does not justify making war on them or
doing them any hurt. Now, it is utterly absurd for our opponents to say
that, while the barbarians go scatheless for rejecting Christ, they should
be bound to accept His vicar under penalty of war and confiscation of their
property, aye, and penal chastisement. And a second confirmation is
furnished by the fact that the ground, according to the persons in question,
for disallowing compulsion, even if they refuse to accept Christ or His
faith, is that it can not be evidently proved to them by natural reasoning.
But the lordship of the Pope admits of this proof still less. Therefore they
can not be compelled to recognize this lordship.
Again, although Sylvester discourses at great length on the power of the
Pope, yet, under the word infideles (§ 7), he expressly maintains against
Hostiensis that unbelievers can not be compelled by arms to recognize this
lordship and can not be deprived of their property on this pretext. And
Innocent maintains the same in X, 3, 34, 8. There is also no doubt that
this was the opinion of St. Thomas too (Secunda Secundae, qu. 66, art. 8, on
obj. 2); Cajetan is express thereon, in his comment on the passage where St.
Thomas says that unbelievers cannot be deprived of their property, save only
that the subjects of temporal princes can be deprived for reasons known to
the law and rendering their subjects in general liable to deprivation. 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. For it is certain
that none of the unbelievers recognize this lordship. But there is no
doctor even among our opponents who would allow that they can be deprived on
the mere ground of unbelief. Therefore the allegation of the doctors in
question is utterly sophistical, namely, that if the unbelievers recognize
the lordship of the Roman Pontiff, war can not be made on them, but that it
may if they do not recognize it; for none of them does recognize it.
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. This is the opinion maintained by Cajetan at considerable length, on
Secunda Secundae, qu. 66, art. 8, on obj. 2. And the authority of the
canonists to the contrary ought not to weigh much, because, as said above,
these matters are to be discussed with reference to the divine law, and the
majority in numbers and weight hold the contrary view, and among the latter
is Joannes Andreae. Our opponents have no text in their favor. And even the
weighty authority of the Archbishop of Florence is not to be admitted here,
for he followed Augustinus Anconitanus, just as in other places he usually
follows the canonists. 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). Therefore, as the Spaniards were the first to discover
and occupy the provinces in question, they are in lawful possession thereof,
just as if they had discovered some lonely and thitherto uninhabited region.
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. Now the rule of the law of nations is that what
belongs to nobody is granted to the first occupant, as is expressly laid
down in the aforementioned passage of the Institutes. 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. This title might seem to be a lawful
one for occupying the lands of the barbarians, firstly, on the ground that
the obligation of the aborigines to receive the faith of Christ results from
the passage: "Whoso believeth and is baptized shall be saved, but he who
believeth not shall be damned." But damnation is not visited on any one
except for a mortal sin, and "There is no other name given among men whereby
we must be saved" (Acts, ch. 4). Therefore, as the Pope is the minister of
Christ, at least in things spiritual, it would appear that at any rate by
the authority of the Pope they can be compelled to receive the faith of
Christ, and if they reject the demand to receive it they may be proceeded
against under the law of war. Nay, it would seem that princes may do this
on their own authority also, seeing that they are God's ministers (Romans,
ch. 13), and "revengers [to execute] wrath upon them that do evil." But
those, indeed, do evil who do not accept the faith of Christ. Therefore they
can be coerced by princes.
A second argument is: If the French refused to obey their King, the King of
Spain could compel them to obedience. Therefore, if the Indian aborigines
refuse to obey God, who is their true and supreme Lord, Christian princes
can compel them to obedience; for the cause of God ought not to be in worse
condition than the cause of men. And this is confirmed, as Scotus (bk. 4,
dist. 4, qu. 9) argues about the baptism of the children of unbelievers, by
the fact that persons ought to be compelled to obey a superior lord rather
than an inferior lord. If, then, compulsion may be employed to make these
aborigines obey their chiefs, much more may it be employed to make them obey
Christ and God.
A third argument is: If the barbarians publicly blasphemed Christ, they
could be compelled by war to cease from such blasphemies, as the doctors
admit and as is true. For we could take measures of war against them, if
they made a mock of the crucifix or in any other way abused Christian
practices by way of insult, as by jesting imitation of the Sacraments of the
Church or the like conduct. This is obvious; for if they outraged a
Christian sovereign, even one now dead, we could avenge the outrage; much
more, then, if they outrage Christ, who is the living King of Christians.
This is indubitable; for if Christ were alive in the flesh and pagans
wrought an outrage on Him, there is no doubt that we could avenge the
outrage by war. So, therefore, in this case. But unbelief is a greater sin
than blasphemy, for, as St. Thomas asserts and proves (Secunda Secundae, qu.
10, art. 3), unbelief is the gravest of the sins which lie in moral
perversity, because it is directly opposed to faith, while blasphemy is not
directly opposed to faith, but to the confession of faith. Unbelief cuts at
the root of turning to God, that is, at faith, while blasphemy does not.
Therefore, seeing that Christians can proceed by war against unbelievers for
their blasphemy of Christ, so they can for their unbelief itself. And the
contention that blasphemy is not so great a sin as unbelief is confirmed by
the fact that unbelief, is, in a Christian, a capital crime by the civil
laws, while blasphemy is not.
8. 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. This proposition is precisely that of St. Thomas
in Secunda Secundae, qu. 10, art. 1, where he says that in those who have not
heard of Christ unbelief does not wear the guise of sin, but rather of
punishment, such ignorance of things divine being a consequence of the sin
of our first parent. "Such unbelievers as these," says he, "are indeed open
to condemnation for other sins, ... but not for the sin of unbelief."
Accordingly our Lord says (St. John, ch. 15): "If I had not come and spoken
unto them, they had not had sin." St. Augustine, in his exposition of this
passage, says it refers to the sin of unbelief in Christ. St. Thomas says
the same (Secunda Secundae, qu. 10, art. 6, and qu. 34, art. 2, on obj. 2).
This proposition is opposed to the teaching of many doctors and especially
to that of Altissiodorensis, 3 p., on the question, Utrum fidei possit
subesse falsum, where he says that ignorance not only of Christ, but of any
article of faith is not invincible ignorance in any one, for if a man does
what in him lies, God will illuminate him either through the doctor that is
within him or through a doctor outside, and so it is always a mortal sin to
believe anything contrary to articles of faith. He takes an illustration
from an old woman to whom a bishop might preach something contrary to an
article of faith. And he lays down the general proposition that ignorance of
divine law excuseth none. William of Paris was of the same opinion and
supported it by the same kind of argument. For either, says he, such an one
does what in him lies and therefore will receive illumination, or if he does
not this, he is without excuse. And Gerson (De spirituali vita animae, lect.
4) appears to be of the same view. "Doctors are unanimous," says he, "that
in matters of the divine law there is no room for invincible ignorance,
seeing that God will always help him who does what in him lies, and He is
ready to enlighten the mind as far as will be necessary for salvation and
the avoidance of error." And Hugo de Sancto Victore (bk. 2, pt. 6, ch.
5) says that none is excused by ignorance for breach of the command to
receive baptism, for he could have heard and known, had it not been for his
own fault, as was the case with Cornelius (Acts, ch. 10).
Adrian gives precision to this doctrine, in his Quodlibeta, qu. 4. "There
is," says he, "a two-fold distinction in matters of the divine law. There
are some matters to the knowledge of which God does not oblige every one
universally, such as the nice problems of the divine law and difficulties
with regard to this law and with regard to Holy Scripture and the
Commandments; in these matters there may well be a case of invincible
ignorance, even if a man does all that in him lies. There are other matters
to the knowledge of which God obliges all men generally, such as the
articles of faith and the universal commandments of the law; of these it is
true, as the doctors assert, that ignorance thereof is not excused. For if
any one does what in him lies, he will be illuminated of God through either
the doctor that is within him or a doctor from without."
Nevertheless, the conclusion above stated is entirely in accord with St.
Thomas's doctrine. The proof of it is as follows: 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. The antecedent
is evident from the passage (Romans, ch. 10): "How shall they believe in him
of whom they have not heard, and how shall they hear without a preacher?"
Therefore, if the faith has not been preached to them, their ignorance is
invincible, for it was impossible for them to know. And what Paul condemns
in unbelievers is not that they have not done what in them lies in order to
receive illumination from God, but that they do not believe after they have
heard. "Have they not heard?" says he, "Yes, verily, their sound went into
all the earth." That is the ground of his condemnation, inasmuch as the
Gospel has been preached over all the earth; he would not otherwise condemn
them, whatever other sins they might have.
This shows that Adrian was also mistaken in another point, with regard to
the subject-matter of their ignorance; for in the same note he says, with
regard to the subject-matter of morals, that if a man bestows all industry
and diligence in getting to know that which behoves him, this is not enough
to procure him an excuse for his ignorance, unless by repentance of his sins
he specially prepares himself to be illuminated by God. Suppose, then, a man
is in doubt about a certain business arrangement and makes inquiry of
learned men and tries in other ways to find out the truth and thinks that
the thing is lawful; if it really is not lawful and he does it, he is
without excuse, if in another respect he is in sin, because he does not do
all that in him lies to conquer his ignorance, and although it be admitted
that were he to render himself amenable to grace he would not receive
illumination, still he is without excuse so long as he does not remove the
hindrance in question, that is, his sin. Accordingly, if Peter and John are
in doubt in the same case and business matter and bestow equal human
diligence, and each thinks the thing is lawful, but Peter is in grace, while
John is in sin, Peter's ignorance is invincible, but John's is vincible, and
if they both embark on the business, Peter is excused and John is not.
Adrian, I say, makes a mistake here, as I have shown at length in my
discussion on Prima Secundae on the topic of ignorance. For it would be
strange to say that there is no topic of the divine law on which an
unbeliever, aye, any one who is in mortal sin, can be invincibly ignorant.
Nay, it would follow in the case of the above-named Peter, who was in grace
and whose ignorance on some point about usury or simony was invincible, that
his ignorance would become vincible merely by his faffing into mortal sin,
which is absurd.
9. I say accordingly on this point that negligence with regard to the
subject-matter is requisite for ignorance, even though it be vincible, to
be imputed as, and to be, a sin, as, for example, that the man refused to
hear or did not believe what he did hear; and on the other band I say that
for invincible ignorance it is enough that the man bestowed human diligence
in trying to learn, even if in other respects he is in mortal sin. And so on
this point our judgment is the same concerning one in sin and one in grace,
both now and immediately after Christ's coming or after His passion. Adrian
could not deny that after our Lord's passion the Jews in India or in Spain
were invincibly ignorant of His passion, however much they were in mortal
sin; nay, he himself has expressly conceded this in his first quaestio,
fourth point, on the topic de observantia legalium. And it is certain that
the Jews who were away from Judaea, whether they were in sin or not, had
invincible ignorance about baptism and about the faith of Christ. Just as
there could at that time be a case of invincible ignorance on this matter,
so there may also be nowadays among those who have not had baptism declared
to them. But the mistake which the doctors in question make is in thinking
that when we postulate invincible ignorance on the subject of baptism or of
the Christian faith it follows at once that a person can be saved without
baptism or the Christian faith, which, however, does not follow. For the
aborigines to whom no preaching of the faith or Christian religion has come
will be damned for mortal sins or for idolatry, but not for the sin of
unbelief, as St. Thomas (Secunda Secundae, as above) says, namely, that if
they do what in them lies, accompanied by a good life according to the law
of nature, it is consistent with God's providence and He will illuminate
them regarding the name of Christ, but it does not therefore follow that if
their life be bad, ignorance or unbelief in baptism and the Christian faith
may be imputed to them as a sin.
10. 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, merely because it has been
declared and announced to them that Christianity is the true religion and
that Christ is the Saviour and Redeemer of the world, without miracle or any
other proof or persuasion. This proposition is proved by the first:
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. Nay, as Cajetan says (on Secunda Secundae, qu. 1, art. 4), it would
be rash and imprudent for any one to believe anything, especially in matters
which concern salvation, unless he knows that this is asserted by a man
worthy of credence, a thing which the aboriginal Indians do not know, seeing
that they do not know who or what manner of men they are who are announcing
the new religion to them. And this is confirmed by what St. Thomas says
(Secunda Secundae, qu. 1, art. 4, on obj. 2, and art. 5, on obj. 1), namely,
that matters of faith are seen and become evident by reason of their
credibility. 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.
And this is confirmed by the consideration that if the Saracens were at the
same time to set their creed before them in the same way and without
anything more, like the Christians, they would not be bound to believe
them. as is certain. Therefore they are not bound to believe the Christians
either, when without any moving or persuasive accompaniments they set the
faith before them, for they are unable, and are not bound, to guess which of
the two is the truer religion, unless a greater weight of probability be
apparent on one side. For this would be to believe hastily, which is a mark
of levity of heart, as Ecclesiasticus, ch. 19, says. Further confirmation is
furnished by the passage in St. John, ch. 15: "If I had not wrought signs,"
etc., "they would not have had sin." Therefore, where there are no signs,
and nothing to induce belief, there will be no sin.
11. 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. This is manifest, because they are innocent in this
respect and have done no wrong to the Spaniards. And this corollary receives
confirmation from the fact that, as St. Thomas lays it down (Secunda
Secundae, qu. 40, art. 1), for a just war "there must be a just cause,
namely, they who are attacked for some fault must deserve the attack."
Accordingly, St. Augustine says (Liber 83 Quaestionum): "It is involved in
the definition of a just war that some wrong is being avenged, as where a
people or state is to be punished for neglect to exact amends from its
citizens for their wrongdoing or to restore what has been wrongfully taken
away." Where, then, no wrong has previously been committed by the Indians,
there is no cause of just war. This is the received opinion of all the
doctors, not only of the theologians, but also of the jurists, such as
Hostiensis, Innocent, and others. Cajetan (Secunda Secundae, qu. 66, art. 8)
lays it down clearly and I know of no doctor whose opinion is to the
contrary. Therefore this would not be a legitimate title to seize the lands
of the aborigines or to despoil the former owners.
12. 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. Further, it
is needful for their salvation that they believe in Christ and be baptized
(St. Mark, last ch.), "Whoso believeth," etc. But they can not believe
unless they hear (Romans, ch. 10). Therefore they are bound to hear,
otherwise if they are not bound to hear, they would, without their own
fault, be outside the pale of salvation.
13. 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. This is proved by our third proposition, for, if they are bound
to hear, they are in consequence bound also to acquiesce in what they hear,
if it be reasonable. This is abundantly clear from the passage (St. Mark,
last ch.): "Go ye out into all the world, preach the Gospel to every
creature; whoso believeth and is baptized shall be saved, but whoso
believeth not shall be damned"; and by the passage (Acts, ch. 4): "No other
name is given unto man whereby we can be saved."
14. 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 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.
15. 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. This conclusion is definitely stated by
St. Thomas (Secunda Secundae, qu. 10, art. 8), where he says that
unbelievers who have never received the faith, like Gentiles and Jews, are
in no wise to be compelled to do so. This is the received conclusion of the
doctors alike in the canon law and the civil law. 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.
Our conclusion is also proved by the canon de Judaeis (can. 5, Dist. 45),
which says: "The holy synod also enjoins concerning the Jews that
thenceforth force be not applied to any of them to make him believe; 'for
God has compassion on whom He wills, and whom He wills He hardens.'"
There is no doubt about the doctrine of the Council of Toledo, that threats
and fears should not be employed against the Jews in order to make them
receive the faith. And Gregory expressly says the same in the canon qui
sincera (can. 3, Dist. 45): "Who with sincerity of purpose," says he,
"desires to bring into the perfect faith those who are outside the Christian
religion should labor in a manner that will attract and not with severity;
... for whosoever does otherwise and under cover of the latter would turn
them from their accustomed worship and ritual is demonstrably furthering his
own end thereby and not God's end."
Our proposition receives further proof from the use and custom of the
Church. For never have Christian Emperors, who had as advisors the most holy
and wise Pontiffs, made war on unbelievers for their refusal to accept the
Christian religion. 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. And although Scotus (Bk. 4, dist. 4,
last qu.) calls it a religious act for princes to compel unbelievers by
threats and fears to receive the faith, yet he seems to mean this to apply
only to unbelievers who in other respects are subjects of Christian princes
(with whom we will deal later on). Now, the Indians are not such subjects.
Hence, I think that Scotus does not make this assertion applicable to their
case. 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. For it is alleged that, though their unbelief or
their rejection of the Christian faith is not a good reason for making war
on them, yet they may be attacked for other mortal sins which (so it is
said) they have in numbers, and those very heinous. A distinction is here
drawn with regard to mortal sins, it being asserted that there are some
sins, which are not against the law of nature, but only against positive
divine law, and for these the aborigines can not be attacked in war, while
there are other sins against nature, such as cannibalism, and promiscuous
intercourse with mother or sisters and with males, and for these they can be
attacked in war and so compelled to desist therefrom. The principle in each
case is that, in the case of sins which are against positive law, it can not
be clearly shown to the Indians that they are doing wrong, whereas in the
case of the sins which are against the law of nature, it can be shown to
them that they are offending God, and they may consequently be prevented
from continuing to offend Him. Further they can be compelled to keep the law
which they themselves profess. Now, this law is the law of nature.
Therefore. This is the opinion of the Archbishop of Florence (pt. 3, tit.
22, ch. 5, § 8), following Augustinus Anconitanus, and of Sylvester (under
the word Papa, § 7); and it is the opinion of Innocent in X, 3, 34, 8, where
he expressly says: "I hold that if the Gentiles who have no other law than
the law of nature break that law, they can be punished by the Pope. This is
shown by the case of the men of Sodom, who were punished by God (Genesis,
ch. 19). Now, the judgments of God are examples unto us, and so I do not see
why the Pope, who is the vicar of Christ, can not do this." This is what
Innocent said. And on the same principle the Indians can be punished by
Christian princes under the authority of the Pope.
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 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 clear 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 clear; 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 clear 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
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.
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. Further,
the Pope can not make war on Christians on the ground of their being
fornicators 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 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 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 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 recognition, 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 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
The insufficiency alike of this present title and of the preceding one, is
shown by the fact that, even in the Old Testament, where much was done by
force of arms, the people of Israel never seized the land of unbelievers
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 devils), 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
question call a profession of the law of nature? If it is mere knowledge,
they do not know it all; 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
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.*
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 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. 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 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 all the
requisite elements of a valid choice, the title under review is utterly
inadequate and unlawful for seizing and retaining the provinces in
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 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 providence 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), "Gifts are given by the Holy
Spirit for the perfecting of virtues." 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. And so, if there be no other titles 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
discovery of these matters; for princes follow advice 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 whole world and lose himself,
or be cast away?" (St. Matthew, ch. 16; St. Mark, ch. 8; St. Luke, ch. 9.)
SUMMARY OF THE THIRD SECTION.
On the lawful titles whereby the aborigines of America could have cone into
the power 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
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. What course ought to be adopted if the aborigines desire to prevent the
Spaniards trading with there, etc.
7. If the Spaniards, after resort to all 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 Indians, treating them as faithless foes, and employ all 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.
11. 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 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.
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 clear that they were of defective intelligence.
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. Proof of this may in the first place be
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
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 reciprocity
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
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. Therefore it
Fourthly, it would not be lawful for the French to prevent the Spanish 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,
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.]
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. Matthew, 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
Tenthly, "by natural law running water and the sea are common to all, 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
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. Matthew, ch. 22).
Therefore they may not keep them away from their country without cause:
"When it is said 'Love thy neighbour,' it is dear that every man is 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
Firstly, because it is an apparent rule of the 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
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 the
Spaniards from making their profit where this can be done without injury to
A fourth reason is that such conduct would be against the proverb:
"Thou shall not do to another what thou wouldest not wish done to
And, in sum, it is certain that the aborigines can no more keep off the
Spaniards from trade than Christians can keep off other Christians. Now, it
is clear that if the Spaniards kept off the French from trade with the
Spaniards, and this not for the good of Spain, but in order to prevent the
French 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 the law). 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. 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 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 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 not be driven out, were
deemed 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 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. 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 be a citizen of
any state, to the prejudice of his rights under both natural law and the law
of nations. Aye, and if there be any persons 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 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, 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
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. 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 Secundæ, 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 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 on
both sides, seeing that on one side there is right and on the other side
there is invincible ignorance. For instance, just as the French hold the
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 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. The proof lies in the fact that "peace and
safety 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
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. 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 that whatever is captured in war becomes the property of the
conqueror, as is laid down in Dig., 49, 15, 28 and 24, and in Decretum, pt.
1, 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, 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 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., and also, "The
word of the Lord is not bound" (II Timothy, ch. 2). Secondly, our
proposition is dear 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 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 instruct 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 he
can order temporal matters in the manner which is most helpful to spiritual
matters. And if in this case that is how spiritual matters would be best
helped, it consequently falls within the authority and power of the supreme
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 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
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,
where we confuted the fourth alleged title, and it is self-evident, seeing
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 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 is clear, because herein the 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 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 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.
Careful attention must, however, be paid to what St. Paul says (I
Corinthians, ch. 6): "All 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 complete cause,
but badness from individual defects, according to Aristotle (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
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. 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 all 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 an
Christians from obedience and subjection to unbelieving lords, provided this
be done without scandal. So we justify this fourth legal title.
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," 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
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
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
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. 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 all 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 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, 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
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. I say there would be some force in
this contention; for if they were all 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. There is clear confirmation hereof, for if by some
accident of fortune all their adults were to perish and there were to be
left boys and youths in enjoyment, indeed, of a certain amount of reason,
but of tender years and under the age of puberty, our sovereigns would
certainly be justified in taking charge of them and governing them so long
as they were in that condition. Now, this being admitted, it appears
undeniable that the same could be done in the case of their barbarian
parents, if they be supposed to be of that dullness of mind which is
attributed to them by those who have been among them and which is reported
to be more marked among them than even among the boys and youths of other
nations. And surely this might be founded on the precept of charity, they
being our neighbors and we being bound to look after their welfare. 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. For this is the respect in which all the danger to soul and
salvation lies. 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.
1. St. Thomas' Conclusio here is "Justae leges humanae obligant homines, in
foro conscientiae ratione leges aeternae a qua derivantur." -- TRANSL.
2. This is founded on a mistranslation of the Hebrew; see A. V., Ps. 104,
v. 17. -- TRANSL.
3. Victoria has Hieronymous here following the editio Romana of the Corpus
Juris Canonici, which attributes this to St. Jerome.
4. St. John, ch. 18, v. 36.
5. Psalm 24, v. l.
6. St. Matthew, ch. 28, v. 18.
7. I Pet., ch. 5.
8. St. John, ch. 21, v. 17.
9. St. Mark, ch. 16. v. 16.
10. Summa aurea sententiarum: Paris edition (1500), fol. CXXXV, col. 4 at
11. De Sacramentis Christianae fidei.
12. Romans, ch. 9, v. 18.
- Otherwise to be blamed.
13. St. Mark, ch. 16, v. 15.
14. In the immediately preceding section.
15. The reference to Aristotle can not be traced with certainty; but the
text follows Dionysius closely. He wrote, literally translated, "The good is
from the one and complete (mia kai ol) cause but the bad from many and
partial defects." -- TRANSL.
16. Ecclesiasticus, ch. 17, v. 12.