Concerning the Indians lately discovered: The Indian cause before the Law of Nations: Colonial period

The 15th Occasional paper of the University of Utah's American West Center, reprinting English translations of early writings concerning the legal status of Native Americans under Spanish rule, including by the European legal theorists Vitoria, Grotius, and Vattel.

AMERICAN WEST CENTER Occasional Papers CONCERNING THE INDIANS LATELY DISCOVERED The Indian Cause Before the Law of Nations: Colonial Period No. 15 University of Utah Salt Lake City, Utah 1980 Series Title WESTERN CIVILIZATION AND NATIVE PEOPLES Occasional Papers: No. 15: CONCERNING THE INDIANS LATELY DISCOVERED. The Indian Cause Before the Law of Nations: Period. Colonial No. 16: THE INDIAN CAUSE IN THE SPANISH LAWS OF THE INDIES. With an introduction and the first English translation of Book VI, "Concerning the Indians" from the Recopilacion de Leves de los Reines de las Indias (Madrid, 1681) No. 17: SPANISH LAWS CONCERNING DISCOVERIES, PACIFICATIONS Ai.~ SETTLEMENTS AMONG THE INDIANS. With an introduction and the first English translation of the New Ordinances of Philip II, July 1573, and of Book IV from the Recopilacion de Leyes de las Reines de las Indias relating to these subjects. No. 17 also includes an index to references to Indians found in Spanish laws included in Occasional Papers no. 16 and no. 17. Series editor: S. Lyman Tyler CONCERNING THE INDIANS LATELY DISCOVERED The Indian Cause Before The Law Of Nations: Colonial Period S~ Lyman Tyler, Editor American West Center University of Utah 1980 TABLE OF CONTENTS PREFACE INTRODUCTION 1 VITORIA, GROTIUS, VATTEL AND THE INDIANS OF THE AMERICAS 11 THE FIRST RELECTIO, ON THE INDIANS LATELY DISCOVERED, by Father Francisco de Vitoria 30 Translator's Note on Citations 31 Summary of the First Section, with commentaries by Grotius and Vattel 32 Summary of the Second Section, Illegitimate Titles, with commentaries by Grotius and Vattel 50 Summary of the Third Section, Lawful Titles, with commentaries by Grotius and Vattel 87 THE SECOND RELECTIO, ON THE LAW OF WAR MADE BY THE SPANIARDS ON THE BARBARIANS, by Father Francisco de Vitoria, with commentaries by Grotius and Vattel 131 Reaction to Vitoria's Lectures, or Readings 192 DISCUSSIONS OF THE STATE, OF SOVEREIGNTY, AND OF TREATY RELATIONS ~~~~~~~~~----wRoM-rHE-CDLUN~ERIOD 194 What a State is and Who is Properly Styled a Prince 194 What Sovereignty is 204 [Think of Indian Sovereignty] When Sovereignty or Ownership Ceases 225 Moderation in the Acquisition of Sovereignty 236 On Treaties and Sponsions [Think of Indian Treaties] 244 CONCERNING THE HISTORICAL USE OF THE TERMS BARBARIAN AND ABORIGINE 265 Barbarians 265 Aborigines 267 OBSERVATIONS ON UNJUST AGGRESSION 281 BIBLIOGRAPHY 286 PREFACE In my History of Indian Policy (1973), I explain that in their early relationships with the Indian tribes, the conduct of the European states was influenced by the Law of Nations. The Spanish, French, English, and Dutch agreed that the Indians of the Americas were people able to reason and capable of conversion to Christianity. Tribal rights in the lands occupied were to be given due consideration. Land was to be secured from the Indians after mutual agreement, usually by some form of purchase or exchange, or by "lawful" or "just" wars in the name of the sovereign that the particular Europeans represented. During the colonial period for the Americas, some of the leading expressions concerning the special problems that developed as a result of contacts between Europeans and the Indians or other indigenous peoples came from Francisco de Vitoria, Hugo Grotius, Christian Wolff, and Emmerich Vattel. B.eginning during World War I and continuing into the 1930s, the -----------------t-a-rne~-Entl-owmen~ur-In ternati-unairB-ac-e--wa-s--ab-1--e~t-o gi ve-lt s sup port to the publication of The Classics of International Law. Thus, the works of Vitoria, Grotius, Wolff, and Vattel were translated from the original languagesintoEnglish, a commentary on Vitoria's work was prepared by James Brown Scott, and a work on The Catholic Tradition of the Law of Nations was prepared for the Carnegie Endowment series by John Eppstein. We sincerely appreciate permission from the Carnegie Endowment f for International Peace to reprint selections from these writers of the Classics of International Law in our Occasional Papers Series, for the use of students of Indian history and Indian law. Each of the Carnegie publications will be properly introduced when it appears in the following pages. A recent work which reviews the status of indigenous communities in international law during the late eighteenth and nineteenth centuries is James Crawford's The Creation of States in International ~(Oxford: Clarendon Press, 1979). Crawford treats such topics as the "International Status of Native Communities" and "Acquisition of Territory from Native Communities," in Chapter 6, "Original Acquisition and Problems of Statehood." Recent grants from the William H. Donner Foundation, Inc., of New York, and the National Endowment for the Humanities, to develop a graduate program in the History of the Indians of the Americas at the University of Utah, encouraged me to examine these publications for materials pertinent to the history of Indian-European relations. My intention is to bring together and make available in a single work, the expressions of these scholars concerning the place of the Indian or other indigenous peoples in the Law of Nations during the )' colonial period. Appreciation is expressed to colleagues in the American West Center and the History Department at the University of Utah who have assisted in many ways: Gertrude R. Elsmore, Virginia A. Kezele, Glenn W. Olsen, Floyd A. O'Neil, Gregory C. Thompson, Karen Thompson, Richard S. Tompson, and Renata von Glehn. My appreciation is also expressed to Bessie, and to the members of our extended family. Their patience and understanding have helped to make an improbable schedule possible. INTRODUCTION European-American states made some efforts to justify their actions in relation to Indian peoples as they occupied their lands, replaced their leaders, and upset their way of life. What were the positions of Indians and Europeans according to Natural Law or the Law of Nations as conceived at the time of the discovery, conquest, and colonization of the Americas? Chief Justice John Marshall wrote for the Supreme Court in Johnson vs. Mcintosh [Wheaton 543, pp. 572-3 (1823)]: On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in the exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge ~~~~~~~~~~~~~s~ ~1cli tfie r1~t of acquisition, ~i~ they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European which title might be consummated by possession. gover~ments, 2 The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It .was a right with which no Europeans could interfere. It was a right which all asserted for themselves and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. Joseph Story makes this point in his Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution, vol. I, (1833), pp. 6-7; "The European nations found little difficulty in reconciling themselves to the adoption of any principle [underlining mine], which gave ample scope to their ambition, and employed little reasoning to support it. They were content to take counsel of their interests, their prejudices, their passions, and felt no necessity of vindicating their conduct before cabinets, which were already eager to recognize its justice and its policy.n Once it had been accepted that a particular nation had acquired a certain area by the right of discovery, what occurred be~~~~~~~~ween_:the_rEpreseutati_ves of that nation and the native peoples within that area was largely left to the conscience of the kings and their governing bodies; and the exigencies of the moment sometimes caused their consciences to be well veiled. In another work we will examine Spanish law as it developed to meet the special conditions that resulted from the Spanish occupation of 3 the Americas. Spain came to America to stay more than a hundred years before any other European nation. Many of her actions set precedents that others would follow. The field of law was no exception. In The World and the West (Oxford University Press, New York and London, 1953), Professor Arnold Toynbee noted similarities between the great expansion of Western Europeans into the Americas and the Pacific area, in the sixteenth to eighteenth centuries, to that of the Greeks and the Romans in the Mediterranean world in ancient times. That earlier experience also gave rise to a body of ideas concerning the ways in which different peoples should relate to each other that contained useful reference points for Western European theorists in the field of international law. As explained in the introduction to Hugo Grotius' De Jure Belli Ac Pacis Libri Tres (Francis W. Kelsey translation, Oxford, at the Clarendon Press, 1925), at page xiv, "The primary foundation of the system of the law of nations is the Roman law, the universal .law, upon which was based the canon law, as universal as the church from which it emanates." Thus it is apparent that international law existed in embryo long before Grotius' systematic treatise was published in 1625. Aristotle's name appears frequently, along with other classical writers and the writers of the books of the Bible. Saint Augustine and Thomas Aquinas ~~~~~~~~~~aY"Jre ref erred to particularly in the writings of the theologians and jurists of the period ending in the seventeenth century. To quote further from the 1925 introduction to Grotius' De Jure Belli, "Thomas Aquinas specialized in natural law. Victoria* the Spaniard distinguished jus naturale and jus inter gentes, which Suarez had treated *The Latin form of the Spanish name Vitoria 4 in a masterly passage and with final authority." This introduction goes on to explain that Ayala, referred to by Grotius in his Prolegomena, was also a Spaniard, and along with Suarez and Vitoria formed what is referred to as the "great Spanish trinity." Grotius himself is sometimes identified as the last of the "Spanish School" of international law. Along with other notable Spanish writers "if we recall that Gentilis was Italian, we may say that international law is of Latin origin," and if we consider that "theologians and philosophers of the Middle Ages fused together these two systems of law," Roman law and canon law, we must recognize that it is also of Catholic origin. There was then a body of recognized legal theory available to the Spaniards, and other Europeans, to guide the relations with Indian Nations at the time of the conquest of the Americas. And the Native American peoples themselves were not without ideas concerning proper ways to proceed when individuals or groups acted in ways that were unacceptable. Professor E. Adamson Hoebel in The Law of Primitive Man: A Study in Comparative Legal Dynamics (New York, Atheneum, 1970), pp. 329-330, points out that the Indians of the Americas, along with other so-called primitive peoples, had developed their own law-ways. Legal historians have long envisaged primitive society as marked by retaliation and blood revenge: a veritable arena of violence ruled by "the law of the jungle." They have seen in their own mind's eye the very gradual substitution of composition [a form of compensation for crime] for vengeance as a marked trend of the law. Over the vast span of the years, if we look at modern societies as against the primitive, it is true that a great change has taken place in this 5 respect. Damages have generally replaced death as penalties in civil suits. Yet there is an error in the conventional evolutionary idea. It lies in the notion that there ever was a time when torts were not emendable or a time when blood feud prevailed unchecked. The factual data make it very clear that the societies of man have from the outset wrestled with the problem of maintaining internal peace and harmony •••• What emerges from the data is this: within loosely organized tribes in which the local group is autonomous, trouble involving members of different local groups frequently brews physical violence which often leads to feuding; feud marks an absence of law, for the killing is not mutually acknowledged as a privilege-right; yet it appears that every society has some set procedure for avoiding feud or bringing it to a halt; among the more organized tribes on the higher levels of economic and cultural growth feud is frequently prohibited by the action of a central authority representing the total social interest; this never happens on the lower levels of culture. In Peru and in the Valley of Mexico, as is suggested by Professor Hoebel ~~~~~~~~~~__,...a~h~o~v~e,~2articularized law systems had been developed. It is apparent to us today that when Europeans and the Indians of the Americas met, each had definite ideas of how a proper man should act, but this was long before the studies in the field of primitive law were available, when the early.theorists of natural law believed that there 6 was a time when men lived in freedom and equality, and all things were held in common. Grotius expresses that feeling in De Jure Belli Ac Pacis, pages 186-190: 1. Soon after the creation of the world, and a second time after . the Flood, God conferred upon the human race a general right over . things of a lower nature. 'All things,' as Justin says, 'were the common and undivided possession of all men, as if all possessed a common inheritance.' In consequence, each man could at once take whatever he wished for his own needs, and could consume whatever was capable of being consumed. The enjoyment of this universal right then served the purpose of private ownership; for whatever each had thus taken for his own needs another could not take from him except by an unjust act. This can be understood from the comparison used by Cicero in his third book On Ends: 'Although the theatre is a public place, yet it is correct to say that the seat which a man has taken belongs to him.' This primitive state might have lasted if men had continued in great simplicity, or had lived on terms of mutual affection such as rarely appears. Of these two conditions, one, exemplified in the community of property arising from extreme simplicity, may be seen in such a ~~~~~~~~~C--o~n~d~1~·t_._i~on_witbo11t inc.0-nv-en-ie-n-ee-.~T-he-s-e-G-0-n~~-a.g-a-i-n~-ex-emP-l-i-f-i-ed~~n~~~~~~~~~ the community of property arising from affection, was formerly realized among the Essenes, afterward among the first Christians at Jerusalem; at the present time, also, by a goodly number who live in ascetic life. 7 Evidence showing the simplicity of the state of the first men who were created is to be found in their nakedness. Among them there was ignorance of vices rather than knowledge of virtue, as Trogus says of the Scythians. 'The most ancient mortals,' says Tacitus, 'were yet free from wicked excess of passion, living their lives without reproach, without crime, and in consequence without punishment or restraints.' In Macrobius is the statement: 'Among mankind at first there was a simplicity having no knowledge of evil, and hitherto quite devoid of guile.' This simplicity seems to be called 'incorruption' by the Hebrew sage, but 'simplicity' by the Apostle Paul, who opposes to it 'craftiness,' that is, crafty cunning. The only concern of these first men was the worship of God whose symbol was the tree of life, as the ancient Hebrews explain; and this interpretation is supported by a passage of the Apocalypse. They lived easily on the fruits which the earth brought forth of its own accord, without toil. 2. Men did not, however, continue to live this simple and innocent life, but turned their thoughts to various kinds of knowledge,. the symbol for which was the tree of knowledge of good and evil, that is, a knowledge of the things of which it is possible to make at times a good use, at times a bad use. This Philo calls the 'middle under----'------------~s_t~a=n=d~i~ng. ' In__r:_e_gareLto__it_$0J.--0n1on---S~-i-d-:~'God--ma4e---man-up-r-i-gh-t-,-1-that---- is, simple, 'but they have sought out many inventions.' 'Men degenerated into craftiness,' as Philo declares in the passage cited. Says Dia of Prusa in his sixth Oration: 'But to the men who came after the first the craft and various inventions devised for the advantage of life proved not to be very useful; for men devoted their talents 8 not so much to the cultivation of bravery and justice as to devising means of enjoyment.' The most ancient arts, agr1culture and grazing, were pursued by the first brothers, not without some interchange of commodities. From the difference in pursuits arose rivalry, and even-murder; and at length, since the good were corrupted by contact with the wicked, there came the kind of life ascribed to the giants, that is given over to violence, like the life of those whom the Greeks characterized as 'men that cultivate justice with the fist.' After the world had been cleansed by the Deluge, that brutish life was succeeded by a passion for pleasure, to which wine ministered; whence came also unlawful loves. 3. Harmony, however, was destroyed chiefly by a less ignoble vice, ambition, of which the symbol was the tower of Babel. Presently men divided off countries, and possessed them separately. Afterward, nevertheless, there remained among neighbours a common ownership, not of flocks to be sure, but of pasture lands, because the extent of the land was so great, in proportion to the small number of men, that it sufficed without any inconvenience for the use of many; The field with bounds to mark, or limits set, Was not allowed. Finally, with increase in the number of men as well as of flocks, lands everywhere began to be divided, not as previously by peoples, but by families. Wells, furthermore--a resource particularly necessary in a dry region, one well not sufficing for many--were appropriated by those who had obtained possession of them. This is what we are 9 taught in sacred history; and it is quite in accord with what philosophers and poets, whose testimony we have presented elsewhere, have said concerning the first state of ownership in common, and the distribution of property which afterward followed. 4. From these sources we learn what was the cause on account of which the primitive common ownership, first of movable objects, later also of immovable property, was abandoned. The reason was that men were not content to feed on the spontaneous products of the earth, to dwell in caves, to have the body either naked or clothed with the bark of trees or skins of wild animals, but chose a more refined mode of life; this gave rise to industry which some applied to one thing, others to another. Moreover, the gathering of the products of the soil into a common store was hindered first by the remoteness of the places to which men had made their way, then oy the lack of justice and kindness; in consequence of such a lack the proper fairness in making division was not observed, either in respect to labour or in the consumption of the fruits. 5. At the same time we learn how things became subject to private ownership. This happened not by a mere act of will, for one could not ____:__~~~~~~~~~~___ck~n=o~w~w~h=a~t~t~h~ings___another w~-Sh-ad-t.--e-n~ve-,--i--n-ortl~r--to---ab~gtc.£I-~from them--and besides several might desire the same thing--but rather, by a kind of agreement, either expressed, as by a division, or implied, as by occupation. In fact, as soon as community ownership was abandoned, and as yet no division had been made, it is to be supposed that all agreed, that whatever each one had taken possession of should be his property. 10 Whatever the European theorists believed about the nature of man in the sixteenth and seventeenth centuries, and how he developed from a state of innocence, the native peoples of the Americas had fashioned a variety of political and social institutions before the discovery by Columbus. Much of the two Americas south of the present Canadian border was inhabited by peoples who practiced some form of agriculture, along with hunting and fishing; and there were no blocks of unoccupied territory waiting for Europeans to come to settle them. THE EUROPEAN LEGAL THEORISTS VITORIA, GROTIUS, VATTEL AND THE INDIANS OF THE AMERICAS By the time permanent colonies had been established by Europeans at Jamestown in 1607, at Quebec in 1608, and at Plymouth in 1620, the Spanish had been asserting their influence on Indians in the Caribbean area and the two Americas for more than a hundred years. Millions of Indians had died as a result of the application of Spanish political, religious and social institutions to their communities, and because of the ravages of European diseases for which the native peoples had no immunity. During the colonial period three scholars that are recognized as authorities in the field of natural law, or the law of nations, expressed opinions that relate to these contacts between the Europeans and the Indians of the Americas. Let us now examine these in some detail as background to particular laws promulgated by European-American governments for native peoples. As a framework for the presentation I will use the summaries of the lectures "On the Indians Lately Discovered," and "On the Law of War Made by the Spaniards on the Barbarians" by Francisco de Vitoria, given in 1532 and first published by his students at Lyons in 1557, twentyfive years after they were delivered and eleven years after Vitoria's death in 1546. An improved edition appeared in 1565, and several other editions followed. My text is the English translation by John Pawley Bate, LL.D. (Reader of Roman and International Law in the Inns of Court, London), of a Latin version of Francisci de Victoria, * De Indis et de *The Latin form of the Spanish name. 12 lure Bell~, as edited by Ernest Nys (Washington: Carnegie Institution of Washington, 1917). The work by James Brown Scott, The Spanish Origin of International Law. Francisco de Vitoria and His Law of Nations (Oxford: at the Clarendon Press, and London: Humphrey Milford, 1934), supi;>li.es the setting for our discussion of the Indian cause with a sixty page analysis of "The Era of Discoveries," and gives the "Historical Background of the Spanish School11 which began with Vitoria and closed with Grotius. Scott continued with an "Analysis of the Reading On the Indians Recently Discovered" divided into three sections, as presented by Vitoria in 1532, and followed with an "Analysis of the Reading On the Law of War [Against the Barbarians]" in one section. The work of the Dutch scholar and statesman Hugo Grotius, De.Jure Belli Ac Pacis Libri Tres was first published in 1625. My text is the Francis W. Kelsey translation (Oxford: at the Clarendon Press, and London: Humphrey Milford, 1925). My text for the work of the Swiss jurist, Emmerich de Vattel, is the Charles G. Fenwick translation of the 1758 edition of The Law of Nations or the Principles of Natural Law (Washington: The Carnegie Institution of Washington, 1916). I remind you that Vitoria's lectures bear the date 1532, that ~0-t-i-u-s_!_-JJe-J-tt-~·e-1l-i-wa-s-f-i-r-&t-p-He-l-i-&he-d-i-n-l~-w.h-e.n-G-t-h-e-~t4..-Gns-had------­ --------..--T j oined Spain in encounters with the Indians, and that Vattel's Law of Nations appeared in 1758 during the late colonial and nearing the revolutionary period. We may also needtobe reminded that it has been said of Vitoria, that what he gave to the Indians with one hand in parts one and two of the first lecture, he took away from them with the other hand in part three.· 13 A review of selected events prior to and following the lectures of Francisco de Vitoria will help give perspective to his statements, and to those of Hugo Grotius and Emmerich Vattel, concerning the rights of Europeans in the Americas under the Law of Nations. Silvio Zavala's chapter, "The Legal Claims of Spain in the Indies," in New Viewpoints on the Spanish Colonization of America (Philadelphia, 1943), at pages 6-7, refers to Henry of Susa, Cardinal Bishop of Ostia; known to students of canonical law as Ostiensis, or Hostiensis; who gave expression in the thirteenth century to a thesis found useful after the discovery of America, which was, in effect, that: in accordance with natural law and jus gentium, heathen peoples had their own political jurisdiction and their own possessions before Christ came into the world. But when this occurred, all the powers and the rights of dominion held by heathen peoples passed to Christ, who according to this doctrine, became lord over the earth, both in the spiritual and temporal sense. Christ delegated that supreme dominion to his successors--first St. Peter and later the Popes--so that at any given moment they had the legal right and power to annul the existing jurisdictions of the infidel. And the non-Christians would have no right to retain the jurisdictions which had been conceded to them under the j_us~-p.:r:-i-0-J;-t-e--t-h-e-d-i-v-i-s±on-o-f-tlrmrla1nto Christian and heathen zones ••• , when Pope Alexander VI issued his pontifical bulls in favor of the Spanish monarchs, he was putting into execution the doctrine of the subordination of the rights of the heathen world to the authorities of Christendom. 14 Although Pope Innocent III and other Canonists did not entirely agree with him, Hostiensis believed that the Pope, as the heir of Saint .. J ... Peter, and the Vicar of Christ on earth, was supreme over all rulers, in temporal as well as spiritual matters. This position was strengthened under Innocent IV, and is stated in two excerpts from R. W. and A. J. Carlyle's History of Mediaeval Political Theory in the West, vol. 5 (1928), at pages 325-6, and page 331: The 11 Sacerdotium" and the "Imperium" do not differ much as to the source from which they proceed, but they differ greatly in majesty. It is this, he says, which is symbolised in the difference between the unction of the bishop and the king. The difference is like that between the sun and the moon. He admits that this analogy had been differently interpreted by various doctors, but he urges that it may be properly said that as the moon receives its light from the sun, so the royal power receives its authority from the priestly, and as the sun illuminates the world by means of the moon at night, so the priestly sun illuminates the world by means of the royal, in those matters which it cannot deal with itself, such as the judgment of blood. He concludes, therefore, that while the two jurisdictions are ~~~~~~~~-d4-st:-~ne-t--,---as--f-a~~a-s----t-h~-r--e~-e-r-e-i-s-e-i.-s-c-enc-e-r-ns-d,-th-e--amp-e-ro-r-holds~~~~~~~~~ the empire from the Roman Church, and may be called its "Officialis" or vicar. It was the Roman Church which transferred the empire to the Germans. The Pope therefore confirms and annoints and crowns the emperor, and can censure and even depose him. 15 As we understand him, Hostiensis himself contends that the Pope is greater than the emperor, for Christ gave to Peter the laws both of the heavenly and the earthly empire, and he holds both the swords, although he entrusts the exercise of the temporal sword to emperors and kings. It is the proper function of the Church to maintain peace, and to cause it to be kept. He concludes by saying that all causes which involve the question of an oath, or the defect of justice, or of peace, or of sin, can be brought before the Church. Returning to Dr. Zavala's Spanish Colonization, at page 18 he makes the point that there were a number of precedents for the action of the Papal Chancery in the preparation of the Bulls of Alexander VI in 1493: In the second decade of the fifteenth century, Martin V is supposed to have invested the King_ of Portugal with the right to all the lands discovered from Cape Bogador to India and to have adjured all kings, lords, and communities not to disturb the King in possession of these lands. In 1437 Pope Eugenius IV decided, on the advice of the Consistory of the Vatican regarding the expedition of Alfonso V of Portugal against the infidels of Tangiers, that if the infidels occupied Christi~ territories and had tr~~~~hu~~-~~~es~~~~~~ or had done wrong to the Christians, or had shown themselves to be idolaters or had sinned against nature, just war could be waged against them, though it must be waged with piety and discretion. In 1452 Nicholas V, by virtue of his apostolic authority, permitted Alfonso of Portugal and his successors to attack and reduce to 16 servitude the Saracens and other infidel enemies of Christ and to seize their lands and movable property. Similar bulls were issued by Calixtus III in 1456, by Pius II in 1459, and by Sixtus IV in 1481. Turning to the examination of an excerpt from the Bull of May 4, 1493 favoring the Spanish kings, we notice that the language relating _., to discoveries is prominent·, that the Pope is apparently conveying temporal as well as spiritual authority, and that there is considerable concern that Spaniards not invade territory that has at any time been "possessed by any other Christian king or prince." All the Islands therefore and Mainlands, found and to be found, discovered and to be discovered from the said line toward the West and South, such as have not actually been heretofore possessed by any other Christian king or prince until the day of the nativity of our Lord Jesus Christ last past, from the which begins this present year being the year of our Lord. M. CCCC. lxxxxiii. when-so-ever any authority of Almighty God granted unto us in Saint Peter, and by the office which we bear on the earth in the stead of Jesus Christ, do forever by the tenure of these presents, give, grant, assign, unto you, your heirs, and successors (the kings of Castile and Leon) all those lands and Islands, with their dominions, territories, cities, --------~ast.lea,____:t_ow_e_rs_,_places_,-an<l---¥-illages_,----WLth__alLthe___righ_t_,_an~~---------­ j urisdic t ions thereunto pertaining: constituting, assigning, and deputizing you, your heirs, and successors, to be lords thereof, with full and free power, authority, and jurisdiction. Decreeing nevertheless by this our donation, grant, and assignation, that from no Christian Prince which actually has possessed the f oresaid Islands and Mainlands I 17 unto the day of the nativity of our Lord bef oresaid their right obtained to be understood hereby to be taken away, or that it ought to be taken away. To find support for the authorization and assurances given by Alexander VI we turn to the introduction to Vitoria's De Indis at pages 83-4, "already in 1494 the question of the aborigines of the New World had been submitted by the government to a commission composed of theologians and canonists who pronounced in favor of the generous doctrine, and a letter of Queen Isabella, dated February 10, 1495, showed that the arguments invoked had convinced the sovereign." In response to a request from King Ferdinand, a few years later, Juan Lopez de Palacios Rubios submitted a formal opinion in defense of the Indians: "The King," wrote he, "has added to his power the isles of the ocean commonly called the Indies and he has summoned unto the Gospel the men and the uncultured peoples there resident. The question thus arises, what rights does the sovereign possess? The author has learned from a reliable source that the aborigines of the countries just discovered by Christopher Columbus are men endowed with reason--mild, pacific, and capable of rising to the level of our religion. They have no private property, but cultivate certain land in common. They are addicted .~~~~~~~~~-~~Q~~n tfie ilsorg~ization of their f~ilies. Are they free? Yes, for God has given liberty to all men; nevertheless they ought to hearken to the teachings of Christian priests." This same scholar was the author of the Requerimiento, prepared on behalf of the king, and giving recognition to the supremacy of the Pope and to the actions of the Christian kings under the authorization of 18 the Papacy. Also, in the introduction and in Law 1 of the laws of Burgos, 1512, there is no hesitation on the part of the king to confiscate the lands of the Indians and to establish Indian towns located where they will be more available to the priests for the sake of \ conversion, and to the Spaniards who had claim on their labor. Cardinal Thomas de Vio Cajetan, a fellow Dominican and contemporary to Vitoria, took the position that the aborigines, although they were infidels, were free, since they were not the subjects of Christian princes, and did not occupy lands that had been taken from Christians, as did the Jews and Moors. It seems to have been the desire of Francisco de Vitoria to take a fresh look at the relationships between Spaniards and Indians in his lectures, without being influenced unduly by any of the theories that had been advanced previously, but having available for his consideration the arguments of all the scholars that had preceded him. The question whether unbelievers had dominium has been discussed by others. In order to refute it, Francisco de Victoria, in the Relectio de potestate civili, cites the opinion of Richard Fitzralph, Archbishop of Arma_g (whence his name Armachanus) , who died in 1360. He tells us how the latter, in his book, De paupertate Christi, teaches that unoeiief--a.n.d even mortal sin prevent~trre~x±stence~af--pnwer-,-o~~~~~~~~~ the right of domination, and of jurisdiction, and that grace is the title to and basis of all power. In the Relectio de Indis, he cites again the opinion of the Archbishop of Armagh; he mentions the similar doctrine of Wycliffe; he recalls that before these two writers the Poor Men of Lyons (the Waldenses) had fallen into the same mistake; 19 he adds that the Council of Constance condemned the proposition which Wycliffe had formulated as follows: 'Nullus est dominus civilis, dum est in peccato mortali. ' Franciscus de Victoria raises the question of title by discovery, inventio, the only title, says he, which was invoked at the beginning of the enterprises in the New World, and the only title in virtue of which Columbus, the Genoese, sailed. But he points out that this title is a sufficient one only in connection with uninhabited regions, and that in the case in question the barbarians were, both alike from the public and the private point of view, the real masters of the country. 'According to the Law of Nations,' says he, 'that which has no owner becomes the property of the seizor;.but the possessions we are speaking of were under a master, and therefore they do not come under the head of discovery.' It is not irrelevant to note that title by discovery was admitted by a number of Spanish and Portuguese authors, and that it was with the purpose of contesting its validity when applied to newly discovered lands that Grotius required occupation in addition to discovery (De Indis, pp. 83-86). "To discover a thing," wrote he in the Mare Liberum, chapter 2 and chapter 5, "is not only to seize it with the eyes but to take real possession thereof, 'as Gordian points out in one of his letters. For that reason the Grammarians give the same significance to the expressions 'to find' or 'to discover' and 'to take possession of' or 'to occupy.'n Adopting the view of Franciscus de Victoria, he writes, "In addition to all this, discovery per se gives no legal rights over things unless before the alleged discovery they were res nullius." He adds, "Possession of movables implies 20 seizure, and possession of immovables either the erection of buildings or some determination of boundaries." Following Thomas Aquinas, Vitoria proceeded from these two principles: 1. "The divine law, which proceeds from grace, does not annul human law, which proceeds from natural reason;" and 2. "Those things that are natural to man neither are to be taken from nor are to be given to him on account of sin." Or stated in other words, "That which is natural, be it called law or right, faculty or power, is so consubstantial with the being of man that it remains immutable in every class of men and he cannot lose or acquire it through sin, whether he be Christian or pagan, black or white" (Fried and Keen, Las Casas (1971), pp. 251-2). To continue with Vitoria: 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 standpoints. 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 man~ princes evicted from their possessions and stripped of their rule, there is certainly ground for doubting whether this is rightly or wrongly done. Then paraphrasing Saint Thomas: Unbelief does not destroy either natural law or human law; but ownership and dominion are based either on natural or on human law; 21 therefore they are not destroyed by want of faith. In fine, this is as obvious an error as the foregoing. Hence it is manifest that it is not justifiable to take anything that they possess from either Saracens or Jews or other unbelievers as such, that is, because they are unbelievers; but the act would be theft or robbery no less than if it were done to Christians .. (Vitoria, pp. 119 and 123). And further in regard to the effect of all this on the right of the Indians to hold property: 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). The effect of all this on the right of the Indians to have dominion: 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 the true owners. It would be harsh to deny to those, who .~~~~~~~~~~~-have never aone any wrong, what we grant to Saracens and Jews, who are the persistent enemies of Christianity (Vitoria, pp. 125 and 128). The two lectures of Francisco de Vitoria, referred to in some detail below, were given in 1532, and were followed by the Bull of Paul III, Sublimis Deus, in 1537. Some of the key points made in this document: "'It.he Indians are truly men;" they are "capable 22 of understanding the catholic faith;" and "the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property ••• ; nor should they be in any way enslaved; should the contrary happen, it shall be null and of no effect." For a quotation from Cicero that parallels the position of some Indian groups during the colonial period, we refer to Hugo Grotius, "On the Law of War and Peace," at page 300: By nature, moreover, there is no private ownership, but such arises either from ancient occupation, as in the case of those who formerly entered unoccupied territory; or from victory, as in the case of those who have gained possession by war; or from some law, agreement, condition, or lot. The result is that the land of Arpinum is said to belong to the people of Arpinum, and the land of Tusculum to the Tusculans; and the characterization of the properties of individuals is similar. Further from Grotius at page 298: In the same manner as wild animals, other 'things without a master,' as the Greeks say, that is other ownerless objects, are acquired. For, if we follow the law of nature alone, these also belong to the one who finds and takes possession of them. Thus the deserted island of Acanthus was adjudged to the Chalcidians, who had first entered it, and not to the Andrians, who had first thrown a javelin upon it. The reason is that the beginning of possession is the connexion of body with body; such connexion, in the case of movable things, is made with the hands; and, in the case of land, with the feet. I , - I 23 Then a word of caution from Grotius at page 192: If, however, anything which has been occupied as a whole has not yet been assigned to individual owners, it ought not on that account to be considered as unoccupied property; for it remains subject to the ownership of the first occupant, whether a people or a king. To this class ordinarily rivers, lakes, ponds, forests, and rugged mountains belong. To further set the stage for our examination of the Law of Nations as it regards the Indians of the Americas we will turn briefly to Emmerich Vattel, the Introduction, paragraphs 15, 18 and 19: The natural society of nations can not continue unless the rights which belong to each by nature are respected. No Nation is willing to give up its liberty; it will rather choose to break off all intercourse with those who attempt to encroach upon it. ..... Since men are by nature equal, and their individual rights and obligations the same, as coming equally from nature, Nations, which are composed of men and may be regarded as so many free persons living together in a state of nature, are by nature equal and hold from nature the same obligations and the same rights. Strength or weaknesses, ·n-t-h-i-s-e--a-se,-&0-un-t-fG-r-nothing_--A,_dwarf is as much a man as a giant is; a small Republic is no less a sovereign State than the most powerful Kingdom. From this equality it necessarily follows that what is lawful or unlawful for one Nation is equally lawful or unlawful for every other Nation. 24 And further from Vattel, Book I, Chapter I, paragraph 4, in regard to sovereignty: Every Nation which governs itself, under whatever form, and which does not depend on any other Nation, is a sovereign State. Its rights are, in the na~ur~l order, the same as those of every other State. Such is the character of the moral persons who live together in a society established by nature and subject to the Law of Nations. To give a Nation the right to a definite position in this great society, it need only be truly sovereign and,independent; it must govern itself by its own authority and its own laws. Last, in regard to the right of discoverers to take possession, Book I, Chapter XVIII, paragraph 207: All men have an equal right to "things which have not yet come into the possession of anyone, and these things belong to the person who first takes possession. When, therefore, a Nation finds a country uninhabited and without an owner, it may lawfully take possession of it, and after it has given sufficient signs of its intention in this respect, it may not be deprived of it by another Nation. In this way navigators setting out upon voyages of discovery and bearing with them a commission from their sovereign, when coming across islands or ~~~~~~~~~et-h~-r--tin~-n-h-ab-±tetl~lantlE,--have.-r-aK:en possession of fliem in the name of their Nation, and this title has usually been respected, provided actual possession has followed shortly after. Understanding the rights of the Indians, it is not difficult to see why the kings of England and France gave so little in the way of instructions to those who received charters, and left it to their subjects 25 to develop relationships with the Indians, and to make arrangements concerning the actual transfer of possession in regard to the soil. Two studies by Max Savelle, "International Aspects of the Age of Discovery," Chapter 5 of The Foundations of American Civilization (1942), and The Origins of American Diplomacy: The International History of Angloamerica, 1492-1763 (1967), help us to understand the maneuverings of the diplomats and the conflicts of the period from a northern European and North American point of view. All of this is necessary background to a comprehension of relationships between the Indian and the European. It was the European-American states which established the practice of dealing with indigenous peoples as separate nations, thus invoking the law of nations when it could be used to their advantage to cover the practices that developed in their relationships with them. At the same time, they regularly referred to them as "inferior peoples," and they devised a different set of rules acceptable to "select" nation states but not always acceptable to such authorities in the field of natural law as Francisco de Vitoria, Hugo Grotius, and Emmerich Vattel. To try to shame the rulers of these select states, who devised the new rules and sometimes set themselves above the law, Hugo Grotius addressed a choice statement "to the rulers and to the free and independent ---------~n_a_tiillls_o£-ch-r:--i--.s-te-nd-Gm_!_!_i-n-a-w1J-r-k-on-The-Fre-e-duI!lo-r-ttre-s eas, first written in Latin shortly after 1600 and now available in an English translation (New York [1916], pp. 1-3): The delusion is as old as it is detestable with which many men, especially those who by their wealth and power exercise the greatest influence, persuade themselves, or as I rather believe, try to persuade 26 themselves, that justice and injustice are distinguished the one from the other not by their own nature, but in some fashion merely by the opinion and the custom of mankind. Those men therefore think that both the laws and the semblance of equity were devised for the sole purpose of repressing the dissensions and rebellions of those persons born in a subordinate position, affirming meanwhile that they themselves, being placed in a high position, ought to dispense all justice in accordance with their own good pleasure, and that their pleasure ought to be bounded only by their own view of what is expedient. This opinion, absurd and unnatural as it clearly is, has gained considerable currency; but this should by no means occasion surprise, inasmuch as there has to be taken into consideration not only the common frailty of the human race by which we pursue not only vices and their purveyors, but also the arts of flatterers, to whom power is always exposed. But, on the other hand, there have stood forth in every age independent and wise and devout men able to root out this false doctrine from the minds of the simple, and to convict its advocates of shamelessness. For they showed that God was the founder and ruler of the universe, and especially that being the Father of all mankind, e--h-a-d--n-o-t-sepa-ra-te-d----h-uman-ae-in-gs-,-a-s--H-e-had-th-e-re-s-t----o-f---l--i-v-f-n-g things, into different species and various divisions, but had willed them to be of one race and to be known by one name; that furthermore He had given them the same origin, the same structural organism, the ability to look each other in the face, language too, and other means of communication, in order that they all might recognize their natural 27 social bond and kinship. They showed too that He is the supreme Lord and Father of this family; and that for the household or the state which He had thus founded, He had drawn up certain laws not graven on the tablets of bronze or stone but written in the minds and on the hearts of every individual, where even the unwilling and the refractory must read them. That these laws were binding on great and small alike; that kings have no more power against them than have the common people against the decrees of the magistrates, than have the magistrates against the edicts of the. governors, than have the governors against the ordinances of the kings themselves; nay more, that those very laws themselves of each and every nation and city flow from that Divine source, and from that source receive their sanctity and their majesty. Now, as there are some things which every man enjoys in common with all other men, and as there are other things which are distinctly his and belong to no one else, just so has nature willed that some of the things which she has created for the use of mankind remain conrrnon to all, and that others through the industry and labor of each man become his own. Laws moreover were given to cover both cases so that all men might use common property without prejudice to any one else, and in -----------~re-s-pe-&t----E-e-e-t-he-r-t-h-i-ngs-Em-t-nat eacn man being content with what he himself owns might ref rain from laying his hands on the property of others. Now, since no man can be ignorant of these facts unless he ceases to be a man, and since races blind to all truth except what they receive from the light of nature, have recognized their force, what, 28 0 Christian Kings and Nations, ought you to think, and what ought you to do? If any one thinks it hard that those things are demanded of him which the profession of a religion so sacred requires, the very least obligation of which is to refrain from injustice, certainly every one can know what his own duty is from the very demands he makes of others. There is not one of you who does not openly proclaim that every man is entitled to manage and dispose of his own property; there is not one of you who does not insist that all citizens have equal and indiscriminate right to use rivers and public places; not one of you who does not defend with all his might the freedom of travel and of trade. If it be thought that the small society which we call a state cannot exist without the application of these principles (and certainly it cannot), why will not those same principles be necessary to uphold the so-cial structure of the whole human race and to maintain the harmony thereof? If any one rebels against these principles of law and order you are justly indignant, and you even decree punishments in proportion to the magnitude of the offense, for no other reason than that a government cannot be tranquil where trespasses of that sort are allowed. If king act unjustly and violently against king, and nation against nation, such action involves a disturbance of the peace of that universal state, and constitutes a trespass against the supreme Ruler, does it not? There is however this difference: just as the lesser magistrates judge the common people, and as you judge the magistrates, so the King of the universe has laid upon you the command 29 to tal;<e cognizance of the trespasses of all other men, and to punish them; but He has reserved for Himself the punishment of your own trespasses. But although He reserves for Himself the final punishment, slow and unseen but none the less [sic] inevitable, yet He appoints to intervene in human affairs two judges whom the luckiest of sinners does not es.cape, namely, Conscience, or the innate estimation of oneself, and Public Opinion, or the estimation of others. The English kings were reported to have been somewhat reckless in their use of grants of "wild land" in America to reward favorites for public services. "It was an easy way to pay debts, for it cost the king nothing, and all the labour and expense of making the grant valuable fell upon the grantee" (John Fiske, Old Virginia and Her Neighbors, Vol. 2 [1902], p. 61). Roger Williams, a competent individual who received educational guidance under Sir Edward Coke, stirred up some controversy by writing a pamphlet holding that the soil belonged to the Indians, that the King was actually an "intruder," and that the only way to secure a valid title was to purchase the land from the true owners, a position not very different from that taken by Francisco de Vitoria in 1532. THE FIRST RELECTIO ON THE INDIANS LATELY DISCOVERED by The Reverend Father, Brother Francisco de Vitoria 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," last chapter. The key to the introduction of material will be the numbered summary sentences from Vitoria's work. Sometimes the summary sentence itself is considered adequate to the understanding of the topic or idea introduced. In other cases, material is presented from Vitoria to enlarge upon the summary sentence. Frequently related material is also introduced from Grotius and/or Vattel to give additional information or to show a point of view held later in the colonial period. The first lecture, or reading, is divided into three sections. The first section inquires "by what right these Indian natives came under Spanish sway." The second section asks "what rights the Spanish sovereigns obtained over them in temQoral and civil matters." The third section a_s_ks~--­ "what rights these sovereigns or the Church obtained over them in matters spiritual and touching religion." (Scott, Spanish Origin (1934), p. 97). 31 Translator's Note on Citations 1. Bible. The references made in the original to the Vulgate are given in the translation in terms of the English Authorized Version of the reign of James I. 2. Canon law books. The references in the translation are given in the following abbreviated manner: (a) Decretum, pt.i., by number of Canon and number of Distinctio, e.g., can. 6, Dist. 96: (b) Decretum, pt.ii, by number of Canon, number of Gausa, number of Quaestio, e.g., can. 41, C.7, qu.l: (c) Decretales, by X (for extra Decretum), then number of book, title and chapter, thus X, 5, 6, 6,: (d} Liber Sextus, by the number of book, title and chapter, followed by "in vi," thus 5, 2, 19 in vi. 3. Civil law books. The references in the translation are to Monnnsen's edition of the Corpus Juris Civilis. In addition to the above-named books the author cites or refers to the writings of the following: Adrian VI, Pope Almain, Jacques Altissiodorensis (i.e., of Auxerre), Gulielmus Fitzralph, Richard, Archbishop of Armagh Gandavensis (i.e., of Ghent), Henricus Ambrose, St. Gerson Anconitanus (i.e. of Ancona), Hostie~sis Agostino Trionfi. (Henry of Susa, Cardinal, Bishop of Ostia). Andreae, Joannes. Hugo, see de Sancto Victore. Angelus of Chiavasso. Lombard, Peter. Antoninus, St., Archbishop of Luther, Martin. Florence. Natalis, Herveus. 32 Aquinas, St. Thomas. Archbishop, the, see Ovid. Antoninus. Aristotle. Paludanus, Petrus. Panormitanus (i.e., of Palermo), Armachanus (i.e., of Armagh), see Fitzralph, Richard. Nicolo Tudeschi. Parisiensis (i.e., of Paris), Augustine, St. Gulielmus. Baptista de Salis. Sallust. Bartolus. de Sancto Victore, Hugo. Bernard, St. Scotus, Duns. Cajetan, Cardinal (Thomas de Vio) Sylvester of Prierio. Cicero. Terence. Conrad. Tertullian. Dionysius Areopagiticus. de Torquemada (Turrecremata), Juan Durandus. Vergil. Eymerici, Nicholas. Waldensis (i.e., of Walden, Essex), Thomas Netter. 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 instructions in such matters. 2o 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. 33 Vitoria, p. 116: 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 the 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 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 tnings of wnicli tlie 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 34 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 presumptuous 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. Vitoria, P.P. 119-120: 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 pelieve 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, ----------th-e.:.r;e-i-a-Ge-:i;t-a-i-n-1-y-g-:i;eu-na-:fo-r--El-eul:>-an-g-wh-e-t-he-r-t-h-i-s-i--s-r-i-gh-t-1-y-o-r-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 35 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. 36 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. Vitoria, p. 120: The answer might seem to be No, th~ 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 ·~~~~--~~~~---:~neens-4:-~t-eney-i-n-a-s1-ave-havirrg no master, as the giossator on Dig., 40,12,23, notes. Nay, the statement is expressly made in that passage of the Digest and it is the expressed case set out in Dig., 45,3,36,pr., where it is said that a slave who has been abandoned by his master and not taken into possession by any one else can be taken into possession by any one. If, then, these were slaves they could be taken into possession by the Spaniards. 37 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 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 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 or irrational. 5. Examination of the error of those who assert that persons living in mortal sin can not have ownership of anything at all. Vitoria, p. 121: Now, some have maintained that gra,ce 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, of 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 Aramaclianus (~ro, Aaversus errores Armenorum, c.4) and in the Dialogue, Defensorium pacis; and Waldensis wrote to convert him in his Doctrinale antiquitatum fidei, vol.I, bk.2, ch.81 and 82, and vol.11, 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 to the indictment, "Of their 38 silver and their gold have they made them idols that they may be cut off." 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.l), "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.----17-.-Th~T-e-fur-e,-~tc. 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.l, qu.7) understands their teaching, and 39 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. 6. Mortal sin does not preclude civil ownership of the true kind. Vitoria, pp. 121-122: 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. 13, 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 would be in a dilemma, inasmuch as he must eat bread, and if he can not own any himself he takes another's. Therefore he can not escape mortal sin. This reasoning is, however, unsatisfactory, in the first place, because neither Armachanus nor Wycliffe seem to be speaking of natural dominion, but of civil; and, secondly, the consequence is denied, it being retorted that in case of necessity a man could take what is another's; and, thirdly, he is in no dilemma, because he can repent. Vattel, Book I, Chapter II, par. 18: The right of self-preservation carries with it the right to whatever is necessary for that purpose, for the natural law gives us the right to all those things without which we can not satisfy our obligations; otherwise it would oblige us to do what is impossiDie, or raflier it would contradict itserr;-oy prescri5ing a duty and at the same time refusing us the sole means of fulfilling it. 7. Whether ownership is lost by reason of unbelief. Vitoria, p. 123: Now it remains to consider whether at any rate dominion may be lost by reason of unbelief. It might seem to be so, on the ground that heretics have no dominion, and therefore other unbelievers have not, 40 inasmuch as their condition is not better than that of heretics. The antecedent is evident from the chapter cum secundum leges (5,2,19,in vi.), where it is ruled that the goods of heretics are confiscated by the very fact. My answer is in the following propositions: The first proposition is that unbelief does not prevent anyone from being a true owner. This is the conclusion of St. Thomas Aquinas (Secunda Secundae, qu.10, art.12). It is proved also, firstly, by the fact that Scripture gives the name of king to many unbelievers, such as Sennacherib and Pharaoh and many other kings. Also by the fact that hatred of God is a graver sin than unbelief; but through hatred, etc. Also, St. Paul (Romans, ch.13) and St. Peter (I Peter, ch.2) enjoin obedience to princes, all of whom at that time were unbelievers, and slaves are there bidden to obey their masters. Also, Tobias ordered that a kid which had been taken from the Gentiles should be restored as having been stolen (Tobias, ch.2); now, this would not be the case, if the Gentiles had no ownership. Also, Joseph made all the land of Egypt tributary to Pharaoh, who was an unbeliever (Genesis, ch.47). The proposition is also supported by the reasoning of St. Thomas, namely: Unbelief.does not destroy either natural law or human law; therefore they are not destroyed by want of faith. In fine, this is as obvious an error as the foregoing. Hence it is manifest ----------t-h-a-t-i-t-i-s-ne-1:--j-tls-t:-i--f-i-ah±e-E-0-t--ak-e-an-y-t-J.:i-i-n-g-t-ha-t-t-he-y-p-os-s-e-s-s-f-r-0-m-e-i-the-r____ Saracens or Jews or other unbelievers as such, that is, because they are unbelievers; but the act would be theft or robbery no less than if it were done to Christians. 8. The divine law does not make heresy a cause of forfeiture of the hereticts property. 41 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 sei~e 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. Vitoria, pp. 124-125: 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, p. 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 ac~th-at-thi---s-----depri-vati-on---i--n-----the-----f-orum---o-f----cnns--c±enc-e---±s-----a----p-enai--ty; 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 42 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 abovenamed chapter cum secundum leges and in Cod., 5,5,3, and God., 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? 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. 15. A heretic may lawfully live on his own property. 16. A heretic may make a gratuitous conveyance of his property, as by way of gift. 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 sale. Vitoria, p. 125: 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 43 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. 19. Barbarians are not precluded by the sin of unbelief or by any other mortal sins from being true owners alike in public and in private law. Vitoria, p. 125: 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). 20. Whether the use of reason is a pre-requisite of capacity for ownership. Vitoria, p. 125: 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.l, 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. Grotius, p. 208: On what right the ownership of property by infants and by insane persons rests. It must be noted, further, that if we have in view the law of nature alone, ownership is restricted to those who are possessed of reason. But in the COTimlon interest the law of nations introduced the pro- 44 vision, that both infants and insane, persons should be able to acquire and retain ownership--the human race, as it were, meanwhile representing them. Human laws indisputably have it in their province to go further than nature in regard to many points, but never to go contrary to nature. Hence this type of ownership, which by common acceptation of civilized nations has been introduced in favour of infants and those of similar condition, is limited to the first act, as the Schools say, and cannot extend to the second act; that is, it covers the right of proprietorship, but not the right of the owner himself to use what he owns. For alienation, and other acts similar thereto, by their very nature presuppose the action of a will controlled by reason, and in such persons a will subject to reason cannot exist. At this point you might not inappropriately refer to the statement of the Apostle Paul, that an heir, although the owner of an ancestral estate, while he is under age, differs in no respect from the bond-servants, of course as regards the exercise of the right of ownership. 21. Whether a boy can be an owner before he has the use of reason. Vitoria, p. 127: 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 45 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 (D~g., 44,3,11, and Ins~. 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 sake. 22. Whether a person of unsound mind can be an owner. Vitoria, p. 127: 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 a 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. 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. Vitoria, pp. 127-128: 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 definite marriage and magistrates, 46 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 s.alvation, 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. 24. These aborigines were true owners alike in public and in private law before the advent of the Spaniards among them. Vitoria, p. 128: 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 47 of their incapability of self-government. My answer to this is that Aristotle certainly did not mean to say that such as are not overstrong 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 those 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. Vattel, Book I, Chapter VII, par, 81: The whole earth is destined to furnish sustenance for. its inhabitants; but it can not do this unless it be cultivated. Every Nation is therefore bound by the natural law to 48 cultivate the land which has fallen to its share, and it has no right to extend its boundaries or to obtain help from other Nations except in so far as the land it inhabits can not supply its needs. Those peoples, such as the ancient Germans and certain modern Tartars, who, though dwelling in fertile countries, disdain the cultivation of the soil and prefer to live by plunder, fail in their duty to themselves, injure their neighbors, and deserve to be exterminated like wild beasts of prey. There are others who, in order to avoid labor, seek to live upon their flocks and the fruits of the chase. This might well enough be done in the first age of the world, when the earth produced more than enough, without cultivation, for the small number of its inhabitants. But now that the human race has multiplied so greatly, it could not subsist if every people wished to live after that fashion. Those who still pursue this idle mode of life occupy more land than they would have need of under a system of honest labor, and they may not complain if other more industrious Nations, too confined at home, should come and occupy part of their lands. Thus, while the conquest of the civilized Empires of Peru and Mexico was a notorious usurpation, the establishment of various colonies upon the continent of North America might, if done within just limits, have been entirely lawfula The peoples of those vast tracts of land rather roamed over them than inhabited them. Vattel, Book I, Chapter XVIII, par. 209: There is another celebrated question which has arisen principally in connection with the discovery of the New World. It is asked whether a Nation may lawfully occupy any part of a vast territory in which are to be found only wandering tribes whose small numbers can not populate the whole country. We have already 49 pointed out (Par. 81), in speaking of the obligation of cultivating the earth, that these tribes can not take to themselves more land than they have need of or can inhabit and cultivate. Their uncertain occupancy of these vast regions can not populate the whole country. We have already said that the earth belongs to all mankind as a means of sustaining life. But if each Nation had desired from the beginning to appropriate to itself an extent of territory great enough for it to live merely by hunting, fishing, and gathering wild fruits, the earth would not suffice for a tenth part of the people who now inhabit it. Hence we are not departing from the intentions of nature when we restrict the savages within narrower bounds. Grotius, pp. 202-3: Again, if within the territory of a people there is any deserted and unproductive soil, this also ought to be granted ·to foreigners if they ask for it. Or it is right for foreigners even to take possession of such ground, for the reason that uncultivated land ought not to be considered as occupied except in respect to sovereignty, which remains unimpaired in favour of the original people. To the Trojans seven hundred acres of hard, rough land were given, as Servius notes, by the Latin aborigines. In the seventh Oration of Dio of Prusa we read: 'They who bring under cultivation an untilled portion of the earth commit no wrong.' Once the Ansibarii cried out: 'As the heavens were granted to the gods, so the lands of earth were granted to the race of mortals, and all lands that are unoccupied are public property. Nay more, the barbarians raised their eyes to the sun and the stars and asked these, as if speaking face to face, whether they wished to look upon soil 50 unoccupied; rather might they pour the sea over it against the monopolisers of the earth.' However, the Ansibarii made an unfortunate application of these general principles to the case in hand, for the lands requested were not vacant, but furnished pasturage for the flocks and herds of the soldiers; and this consideration gave the Romans a just cause for refusal. With no less justice the Romans formerly asked the Senonian Gauls, 'What right they had to demand land from the rightful owners, or threaten these with war?' 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. Vitoria, pp. 131-134: 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.l, 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. 51 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.l, 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 in the Extravagans, Ad reprimendum, Bartolus adduces the passage in Daniel, ch.2, about Nebuchadnezzar, of whom it is said: "Thou, 0 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 52 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 title. 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 53 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. 54 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." (St. John, ch.18, v.36) .~ 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, 55 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 above-mentioned, 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 56 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 ~s 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. 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. Vitoria, p. 134: 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. 57 Vattel, Book I, Chapter IV, par. 45: The Prince receives his authority from the Nation; he possesses just so much of it as the Nation has thought well to confer upon him. If the Nation has committed to him the sovereign power purely and simply without limitation or qualification, it is regarded as having conferred upon him all the rights without which the sovereign authority or governing power can not be exercised in the manner most conducive to the public good. 3. The Pope is not civil or temporal lord of the whole world, in the proper sense of civil lordship and power. Vitoria, pp. 134-136: 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, par.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 (par. 7) and under the word Papa (pars. 7,10,11 and 14), and under the word legitimus (par.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 58 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," (Psalm 24, vl), and "All power is given unto me both in heaven and in earth," (St. Matthew, ch.28, v.18), 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. Barto~us, 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, 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 59 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 Summa. 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: 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, Dist.96. And the most learned 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." (I Pet., ch.5). 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 60 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," (St. John, ch.21, v.17), 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 suffici~nt 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 61 and may not exconununicate 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. 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 spiritual. Vitoria, pp. 136-137: 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 fact that an art to which a higher end pertains is imperative and preceptive as regards the arts to which lower ends pertain (Ethics, bk.l). 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 connnission 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 62 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. Andon 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, 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. An~ so they err in speech and in deed, whether princes or magistrates, who strive to prevent bishops from deterring lay- 63 men from sin by fines or exile or other temporal punishment. 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 vicar of Christ, but this our opponents deny. 6. The Pope has no temporal power over the Indian aborigines or over other unbelievers.* 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. Vitoria, pp. 137-139: The.corollary follows that even if the barbarians refuse to recognize any lordship of the Pope, that furnishes no ground for making war on them and seizing their property. This is clear, because he has no such lordship. 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, *Vitoria, p. 137: "For he [the Pope] 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." 64 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 (par.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. 65 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 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 66 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." (St. Mark, ch.16, v.16). 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. 67 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. Vitoria, pp. 140-142: tianity, they d~d Before the barbarians heard anything about Chris- 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.l, 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 *Summa aurea sententiarum: Paris edition (1500), fol. cxxxv, col. 4 at end. 68 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 a one 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 (De Sacramentis Christianae fidei, 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 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 of 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. 69 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?" sayd he, "Yes, verily, their sound.went into all the earth." This 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 igno~ance; 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 behooves 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 70 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 falling into mortal sin, which is absurd. 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 vincible ignorance? Vitoria, p. 142: 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 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 71 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 follow therefore that i f their life be bad, ignorance or unbelief in baptism and the Christian faith may be imputed to them as a sin. 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. Vitoria, pp. 142-143: The Indians in question are not bound, directly, that 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.l, art. 4), it would be rash and imprudent for any one to believe 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.l, art.4, on obj.2, and 72 art. 5, on obj.l), 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. 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. Vitoria, pp. 143-144: 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, 73 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.l) 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. How the aborigines, if they refuse when asked and counselled to hear peaceably preachers of religion, can not be excused from mortal sin. Vitoria, p. 144: 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 74 and be baptized (St. Mark, last ch.), "Whose 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. When the aborigines would be bound to receive Christianity under penalty of mortal sin. Vitoria, p. 144: 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. In the author's view it is not sufficiently clear whether Christianity has been so proposed and announced to these aborigines that they are bound to believe it under the penalty of fresh sin. Vitoria, p. 144: 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 75 (as appears from my second proposition) they are not bound to believe unless the faith be put before them with persuasive demonstration. Now, I hear of no miracles or signs or religious patterns of life; nay, on the other hand, I hear of many scandals and cruel crimes and acts of impiety. Hence it does not .appear that the Christian r~ligion 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. 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. Vitoria, pp. 144-146: 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 76 the canon de Judaeis (can.5, Dist.45), which says: "The holy synod also enjoines 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.'" (Romans, ch.9, v.18). 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 wis.e 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, law 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 77 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 of fend 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, par.8), following Augustinus Anconitanus, and of Sylvester (under the word Papa, par. 7); and it is the opinion of Innocent in X, 3,34,8, and 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 78 (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. Christian princes can not, even on the authority of the Pope, restrain these aborigines from sins against the law of nature or punish them therefor. Vitoria, pp. 146-149: Christian princes can not, even by the authoriza- tion 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.l. 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 79 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 80 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, for the Pope has no other right to condemn or punish them than as vicar of Christ. But, the writers in question admit--both Innocent and Augustinus of Ancona, and the Archbishop and Sylvester, too--that they can not be punished because they do not receive Christ. Therefore not because they do not receive the judgment of the Pope, for the latter presupposes the former. The insufficiency alike of this present title and of the preceding one, 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. There- 81 fore, 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 *Otherwise to be blamed. 82 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 question. There is a seventh title which can be set up, namely, by special grant from God. For some (I know not who) assert that the Lord by His especial judgment condemned all the barbarians in question to perdition because of their abominations and delivered them into the hands of the Spaniards, just as of old He delivered the Canaanites into the hands of the Jews. I am loath to dispute hereon at any length, for it would be hazardous to give credence to one who asserts a prophecy against the common law and against the rules of Scripture, unless his doctrine were confirmed by miracles. Now, no such are adduced by prophets of this type. Further, even assuming that it is true that the Lord had determined to bring the barbarians to 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 tha.i1 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 83 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 to 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)e Grotius, pp. 508-10: 1. Our order of treatment has brought us to the discussion of crimes which are committed against God; for there is a dispute whether war may be undertaken to avenge these. This question has been treated at sufficient length by Covarruvias. But he, accepting the position of others, thinks that the power to punish does not exist apart from jurisdiction, properly so called. This view we have already rejected. Consequently, just as in the affairs of the Church the bishops are said in some way to have been 'entrusted with the care of the Universal Church,' so kings, in addition to the particular care of their own state, 84 are also burdened with a general responsibility for human society. A stronger argument for the view which denies that such wars are just is this, that God is able to punish offenses committed against Himself, whence the sayings, 'The injuries of the gods are the care of the gods,' and 'perjury has a sufficient avenger in God.' 2. We must, however, recognize the fact that this same thing may be said about other crimes as well. For without doubt God is able to punish these also, and yet no one disputes that they are rightly punished by men. But some will insist and say that other crimes are punished by men in so far as other men are injured or endangered thereby. But it must be noted, on the other hand, that men do not only punish the sins which directly harm others but also those which harm by their consequences, such as suicide, intercourse with animals, and some other things. 3. Moreover religion, although it is in itself effective in winning the favour of God, nevertheless has also in addition important effects on human society. For not undeservedly does Plato call religion the bulwark of authority and the laws and the bond of right training. Plutarch in like manner calls it 'the cement of all society and the basis of legislation.' In the view of Philo 'the worship of one God is an unfailing means of inspiring love and an indissoluble bond of kindly good will.' Everything opposite flows from impiety: Alas, the first cause of crime for weak men Is ignorance of the laws of God. Plutarch says that every false belief in regard to divine matters is harmful, and, if coupled with a disturbance of the soul, very harmful. Tamblichus preserves a Pythagorean dictum: 'The knowledge of the gods is 85 virtue and wisdom and complete happiness.' For these reasons Chrysippus said that law is the queen of things divine and human; Aristotle held that among public obligations the chief was that concerning divine things; and to the Romans jurisprudence was the knowledge of things divine and human. Philo thought that the art. of ruling consisted in 'the care of private, public and sacred matters. 1 4. All these things are to be taken into account not merely in any one state, as when, in Xenophon, Cyrus says that his subjects will be more devoted to him the more they fear the gods, but also in human society generally. 'If piety is removed,' said Cicero, 'with it go good faith and the friendly association of mankind, and the one most excellent virtue, justice.' In another place he says: 'Justice arises when we fully understand what the godhead of our supreme ruler and lord is, what his purpose, what his will.' A clear proof of all this is that Epicurus, after having abolished divine providence, left nothing of justice except the empty name, so that he could say it arose from agreement only and endured no longer than the common advantage therefrom endured; that one must then abstain from the things which are likely to injure another solely through fear of punishment. His own remarkable words on this point are found in Diogenes Laertius. 5. Aristotle also perceived this relation, and in his Politics, Book V, chapter xi, speaks thus of the king: 'For the people will be less afraid of suffering anything unlawful from their prince if they believe that he fears the gods.' Galen, too, in the ninth book, speaking of the precepts of Hippocrates and Plato, after saying that many inquiries are 86 conducted with regard to the earth and the nature of the gods without any advantage to morality, recognizes that the inquiry concerning the nature of providence is of the greatest alike to private and to public virtues. Homer also saw thi.s, and in the sixth and ninth books of the Odyssey contrasts with men who are 'insolent and fierce' those whose 'mind is god-fearing.' In like manner Justin, following Trogus, praises the justice of the ancient Jews that was bound up with their religion; just as Strabo calls the same Jews 'truly pious and righteous.' Lactantius says: 'If then piety is a knowledge of God, and the sum of this knowledge is His worship, then he who does not accept the religion of God is ignorant of justice. For how can he know it who knows not whence it comes?' In another place, again: 'Justice is peculiar to religion.' 6. Religion is of even greater use in that greater society than in that of a single state. For in the latter the place of religion is taken by the laws and the easy execution of the laws; while on the contrary in that larger community the enforcement of law is very difficult, seeing that it can only be carried out by armed force, and the laws are very few. Besides, these laws themselves receive their validity chiefly from fear of the divine power; and for this reason those who sin against the law of nations are everywhere said to transgress divine law. Therefore, the Emperors have well said that religious corruption affects all to their hurt. Vattel, Book I, Chapter xii, par. 128: Every man is bound to endeavor to obtain correct ideas of God, to know His laws, His purpose with respect to His creatures, and the lot He has appointed to them. A man owes 87 certainly the purest love and the deepest reverence to his Creator; and in order to keep himself in this disposition of mind and to act conformably to it, he must honor God in all his actions, and must give evidence by suitable means of the sentiments which fill his heart. This brief statement is sufficient to make clear that a man is essentially and necessarily free in resp~ct to the form of religion he ought to adopt. Belief is not a thing which can be commanded; and what sort of worship would that be which was enforced! Worship consists in certain actions which are performed directly with a view to honoring God; hence there can be no other worship to be rendered by each individual than that which he thinks suited to that end. Since the obligation to endeavor sincerely to know God, to serve him, and to honor him from the inmost heart is imposed upon man by Nature itself, it can not be that by his compact with society a man is relieved of that duty or deprived of the liberty which is absolutely necessary for the fulfillment of it. We conclude, therefore, that liberty of conscience is derived from the natural law and is inviolable. It is to the world's shame that a truth of this nature need be proved. Summary of the Third Section On the lawful titles whereby the aborigines of America could have come 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. 88 2. The Spaniards have a right to travel to the lands of the Indians and to sojourn there so long as they do no harm, and they can not be prevented by the Indians. Vitoria, pp. 151-152: The Spaniards have a·right to travel into the lands in question and to sojourn th~ere, 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 f'oreigners 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 uses 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 is lawful. Fourthly, it would not be lawful for the French to prevent the Spanish from traveling or even from living in France, or vice versa, 89 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 universal application. 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 90 are public things. Therefore it is not lawful to keep any one from them. Hence it follows that the aborigines would be doing a wrong to the Spaniards, if they were to keep them from their territories. Also, eleventhly, these very persons admit all other barbarians from all parts. Therefore, they would be doing a wrong, if they were not to admit the Spaniards. Also, twelfthly, if it were not lawful for the Spaniards to travel among them, this would be either by natural law or by divine law or by human law. Now, it is certainly lawful by natural law 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 clear that every man is our neighbour" (St. Augustine's De doctrina Christiana). Grotius, p. 201: 1. To those who pass through a country, by water or by land, it ought to be permissible to sojourn for a time, for the sake of health, or for any other good reason; for this also finds place among the advantages which involve no detriment. So in Virgil, when the Trojans were forbidden to sojourn in Africa, Ilioneus dared to appeal to the gods as 91 judges. The Greeks viewed as well founded the complaint of the people of Megara against the Athenians, who forbade the Megarians to enter their harbours, 'contrary· to conunon right,' as Plutarch says. To the Lacedaemonians no cause for war seemed more just. 2. A natural consequence of this is that it is permissible to build a temporary hut, for example on the seashore, even if we admit that possession of the coast has been taken by a people. For when Pomponius said that an order of the praetor must be obtained before one would be allowed to erect any building on a public shore or in the sea reference was made to permanent structures. To such the lines of the poet refer: The fish are conscious that a narrower bound Is drawn the seas around By masses huge hurl'd down into the deep. Vattel, Book II, Chapter IX, par. 123: The right of passage has also survived from the original conditions under which the entire earth was the common property of all and each individual might go here or there at will, according to his needs. No one may be entirely deprived of that right (Par. 117), but the exercise of it has been restricted by the introduction of domain and private property, following which the right of passage can only be exercised with due regard to the rights of others. The effect of ownership is to put the object at the disposition of the owner in preference to all others. If, then, the owner of a tract of land should see fit to forbid you to enter upon it, you must have some reason, stronger than all his, to enter upon it in spite of him. Such would be the right of necessity. It permits an action which under other circumstances would be unlawful, namely, a violation of the rights of ownership. When 92 you are compelled by actual necessity to enter upon the lands of another, for example, if you can not otherwise escape from immiment dangers, if you can not obtain the necessaries of life, or the means of satisfying some other indispensable obligation, except by passing across those lands, you may force a right of way from one who unjustly refuses you. But if the owner is compelled by an equal necessity to refuse you access the refusal is just, since his right prevails over yours. Thus a vessel, under stress of weather, has a right to enter into a foreign port, and may even force an entrance; but if the vessel is carrying persons infected with the plague the owner of the port may drive it off by firing upon it, and in so doing will offend neither against justice, nor even against charity, which in such a case should certainly begin at home. 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. Vitoria, pp. 152-153: The Spaniards may lawfully carry on trade among the native Indians, so long as they do no harm to their country, as, for instance, by importing thither wares which the natives lack and by exporting thence either gold or silver or other wares of which the natives have abundance. Neither may the native princes hinder their subjects from carrying on trade with the Spanish; nor, on the other hand, may the princes of Spain prevent commerce with the natives. This is proved by means of my first proposition. 93 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 reasonable. Also, thirdly, the sovereign of the Indians is bound by the law of nature to love the Spaniards. Therefore the Indians may not causelessly prevent the Spaniards from making their profit where this can be done without injury to themselves. A fourth reason is that such conduct would be against the proverb: ''Thou shalt not do to another what thou wouldest not wish done to thyself." 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." Grotius, pp. 199-200: To the evidence which we have elsewhere cited upon this point, we shall add an excerpt from Philo: 94 The sea in every part is traversed without danger by merchant vessels, carrying the commerce which has grown up between nations out of a natural desire to maintain a social relationship, while the abundance of some ministers to the need of others. For envy has never gained the ascendancy either over the whole world, or over any large part of it. Another bit of testimony comes from Plutarch, who speaks of the sea in the following words: 'This element has united and has rounded out our life, which without it had been savage and without commercial intercourse; supplying, as it does, through mutual help what was lacking, and through the interchange of commodities fostering a social relationship and friendliness.' In harmony with this is the statement of Libanius: 'God did not bestow all products upon all parts of the earth, but distributed His gifts over different regions, to the end that men might cultivate a social relationship because one would have need of the help of another. And so He called commerce into being, that all men might be able to have common enjoyment of the fruits of earth, no matter where produced.' Euripides also in the Suppliants, where he represents Theseus as speaking reckons navigation among the things which human reason has devised for the common good, using these words: The sea we traverse, that by interchange The lack of our own land we may supply. In Florus are the words: 'If you destroy commerce, you sunder the alliance which binds together the human race.' Vattel, Book I, Chapter VIII, pars. 88 and 89: Let us now see what are the Laws of Nature and what are the rights of Nations in respect to their 95 commerce with one another. Men are obliged mutually to assist one another as far as they can, and to contribute to the advancement and welfare of their fellow men (Introd., par. 10); hence it follows, as we have said (par.86), that after the introduction of private property there arises the duty of selling to one another, at a just price, those things of which the owner has no personal need and which are necessary to others; for by no other means can an individual procure what is necessary for him, or useful, or what is adapted to making life pleasant and agreeable. Now since rights arise from obligations (Introd., par.3) the obligation we have just established gives to every man the right to obtain for himself the things he has need of, by purchasing them at a fair price from those who have no personal need of them. We have likewise seen (Introd., par.5) that men, by uniting in civil society, could not free themselves from the authority of the Laws of Nature, and that the entire Nation, as a Nation, remains subject to the same laws, so that the natural and necessary Law of Nations is nothing else than the Law of Nature suitably applied to Nations or sovereign States (Introd., par.6); from which it follows that a Nation has the right to obtain at a fair price the things it has need of by purchasing them from Nations which have no use for them for themselves. This is the foundation of the rights of connnerce between Nations, and especially of the right to purchase. The same reasoning can not be applied to the right to sell the things we would like to part with~ Men and Nations are perfectly free to buy or not to buy a thing which is for sale, or to buy it from one person rather than another. No man has any right from the natural law to 96 sell what belongs to him to one who does not wish to buy, nor has any Nation the right to sell its commodities or manufactures to a Nation which is unwilling to take them. 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. Vitoria, p. 153: 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 hu1."t 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 b.elong to nobody are acquired by thefirst 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 97 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. Grotius, pp. 295-6: That many rights are said to have their origin in the law of nations, of which, if we speak accurately, this is not true. 1. The order of our subject has brought us to the acquisition of property which takes place by that law of nations that we previously called the volitional law of nations, distinct from the law of nature. When the Roman jurists treat of acquiring ownership of property, they enumerate many methods, which they say are according to the law of nations. If, however, any one will examine these closely, he will find that with the exception of the right of war none of them have anything to do with that law of nations with which we are concerned; but that they must be referred, either to the law of nature--not to be sure, in its original state, but in the state which followed the introduction of property ownership and preceded all civil law--or they must be referred to the civil law itself, not alone of the Roman people but of many surrounding nations. I believe that this is the case, because the origin of such law or custom had come from the Greeks, whose institutions, as Dionysius of Halicarnassus and others note, were followed by the peoples of Italy and their neighbours. 98 2. This law of nations is not international law, strictly speaking, for it does not affect the mutual society of nations in relation to one another; it affects only each particular people in a state of peace. For this reason a single people can change its determination without consulting others; and even this happens, that in different times and places a far different common custom, and therefore a different law of nations (improperly so called), might be introduced. This, we see, did actually happen when the Germanic peoples invaded almost all Europe. For as formerly the Greek laws, so then the Germanic customs were everywhere accepted, and these are even now in force. Now the first method of acquiring property,. which by the Romans was ascribed to the law of nations, is the taking possession of that which belongs to no one. This method is without doubt in accord with the law of nature, in the state to which I referred, after the establishment of property ownership, and so long as no statute established any provision to the contrary. Vattel, Book II, Chapter VII, par. 86: Whatever is included in its territory belongs to a Nation, and no one else may dispose of such property unless the Nation has transferred its rights (Par.79); if it has left certain districts wild and untilled, they may not be taken possession of at will without its permission. Although it may not be making actual use of them, these districts belong to it, and it has an interest in keeping them for future use; also it need render account to no one of the manner in which it employs its property. Nevertheless, we must recall here a remark which we made above (Book I, Paro81); no Nation may lawfully appropriate an extent of territory entirely dis- 99 proportionate to its needs, and thus restrict the opportunity of settle. ment and sustenance for other Nations. A German chieftain of the time of Nero said to the Romans: "As the heavens belong to the gods, so the earth is given to the human race, and lands that are unoccupied are common to all"; (b) giving those proud conquerors to understand that they had no right to assert a claim to territories which they left unoccupied. The Romans had laid waste a line of territory along the Rhine to protect their provinces against the inroads of the barbarians. The remonstrance of the German chieftain would have been well-founded if the Romans had had no purpose in laying claim to a vast area, otherwise useless to them. But this tract, which they wished to remain uninhabited, served as a rampart against fierce tribes, and as such was of great service to the Empire. 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 .. Vitoria, pp. 153-154: 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 a 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 100 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. Vattel, Book I, Chapter XIX, par. 212: The members of a civil society are its citizens. Bound to that society by certain duties and subject to its authority, they share equally in the advantages it offers. Its natives are those who are born in the country of parents who are citizens. As the society can not maintain and perpetuate itself except by the children of its citizens, these children naturally take on the status of their fathers and enter upon all the latter's rights. The society is presumed to desire this as the necessary means of its self-preservation, and it is justly to be inferred that each citizen, upon entering into the society, reserves to his children the right to be members of it. The country of a father is therefore that of his children, and they become true citizens by their mere tacit consent. Vattel, Book I, Chapter XIX, par. 224: Those who leave their country for a lawful reason, with the intention of taking up their abode elsewhere, are called emigrants. They take their families with them, and all their movable property. 101 Vattel, Book I, Chapter XIX, par. 225: Their right to emigrate may come from various sources: (1) In the cases we have just referred to (Par.223), it is a right derived from nature, and one reserved to them under the compact of civil society. (2) The right to emigrate may in certain cases be secured to the citizens by the fundamental law of the State. (3) It may be voluntarily granted by the sovereign. Vattel, Book I, Chapter XIX, par. 230: Every nation has the right to refuse to admit an alien into its territory when to do so would expose it to evident danger or cause it serious trouble. This right is based upon a care for its own security which it owes as a duty to itself. By reason of its natural liberty it is for each Nation to decide whether it is or is not in a position to receive an alien (Introd., Par.16). Hence an exile has no absolute right to choose a country at will and settle himself there as he pleases; he must ask permission of the sovereign of the country, and if it be refused, he is bound to submit. 6. What course ought to be adopted if the aborigines desire to prevent the Spaniards trading with them, etc. Vitoria, pp. 154-155: 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 102 by word, but also by reason, according to the saying, "It behooveth 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 Secundae, 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 103 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. Vattel, Book III, Chapter VIII, par. 158: Before concluding the subject of what it is lawful to do to the person of the enemy, let us say a word of the dispositions which should be maintained towards him. They might, indeed, be inferred from what we have said thus far, and especially from the first chapter of the second book. Let us never forget that our enemies are men. Although we may be under the unfortunate necessity of prosecuting our right by force of arms, let us never put aside the ties of charity which bind us to the whole human race. In this way we shall defend courageously the rights of our country, without violating those of humanity. Let us be brave without being cruel, and our victory will not be stained by inhuman and brutal acts. 104 Vattel, Book III, Chapter IX, par. 172: What we have said is sufficient to give a general idea of the moderation with which, in the most just war, a belligerent should use the right to pillage and devastate the enemy's country. Apart from the case in which there is question of punishing an enemy, the whole may be summed up in this general rule: All acts of hostility which injure the enemy without necessity, or which do not tend to procure victory and bring about the end of the war are unjustifiable, and as such condemned by the natural law. 7. If the Spaniards, after resort to all moderate measure, 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. Vitoria, p. 155: If after recourse to all other measures, the Spaniards are unable to obtain safety as regards the native Indians, save by seizing their cities and reducing them to subjection, they may lawfully proceed to these extremities. The proof lies in the fact that "peace and 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. 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. 105 Vi tori a, pp. 155-156: 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.l, dist.l, 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.n 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 106 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. Vattel, Book I, Chapter XIII, par. 169: Every man has the right to protect himself from injury, and in doing so to use force against an unjus-t aggressor. He may thus inflict injury upon his assailant, either to render him incapable of further attacks or to reform him and restrain by his example others who may be tempted to imitate him. Now, when men unite in civil society, the State is thenceforth intrusted with the duty of caring for the security of its members, and they renounce in its favor their right to punish. It, therefore, belongs to the State as public protector to punish private wrongs. Moreover, since the State is a moral person against whom wrongs may be committed, it has the right to see to its own security by punishing those who attack it, that is to say, the State has the right to punish public cri~es. From this source comes the right of the sword which belongs to a Nation or to its ruler. In using this right against another Nation it wages war; in using it against an individual it administers punitive justice. Vattel, Book I, Chapter XIV, par. 177: One of the ends of civil society is to defend itself, by the united forces of its members, from insults 107 and attacks from without (Par.15). If the State is not in a condition to resist an aggressor it is very imperfect; it falls short of its chief object and can not long hold together. To prepare itself to resist and overcome an unjust enemy is an important duty which the care of its prosperity and of its very existence imposes upon it and upon its ruler. Vattel, Book IV, Chapter VII, par. 84: What is due to ministers in countries through which they pass ••• if the minister's mission is justly open to suspicion, if the sovereign of the country has reason to fear that the minister will abuse the permission to enter it by plotting against him while there, or by conveying information to his enemies and inciting new enemies to attack him, we have already said (Par.64) that the sovereign may refuse to allow the minister to pass through. But he should not maltreat him, nor permit any violence to be offered to his person. If he has not sufficiently strong reasons for refusing him a passage, he may, in granting it, take precautions a~ainst any misuse which the ministers may make of it. The Spaniards found these principles in practice in Mexico and the neighboring provinces; ambassadors were respected throughout their entire journey, but they could not deviate from the high roads without losing their rights. The condition was wisely laid down, its object being to prevent the sending of spies under the name of ambassadors. In like manner, when the famous Congress of Westphalia, amid the dangers of war and the noise of battle, was carrying on the negotiations for peace, the couriers whom the plenipotentiaries sent and received had their route marked for them, and if they departed from it their passports could give them no protection. 108 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 barbarism. Vitoria, p. 156: 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., (St. Mark, ch.16, v.15), and also, "The word of the Lord is not bound"(II Timothy, ch.2). Secondly, our proposition is clear from what has already been 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. Vattel, Book II, Chapter I, par. 7: But while a Nation is bound to further, as far as it can, the advancement of others, it has no right to force them to accept its offer of help. The attempt to do so would be a 109 violation of their natural liberty. Authority is needed if one is to constrain others to receive a benefit, whereas Nations are absolutely free and independent (Introd .. , Par .. 4). Those ambitious European States which attacked the American Nations and subjected them to their avaricious rule, in order, as they said, to civilize them, and have them iRstructed in the true religion--those usu~pers, I say, justified themselves by a pretext equally unjust and ridiculous. It is surprising to hear the learned and judicious Grotius tell us that a sovereign can justly take up arms to punish Nations which are guilty of grievous crimes against the natural law, which "treat their parents in an inhuman manner, like the Sogdians, which eat human flesh, like the ancient Gauls," etc. (a) he was led into that mistake from his attributing to every free man, and hence to every sovereign, a certain right to punish crimes in grievous violation of the laws of nature, even when those crimes do not affect his rights or his safety. But we have shown (Book I, Par.169) that the right to punish belongs to men solely because of the right to provide for their safety; hence it only exists as against those who have injured them. Did not Grotius perceive that in spite of all the precautions added in the following paragraphs, his view opens the door to all the passions of zealots and fanatics, and gives to ambitious men pretexts without number? Mahomet and his successors laid waste to and subdued Asia to avenge the disbelief in the unity of God; and all those whom they regarded as associateurs, or idolaters, were victims of their fanaticism. 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 furtherede 110 Vitoria, pp. 156-157: Although this is a task common and permitted to all, yet the Pope might entrust it to the Spaniards and forbid it to 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 tranquility 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 111 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. 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. Vitoria, p. 157: If the Indians allow the Spaniards freely and without hindrance to preach the Gospel, then whether they d'? 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 (immediately preceding section) 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). Grotius, pp. 776-7: Some degree of liberty should be left to the conquered, especially in the matter of religion. 1. A part of this indulgence is not to deprive the conquered of the exercise of their inherited religion, except by persuasion. This Agrippa, in his speech to Gaius, which Philo quotes in his report of his embassy, 'proves to be as devoid of harm to the victor as it is gratifying to the vanquished. In Josephus, both Josephus himself and the Emperor Titus reproach the rebels of Jerusalem with the fact that, through the generosity of the Romans, the rights they enjoyed in the exercise of their worship were so complete they could exclude foreigners from the Temple, even upon pain of death. 112 2. If, however, a false religion is practised by the vanquished, the victor will do right in taking steps to prevent the oppression of the true faith, as Constantine did, when he crushed the faction of Licinius, and, after him, the Frankish and other kings. At any rate, the conquered should be treated with clemency; and why: 1. Last of all is this word of caution. Even under the fullest and, as it were, despotic sovereignty, the conquered should be treated with clemency, and in such a way that their advantage should be combined with that of the conquerors. Cyrus bade the conquered Assyrians be of good cheer, saying that their lot would be the same as it would have been if they had only changed their king; that they would retain their houses, their lands, their rights over their wives and children, which they had had up to that time; indeed, if any one should wrong them, he and his men would be their avengers. In Sallust we read: 'The Roman people thought it better to gain friends than slaves; and held it safer to rule over willing than over compulsory subjects. The Britons, in the time of Tacitus would patiently have endured the levy and tribute and the additional burdens of the Roman domination if they had not been subjected to wrongs; these they bore impatiently, for they were subdued to the point of obedience, but not yet to that of slavery. 2. The ambassador from Privernum, when asked in the Roman senate what sort of a peace the Romans were to expect from his people, said: 'If you should have given to them a good peace, then you may expect it to be reliable and perpetual; if a bad one, brief.' As the reason, there 113 was added: 'Do not believe that any people, or any man, will remain longer than is necessary in a condition with which he is dissatisfied. 1 Similarly, Camillus said that that authority was the most secure with which those who obeyed were pleased. The Scythians said to Alexander: 'There is no friendship between master and slave; even in time of peace the rights of war are maintained.' Hermocrates, in Diodorus, declares: 'It is not so glorious to conquer as to make a mild use of victory.' Tacitus has a wholesome opinion regarding the use of victory: 'Wars have noble endings, whenever they are terminated by pardoning.' In a letter of the dictator Caesar are the words: 'Let this be a new method of conquering, to fortify ourselves with mercy and generosity.' Vattel, Book II, Chapter IV, pars. 57-62: Having shown that foreign Nations have no right to interfere in the government of an independent State, it is not difficult to prove that the latter is justified in resisting such interference. To govern itself after its own good pleasure is the adjunct of its independence. A sovereign State may not be constrained in this respect, except with reference to certain specific rights which others may have acquired by treaty, and which, since a Nation is naturally jealous of interference in its government, can not be extended beyond the clear and express terms of the treaty. Apart from the above case a sovereign has the right to treat as enemies those who undertake to interfere in its domestic affairs otherwise than by their good offices. Religion is, in all its bearings> a matter of great concern to a Nation, and it is one of the most important subjects which can occupy the government. An independent Nation need give account of its religious 114 belief to God alone; it has the right to act, in this matter as in every other, according to its own conscience, and to resist the interference of any outsider in so personal a matter. The custom long kept up in Christendom of deciding and regulating all matters connected with religion in a General Council could only have arisen from the peculiar circumstance that the whole Church was subject to the same civil government--the Roman Empire. When the Empire fell its place was taken by several independent Kingdoms, with the result that the custom of General Councils was found to.be contrary to the first principles of government, to the very idea of a State or political body. However, it was for a long time kept up out of prejudice, ignorance, and superstition, so that it was still respected at the time of the Reformation. The States which had embraced the Reformation offered to submit to the decision of an impartial council lawfully convened. In these days they would be bold enough to declare plainly that they are subject to no power on earth in general and absolute authority of Pope and Council is absurd in any other system than that of those Popes who sought to unite supreme rulers. (a) Even Catholic sovereigns have sought to restrict that authority within limits consistent with their supreme power; they do not receive the decrees of Councils and the Papal Bulls until they have them examined, and ecclesiastical laws have no force in their States, except with the consent of the Prince. We have given sufficient proof in Book I, Chap. XII, of the rights of the State on the subject of religion, and we only revert to them here in order to draw from them just conclusions as to the proper conduct of Nations towards one another. 115 It is therefore certain that no one may interfere, against a Nation's will, in its religious affairs, without violating its rights and doing it an injury. Much less is it permitted to have recourse to armed force, to compel a Nation to receive a certain form of religious belief or worship which it is believed is of divine origin. By what right do men set themselves up as defenders or protectors of the cause of God?. He is able at all times, when it shall please.him to do so, to lead Nations to the knowledge of Himself by more effective means than the use of force. Persecution never results in sincere conversions. The horrible idea of spreading religion by the sword is subversive of the Law of Nations and the most terrible scourge of peoples. Every fanatic will believe himself fighting in the cause of God, and every ambitious ruler will justify his conquests on that ground. \.fuile Charlemagne was ravaging Saxony with fire and sword, in order to establish Christianity there, the successors of Mahomet were devastating Asia and Africa in order to set up the Koran. But it is an office of humanity to endeavor, by lawful and gentle means, to persuade a Nation to receive a form of religion which it is believed is the only true and proper one. Missionaries may be sent to instruct the Nation, and the act is entirely in keeping with the interest which every Nation should have in the advancement and happiness of other Nations. But in order not to act in contempt of the rights of the sovereign, missionaries should refrain from preaching, secretly and without his permission, a new doctrine to his subjects. He may refuse their services, and if he orders them away they must obey him. An express command from the King of Kings is needed to justify one in 116 disobeying a sovereign who is acting within the scope of his authority; and the sovereign who is not convinced that the missionary has received a special call from God is warranted in punishing his disobedience. But suppose that the Nation, or a considerable part of the people, desire to retain the missionary and to follow his teachings. We have elsewhere set forth the rights of the Nation and those of the citizens (Book I, pars. 128-136), and the answer to this question can be found there. The subject is attended with many difficulties, and we can not authorize an imprudent zeal for making converts without endangering the peace of all Nations and placing the missionaries in the position of aggressors at the very time when they think they are performing a meritorious work; for after all it is certainly an uncharitable act, and indeed a vital injury to a Nation, to spread a false and dangerous doctrine among its citizens. Now, there is no Nation which does not think that its own form of religion is the only true and proper one. Animate and inflame all hearts with the ardent zeal of missionaries and you will see Europe crowded with lamas, bonzes, and dervishes, while monks of every kind will overrun Asia and Africa. Protestant ministers will brave the Inquisition in Spain and Italy, while the Jesuits will go among Protestants in order to bring them back within the pale of the Church. Let Catholics reproach Protestants as much as they like with lukewarmness, the attitude of the latter is certainly more in accord with the Law of Nations and with reason. True zeal will apply itself to make a holy religion flourish in the countries where it is received and to render it helpful to the moral life of the citizens; and while awaiting the dispositions of Providence, either in the form of an invitation from 117 foreign Nations or of a clearly divine mission to preach a given form of religion, one must first of all have convinced oneself of its truth after the most serious.examination. What, are Christians to doubt the truth of their religion! Very well, a Mohammedan no more doubts the truth of his. Be ever ready to share your knowledge; set forth simply and sincerely the principles of your belief to those who desire to hear you; instruct them, and persuade them by an appeal to reason; but do not seek to win them over by the ardor of enthusiasm. It is enough for each of us to have to answer for his own conscience; no one will be refused the light, and the peace of Nations will not be disturbed by an obtrusive zeal. When a form of religion is being oppressed in any country, foreign Nations professing that form may intercede for their brethren; but that is the extent to which they can lawfully go, unless the persecution is carried to an intolerable degree, when it becomes a case of evident tyranny, against which all Nations may give help to an unfortunate people (par. 56). Moreover, in the interests of their own welfare they may be justified in defending the oppressed. A King of France answered to the ambassadors who begged him to let his Protestant subjects live in peace that he was master in his Kingdom. But the Protestant sovereigns, who saw a general conspiracy of Catholics bent upon their ruin, had on their part a right to give assistance to persons who might strengthen their party and help them to avert the ruin with which they were threatened. National lines all break down when there is a question of uniting against fanatics who seek to destroy all who do not unhesitatingly receive their doctrines. 12. How the aborigines who hinder the spread of the Gospel, whether it be their lords or the populace, may be coerced by the 118 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? Vitoria, pp. 157-158: 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 is permitted in other just wars, but always with a regard for moderation and proportion, so as to go no 119 further than necessity demands, preferring to abstain from what they lawfully mig..ht do rather than transgress due limits, and with an intent directed more to the welfare of the aborigines than to their ow"'Tl 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 f_orce and arms in order to continue their work there, but ~ 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). *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 cause, but the bad from many and partial defects."--Transl. 120 Vattel, Book III, Chapter 3, pars. 26-28: The right to use force, or to make war, is given to Nations only for their defense and for the maintenance of their rights (par.3). Now, if anyone attacks a Nation or violates its perfect rights, he does it an injury. Then, and only then, has that Nation the right to resist him and bring him to reason; it has also the right to prevent an injury when it sees itself threatened with one (Book II, par.SO). We may say, therefore, in general that the foundation or the cause of every just war is an injury, either already received or threatened. The justifying grounds of war show that a State has received an injury, or that it sees itself seriously enough threatened to authorize it to ward off the injury by force. However, it is clear that we are speaking here of the principal party to the war, and not of those who take part in it as auxiliaries. When, therefore, there is question whether a war is a just one, we mus·t consider whether he who enters upon it has actually received an injury or whether he is really threatened with one; and in order to know what should be regarded as an injury, we must understand what are a Nation's rights in the strict sense, what are its perfect rights. These are many in number and various in kind, but they can all be referred to the general heads of which we have already treated and of which we shall treat further in this work. Whatever constitutes an attack upon these rights is an injury, and a just cause of war. By a direct inference from the principles just laid down it follows that if a Nation takes up arms when it has not received an injury and when it has not been threatened, it wages an unjust war. That Nation alone has the right to make war to which an injury has been done or is about to be done. 121 From the same principles we likewise deduce the purpose or lawful object of every war, which is to avenge or to prevent an injury. To avenge signifies here to seek reparation for an injury if it be of a nature to be repaired, or just satisfaction if the evil be irreparable; it includes also, if the case demand it, the punishment of the offender with the object of providing for our future security. The right to security authorizes us to take such steps (Book II, pars. 49-52). Hence we can lay down clearly this three-fold object of lawful war: (1) to obtain what belongs to us, or what is due to us; (2) to provide for our future security by punishing the aggressor or the offender; (3) to defend ourselves, or to protect ourselves from injury, by repelling unjust attacks. 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 decided to bring them back to idolatry by force or by fear, and so they were taken into the protection and guardianship of the Spaniards. Vitoria, p. 158: 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 122 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. 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. Vitoria 2 pp. 158-159: Suppose a large part of the Indians were converted by 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 123 a bondsman to his lord, and even more so, seeing that marriage is a tie of the divine law and bondage is not. But in the interests of the faith a believing wife is freed from an unbelieving husband, if he persecutes her for her religion, as appears from I Corinthians, ch.7, and X, 4,19,7. Aye, the custom now is that by the very fact of one spouse being converted to the faith he or she is .freed from the other who is an unbeliever. Therefore, also the Church, in the interests- of the faith and to avoid risks, may free all Christians from obedience and subjection to unbelieving lords, provided this be done without scandal. So we justify this fourth legal title. Vattel, Book I, Chapter XII, pars. 135-138: Holland and the States of the King of Prussia give proof of it: Protestants, Lutherans, Catholics, Pietists, Socinians, and Jews all live together in peace because they have all the equal protection of the sovereign. Only those who trouble the peace of others are punished. If, in spite of the care of the Prince to preserve the established religion, the whole Nation, or the larger part of it, is dissatisfied with it and desires a change, the sovereign may not force or use any constraint upon his people in such a matter. A religion is publicly established only for the welfare and benefit of the Nation. Apart from the fact that it would have no value except as an expression of the heart, the sovereign has no rights in the matter but those resulting from the duty imposed upon him by the Nation, namely, to protect the religion which it shall think proper to profess. But it is also entirely just that the Prince should be free to continue in his own belief without losing his crown. All that can be 124 required of him is that he protect the religion of the State. In general, a difference of religious belief does not deprive a prince of his rights of sovereignty unless one of the fundamental laws ordain otherwise. The pagan Romans did not cease to obey Constantine when he became a Christian, nor did the Christians revolt against Julian when he gave up his belief. We have established liberty of conscience for individuals (par. 128). At the same time we have shown that the sovereign has the right, and even the duty, to protect and maintain the State religion, and not to permit anyone to undertake to change it or to destroy it, and that he may even refuse to allow, under certain circumstances, more than one form of public worship in the whole country. Let us reconcile those different duties and rights which may perhaps be thought to be contradictory; and if possible let us satisfy everyone on this delicate and important subject. If the sovereign is willing to allow the public exercise of but one religion he should not oblige anyone to act against his conscience nor force him to take part in a form of worship he disapproves of and profess a religion he believes to be false; and the subject on his part should rest content with not being obliged to be a disgraceful hypocrite, and should serve God according to his light, in private and in his own house, realizing that Providence does not expect public worship of him when he has been placed in such circumstances that he can not practice it without disturbing the State. God wishes us to obey our sovereign and to avoid whatever can be hurtful to society; these are absolute precepts of the natural law; that of public worship is conditional, and depends 125 upon the effects which such worship may produce. Private worship is necessary on its own account, and one ought to confine oneself to it in cases where it is more suitable. Public worship has for its object the moral improvement of men by their rendering honor to God. It fails to accomplish that object and ceases to be praiseworthy on those occasions when it only produces trouble and scandal. If a public manifestation of his belief is of absolute necessity to a person, let him leave the country where he is forbidden to fulfill that duty according to his conscience and go off and join those who profess the same religion he professes. 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. Vitoria, p. 159: 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," (Ecclesiasticus, ch.17, v.12), 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: nDeliver them that are drawn unto death, and forbear 126 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. 16. The Indian aborigines could have come under the sway of the Spaniards through true and voluntary choice. Vitoria, pp. 159-160: 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 herefor the consent of all is not necessary, but the consent of themajority 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 getallof the same way of thinking. Accordingly, if 127 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. 17. The Indians might have come under the sway of the Spaniards by a title of alliance and friendship. Vitoria, p. 160: 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 sununon 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 128 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). 18. Whether the Spaniards could have reduced the Indians into their power, if it were certainly clear that they were of defective intelligence. Vitoria, pp. 160-162: 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 affiars; 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 129 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 selfgovernment is concerned, or even than the wild 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 130 and salvation lies. And herein some help might be gotten from the consideration, rreferred 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 rule, 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. THE SECOND RELECTIO ON THE LAW OF WAR :MADE BY THE SPANIARDS ON THE BARBARIANS Of the Reverend Father, Brother Francisco Vitoria, p. 165·: de Vitoria Inasmuch as the seizure and occupation of those lands of the barbarians whom we style Indians can best, it seems, be defended under the law of war, I propose to supplement the discussion of the titles, some just and some unjust, which the Spaniards may allege for their hold on the lands in question, by a short discussion of the law of war, so as to give more completeness to that relectio. Vattel, Book 2, Chapter 18, par. 323: The disputes which arise between Nations or their rulers are concerned either with rights that are contested or injuries that have been received. A Nation should uphold the rights which belong to it; the care of its safety and of its honor does not permit it to submit to injuries. But while fulfilling its duties toward itself a Nation must not forget its duties towards others. These two considerations, taken together, will furnish the principles of the Law of Nations with respect to the way in which disputes between Nations are terminated. It is to be observed that the law of nations is the test of the Spanish right just as the same law of nations is the test of the duty of the Indian principalities in· the matter at hand •.•• There were rights and corresponding duties under the law of nations affecting 132 each and every state; the use of force--resulting in war--as a remedy for a wrong under the law of nations was itself a part of the law of nations; and that remedy must needs be consistent in all its parts with the law of ~ations, otherwise it would be the commission of a wrong to right a wrong. Therefore it was that Victoria felt himself obliged, notwithstanding his many occupations, to discuss the law of war, so that the examination of the question involved in the readings should be a complete survey of the whole subject under the law of nations in its various aspects (Scott, Spanish Origin (1934], p. 195). SUMMARY 1. Christians may serve in war and make war. 2. In whose hands lies the authority to make or declare war? 3. Anyone, even a private person, can accept and wage a defensive war. 4. Whether one who is attacked by a robber or a foe may strike back the assailant, if able to escape by flighf. 5. Every commonwealth has authority to declare and make war. 6. A prince has the same authority to declare and make war as a State has. 7. What a State is and who is properly styled a prince. 8. Whether several States or princes, when they have one common lord or prince, may make war of themselves without the authority of the superior lord. 133 9. Petty rulers or princes, who are not at the head of a complete State, but are parts of another State, can not undertake or make war. And what about cities? 10. What can be a reason or cause of just war? Proof that diversity of religion is not a cause of just war. Vitoria, p. 170: It is particularly necessary to ask this in connection with the case of the Indian aborigines, which is now before us. Here my first proposition is: Difference of religion is not a cause of just war. This was shown at length in the preceding Relectio, when we demolished the fourth alleged title for taking possession of the Indians, namely, their refusal to accept Christianity. And it is the opinion of St. Thomas (Secunda Secundae, qu.66, art.8), and the common opinion of the doctors--indeed, I know of no one of the opposite way of thinking. Grotius, pp. 504-509: XL.--A discussion whether kings and peoples may rightly wage war on account of things done contrary to the law of nature, although not against them or their subjects; with a refutation of the view that the law of nature requires right of jurisdiction for the exaction of punishment 1. The fact must also be recognized that kings, and those who possess rights equal to those kings, have the right of demanding punishments not only on account of injuries committed against themselves or their subjects, but also on account of injuries which do not directly affect them but excessively violate the law of nature or of nations in regard to any persons whatsoever. For liberty to serve the interests of human society through punishments, which originally, as we have said, rested with individuals, now after the organization of states and courts 134 of law is in the hands of the highest authorities, not, properly speaking, in so far as they rule over others but in so far as they are themselves subject to. no one. For subjection has taken this right away from others. Truly it is more honourable to avenge the wrongs of others rather than one's own, in the degree that in the case of one's own wrongs it is more to be feared that through a sense of personal suffering one may exceed the proper limit or at least prejudice his mind. 2. And for this cause Hercules was famed by the ancients because he freed from Antaeus, Busiris, Diomedes and like tyrants the lands which, as Seneca says, he traversed, not from a desire to acquire but to protect, becoming, as Lysias points out, the bestower of the greatest benefits upon men through his punishment of the unjust. Diodorus Siculus speaks of him thus: 'By slaying lawless men and arrogant despots he made the cities happy.' In another passage Diodorus said: 'He traversed the world chastising the unjust.' Of the same hero Dio of Prusa said: 'He punished wicked men and overthrew the power of the haughty or transferred it to others.' Aristides in his Panathenaic Oration declares that Hercules deserved to be elevated among the gods because of his espousal of the common interest of the human race. In like manner Theseus is praised because he removed the robbers Sciron, Sinis, and Procrustes. Euripides in the Suppliants represents him as speaking thus about himself: Already throughout Greece my deeds to me This name have given; scourge of the wicked I am called. Of him Valerius Maximus wrote: 'All that was anywhere monstrous or criminal, 135 he suppressed by the courage of his heart and the strength of his right hand.' 3. So we do not doubt that wars are justly waged against those who act with impiety towards their parents, like the Sogdianians before Alexander taught them to abandon this form of barbarity; against those who feed on human flesh, from which custom, according to Diodorus, Hercules compelled the ancient Gauls to abstain; and against those who practise piracy. Says Seneca: 'If a man does not attack my country, but yet is a heavy burden to his own, and although separated from my people he afflicts his own, such debasement of mind nevertheless cuts him off from us.' Augustine says: 'They think that they should decree the commission of crimes of such sort that if any state upon earth should decree them, or had decreed them, it would deserve to be overthrown by a decree of the human race.' Regarding such barbarians, wild beasts rather than men, one may rightly say what Aristotle wrongly said of the Persians, who were in no way worse than the Greeks, that war against them was sanctioned by nature; and what Isocrates said, in his Panathenaic Oration, that the most just war is against savage beasts, the next against men who are like beasts. 4. Thus far we follow the opinion of Innocent, and others who say that war may be waged upon those who sin against nature. The contrary view is held by Victoria, Vazquez, Azor, Molina, and others, who in justification of war seem to demand that he who undertakes it should have suffered injury either in his person or his state, or that he should have jurisdiction over him who is attacked. For they 136 claim that the power of punishing is the proper effect of civil jurisdiction, while we hold that it also is derived from the law of nature; this point we discussed at the beginning of the first book. And in truth, if we accept the view of those from whom we differ, no enemy will have the right to punish another, even after a war that has been undertaken for another reason than that of inflicting punishment. Nevertheless many persons admit this right, which is confirmed also by the usage of all nations, not only after the conclusion of a war but also while the war is still going on; and not on the basis of any civil jurisdiction, but of that law of nature which existed before states were organized, and is even now enforced, in places where men live in family groups and not in states. XLI.--The law of nature must be distinguished from widely current national customs But at this point certain precautions need to be stated. First, national customs are not to be taken for the law of nature, although they have been received on reasonable grounds among many peoples. Of this type chiefly were the things which distinguished the Persians from the Greeks, to which you may rightly apply the saying of Plutarch: 'To wish to impose civilization upon uncivilized peoples is a pretext which may serve to conceal greed for what is another's.' XLII.--The law of nature must be distinguished also from the Divine law that is not voluntarily recognized by all Second, we should not hastily class with the things forbidden by nature those with regard to which this point is not sufficiently clear, and which are rather prohibited by the law of the Divine Will. In this 137 class we may perhaps place unions not classed as marriages and those which are called incestuous, as well as usury. XLIII.--In the law of nature we must distinguish between what is evident and what is not evident 1. Third, we should carefully distinguish between general principles, as, for example, that one must live honourably, that is according to reason, and certain principles akin to these, but so evident that they do not admit of doubt, as that one must not seize what belongs to another, and inferences; such inferences in some cases easily gain recognition, as that, for example, accepting marriages we cannot admit adultery, but in other cases are not so easily accepted, as the inference that vengeance which is satisfied with the pain of another is wicked. Here we have almost the same thing as in mathematics, where there are certain primary notions, or notions akin to those that are primary, certain proofs which are at once recognized and admitted, and certain others which are true indeed but not evident to all. 2. Therefore, just as in the case of municipal laws we excuse those who lack knowledge or understanding of the laws, so also with regard to the laws of nature it is right to pardon those who are hampered by weakness of their powers of reasoning or deficient education. For as ignorance of the law, if it is unavoidable, cancels the sin, so also, when it is combined with a certain degree of negligence, it lessens the offence. And for this reason Aristotle compared barbarians, who err through want of training in such things, to men having desires corrupted by disease. Plutarch says that there are certain 'diseases and sufferings of the mind which cause a man to lose his natural character.' 138 3. Finally, to avoid repeating often what I have said, we must add this word of warning, that wars which are undertaken to inflict punishment are under suspicion of being unjust, unless the crimes are very atrocious and very evident, or there is some other coincident reason. Perhaps Mithridates was not far wrong in saying of the Romans: 'They assail not the faults of kings but the power and authority of kings.' XLIV.--Whether war may be waged on account of crimes against God 1. Our order of treatment has brought us to the discussion of crimes which are committed against God; for there is a dispute whether war may be undertaken to avenge these. This question has been treated at sufficient length by Covarruvias$ But he, accepting the position of others, thinks that the power to punish does not exist apart from jurisdiction, properly so called. This view we have already rejected-. Consequently, just as in the affairs of the Church the bishops are said in some way to have been 'entrusted with the care of the Universal Church', so kings, in addition to the particular care of their own state, are also burdened with a general responsibility for human society. A stronger argument for the view which denies that such wars are just is this, that God is able to punish offences committed against Himself, whence the sayings, 'The injuries of the gods are the care of the gods,' and 'perjury has a sufficient avenger in God.' 2. We must, however, recognize the fact that this same thing may be said about other crimes as well. For without doubt God is able to punish these also, and yet no one disputes that they are rightly punished by men. But some will insist and say that other crimes are punished by men in so far as other men are injured or endangered thereby. But it must 139 be noted, on the other hand, that men do not only punish the sins which directly harm others but also those which harm by their consequences, such as suicide, intercourse with animals, and some other things. Vattel, Book 2, Chapter 1, par. 7: But while a Nation is bound to further the advancement of others, it has no right to force them to accpet its offer of help. The attempt to do so would be a violation of their natural liberty. Authority is needed if one is to constrain others to receive a benefit, whereas Nations are asbolutely free and independent (Introd., par.4). Those ambitious European States which attacked the American Nations and subjected them to their avaricious rule, in order, as they said, to civilize them, and have them instructed in the true religion--those usurpers, I say, justified themselves by a pretext equally unjust and ridiculous •••• Mahomet and his successors laid waste to and subdued Asia to revenge the disbelief in the unity of God; and all those whom they regarded as associateurs, or idolaters, were victims of their fanaticism. 11. Extension of an Empire is not a just cause of war. 12. The personal glory, or other advantage, of a prince is not a just cause of war. 13. Wrong done is the sole and only just cause for making war. Vitoria, pp. 170-171: There is a single and only just cause for commencing a war, namely, a wrong received. The proof of this rests in the first place on the authority of St. Augustine (Liber 83 Quaestionum, "Those wars are described as just wars," etc., as above), and it is the conclusion arrived at by St. Thomas (Secunda Secundae, qu.40, art.l) and the opinion of all the doctors. Also, an offensive war is for the purpose of avenging 140 a wrong and of taking measures against an enemy, as said above. But there can be no vengeance where there is no preceding fault and wrong. Therefore. Also, a prince has no greater authority over foreigners than over his own subjects. But he may not draw his sword against his own subjects, unless they have done some wrong. Therefore not against foreigners either. This is confirmed by the text already cited from St. Paul (Romans, ch.13) about a prince: "He beareth not the sword in vain: for-he is the minister of God, a revenger to execute wrath upon him that doeth evil." Hence it is clear that we may not turn our sword against those who do us no harm, the killing of the innocent being forbidden by natural law. I omit here any injunctions inconsistent herewith which God has given in special cases, for He is the Lord of life and death and it is within His competence to vary His dispositions. Vattel, Book 3, Chapter 3, par. 34: Nations which are always ready to take up arms when they hope to gain something thereby are unjust plunderers; but those who appear to relish the horrors of war, who wage it on all sides without reason or pretext, and even without other motive than their savage inclinations, are monsters, unworthy of the name of men. They should be regarded as enemies of the human race, just as in civil society persons who follow murder and arson as a profession commit a crime not only against the individuals who are victims of their lawlessness, but against the State of which they are the declared enemies. Other nations are justified in uniting together as a body with the object of punishing, and even of exterminating, such savage peoples. Of that character were various German tribes of which Tacitus speaks, and those barbarians who overthrew the Roman Empire. They retained their 141 savage instincts long after their conversion to Christianity. Of that character were the Turks and other Tartars, Genghis Khan, Timur-bee or Tamerlane, scourges of God as Attila was, who made war for the mere pleasure of it. Such are, in the ages of refinement and among the most civilized Nations, those pretended heroes who find in combat nothing but pleasure, who make war from inclination and not from love of country. 14. Not everykindand degree of wrong suffices for making war. Vitoria, p. 171: Not every kind and degree of wrong can suffice for commencing a war. The proof of this is that not even upon one's own fellowcountrymen is it lawful for every offense to exact atrocious punishments, such as death or banishment or confiscation of property. As, then, the evils inflicted in war are all of a severe and atrocious character, such as slaughter and fire and devastation, it is not lawful for slight wrongs to pursue the authors of the wrongs with war, seeing that the degree of the punishment ought to correspond to the measure of the offence (Deuteronomy, ch.25). Grotius, pp. 169-171: I.--What causes of war may be called justifiable 1. Let us proceed to the causes of war--I mean justifiable causes; for there are also other causes which influence men through regard for what is expedient and differ from those that influence men through regard for what is right. The two kinds of causes Polybius accurately distinguishes from each other and from beginnings of war, such as the [wounding of the] stag was in the war between Aeneas and Turnus. Although the distinction between these matters is clear, nevertheless the words applied to them are often confused. For what we call justifiable causes Livy, in the 142 speech of the Rhodians, called beginnings: 'You certainly are Romans who claim that your wars are so fortunate because they are just, and pride yourselves not so much on their outcome, in that you gain the victory, as upon their beginnings, because you do not undertake wars without cause.' In the same sense also Aelian (in Book XII, chapter liii) speaks of the beginnings of wars, and Diodorus Siculus (Book XIV), giving an account of the war of the Lacedaemonians against the Eleans, expresses the same idea by using the words 'pretexts' and 'beginnings'• 2. These justifiable causes are the special subject of our discussion. Pertinent thereto is the famous saying of Coriolanus quoted by Dionysius of Halicarnassus: 'This, I think, ought to be your first concern, that you have a cause for war which is free from reproach and just.' Similarly Demosthenes says: 'As the substructures of houses, the framework of ships, .and similar things ought to be most firm, so, in the case of actions, the causes and fundamental reasons ought to be in accord with justice and truth.' Equally pertinent is the statement of Dio Cassius: 'We must give the fullest consideration to justicee With justice on our side, military prowess warrants good hope; without it, we have nothing sure, even if the first successes equal our desires.' Cicero also says, 'Those wars are unjust which have been undertaken without cause'; and in another passage he criticizes Crassus because Crassus had determined to cross the Euphrates without any cause for war. 3. What has been said is no less true of public than of private wars. Hence the complaint of Seneca: We try to restrain murders and the killing of individuals. Why are wars and the crime of slaughtering nations full of glory? Avarice 143 and cruelty know no bounds. In accordance with decrees of the Senate and orders of the people atrocities are committed, and actions forbidden to private citizens are commanded in the name of the state. Wars that are undertaken by public authority have, it is true, in some respects a legal effect, as do judicial decisions, which we shall need to discuss later; but they are not on that account more free from wrong if they are undertaken without cause. Thus Alexander, if he commenced war on the Persians and other peoples without cause, was deservedly called a brigand by the Scythians, according to Curtius, as also by Seneca; likewise by Lucan he was styled a robber, and by the sages of Indian 'a man given over to wickedness', while a pirate once put Alexander in the same class with himself. Similarly, Justin tells how two kings of Thrace were deprived of their royal power by Alexander's father, Philip, who exemplified the deceit and wickedness of a brigand. In this connexion belongs the saying of Augustine: 'If you take away justice, what are empires if not vast robberies?' In full accord with such expressions is the statement of Lactantius: 'Ensnared by the appearance of empty glory, men give to their crimes the name of virtue.' 4. No other just cause for undertaking war can there be excepting injury received. 'Unfairness of the opposing side occasions just wars,' said the same Augustine, using 'unfairness' when he meant 'injury', as if he had confused the Greek words for these two concepts. In the formula used by the Roman fetial are the words, 'I call you to witness that that people is unjust and does not do what is right in making restitution.' II.--Justifiable causes include defence, the obtaining of that which belongs to us or is our due, and the inflicting of punishment 144 1. It is evident that the sources from which wars arise are as numerous as those from which lawsuits spring; for where judicial settlement fails, war begins. Actions, furthermore, lie either for wrongs not yet committed, or for wrongs already done. An action lies for a wrong not yet committed in cases where a ,_1.! guarantee is sought against a threatened wrong, or s:::curity against an anticipated injury, or an interdict of a different sort against the use of violence. An action for a wrong committed lies where a reparation for injury, or the punishment of the wrongdoer, is sought. These two sources of legal obligations were rightly distinguished by Plato, in the ninth book of the Laws. Reparation is concerned either with what is or has been ours, giving rise to actions involving property interests, and certain personal actions; or with what is owed to us by contract, or in consequence of a criminal act; or by operation of law, a category to which must be referred also cases arising from implied contracts and constructive crimes. Under these subdivisions the rest of the personal actions fall. An act deserving punishment opens the way to accusation and public trial. 2. Authorities generally assign to wars three justifiable causes, defence, recovery of property, and punishment. All three you may find in Camillus's declaration with reference to the Gauls: 'All things which it is right to defend, to recover, and to avenge.' In this enumeration the obtaining of what is owed to us was omitted, unless the word 'recover' is used rather freely. But this was not omitted by Plato when he said that wars are waged not only in case one is attacked, or despoiled of his possessions, but also if one has been deceived. In harmony with this is 145 a sentence of Seneca: 'Perfectly fair, and in complete accord with the law of nations, is the maxim, "Pay what you owe."' 15. When just war exists, everything is lawful which is necessary for the defense of the public good. Vitoria, p. 171: In war everything is lawful which the defense of the common weal requires. This is notorious, for the end and aim of war is the defense and preservation of the State. Also, a private person may do this in self-defense, as has been proved. Therefore much more may a State and a prince. 16. In just war it is lawful to retake all things that have been lost, or a part thereof. 17. In just war it is lawful to make good, out of the goods of the enemy, all the cost of the war and all damages wrongfully caused by the enemy. 18. After property has been recaptured from an enemy in just war, what the prince may then do. Vitoria, p. 172: The end and aim of war is peace and security. There- fore a belligerent may do everything requisite to obtain peace and security. Further, tranquillity and peace are reckoned among the desirable things of mankind and so the utmost material prosperity does not produce a state of happiness if there be no security there. Therefore it is lawful to employ all appropriate measures against enemies who are plundering and disturbing the tranquillity of the State. Also, all measures of this kind may be taken against internal foes, that is, against bad citizens. Therefore they are lawful against external foes. The antecedent is clear, for if one citizen does a wrong to a fellow citizen, the magistrate not 146 only compels the wrongdoer to make amends to the injured party, but; if the former is a source of fear to the latter, he is compelled to give bond or quit the city, so as to remove the danger of which he is the cause. This shows that even when victory has been won and redress obtained, the enemy may be made to give hostages, ships, arms, and other things, when this is genuinely necessary for keeping the enemy in his duty and preventing him from becoming dangerous again. 19. It is lawful for a prince, after gaining the victory in a just war and after retaking property, and even after the establishment of peace and security, to avenge the wrongs done to him by the enemy and to take measures against the enemy and punish them for these wrongs. 20. In order that a war be called just, it is not always enough that the prince believes he has a just cause. Vitoria, p. 173: Many doubts are suggested by what has just been said. In the first place, there is a doubtful point in connection with the justice of a war, whether it be enough for a just war that the prince believes himself to have a just cause. On this point let my first proposition be: This belief is not always enough. And for proof I rely, first, on the fact that in some matters of less moment it is not enough either for a prince or for private persons to believe that they are acting justly. This is notorious, for their error may be vincible and deliberate, but the opinion of the individual is not enough to render an act good, but it must come up to the standard of a wise man's judgement, as appears from Ethics, bk.2. Also the result would otherwise be that very many wars would be just on both sides, for although it is not a common occurrence 147 for princes to wage war in bad faith, they nearly always think theirs is a just cause. In this way all belligerents would be innocent, and it would not be lawful to kill them. Also, were it otherwise, even Turks and Saracens might wage just wars against Christians, for they think they are thus rendering God service. 21. The justice of a war must be most thoroughly and carefully examined. Vitoria, p. 173: "A wise man must make trial of everything by words before resorting to force," and he ought to consult the good and wise and those who speak with freedom and without anger or bitterness or greed, seeing that (as Sallust says) "where these vices hold sway, truth is not easily distinguished." This is self-evident. For truth and justice in moral questions are hard of attainment and so any careless treatment of them easily leads to error, an error which will be inexcusable, especially in a concern of great moment, involving danger and calamity to many, and they our neighbors, too, whom we are bound to love as ourselves. 22. Whether subjects are bound to examine the cause of a war; and how, if a subject is convinced of the injustice of a war, he may not serve in it, even though his sovereign commands. Vitoria, p. 173: On this doubt let my first proposition be: If a subject is convinced of the injustice of a war, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the killing of an innocent person. But in the case before us the enemy are innocent. Therefore they may not be killed. Again, a prince sins when he commences a war in such a case. But "not only are they who 148 commit such things worthy of death, but they, too, who consent to the doing thereof" (Romans, ch.l). Therefore soldiers also are not excused when they fight in bad faith. Again, it is not lawful to kill innocent citizens at the prince's command. Therefore not aliens either. 23. If subjects are conscientiously of opinion that a war is unjust, they may not serve in it, whether their opinion be wrong or right. 24. Senators, petty rulers, and, in general, all who, either on summons or coming of their own accord, are admitted to the public council or the king's council, are bound to examine the cause of an unjust war. Vitoria, p. 174: This is clear; for whoever can save his neighbor from danger and harm is bound to do so, especially when the danger is that of death and greater ills, as is the case in war. But the persons referred to can avert the war, supposing it to be unjust, if they lend their wisdom and weight to an examination into its causes. Therefore they are bound so to do. Again, if by their neglect an unjust war be entered on, they are consenting parties thereto, for that which a man could and ought to prevent is imputed to him, if he does not prevent it. Again, a king is not by himself capable of examining into the causes of a war and the possibility of a mistake on his part is not unlikely and such a mistake would bring great evil and ruin to multitudes. Therefore war ought not to be made on the sole judgment of the king, nor, indeed, on the judgment of a few, but on that of many, and they wise and upright men. 149 25. Who are not bound to examine the causes of war, but may lawfully serve in it in reliance on the good faith of their betters .. Vitoria, p. 174: Other lesser folk who have no place or audience in the prince's council or in the public council are under no obligation to examine the causes of a war, but may serve in it in reliance on their betters. This is proved, first, by the fact that it is impossible and inexpedient to give reasons for all acts of state to every member~of the commonalty. Also by the fact that men of the lower orders, even if they perceived the injustice of a war, could not stop it, and their voice would not be heeded. Therefore, any examination by them of the causes of a war would be futile. Also by the fact that for men of this sort it is enough proof of the justice of war (unless the contrary be quite certain) that it is being waged after public counsel and by public authority. Therefore no furt~er examination on their part is needed. 26. When ignorance of the injustice of a war would not excuse subjects who serve in it. Vitoria, p. 174: Nevertheless the proofs and tokens of the injustices of a war may be such that ignorance would be no excuse even to subjects of this sort who serve in it. This is clear, because such ignorance might be deliberate and adopted with evil intent towards the enemy. Also, were this otherwise, unbelievers would be excused when they follow their chieftains to war against Christians and it would be unlawful to kill them, it being certain that they deem themselves to have a just cause of war. Also, the soldiers who crucified Christ, ignorantly following Pilate's order, would be excused. Also, the Jewish mob would be excused which was led by the elders to shout, "Away with Him, crucify Him." 150 27. What is to be done, when there is doubt about the justice of a war; and how if one prince be in lawful possession, so long as the doubt remains another may not try to turn him out by war and anned force. Vitoria, pp. 174-175: Suppose the King of France to be in lawful posses- sion of Burgundy and that it be doubtful whether he has or has not right thereto. The Emperor may not try to oust him by arms; nor on the other hand may the French King seize Naples or Milan, if there be doubt who is entitled to it. The proof is that in doubtful matters the party in possession has the better position. Therefore it is not lawful to dispossess the possessor in favor of a doubtful cause. Further, if the matter were being heard by a lawful judge, he would never in case of doubt dispossess the party in possession. Therefore, if we postulate that those princes who are asserting a right are judges in their own cause, they may not lawfully eject a possessor so long as there is any doubt about the title. Further, in the suits and causes of private persons it is never permissible in a doubtful matter to dispossess a lawful possessor. Therefore, not in the causes of princes; for the laws are the princes' laws. Therefore, if by human law it is not permissible in a doubtful matter to dispossess a lawful possessor, it can quite validly be objected to princes, "Obey the law.thyself hast made, seeing that a man ought to adopt the same law for himself which he has enjoined on others." Also, were it otherwise a war could be just on both sides and would never be settled. For if in a doubtful matter it were lawful for one side to assert his claim by force, the other might make armed defense, and after the one had obtained what he claimed, the other might 151 afterwards claim it back, and so there would be war without end, to the ruin and tribulation of peoples. 28. If there be a city or province concerning which it is doubtful whether it has a lawful possessor, especially when there is a vacancy owing to the death of the lawful lord, etc.-What is to be done in such a case. Vitoria, p. 175: The proof is that when the merits of a quarrel are equal, one side does no wrong by claiming an equal part of the thing in dispute. Further, in private disputes also, where the matter is in doubt, one party may not seize the whole thing. Also, in the same way the war would be just on both sides. Also, a just judge would not decree and award the whole thing to either party. 29. How a person who is doubtful about his own title, even if he be in peaceable possession, is bound to make careful examination of his case, if perchance he can arrive at certainty either in his own favor or in favor of another. 30. After the examination of a case, so long as a doubt reasonably persists, a lawful possessor is not bound to quit possession, but may lawfully retain it. Vitoria, p. 176: One who is in doubt whether the alleged cause of a war is a sufficient one or simply whether there exists some sufficient cause for declaring war, may not serve in such a war, even at the command of his prince. The proof is that he exposes himself to the danger of mortal sin. Also, what is not of faith is sin, a doctrine which, according to the doctors and to truth, is to be understood as condemnatory, not only where the conscience is assured or based on opinion, but also where it 152 is in doubt. Sylvester seems to hold the same doctrine, under the word bellum, I, par. 9. 31. In a doubtful case, subjects may follow their prince to battle not only in a defensive, but also in an offensive war. Vitoria, p. 176-177: In the first place there is no doubt that in a defensive war subjects may, even though the matter be doubtful, follow their prince to the war; nay, that they are bound to follow him, and also in an offensive war. The first proof is in the fact that, as has been said, a prince is not able, and ought not, always to render reasons for the war to his subjects, and if subjects can not serve in war except they are first satisfied of its justice, the State would fall into grave peril and the door would be opened to wrongdoing. Also, in doubtful matters the safer course ought to be adopted. Now, if subjects in a case of doubt do not follow their prince to the war, they expose themselves to the risk of betraying their State to the enemy, and this is a much more serious thing than fighting against the enemy despite a doubt. Therefore they ought rather to fight. Also, this is manifestly proved by the fact that the lictor is bound to carry out the decree of the judge, even though he has his doubts about its justice, for there would be serious danger in the opposite course. Also, St. Augustine writing against the Manichaeans, defends this line of argument, where he says: "If a righteous person be in the military service of a sacrilegious king, he may consistently go to war at his command, provided that it is certain the the command laid on him is not contrary to the Divine precepts or that it is not certain whether it be so" (C. 23, qu.l, can. quid culpatur). Here we have St. Augustine expressly 153 declaring that if it is not certain--that is, if there is a doubt-whether it be against God's precepts, the subject may lawfully go to the war .. And however Adrian may twist and turn, he can not free himself from the authority of St. Augustine, for our proposition is, beyond cavil, the conclusion at which St. Augustine arrives. Nor does it avail to say that such a person ought to get rid of his doubt and make his conscience acquiesce in the justice of the war, for it remains that, mortally speaking, this is impossible, as in other cases of doubt. Now, Adrian's mistake seems to be in thinking that, if I am in doubt whether this war is just for my prince or whether there be a just cause for this war, it iIIUilediately follows that I am in doubt whether or no I ought to go to this war. I admit that I am no wise justified in doing what my conscience doubts about and that, if I am doubtful about the lawfulness of doing any given thing, I sin if I do it. But any doubt of mine about the justice of this war does not necessarily involv,e a doubt whether I ought to fight or serve in this war. Nay, it is quite the other way abo~t. For although I may doubt whether the war is just, yet the next point is that I may lawfully serve in the field at my prince's command. It is precisely the same as with a lictor who has his doubts whether the judge's decree is just, it does not follow therefrom that he doubts whether or no he ought to carry it into execution; he knows that he is bound to carry it into execution. So, also, if the doubt be whether this woman be my wife; I am, consequent upon such doubt, bound to render her conjugal rights. 32. Whether a war can be just on both sides, and how, apart from ignorance, this can not happen. 154 Vitoria, p. 177: c~early First proposition: Apart from ignorance the case can not occur, for if the right and justice of each side be certain, it is unlawful to fight against it, either in offense or in defense. Second proposition: Assuming a demonstrable ignorance either of fact or of law, it may be that on the side where true justice is the war is just of itself, while on the other side the war is just in the sense of being excused from sin by reason of good faith, because invincible ignorance is a complete excuse. Also, on the side of the subjects at any rate, this may often occur; for even if we assume that a prince who is carrying on an unjust war knows about its injustice, still (as has been said) subjects may in good faith follow their prince, and in this way the subjects on both sides may be doing what is lawful when they fight. 33. Whether a prince or a subject, who in ignorance has prosecuted an unjust war, is bound to make restitution, if afterwards he becomes convinced of its injustice. Vitoria, p. 178: Now, much attention must be paid to the admitted fact that a war may be just and lawful in itself and yet owing to some collateral circumstance may be unlawful. For it is admitted that one may be entitled to recapture a city or a province and yet that, because of some scandal, this may become quite unlawful. For inasmuch as (according to what has been said before) wars ought to be waged for the common good, if some one city can not be recaptured without greater evils befalling the State, such as the devastation of many cities, great slaughter of human beings, provocation of princes, occasions for new wars to the destruction of the Church (in that an opportunity is given to pagans to invade and 155 seize the lands of Christians), it is indubitable that the prince is bound rather to give up his own rights and abstain from war. For it is clear that if the King of France, for example, had a right to retake Milan, but by the war both the Kingdom of France and the Duchy of Milan would suffer intolerable ills and heavy woes, it would not be right for him to retake it. This is because that war ought to take place eith~r for the good of France or for the good of Milan. Therefore, when, on the contrary, great ills would befall each side by the war, it could. not be a just war. Grotius, pp. 778-9: I.--Moral justice reguires that the things which our enemy has taken from another in an unlawful war shall be restored 1. We have explained above to what extent things become the property of the captors by a lawful war. But we said that that which was taken in an unlawful war must be restored, not only by those who took it, but also by others to whom the thing has come in any manner whatsoever. For no one, the authorities of the Roman law declare, can transfer to another more right than he himself has. This Seneca briefly explains thus: 'No man can give what he does not have.' The person who first took the thing did not have moral ownership (dominium internum), therefore the person who obtains his right from him will not have it; hence the second or third possessor takes an ownership which, for the sake of explanation, we call legal (externum), thatis, an ownership which has the advantage of being everywhere protected by the authority and power of the courts. Nevertheless, if the possessor uses this advantage against him from whom the thing was taken by an act of injustice, he will not act rightly. 156 2. We may here cite as pertinent the opinion which the worthy jurists gave with regard to a slave who had been captured by robbers and had afterward reached the enemy; it was true that he had been stolen, and neither the fact that he had been in the power of the enemy nor-that he had returned by postliminy nullified the right of the original owner. On the basis of the law of nature a similar opinion must also be rendered with regard to him who was captured in an unlawful war, and afterward, through an unlawful war, or from other causes, came into the power of another; for in moral justice there is no distinction between an unlawful war and brigandage. Gregory of Neocaesarea gave answer in conformity with this opinion when he was consulted regarding the fact that certain men of Fontus had acquired goods of their fellow citizens which had been captured by barbarians. II.--Examples Such things, then, must be restored to those from whom they were taken; and we often see that this has been done. Livy, after relating that the Volscians and Aequians were defeated by Lucius Lucretius Tricipitinus, says that the spoil was exposed in the Campus Martius, in order that each might take home what belonged to him within three days. The same author, having told of the rout of the Volscians by the dictator Posthumius, adds: 'Part of the booty was given back to the Latins and Hernicans upon their recognizing what was theirs; part the dictator sold at auction.' Elsewhere he has: 'Two days were allowed to the owners for identifying their property.' Livy, again, after describing the victory of the Samnites over the Campanians, writes: 'What most delighted the victors was the recovery of seven thousand four hundred prisoners of war, and a huge booty 157 belonging to their allies; and the owners were summoned by proclamation to identify and recover their belongings on an appointed day.' Afterward he recounts a similar act on the part of the Romans: The Samnites attempted to seize the Roman colony of Interamna, but did not take the city. After pillaging the fields, they were thence driving off another booty composed of both men and cattle and also the captured colonists, when they fell in with the consul returning from Luceria, and not only lost their spoil, but, owing to being in disorder in a long and encumbered column, they were themselves cut to pieces. The consul by proclamation called together the owners of Interamna to identify and recover their property, and leaving his army there, he set out for Rome because of the meeting of the assembly. In another passage, dealing with the spoil which Cornelius Scipio had taken at Ilipa, a city in Lusitania, the same writer speaks thus: 'This was all set out outside the town, and owners were given the right to identify what was theirs. The rest was turned over to the quaestor to be sold; what was realized therefrom was divided among the soldiers.' After the battle fought by Tiberius Gracchus near Beneventum, we further read in Livy: 'All the booty, except the prisoners, was given to the soldiery; there were also excepted such cattle as their owners should identify within thirty days.' 34. Whether it is lawful in war to kill the innocent. Vitoria, p. 138: It seems that it is; because, in the first place, the Sons of Israel slew children at Jericho, as appears from Joshua, ch. 6, and afterwards Saul slew children in Amalek (I Samuel, ch. 15), and in both these cases it was by the authority and at the bidding of God. "Now, 158 whatever is written is written for our instruction, 11 as appears from Romans, ch. 15. Therefore, if a war of the present day be just, it will be lawful to kill the innocent. 35. Slaughter of the innocent is never lawful in itself and intentionally. Vitoria, p. 178: This is proved, firstly, by Exodus, ch. 23: "The innocent and righteous slay thou not." Seco·ndly, the basis of a just war is a wrong done, as has been shown above. But wrong is not done by an innocent person. Therefore war may not be employed against him. Thirdly, it is not lawful within a State to punish the innocent for the wrongdoing of the guilty. Therefore this is not lawful among enemies. Fourthly, were this not so, a war would be just on both sides, although there was no ignorance, a thing which, as has been shown, is impossible. And the consequence is manifest, because it is certain that innocent folk is confirmed by Deuteronomy, ch.20, where the Sons of Israel were ordered to take a certain city by force and to slay every one except women and little ones. 36. Whether it is lawful to kill women and children in a war against the Turks; and what, among Christians, about farmers, civilians, foreigners, strangers and clergy. Vitoria, p. 179: Hence i t follows that even in war with the Turks it is not allowable to kill children. This is clear, because they are innocent. Aye, and the same holds with regard to the women of unbelievers. This is clear, because so far as the war is concerned, they are presumed innocent; but it does not hold in the case of any individual woman who is certainly guilty. Aye, and this same pronouncement must be made among Christians 159 with regard to harmless agricultural folk, and also with regard to the rest of thepeaceable civilian population, for all these are presumed innocent until the contrary is shown. On this principle it follows that it is not lawful to slay either foreigners or guests who are sojourning among the enemy, for they are presumed innocent, and in truth they are not enemies. The same principle applies to clerics and members of a religious order, for they in war are presumed innocent unless the contrary be shown, as when they engage in actual fighting. 37. The incidental killing of the innocent, even with knowledge, is sometimes lawful, sometimes not. Vitoria, p. 179: Sometimes it is right, in virtue of collateral circum- tances, to slay the innocent even knowingly, as when a fortress or city is stormed in a just war, although it is known that there are a number of innocent people in it and although cannon and other engines of war can not be discharged or fire applied to buildings without destroying innocent together with guilty. The proof is that war could not otherwise be waged against even the guilty and the justice of belligerents would be balked. In the same way, conversely, if a town be wrongfully besieged and rightfully defended, it is lawful to fire cannon-shot and other missiles on the besiegers and into the hostile camp, even though we assume that there are some children and innocent people there. Great attention, however, must be paid to the point already taken, namely, the obligation to see that greater evils do not arise out of the war than the war would avert. For if little effect upon the ultimate issue of the war is to be expected from the storming of a fortress or fortified town wherein are many innocent folk, it would not be right, 160 for the purpose of assailing a few guilty, to slay the many innocent by use of fire or engines of war or other means likely to overwhelm indifferently both innocent and guilty. In sum, it is never right to slay the guiltless, even as an indirect and unintended result, except when there is no other means of carrying on the operations of a just war, according to the passage (St. Matthew, ch. 13) "Let the tares grow, lest while ye gather up the tares ye root up also the wheat with them." 38. Whether it is lawful to kill the innocent from whom danger in the future is apprehended. Vitoria, pp. 179-180: Here a doubt may arise whether the killing of guiltless persons is lawful when they may be expected to cause danger in the future; thus, for example, the children of Saracens are guiltless but there is good reason to fear that when grown up they will fight against Christians and bring on them all the hazards of war. Moreover, although the adult male civilians of the enemy who are not soldiers are presumed to be innocent, yet they will hereafter carry a soldier's arms and cause the hazard named. Now, is it lawful to slay these youths? It seems so, on the same principle which justifies the incidental killing of other guiltless persons. Also (Deuteronomy, ch. 20) the Sons of Israel were ordered when assaulting any city to slay "every adult male." Now, it can not be presumed that all of these would be guilty. My answer is that although this killing may possibly be defended, yet I believe that it is in no wise right, seeing that evil is not to be done even in order to avoid greater evil still, and it is intolerable that any one should be killed for a future fault. There are, moreover, other available measures of precaution against their future conduct, namely, 161 captivity, exile, etc., as we shall forthwith show. Hence it follows that, whether victory has already been won or the·war is still in progress, if the innocence of any soldier is evident and the soldiers can let him go free, they are bound to do so. To the argument on the opposite side my rejoinder is that the slaughter in the instances named was at the special command of God, who was wroth against the people in question and wished to destroy them utterly, just as he sent fire on Sodom and Gomorrah which devoured both guiltless and guilty together. He, however, is Lord of all and has not given this license as a common law. And the same answer might be made to that passage in Deuteronomy, ch. 20. But, inasmuch as what is there enjoined is in the form of a common law of war for all future time, it would rather seem that the Lord enjoined it because all adult males in an enemy State are deemed guilty, and guiltless can not be distinguished from guilty. Therefore all may be -killed. 39. Whether it is lawful to despoil the innocent among the enemy, and what things may be taken. Vitoria, p. 180: Let my first proposition be: It is certainly lawful to despoil the innocent of goods and things which the enemy would use against us, such as arms, ships, and engines of war. This is clear, because otherwise we could not gain the victory, which is the aim of war. Nay, it is also lawful to take the money of the innocent and to burn and destroy their grain and kill their horses, if this is requisite in order to sap the enemy's strength. Hence follows the corollary that if the war goes on for an indefinitely long time it is lawful utterly to despoil all enemy-subjects, guilty and guiltless alike, for it is from 162 their resources that the enemy is feeding an unjust war, and, on the other hand, his strength is sapped by this spoliation of his citizens. 40. If war can be adequately conducted without despoiling farmers or other innocent folk, it seems unlawful to despoil them; and what about foreigners and strangers on enemy territory? Vitoria, pp. 180-181: If a war can be carried on effectively enough without the spoliation of the agricultural population and other innocent folk, they ought not to be despoiled. Sylvester maintains this (under the word bellum, I, par. 10) on the ground that war is founded on a wrong done, and therefore the rights of war may not be enforced against the innocent if the wrong can be redressed in another quarter. Aye, and Sylvester adds that, even if there were good reason to despoil the innocent, yet when the war is over the victor is bound to restore to them whatever is left. This, however, I do not think necessary, because, as said above, whatever is done in right of war receives the construction most favorable to the claims of those engaged in a just war. Hence, whatever has been lawfully seized is not in my opinion subject to restitution. All the same, Sylvester's remark is a pious one and not indefensible. But the spoliation of foreigners and travelers on enemy soil, unless they are obviously at fault, is in no wise lawful, they not being enemies. 41. How, if the enemy refuse to restore the things which they have wrongfully taken away, and the injured party can not recoup himself in any other way, he can seek satisfaction where he will, whether from the guilty or the innocent. Vitoria, p. 181: For instance, if French brigands made a raid into Spanish territory and the French King would not, though able, compel 163 them to restore their booty, the Spanish might, on the authorization of their sovereign, despoil French merchants or farmers, however innocent these might be. This is because, although the French State or Sovereign might initially be blameless, yet it is a breach of duty, as St. Augustine says, for them to neglect to vindicate the right against the wrongdoing of their subjects, and the injured sovereign can take satisfaction from every member and portion of their State. There is, accordingly, no inherent injustice in the letters of marque and reprisals which princes of ten issue in such cases because it is on account of the neglect and breach of duty of the other prince that the prince of the injured party grants him this right to recoup himself even from innocent folk. These letters are, however, hazardous and open the way to plunder. 42. Whether the innocent and children, who are admittedly not to be killed, may at least be led into captivity and slavery. [Think of the Indians.] Vitoria, p. 181: This can be cleared up in a single proposition, namely: It is in precisely the same way permissible to carry the innocent off into captivity as to despoil them, liberty and slavery being included among the good things of Fortune. And so when a war is at that pass that the indiscriminate spoliation of all enemy-subjects alike and the seizure of all their goods are justifiable, then it is also justifiable to carry all enemy-subjects off into captivity, whether they be guilty or guiltless. And inasmuch as war with pagans is of this type, seeing that it is perpetual and that they can never make amends for the wrongs and damages they have wrought, it is indubitably lawful to carry off both the children and the women of the Saracens into captivity and slavery. 164 But inasmuch as, by the law of nations, it is a received rule of Christendom that Christians do not become slaves in right of war, this enslaving is not lawful in a war between Christians; but if it is necessary having regard to the end and aim of war, it would be lawful to carry away even innocent captives, such as children and women, not indeed into slavery, but so that we may receive a money-ransom for them. This, however, must not be pushed beyond what the necessity of the war may demand and what the custom of lawful belligerents has allowed •. Grotius, pp_. 690-69 3: I.--According to the law of nations all persons captured in a war that is public become slaves 1. By nature at any rate, that is, apart from a human act, or in the primitive condition of nature, no human beings are slaves, as we have said elsewhere. In this sense it is correct to accept what was said by the jurists, that slavery is contrary to nature. Nevertheless, as we have shown also in another_ connexion, it is not in conflict with natural justice that slavery should have its origin in a human act, that is, should arise from a convention or a crime. 2. But in the law of nations, which we are now discussing, slavery has a somewhat larger place, both as regards persons and as regards effects. For if we consider persons, not only those who surrender themselves, or promise to become slaves, are regarded as slaves, but all without exception who have been captured in a formal public war become slaves from the time when they are brought within the lines, as Pomponius says. And no crime is requisite, but the fate of all is the same, even of those who by their ill-fortune, as we have said, are caught in the enemy's territory when war has suddenly broken out. 165 3. Polybius says in the second book of his Histories: 'What should these persons suffer so as to pay a fitting penalty? Perhaps, one would say, being sold as slaves with wives and children, after they have been conquered in war. But this is also appointed by the law of war for those to endure who have done no impious deed.' Hence comes what Philo notes in these words: 'Often at unforeseen times many good men have lost their inherited freedom.' 4. Dio of Prusa, after enumerating the ways of acquiring ownership, says: 'And a third form of possession is whenever one has taken a prisoner in war and in this way holds him as a slave.' So Oppian in his second book On Fishery calls it a law of war to carry off into slavery boys that have been captured in war. II.--Also the descendants of persons captured in war become slaves Not only do the prisoners of war themselves become slaves, but also their descendants for ever, that is to say those who are born of a slave mother after her enslavement. This is what Marcianus said, that by the law of nations those become our slaves who are born of our slave women. In speaking of the wife of a German chief, Tacitus said that her womb was subject to slavery. III.--What may be done to prisoners of war with impunity 1. Moreover the effects of this law are unlimited, just as Seneca the Father said that there is nothing which a master is not permitted to do to his slave. There is no suffering which may not be inflicted with impunity upon such slaves, no action which they may not be ordered, or forced by torture, to do, in any way whatsoever; even brutality on the part of masters towards persons of servile status is unpunishable except 166 in so far as municipal law sets a limit and a penalty for brutality. 'Among all nations alike', says Gaius, 'we may see that masters have had the power of life and death over slaves.' Then he adds that limits have been set to this power by the Roman law, that is on Roman soil. Here applies the note of Donatus on Terence, 'What is it not lawful for a master to do to his slave?' 2. Also everything that has been captured is acquired, along with the person, for the master. The slave who is himself under the power of another, says Justinian, can have nothing of his own. IV.--The property of captives, even if incorporeal, belongs to their master On these grounds the view of those who say that incorporeal rights are not acquired by the law of war is refuted, or at any rate restricted. It is true that such rights are not acquired primarily and directly, but through the medium of the person to whom they had belonged. Nevertheless, we have to make exception of those rights which have their source in a peculiar capacity of the person and are hence inalienable, as the right of the father. For if these rights can remain, they remain with the person; if not, they are extinguished. V.--The reason why the law has thus been established 1. All these rights have been introduced by the law of nations, with which we are dealing, for no other reason than this: that the captors, mollified by so many advantages, might willingly refrain from recourse to the utmost degree of severity, in accordance with which they could have slain the captives, either immediately or after a delay, as we have said before. 'The name of slaves (servi)', says Pomponius, 'comes 167 from the fact that commanders are accustomed to sell prisoners and thereby to save them (servare) and not to kill them.' I have said 'that they might willingly refrain'; for there is no suggestion of an agreement whereby they may be compelled to refrain, if you are considering this law of nations, but a method of persuading them by indicating the more advantageous course. 2. For the same reason this right is transferred to others, just as the ownership of things. Further, it has been agreed that ownership should be extended to children; the reason is that otherwise, if the captors had used their full right, the children would not have been born. Whence it follows that children who were born before the catastrophe do not become slaves, unless they are themselves captured. Moreover, it has been acceptable to the nations that children should follow the status of the mother, for the reason that the unions of slaves were regulated neither by law nor by definite oversight, and consequently the father was indicated by no adequate presumption. In this sense we are to understand the statement of Ulpian: 'It is a law of nature, that he who is born outside of lawful matrimony follows the status of his mother'; that is, the law represents a general custom which has grown up from a natural reason, just as we have elsewhere shown that the term 'law of nature' is at times employed with some inexactness. 3. The rights under consideration, moreover, have not been introduced by the nations in vain. This we may perceive from what happens in civil wars, in which we find that on many occasions captives have been killed because they could not be reduced to slavery. The fact is noted by Plutarch in his Otho, and by Tacitus in the second book of his Histories. 168 4. Whether those who have been captured become the property of the people, or of individuals, must be decided by what we have said in regard to booty; for in this case the law of nations has put men in the same category as things. Gaius the jurist said in his Daily Questions, Book II: 'Also what is captured from the enemy becomes at once, by the law of nations, the property of the captors, to the extent indeed that even free men are led off into slavery.' Vattel, Book 3, Chapter 8, par. 152: May prisoners of war be reduced to slavery? Yes, on occasions when it is justifiable to kill them because they have rendered themselves personally guilty of some crime deserving of death. The ancients, consistently with their belief that prisoners of war might be put to death, sold them into slavery. On no occasion when I may not justifiably put my prisoner to death, may I make of him a slave. If I spare his life only to condemn him to a lot utterly at variance with man's nature, our relations are still those of enemies, and he is under no obligations to me. What is life without liberty? If anyone still counts life a favor, when it is spared to him to be spent in chains, be it so; let him accept the gift, submit to his lot, and fulfill its duties. But he must learn those duties from someone else; they have been sufficiently treated of by other authors, and I will add nothing further. As it is, that reproach to mankind has happily been banished from Europe. 43. Whether hostages, taken from the enemy in time of truce or on the termination of a war, may be put to death, if the enemy break faith and do not abide by what has been agreed on. Vitoria, pp. 181-182: My answer is in a single proposition: If the 169 hostages are in other respects among the guilty, as, for instance, because they have borne arms, they may rightfully be killed in that case; if, however, they are innocent, as, for instance, if they be children or women or other innocent folk, it is obvious from what has been said above that they can not be killed. Vattel, Book 3, Chapter 8, par. 151: In former times the following question would have proved embarrassing: When a captor has a large number of prisoners whom it is impossible to feed or to keep under guard, has he the right to put them to death, or must he let them return to the enemy, thus increasing their strength and exposing himself to the danger of defeat on another occasion? At the present day the question presents no difficulty; such prisoners are released on their parole, and the condition is imposed that they are not to take up arms for a definite period, or during the continuance of the war; and as it is absolutely necessary that every general have the power to agree to the conditions upon which the enemy will accept his surrender, the terms which he accepts in order to save the lives or liberties of himself and his soldiers are valid, as being made within the scope of his powers (Par. 19 and foll.) and his sovereign may not annul them. Several cases of this have occurred during the late war. A number of Dutch garrisons submitted to the condition of not serving against France and her allies during one or two years; a body of French troops, besieged in Lintz, were sent back across the Rhine, on condition that they should not bear arms against the Queen of Hungary until the time fixed. The sovereigns of these armies have stood by the terms agreed upon. But conventions of this kind have their limits, which consist in not encroaching upon the rights 170 of the sovereign over his subjects. Thus, the enemy general may properly impose upon the prisoners whom he releases the condition of not bearing arms against his State until the end of the war, since he might keep them in prison until that time; but he has not the right to require them to renounce forever the liberty of fighting for their country, because once the war is at an end his control over them ceases; and they on their part can not enter into an agreement absolutely contrary to their character of citizens or subjects. If their country abandons them they become free in relation to it, and are justified in abandoning it in turn. But if we are dealing with a Nation which is at once savage, treacherous, and forroidable,shall we send back to it soldiers who, perhaps, will put it in a position to destroy us? When it is a case of choosing between our own safety and that of an enemy, even when prisoner, the answer does not admit of doubt. But before deliberately putting a large number of prisoners to death, two conditions must be fulfilled: firstly, that no promise has been made to spare their lives, and secondly, that the captor is very certain that his safety demands the sacrifice. If prudence will at all permit him either to trust their word or to disregard their bad faith, a generous captor will be led rather by humane consideration than by a policy of timid caution. Charles XII, being encumbered with his prisoners after the battle of Narva, was content to disarm them and send them away free. His enemy, still possessed by the fear which the formidable army of Charles had excited, sent the prisoners at Pcltowa into Siberia. The Swedish hero, in his generosity, carried his trust too far; the shrewd monarch of Russia was, perhaps, 171 over-severe in his prudence. But necessity will excuse severity, or rather cause it to be entirely overlooked. When Admiral Anson had captured, near Manila, the rich galleon of Acapulco, he found that his prisoners outnumbered his whole crew; he was forced to confine them in the bottom of the hold, where they suffered greatly. But if he had exposed himself to the risk of having his own vessel and his prize recaptured by the enemy, would his humane conduct have justified his imprudence? After his victory at Agincourt, Henry V., King of England, found, or thought he found, himself under the cruel necessity of sacrificing his prisoners to his own safety. "In this universal rout," says Pere Daniel, "a further disaster occurred, which cost the lives of a great number of the French. A remnant of the French vanguard was retreating in some order, and many rallied to it. The English King, seeing them from his position on an eminence, thought they meant to return to the attack. At the same time word was brought to him that his camp, where he had left his baggage, was being attacked. In fact certain noblemen of Picardy, having armed about six hundred peasants, had fallen upon the English camp. Henry, fearing some disastrous reverse, sent his aide-de-camp to all the divisions of the army with orders to put to death all the prisoners. His fear was that if the battle were renewed the necessity of guarding the prisoners would hamper the action of his soldiers, and that the prisoners would rejoin their ranks. The order was executed immediately, and the prisoners were all put to the sword." (a) Only the greatest necessity can justify so terrible an execution, and the general is to be pitied who finds himself forced to order it. 172 44. Whether it is lawful in war to kill all the guilty. Vitoria, p. 182: Prefatory to an answer be it noted that, as is shown by what has been said above, war is waged: Firstly, in defense of ourselves and what belongs to us; secondly, to recover things taken from us; thirdly, to avenge a wrong suffered by us; fourthly, to secure peace and security. 45. It is lawful to kill without distinction all who resist in the actual heat of battle either in the storming or in the defense of a city, and as long as affairs are in peril. Vitoria, p. 182: This is manifest, because combatants could not properly effect their purpose save by removing all who hinder and resist them. All the doubt and difficulty, however, is to know whether, when we have won our victory and the enemy is no longer any danger to us, we may kill all who have borne arms against us. Manifestly, yes. For, as shown above, one of the military precepts given by the Lord (Deuteronomy, ch. 20) was that when a city of the enemy had been taken all dwellers in it were to be killed. The words of the passage are: "When thou comest nigh unto a place to fight against it, then proclaim peace unto it. And it shall be if it make thee answer of peace, and open unto thee, that all the people that is found therein shall be saved and shall be tributaries unto thee and shall serve thee. But if it will make no peace with thee, but will make war against thee, then thou shalt besiege it. And when the Lord thy God hath delivered it unto thine hands, thou shalt smite every male thereof with the edge of the sword, but not the women and the little ones." 173 46. It is lawful to kill the guilty, even after victory has been won and danger has already been removed. Vitoria, p. 182: The proof is that, as said above, war is ordained not only for the recovery of property, but also for the avenging of wrongs. Therefore the authors of a past wrong may be killed therefor. Again, this is permissible against our own wrongdoing citizens. Therefore also against foreigners; for, as said above, a prince when at war has by right of war the same authority over the enemy as if he were their lawful judge aµd prince. And a further reason is that, although there be no present danger from the enemy, yet security for the future can not be had, unless the enemy be restrained by the fear of punishment. 47. It is not always lawful to kill all the guilty, merely in order to avenge a wrong. Vitoria 2 pp. 182-183: The proof is that even among citizens it would not be lawful, not even where the wrong was done by the whole city or district, to kill all the delinquents; nor in a common rebellion would it be permissible to slay and destroy the whole population. Accordingly, for such a deed, St. Ambrose interdicted Theodosius from the church. For such conduct would not be for the public good, which is nevertheless the end and aim of both war and peace. Therefore, it is not right to kill all the guilty among the enemy. We ought, then to take into account the nature of the wrong done by the enemy and of the damage they have caused and of their other offenses, and from that standpoint to move to our revenge and punishment, without any cruelty and inhumanity. In this connection Cicero says (Offices, bk.2) that the punishment which we inflict on the guilty must be such as equity and humanity allow. And Sallust says: 174 "Our ancestors, the most religious of men, took naught from those they conquered save what was authorized by the nature of their offenses." 48. At times it is both lawful and expedient to kill all the guilty, especially in a war against unbelievers. And what in a war against Christians? Vitoria, p. 183: The proof is that war is waged in order to get peace and security. But there are times when security can not be got save by destroying all one's enemies: and this is especially the case against unbelievers, from whom it is useless ever to hope for a just peace on any terms. And as the only remedy is to destroy all of them who can bear arms against us, provided they have already been in fault. That is how the injunction in Deuteronomy, ch. 20, is to be interpreted. Otherwise, however, in a war with Christians, where I do not think this would be allowable. For, as it needs must be that scandals come (St. Matthew, ch. 18) and also wars between prince~, it would involve the ruin of mankind and of Christianity if the victor always slew all his enemies, and the world would soon be reduced to solitude, and wars would not be waged for the public good, but to the utter ruin of the public. The measure of the punishment, then, must be proportionate to the offense, and vengeance ought to go no further, and herein account must be taken of the consideration that, as said above, subjects are not bound, and ought not, to scrutinize the causes of a war, but can follow their prince to it in reliance on his authority and on public counsels. Hence in the majority of cases, although the war be unjust on the other side, yet the troops engaged in it and who defend or attack cities are innocent on both sides. And therefore after their defeat, when no further danger is present, I 175 think that they may not be killed, not only not all of them, but not even one of them, if the presumption is that they entered on the strife in good faith. 49·. Whether it is lawful to kill captives and those who have surrendered, assuming them to have been guilty also. Vitoria, pp. 183-184: My answer is that, speaking absolutely, there is nothing to prevent the killing of those who have surrendered or been captured in a just war so long as abstract equity is observed. Many of the rules of war have, however, been fashioned by the law of nations, and it seems to be received in the use and custom of war that captives, after victory has been won (unless perchance they have been routed) and all danger is over, are not to be killed, and the law of nations must be respected, as is the wont among good people. But I do not read or hear of any such custom with regard to those who have surrendered; nay, on the capitulation of a fortress or city it is usual for those who surrender to try and provide for themselves in the conditions of the capitulation, as that their heads shall be safe and that they shall be let go in safety; that is, they fear that an unconditional surrender would mean their deaths. We read of this being several times done. Accordingly, it does not seem unjust that, if a city capitulates without taking any such precautions, the more notorious offenders would be put to death on the order of the prince or a judge. 50. When things captured in a just war belong to the captor and seizor; and how these things vest in the seizor up to a sufficient satisfaction for what has been wrongfully taken away and for expenses. 176 Vitoria, p. 184: My first proposition hereon is: There is no doubt that everything captured in a just war vests in the seizor up to the amount which provides satisfaction for the things that have been wrongfully seized and which covers expenses also. This needs no proof, for that is the end and aim of war. But, apart from all consideration both of restitution and satisfaction, and looking at the matter from the standpoint of the law of war, we must distinguish according as the things captured in war ara movable (like money, garments, silver, and gold), or are immovables (like lands, cities, and fortresses). 51. How all movables, by the law of nations, vest in the seizor, even though their value more than compensates the wrong done. Vitoria, p. 184: This is clear from Dig., 49,15,28 and 24, and from can.9, Dist.l, and it is more expressly laid down in Inst., 2,1,17, where it is said that "by the law of nations whatever is taken from the enemy immediately becomes ours, even so far· as that free persons may be made our slaves." And St. Ambrose says (Liber de Patriarchis) that when Abraham slew the four kings their spoil belonged to him as the conqueror, although he refused to take it (Genesis, ch.14, and can.25, C.23, qu~5). And this is confirmed by the authority of the Lord (Deuteronomy, ch.20) where He says concerning the storming of a town: "All the spoil thereof thou shalt divide with the army and thou shalt eat of the spoil of thine enemies." Adrian holds this opinion in his quaestio on restitution, in the special quaestio on war. So, also, Sylvester, under the word bellum, par.l and par.9, where he says that he who fights a just cause is not bound to give back his booty (can.2, C.23, qu.7). "Hence it follows that what is taken in war is not used as a set-off against the 177 principal debt, as the Archdeacon also holds (can.2, C.23, qu.2) . 11 And Bartolus is of the same opinion in his comment on Dig., 49,15,28. And this is understood to be so even if the enemy be ready to make amends in other ways for the damages and wrongs suffered. Sylvester, however, limits this, and rightly, allowing it only until a satisfaction sufficient in equity has been taken for the damages and wrongs suffered. For it is not to be imagined that, if the French have ravaged some one district or insignificant town in Spain, the Spanish might also, if they could, ravage the whole of France; they can only retort in a manner proportionate in kind and degree to the wrong done, according to the estimate of a good man. 52. Whether it is lawful to leave a city to the soldiery by way of booty; and how this is not unlawful; but at times even necessary. Vitoria, pp. 184-185: My answer is, and let this be my third proposi- tion: This is not unlawful in itself, if necessary for the conduct of the war or as a deterrent to the enemy or as a spur to the courage of the troops. So Sylvester, under the word bellum, par.10. It is on the same principle as thatwhichjustifies the burning of a city for reasonable cause. Nevertheless, inasmuch as such authorization to sack results in many horrors and cruelties, enacted beyond· all humane limits by a barbarous soldiery, such as slaughter and torture of the innocent, rape of virgins, dishonor of matrons, and looting of temples, it is undoubtedly unjust in the extreme to deliver a city, especially a Christian city, to be sacked, without the greatest necessity and weightiest reason. If, however, the necessities of war require it, it is not unlawful, 178 even if it be likely that the troops will perpetrate foul misdeeds of this kind, which their generals are none the less bound to forbid and, as far as they can, to prevent. 53. Soldiers may not loot or burn without authority; otherwise they are bound to make restitution. 54. It is lawful to seize and hold the lands and fortresses and towns of the enemy, so far as this is necessary by way of compensation for damages done. Vitoria, p. 185: There is no doubt about the lawfulness of seizing and holding the land and fortresses and towns of the enemy, so far as is necessary to obtain compensation for the damages he has caused. For instance, if the enemy has destroyed a fortress of ours, or has burnt a city or vineyards or olive gardens, we may in turn seize his land or fortress or city and hold it. For if it is lawful to exact compensation from the enemy for the things of ours which he has taken, it is certain that by the divine law and natural law it is not more lawful to take recompense therefore in movables than in immovables. Vattel, Book 3, Chapter 9, pars. 162-163: The right to security frequently authorizes a State to punish acts of injustice or violence, and is a further ground for depriving an enemy of some part of his property. It is more humane to punish a Nation in this way than to make the penalty fall upon the persons of the citizens. To this end the Nation may be deprived of valuable property, such as rights, towns, or provinces. But all wars do not give just grounds for inflicting punishment. A Nation which has supported a bad cause in good faith and with moderation is more deserving of the pity than of the anger of a generous 179 conqueror; and in a doubtful case it should be presumed that the enemy is in good faith (Introd., par.21; Book III, par.40). It is only where the injustice of this cause is clear and devoid of even a semblance of right, or where the conduct of the enemy has been marked by grievous outrages, that his opponent has the right to punish him; and on every occasion the punishment should be limited to what is required for the safety of the injured State and of other Nations. Mercy should be the rule, as far as prudence will allow, and that lovable virtue is almost always of more value to its possessor than inflexible sternness. The mercy shown by Henry the Great came wonderfully to the aid of his valor when that good Prince was forced to undertake the conquest of his Kingdom. By his arms alone he would only have subjected his enemies; his kindness made of them devoted subjects. Finally, a belligerent takes possession of what belongs to the enemy, of his towns and his provinces, in order to bring him to reasonable terms and to force him to accept peace on a just and permanent basis. He thus takes much more than what belongs to him, or than what he claims to belong to him; but this is done with the intent of restoring the excess by the treaty of peace. Vattel, Book 3, Chapter 9, pars. 169-172: It is difficult to spare the finest buildings when a town is bombarded. At the present day the besieger ordinarily limits himself to battering the ramparts and defenses of the town, and he does not proceed without urgent reasons to the extremity of destroying the town by the use of bombs and hot shot. But he is nevertheless warranted by the laws of war in taking such extreme measures when he is unable otherwise to reduce an important stronghold, 180 on which depends the success of the war, or which enables the enemy to make dangerous attacks upon us. Finally, such measures are taken when we have no other means of forcing an enemy to carry on war more humanely, or of punishing him for some other excesses. But it is only with reluctance, and as a last resort, that good princes make use of a right of so stern a nature. In the year 1694 the English bombarded several maritime towns of France, whose privateers had done serious injury to the commerce of Great Britain. But the virtuous and worthy consort of William III was little pleased with the news of what her fleet had done; she expressed regret that war should have rendered such measures necessary, adding that she hopedthatoperations of that kind would be regarded with such abhorrence that for the future both sides would abandon them.(a). Fortresses, ramparts, and fortifications of every kind are built solely for use in war; consequently nothing could be more natural or more lawful for a belligerent than to raze those which he does not propose to hold. He thereby weakens his enemy to that extent, and yet does not involve innocent persons in the enemy's losses. This was the great advantage which France drew from her victories in a war in which she did not aim at making conquests. Safeguards are given to lands and to houses which the belligerent wishes to spare, either out of pure favor or on condition of a contribution. These consist of soldiers who protect the property from the belligerent's own army by showing orders to that effect from the general. Their persons are to be held inviolable by the enemy, who may not attack them, since they are at their posts for the charitable purpose of protecting his subjects. They should be shown the same respect that is 181 shown to the escort given to a garrison, or to prisoners of war, when sent back to their own country. What we have said is sufficient to give a general idea of the moderation with which, in the most just war, a belligerent should use the right to pillage and devastate the enemy's country. Apart from the case in which there is question of punishing an enemy, the whole may be summed up in this general rule: All acts of hostility which injure the enemy without necessity, or which do not tend to procure victory and bring about the end of the war, are unjustifiable, and as much condemned by the natural law. 55. It is lawful to seize and hold an enemy fortress or city by way of obtaining security and avoiding danger or as a means of defense and in order to take away from the enemy an opportunity to do harm, etc. 56. It is lawful to deprive the enemy of part of his territory on account of the wrong he has done and by way of punishment, that is, revenge; and how on this ground a fortress or town may be seized, so long as due limits are observed. Vitoria, pp. 185-186: This, however, must be done within due limits, as already said, and not as utterly far as our strength and armed force enable us to go in seizing and storming. And if necessity and the principle of war require the seizure of the larger part of the enemy's land, and the capture of numerous cities, they ought to be restored when the strife is adjusted and the war is over, only so much being retained as is just, in way of compensation for damages caused and expenses incurred and of vengeance for wrongs done, and with due regard for equity and humanity, seeing that punishment ought to be proportionate to the fault. Thus it 182 would be intolerable that, if the French raided the flocks of the Spanish or burnt a single district, the latter should be allowed to seize the whole Kingdom of France. Now, the lawfulness of seizing on this score either a part of enemy territory or an enemy city appears from Deuteronomy, ch.20, where permission is granted in war to seize a city that has refused to accept terms of peace. Again, internal wrongdoers may be punished in this way, that is, they may be deprived of house or land or a fortress, in proportion to the character of the circumstances. Therefore foreigner wrongdoers also. Again, a superior judge has competence to mulct the author of a wrong by taking away from him a city (for instance) or a fortress. Therefore a prince who has suffered wrong can do this too, because by the law of war he is put in the position of a judge. Again, it was in this way and by this title that the Roman Empire grew and developed, that is, by occupation, in right of war, of cities and provinces belonging to enemies who had injured them, and yet the Roman Empire is defended as just and lawful by St. Augustine, St. Jerome, St. Ambrose, St. Thomas, and other reverend doctors. Nay, it might be held approved by God in the passage, "Render unto Caesar the things that are Caesar's," and by St. Paul, who appealed unto Caesar and who in Romans, ch.13, gave an admonition to be subject to the higher powers and to princes and to pay tribute to those who at that time, all of them, derived their authority from the Roman Empire. 57. Whether it is lawful to impose the payment of tribute on the conquered enemy. [Think of the Indians.] Vitoria, p. 186: My answer is that it is undoubtedly lawful, not only in order to recoup damages, but also as a punishment and by way of 183 revenge. This is clear enough from what has been said above and from the passage in Deuteronomy, ch.20, which says that when the Jews have approached a city with good cause in order to attack it, if the city receives them and opens its gates, all the people therein shall be saved and shall serve the Jews with payment of tribute. And this law and usage of war has prevailed. Grotius, pp. 699-700: 1. Moreover, just as the possessions which belonged to individuals are, in accordance with the law of war, acquired by those who place the owners in subjection to themselves, so also the possessions of the aggregation of individuals as a whole become the property of those who subject the aggregation to themselves, if they so wish. Livy says in regard to those who have capitulated: 'In case all possessions have been surrendered to him who is superior in arms, the victor has the absolute right to decide what he wishes the vanquished to keep, and of what he wishes to deprive them'; and this statement holds true of those who are conquered in a public war. Surrender in fact voluntarily permits what force would otherwise take. In Livy Scaptius says that 'the land under dispute had been a part of the territory of the Coriolani; and when Corioli was captured, by the law of war it became public land of the Roman people.' Hannibal, in a speech to his soldiers, recorded by the same author, declared: 'All the possessions of the Romans, won and amassed in so many triumphs, will become ours along with the masters themselves.' The same author makes Antiochus say: 'Since, when Lysimachus was conquered, all his possessions were transferred to Seleucus in accordance with the law of war, he thought that they were now under his rule.' Similarly Pompey acquired for the Roman people what Mithridates had captured in war and had annexed to '·his empire. 184 2. Consequently, the incorporeal rights also, which had belonged to the aggregation as a whole, will become the property of the victor, in so far as he wishes. Thus when Alba was conquered the Romans claimed for themselves the rights which the Albans had exercised. Hence it follows that the Thessalians were entirely acquitted of their debt of one hundred talents. Although they owed this sum to the Thebans, upon becoming master of Thebes, Alexander the Great, by right of victory, made theThessaliansa present of it. Nor is that true which is adduced on behalf of the Thebans in Quintilian, that only what the victor himself holds is his, but a right that is incorporeal cannot be seized by force; and that the position of an heir and that of a conqueror are fundamentally different, because a right passes to the former, but only property to the latter. In fact he who is master of persons is also master of their possessions and of every right which pertains to the persons. Vattel, Book 4, Chapter 2, pars. 14 and 18: When an unjust conqueror, or any other usurper, has invaded the Kingdom, and when the people have submitted to him, and by their voluntary homage have recognized him as their sovereign, he becomes possessed of all the powers of government. Other Nations, since they have no right to interfere in the domestic affairs of that Nation or to intermeddle with its government, must abide by its decision and accept the sovereign in possession as the lawful one. They may, accordingly, negotiate with the usurper and conclude a treaty of peace with him. In so doing they do not derogate from the rights of the lawful sovereign. It is not their business to examine into his right and to pass upon it; they leave it as it is, and, in the dealings which 185 they have with that Kingdom they look only to the actual possessor of the sovereignty, acting thus conformably to their own rights and those of the State whose sovereignty is contested. But this rule does not prevent them from taking up the quarrel of the deposed King and giving him help, if they consider his cause a just one; in that case they declare themselves enemies of the Nation which has recognized his rival, just as when two different Nations are at war and they are at liberty to assist the one whose claims appear to be the best founded. Since, therefore, it would be dreadful to continue the war indefinitely, or to pursue it until one of the parties has been completely annihilated, and since, however just our cause may be, we must after all look to the restoration of peace and direct our efforts constantly to that salutary object, the only recourse is to compromise the claims and grievances on both sides, and to put an end to all differences by as fair an agreement as can be reached. In· so doing the original grounds of the war are left unsettled, as well as any controversies which the various acts of hostility may have given rise to; neither of the parties is condemned as unjust, a proceeding which scarcely any sovereign would submit to; but an agreement is reached as to what each belligerent shall receive in settlement for all his claims. 58. Whether it is lawful to depose the princes of the enemy and put new ones over them or retain the sovereignty for oneself; and how it is not lawful to do this indiscriminately and for every cause of just war whatsoever. Vitoria, p. 186: First proposition: This is not unqualifiedly permissi- ble, nor for any and every cause of just war, as appears from what has 186 been said. For punishment should not exceed the degree and nature of the offense. Nay, punishments should be awarded restrictively, and rewards extensively~ This is not a rule of human law only, but also of natural and divine law. Therefore, even assuming that the enemy's offense is a sufficient cause of war, it will not always suffice to justify the overthrow of the enemy's sovereignty and the deposition of lawful and natural princes; for these would be utterly savage and inhumane measures. Grotius, pp. 697-8: I.--By war also civil authority is acquired, some- times as vested in a king, sometimes as vested in a people; the effects of such acquisition 1. It is not at all strange if he, who can subject individuals to himself in personal servitude, is able to subject to himself an aggregation of men--whether they formed a state, or a part of a state--in a subJection which may be purely civil, or purely personal, or mixed. Some one in Seneca's Controversy about a native of Olynthus uses the following argument: 'He, whom I purchased in accordance with the law of war, is my slave. This, men of Athens, is advantageous for you; otherwise your empire, in so far as it has been acquired by war, is reduced to its ancient limits.' With similar purport Tertullian said that empires are sought by arms and expanded by victories. Quintilian declares that kingdoms, peoples, and the territories of nations and cities, depend upon the law of war. In Curtius, Alexander says that laws are laid down by the victors and accepted by the vanquished. In his speech to the Romans Minio asks: 'Why do you send a praetor every year with authority and rods and axes to Syracuse and the other 187 Greek cities of Sicily? Clearly, you would say, for no other reason than this, that you have imposed these laws upon those who have been conquered in war.' In Caesar Ariovistus says: 'It is the law of war that those who have conquered should rule those whom they have conquered, just as they please'; also: 'The Roman people has been accustomed to rule the conquered, not according to another's dictation but according to its own judgement.' 2. Justin, quoting from Trogus, relates that up to the time of Ninus those who waged war had sought for themselves not sovereignty but glory, and, being content with victory, had abstained from empire; that Ninus was the first who extended the borders of his empire, and subjugated other peoples in war; and that from him this had passed into a general custom. Bacchus, in Sallust, declares 'that he had taken up arms to protect his kingdom; for the part of Numidia, from which he had expelled Jugurtha, had become his by the law of war.' 3. Sovereignty, furthermore, may be acquired for the victor; either such sovereignty merely as is vested in a king or other ruler, and in that case the victor succeeds to the right of the ruler only, and nothing beyond; or·such as is vested in a people, in which case the victor holds sovereignty in such a way that he can even alienate it, just as the people could. We have elsewhere said that thus it has come about that certain kingdoms were held as a patrimony. II.--The right of a master may be acquired over a people, which then ceases to be a state 1. Even a more fundamental change may be accomplished, so that, for instance, what was a state may cease to be a state. In such cases the 188 state that was may become an accession of another state, as the Roman provinces did; or it may not be attached to a state, as when a king waging war at his own expense so subjects a people to himself that he wishes it to be governed not for the good of the people but above all else for that of the ruler, and this is the rule of a master, not of civil authority. In his Politics, Book VII, Aristotle says: 'There is government ••• for the good of the ruler, and government for the good of the ruled. The former is the government of masters and slaves; the latter, the government of free men.' A people, then, which is subject to a power of this kind, will for the future be no state, but a great domestic establishment. It has been well said by Anaxandrides: A state of slaves, good sir, nowhere exists. 2. The two types of authority are thus contrasted by Tacitus: 'To conceive himself as a governor among freemen, not as a despot among slaves.' 59. When the princes of the enemy may lawfully be deposed, is shown. Vitoria, pp. 186-187: It is undeniable that there may sometimes arise sufficient and lawful causes for effecting a change of princes or for seizing a sovereignty; and this may be either because of the number and aggravated quality of the damages and wrongs which have been wrought or, especially, when security and peace can not otherwisebehad of the enemy and grave danger from them would threaten the State if this were not done. This is obvious, for if the seizure of a city is lawful for good cause, as has been said, it follows that the removal of its prince is also lawful. And the same holds good of a province and the prince of 189 a province, if proportionately graver cause arise. Note, however, with regards to Doubts VI to IX, that sometimes, nay, frequently, not only subjects, but princes, too, who in reality have no just cause of war, may nevertheless be waging war in good faith, with such good faith, I say, as to free them from fault; as, for instance with the opinion of learned and upright men. And since no one who has not committed a fault should be punished, in that case, although the victor may recoup himself for things that have been taken from him and for any expenses of the war, yet, just as it is unlawful to go on killing after victory in the war has been won, so the victor ought not to make seizures or extractions in temporal matters beyond the limits of just satisfaction, seeing that anything beyond these limits could only be justified as a punishment, such as could not be visited on the innocent. 60. The canons or rules of belligerency are described. Vitoria, p. 187: All this can be summarized in a few canons or rules of warfare. First canon: Assuming that a prince has authority to make war, he should first of all not go seeking occasions and causes of war, but should, if possible, live in peace with all men, as St. Paul enjoins on us (Romans, ch.12). Moreover, he should reflect that others are his neighbors, whom we are bound to love as ourselves, and that we all have one common Lord, before whose tribunal we shall have to render our account. For it is the extreme of savagery to seek for and rejoice in grounds for killing and destroying men whom God has created and for whom Christ died. But only under compulsion and reluctantly should he come to the necessity of war. 190 Second canon: When war for a just cause has broken out, it must not be waged so as to ruin the people against whom it is directed, but only so as to obtain one's rights and the defense of one's country. Third canon: When victory has been won and the war is over, the victory should be utilized with moderation and Christian humility, and the victor ought to deem thathe is sitting as judge between two States, the one which has been wronged and the one which has done the wrong, so that it will be as judge and not as accuser that he will deliver the judgment whereby the injured state can obtain satisfaction, and this, so far as possible should involve the offending state in the least degree of calamity and misfortune, the offending individuals being chastised within lawful limits; and an especial reason for this is that in general among Christians all the fault is to be laid at the door of their princes, for subjects when fighting for their princes act in good faith and it is thoroughly unjust, in the words of the poet, that-Quidquid delirant reges, plectantur Achivi. (For every folly their Kings commit the punishment should fall upon the Greeks.) Grotius, pp. 576-7: 1. War is a cruel thing, says Plutarch, and it drags in its train a mass of wrongs and insults. Augustine stated the case wisely: If I should wish worthily to portray the many and manifold disasters, the bitter and hard necessities resulting from these evils [he is speaking of those that arise from war], although I am by no means equal to the task, what would be the limit of my discourse, extended though it might be? But, they say, the wise man will wage wars that are 191 just. As if, provided he remembers that he is a man, he will not much rather grieve that the necessity of just wars has arisen; for if they were not just he would not have to wage them, and in that case there would be no wars for the wise man. It is the wrong-doing of the opposing party which forces the wise man to wage just, and indeed necessary, wars. This wrong-doing is to be deplored by a man, because it is human, even if no need of waging war should arise from it. Everyone, then, who with pain thinks on these evils, so great, so terrible, so ruthless, must acknowledge that this is misery. If, again, anyone endures or reflects upon these things without anguish of soul, his plight is all the more wretched, because he considers himself happy, while in fact he has lost his feeling for humanity. The same author in another passage says: 'To carry on war seems to bad men felicity, to good men a necessity.' Maximus of Tyre declares: 'Even if you remove the element of injustice from war, the n~cessity of it is in itself pitiable.' The same Maximus, again: 'War seems not to be undertaken by the just except of necessity, by the unjust of their own initiative.' 2. To this we must add the saying of Seneca, that it is not for a man to put his fellow man to wasteful use. Philiscus advised Alexander to pursue renown indeed, but upon this condition, that he should not make himself a plague or a violent disease. He meant that the slaughter of peoples and the wasting of cities are the work of a pestilence, but that nothing is more befitting a king than to have regard for the safety of all; and this is accomplished by peace. 192 If by the Hebraic law even he who involuntarily slew a man was obliged to flee; if God forbade David, who is said to have waged blameless wars, to build His Temple, because he had shed much blood; if among the ancient Greeks even those had need of expiation who had innocently stained their hands with bloodshed, who does not see, especially if he be a Christian, how unfortunate and ill-omened the matter is, and with what effort a war, even if not unjust, is to be avoided? At any rate the Greeks who professed Christianity long observed the canon by which those who had killed an enemy in a war of any sort whatever were for a time excluded from the sacraments. As Scott, Spanish Origin (1934), explained on pp. 78-87, Vitoria gave his lectures with some appreciation that the question he raised would stir the emotions of both Pope and Emperor. Boswell credits Dr. Johnson, in his "Life" of that illustrious Englishman, with the statement "I love the University of Salamancha; for when the Spaniards were in doubt as to the lawfulness of their conquering America, the University of Salamancha gave it as their opinion that it was not lawful." It was Francisco de Vitoria, of course, who spoke for the University in 1532. In a letter to Father Arcos assigned the date of November 8, 1534, Vitoria discussed further the actions of his countrymen in the Indies: "With regard to Peru, I assure Your Reverence that, owing to my lengthy studies and extensive experience, I am no longer startled or shocked by any of the questions that come to my attention, with the exception of benefices held through trickery, and events in the Indies," at the mention of which "my blood runs cold." 193 Vitoria said he had tried to avoid discussion of these events, but still the two groups involved, the holders of the benefices and the conquistadors, took offense. "The first group betook themselves to the Pope, on the ground that Victoria was questioning the acts of the Holy Father." The second group sought the Emperor, "to inform him that, both His Majesty and the conduct of affairs in the Indies are being subjected to criticism •••• " We are told that difficulty with the Pope was avoided "by the unexpected and not untimely death--so far as Victoria was concerned-of Pope Sixtus V." A letter from Charles I (Charles V as Holy Roman Emperor) addressed to "the reverend Prior of the Monastery of San Esteban, in the city of Salamanca," informed the Prior that "certain clerics who are teachers in your monastery" had presumed to discuss "Our right to the isles of the Indies and to the lands across the ocean; ••• " The Prior was instructed to "command" the clerics and teachers "to refrain, now and at all future times, from engaging in discussions, sermons, or debates, without Our express permission, regarding the topics above mentioned; and likewise from causing any composition on those topics to be printed. And if my bidding in this matter be disregarded, I shall consider that a grave offence against me has been committed, and shall take such steps as the nature of the case demands." The King admired and respected Vitoria, and asked his opinion on religious matters on different occasions, but he did not want him to express his opinion on political matters that might raise q~estions concerning His right, or the right of the Pope, to temporal or spiritual dominion in the Indies. DISCUSSIONS OF THE STATE, OF SOVEREIGNTY, AND OF TREATY RELATIONS FROM THE COLONIAL PERIOD What a State is and Who is Properly Styled a Prince Vitoria, p. 169: Now, the whole difficulty is in the question: What is a State, and who can properly be called a sovereign prince? I will briefly reply to them by saying that a State is properly called a perfect community. But the essence of the difficulty is in saying what a perfect community is. By way of solution be it noted that a thing is called perfect when it is a completed whole, for that is imperfect in which there is something wanting, and, on the other hand, that is perfect from which nothing is wanting. A perfect State or community, therefore, is one which is complete in itself, that is, which is not a part of another community, but has its own laws and its own council and its own magistrates, such as is the Kingdom of Castile and Aragon and the Republic of Venice and other the like. For there is no obstacle to many principalities and perfect States being under one prince. Professor Robert H. Lowie in the introduction to his study, The Origin of the State (1927) asked: "Are primitive peoples organized in a way that warrants our speaking of their governmental units as 'states', or at least rudiments of such?" He continued with further questions: "Have the simpler peoples psychological equivalents of the main cultural manifestations found in more complex societies?" And "do illiterate peoples, too, maintain political order within fixed territorial limits?" 195 Now, as will be seen later, it has been argued that they recognize no such limits and that they all manage somehow to survive in a condition of anarchy. Whether that is the correct view, remains to be determined by empirical inquiry; but on the analogy of corresponding comparisons we shall be inclined to reject it. As there was a literature before writing; as there are forms of the family that differ toto coelo from the modern ideal of permanent and obligatory monogamy; so there may be peoples with political ideals deviating widely from ours and with equally divergent processes for their maintenance. Professor E. Adamson Hoebel illustrated the concepts of native peoples concerning their organized societies and law systems further through a conversation with his Cheyenne informant, High Forehead, recorded in The Law of Primitive Man.(1970), pp. 3-5: The realization slowly obtruded upon his consciousness that the Cheyennes, his people, had on their own responsibility in their time dealt with and met many problems of social order. And one noon as we lay beneath a cottonwood tree under a blue Montana sky, beside the waters of Lame Deer creek, almost on the spot where Lame Deer, the Sioux chieftain, was killed in the spring of '77, he quietly said, 'The Indian on the prairie, before there was the White Man to put him in the guardhouse, had to have something to keep him from doing wrong.' Yes, the Indian on the prairie had a social order to maintain, as has every society of man. Each people has its system of social control. And all but a few of the poorest of them have as a part of their 196 control system a complex of behavior patterns and institutional mechanisms that we may properly treat as law. Professor Hoebel continued with the quotation "anthropologically considered, law is merely one aspect of our culture--the aspect which employs the force of organized society to regulate individual and group conduct and to prevent, redress or punish deviations from prescribed social norms." Grotius, pp. 101-102: 1. The moral faculty In what the civil power consists o~ governing a state, which is ordinarily designated by the term civil power, is described by Thucydides as having three characteristics. He speaks of a state, which truly is a state, as 'having its own laws, courts, and public officials.' Aristotle distinguishes three parts in the government of a state: deliberation in regard to matters of common interest; the choice of officials; and the administration of justice. To the first he refers deliberation in regard to war, peace, the making and abrogation of treaties, and legislation. To this he adds, further, deliberation in regard to the death penalty, exile, confiscation of property, and proceedings in cases of extortion, that is, as I interpret the passage, the administration of justice in criminal cases, since previously in treating the administration of justice he has dealt with cases involving the interests of individuals only. Dionysius of Halicarnassus notes three principal functions: the right to create and appoint to public offices; the right to make and abrogate laws; and the right of decision regarding war and peace. In another passage he adds a fourth, the right to render judicial deci- 197 sions; elsewhere, again, he includes also the administration of matters pertaining to worship, and the convening of assemblies of the people. 2. Now if one wishes to make an exact division he will find it possible easily to include everything relating to civil power in such a way that there will be nothing omitted and nothing superfluous. Fo.r he who governs a state governs it in part through his own agency, in part through others. He governs through his own agency by devot~ng his attention either to general interests or to particular interests. In devoting himself to general interests he concerns himself with framing and abrogating laws respecting religious matters (so far as the care of religious matters belongs to the state) as well as secular. The branch of the science of government which deals with such matters Aristotle calls architectonic, 'the architectural'. The particular interests, with which he who governs concerns himself, are either exclusively public interests, or private interests which have a relation to public interests. Exclusively public interests are either actions, as the making of peace, of war, and of treaties; or things, such as taxes, and other things of a like nature, wherein the right of eminent domain, which the state has over citizens and over the property of citizens for public use, is included. The branch of the science of government which deals with such matters Aristotle designates by the and 'deliberative'. g~neral term 'political', that is 'civil', 198 Private interests [as here understood] are controversies between individuals the termination of which by public authority is important for the tranquility of the state. The branch of the science of government concerned therewith is called by Aristotle 'the judicial'. The affairs that are administered through others are administered either through public officials, or through other responsible agents, among whom ambassadors are included. In these things, then, the civil power consists. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum. First published as part of an 8 vol. work, Frankfort, 1740-48 (the basis for Vattel 1 s Law of Nations, which we are using in the English translation of the 1758 edition published by the Carnegie Institution, 1916), this appeared in 1749 as a single volume with the same title. The English translation is by Joseph H. Drake (Oxford: at the Clarendon Press, and London: Humphrey Milford, 1934), also gives status under the Law of Nations to less organized groupings of families, pp. 157-160, beginning with par. 310. Of separate families dwelling together in a certain territory. If separate families dwell together in a certain territory and possess private lands, they have ownership in them, but the other places are the property of nobody or are still left in the primitive community-holding. But if, indeed, those families have no settled abode but wander through uncultivated wilds, the lands which can be subject to their use are subject to a mixed community-holding, the rest remaining in the primitive community-holding. For if separate families have fixed abodes for themselves in a certain territory, 199 the lands which they possess they have occupied undoubtedly from the beginning, and consequently have acquired ownership in them, which afterwards has passed over to their successors. Therefore the private lands which they possess are subject to their ownership. Which was the first point. And since by nature all things are common, but each of them is the property of nobody, consequently they remain subject to the primitive community-holding, and since the original method of acquiring ownership is occupation, the things which have not been~occupied by those families are still left in the primitive community-holding or are still the property of nobody. Which was the second point. But if the families have no settled abode but wander through the uncultivated wilds, in that case, nevertheless, they are understood to have tacitly agreed that the lands in that territory in which they change their abodes as they please, are held in common, subject to the use of individuals, and it is not to be doubted but that it is their intention that they should not be deprived of that use by outsiders. Therefore they are supposed to have occupied that territory as far as concerns the lands subject to their use, and consequently to have jointly acquired ownership of those lands, so that the use of them belongs to all without distinction. Therefore those lands are subject to a mixed community-holding. Which was the third point. But that the other places besides these lands remain in the primitive community-holding is evident by precisely the same method of proof as we have used for the second point above. Which was the fourth point. 200 Things are occupied for the sake of their use. Therefore only those things are subject to individual ownership by separate families whose use cannot be free to all generally at any time, but the things which can have a use of that sort, nay more, ought ..of necessity to have it by virtue of the primitive ~ommunity-hold- ing, a right belonging to all equally, would be subjected to individual ownership, not only to no purpose, but also not without wrong, nay more, the others, who need this use, would certainly not endure it. But occupation accomplished through a corporate body cannot be imagined in the case of separate families, who are united in no way except by joint habitation of the same territory. But if, indeed, separate families should be accustomed to wander about after the manner of the Scythians through uncultivated wilds, particularly for the purpose of pasturing cattle or for some other purpose, the intention of wandering, which is governed by that intended use, gives sufficient evidence of the occupation of the lands subject to their use, although they have not established a permanent abode on them. Therefore nothing is more natural than the mixed community-holding of separate families should be assumed in regard to them. Nay more, let us suppose that outside families wish to subject some of those lands to individual ownership, it is not to be doubted but that the separate families who wander here and there would resist, and' so would adequately prove their intention of holding those lands in common for themselves to the exclusion of outsiders. Therefore the present proposition is quite in harmony with the principles of the law of nature, provided that you know how properly to investigate the details. 201 Par. 311. Of the occupation of uninhabited lands in a territory where separate families possess property. Since separate families dwelling together in a certain territory own the lands which they have occupied, but the other places are the property of nobody; if in a district in which separate families hold their own lands there are still other lands the use of which can be private or individual, those lands can be occupied by anybody. In this case the right of no one is violated by occupying, consequently the occupatio~ occurs without wrong to anybody, nay rather, the one who occupies exercises his own right, the same, to be sure, which the separate families dwelling there used, when they made the lands subject to their ownership. And since a nation, properly speaking, is not a number of men who live without civil sovereignty, no one who comes into that territory, properly speaking, can be called a foreigner, consequently the things which we have pr.oved concerning foreigners coming into another territory cannot be applied to them. All the earth is open to everybody as long as sovereignty over it has been assumed by no one, and every one who needs them can occupy things in it which have no owner. Par. 312. Of separate families wandering hither and thither. Since lands subject to private use or to the use of individuals in that territory in which separate families wander hither and thither are subject to the mixed community-holding of those families, and consequently, since those who are not in the number of those families are excluded from the ownership which they have in those lands, those lands can be occupied by no one coming into the territory inhabited 202 by these families, even if at the time those who inhabit the territory are not using those lands. Ownership is not lost by non-user. And if separate families wander through uncultivated places, they intend a use of the places only.in alternation, a thing which is readily evident, if only you turn your attention to the reason which impels them to wander through uncultivated places. Par. 313. Whether separate families can be subjected to civil sovereignty. In either hypothesis no one has the right to subject separate families to civil sovereignty. By ·nature all men are free and by the introduction of ownership the status of freedom is not destroyed. Therefore, since a right born with him can be taken from no man, but since it certainly is taken away in part, if any are subjected to civil sovereignty against their will; in either hypothesis no one has the right to subject to the civil sovereignty separate families dwelling in a certain territory or staying there. There is no reason why you should object, that if separate families should be formed into a state, they become more civilized and provide better for their welfare than if they dwell together without civil sovereignty. Therefore it is quite in accordance with their duties towards others that they should be subjected to sovereignty. For from this no right arises to deprive another of his natural liberty without his consent or to restrict it for his benefit as much as the purpose of the state demands; for where you desire to promote the perfection of another, you have no right to compel him to allow that to be done by you. Nor is there any reason 203 why you should urge further that, if lands do not remain un- cultivated, the advantages of foreign nations could be promoted, which they are compelled to relinquish without any advantage to those men who without civil authority have occupied those lands as far as concerns the estates subject to their use; for no right is created for you in regard to that which belongs to another, because he does not use and enjoy his own property as much as he could, however much it would have helped you, if he used it and enjoyed it in another way. But a thing which every one admits concerning individuals, that also he is bound to admit concerning entire families living separately in any territory without civil sovereignty. And how, I ask, can you show that for the sake of your advantage or that of another nation families may be made subject to sovereignty without their consent, when from that which is useful to you no right arises? Indeed, if these reasons were to prevail, it would even be allowable to subject barbarous and uncultivated nations to your sovereignty, in order that they might experience what is better for them. For although in this case the fact that the sovereignty is taken away either from the nation or its ruler may seem to prevent this result, nevertheless no difference arises therefrom, because in case of the present assumption liberty is taken from those who are unwilling. Therefore, in either case the subjection is not devoid of wrong. But it comes back to the same point, if any one wishes to derive a right from the fact that it is to the advantage of nations to have civilized neighbours. For as long as your neighbours do not injure you, no 204 definite right arises in your favour against them. That it is not allowable to subject others to your sovereignty on account of religion, is plain from those things which we have proved above. For the things which we have proved with reference to religion as affecting nations are readily applicable also to separate families inhabiting a certain territory. It is quite another thing if you should persuade them to submit to civil sovereignty. For then the state is established by the compact which is the origin of states and the source of civil sovereignty. What sovereignty is Grotius, pp. 102-107: [Think of Indian Sovereignty] 1. That power is called sovereign whose actions are not subject to the legal control of another, so that they cannot be rendered void by the o~eration of another human will. When I say 'of another', I exclude from consideration him who exercises the sovereign power, who has the right to change his determinations; I exclude also his successor, who enjoys the same right, and therefore has the same power, not a different power. Let us, then, see who is the subject of sovereignty. The subject of a power is either common or special. Just as the body is a common, the eye a special subject of the power of sight, so the state, which we have defined above as a perfect association, is the common subject of sovereignty. 2. We exclude from consideration, therefore, the peoples who have passed under the sway of another people, such as the peoples of the Roman provinces. For such peoples are not in themselves a state, in 205 the.sense in which we are now using the term, but the inferior members of a great state, just as slaves are members of a household. Again, it happens that several peoples may have the same head, while nevertheless each of them in itself forms.a perfect association. Wh±le in the case of the natural body there cannot be one head belonging to several bodies, this does not hold also in the case of a moral body. In the case of a moral body the same person, viewed in different relations, may be the head of several distinct bodies. A clear proof of this may be found in the fact that on the extinction of the reigning house, the right of government reverts to each people separately. It may also happen that several states are bound together by a confederation, and form a kind of 'system', as Strabo in more than one passage calls it, while nevertheless the different members do not cease in each case to retain the status of a perfect state. This fact was noted by other writers, and by Aristotle also in more than one passage. 3. It may be granted, then, that the common subject of sovereignty is the state, understood as we have already indicated. The special subject is one or more persons, according to the laws and customs of each nation; 'the first power', according to Galen, in the sixth book of his treatise On the Teachings of Hippocrates and Plato. The opinion that sovereignty always resides in the people is rejected, and arguments are answered 206 1. At this point first of all the opinion of those must be rejected who hold that everywhere and without exception sovereignty resides in the people, so that it is permissible for the people to restrain and punish kings whenever they make a bad use of their power. How many evils this opinion has given rise to, and can even now give rise to if it sinks deep into men's minds, no wise person fails to see. We refute it by means of the following arguments. To every man it is permitted to enslave himself to any one he pleases for private ownership, as is evident both from the Hebraic and from the Roman Law. Why, then, would it not be permitted to a people having legal competence to submit itself to some one person, or to several persons, in such a way as plainly to transfer to him the legal right to govern, retaining no vestige of that right for itself? And you should not say that such a presumption is not admissible; for we are not trying to ascertain what the presumption should be in case of doubt, but what can legally be done. It is idle, too, to bring up the inconveniences which result, or may result, from such a procedure; for no matter what form of government you may devise, you will never be free from difficulties and dangers. Says the comedy: Have this with that, then, if you choose, Or that with this together lose. 2. Just as, in fact, there are many ways of living, one being better than another, and out of so many ways of living each is free to select that which he prefers, so also a people can select the form of government which it wishes; and the extent of its legal right in the matter 207 is not to be measured by the superior excellence of this or that form of government, in regard to which different men hold different views, but by its free choice. 3. In truth it is possible to find not a few causes which may impel a people wholly to renounce the right to govern itself and to vest this in another, as, for example, if a people threatened with destruction cannot induce any one to defend it on any other condition; again, if a people pinched by want can in no other way obtain the supplies needed to sustain life. For if the Campanians, constrained by necessity, once made themselves subject to the Roman people in the manner indicated by these words: 'The people of Campania, and the city Capua, the lands, the shrines of the gods and all things of gods and men in our possession we give over, Conscript Fathers, to your dominion'; and if, according to Appian, some peoples desiring to make thems?lves subject to the Roman people were not even permitted to do so, what is there to prevent any people from giving itself up, in the same way, to one exceedingly powerful man? In Virgil we read: Nor when, by terms of unjust peace compelled, Himself to sovereign power he shall subject. It may happen, again, that the head of a house possessing great estates may be unwilling under any other conditions to allow permanent residents to come upon his lands; or that the owner of a great number of slaves may set them free upon condition that they submit to his authority and pay him taxes. For these supposed cases we do not lack concrete examples. Of the slaves of the Germans we read in Tacitus: 208 Each controls his own place of habitation, his own household. The master exacts from him a certain amount of grain, or livestock, or clothing, as from a tenant, and the slave renders obedience up to the limit of this requirement. 4. Further, as Aristotle said that some men are by nature slaves, that is, are suited to slavery, so there are s_ome peoples so constituted that they understand better how to be ruled than to rule. Such an opinion the Cappadocians seem to have entertained in regard to themselves; they preferred life under a king to the freedom offered them by the Romans, declaring that they could not live without a king. So Philostratus, in his Life of Apollonius, says that it is absurd to grant the Thracians, Mysians, and Getans a freedom in which they do not have pleasure. 5. Some, again, cannot fail to be impressed by the example of nations which for a number of centuries have lived happily enough under a form of government clearly monarchical. According to Livy the cities which were under the rule of Eumenes would not have been willing to exchange their lot for that of any free city. Sometimes the condition of a state is such that it seems possible to assure its safety only through the unrestricted rule of one man; such, in the view of many discerning persons, was the condition of the Roman state in the time of Augustus Caesar. For these and similar reasons, then, it not only can happen, but actually does happen, that men make themselves subject to the rule and power of another, as Cicero also observes, in the second book of his treatise On Duties. 209 6. Just as private property can be acquired by means of a war that is lawful (iustum), according to our use of the term above, so by the same means public authority, or the right of governing, can be acquired, quite independently of any other source. What has been said, again, must not be understood a£ limited to the maintenance of the . rule of a monarch, when that is the type of government concerned; for the same right and the same course of reasoning hold good in the case of an aristocracy which governs with- the exclusion of the common people. What shall I say of this fact, that no republic has ever been found to be so democratic that in it there were not some persons, either very poor people or foreigners, also women and youths, who were excluded from public deliberations? 7. Some peoples, moreover, have under their sway other peoples as subject to them as if they obeyed kings. Hence the question: 'Is the people of Collatia its own master?' Thus it is said of the Campanians, after they had given themselves over to the Romans, that they had become subject to a foreign power; of Acarnania and Amphilochia, that they were under the jurisdiction of the Aetolians; of Peraea and Caunus, that they were under the sway of the Rhodians; and of Pydna, that it was given by Philip to the people of Olynthus. When the towns which had been subject to the Spartans were delivered from Spartan domination, they received the name of Eleutherolacones, 'Free Lacedaemonians'. The city Cotyora is mentioned by Xenophon as having belonged to the people of Sin.ope. According to Strabo, Nice, in Italy, was assigned to the people of Marseilles, and the island of Ischia to the people of Naples. So we read in Frontinus that the town 210 Calatis was assigned to the colony of Capua, and Caudium to the colony of Beneventum, with their territories. Otho gave the Moorish states as a present to the province of Baetica; the fact is on record in Tacitus. All these territorial adjustments must be set aside as null and void if we take the position that the right to govern is always subject to the judgement and will of those who are governed. 8. That in fact there have been kings who did not derive their power, even in a general way, from the will of the people, sacred and secular history alike bear witness. God says, addressing the people of Israel, 'If thou shalt say, I will set a king over me'; and to Samuel He said: 'Show unto them the manner of king that shall reign over them.' Hence the anointed king is said to be 'over the people', 'over the Lord's inheritance', 'over Israel'; and Solomon is said to be 'king over all Israel'. Thus David gives thanks to God because he has made his people subject to him; and Christ says, 'The kings of the Gentiles have lordship over them.' Familiar are the lines of Horace: O'er their own herds the rule of fearsome kings, O'er kings themselves the rule of Jove abides. 9. Seneca thus describes three types of government: 'Sometimes it is the people that we ought to fear; sometimes, if the constitution of the state is such that most of the public business is transacted by the senate, influential men in the state are feared; and sometimes individuals, upon whom the power of the people, and over the people, has been conferred.' Such are the men of whom Plutarch says that 'they have supreme power not only in accordance with the laws but also over the laws.' In Herodotus Otanes thus characterizes sovereignty in 211 the hands of one person: 'To do whatever one pleases, without being accountable to anyone.' Dio of Prusa defines the power of the king in similar terms: 'So to rule as not to be accountable to anyone.' Pausanias, in his Messenia, contrasts 'the power of a king with a power which has to assume responsibility for its acts.' 10. Aristotle says that there are some kings who are vested with the same powers that in other cases the nation itself has, over itself and its possessions. Thus after the Roman emperors began to make use of a power veritably royal, it was said that to these the people had transferred all their own authority and power, even over themselves, as Theophilus explains. Hence that saying of Marcus Aurelius the philosopher: 'No one but God alone can be judge of an emperor'. Of such an emperor Dia says (Book LIII): 'He is free, and master of himself and of the laws, so that he both does what he wishes and does not do what he does not wish to Grotius, pp. 130-137: po.' It is shown that sovereignty [think of Indian sovereignty] may be vested in him who is bound by an unequal alliance; and objections are met 1. The first question is, whether he can possess sovereign power who is bound by an unequal alliance. By an unequal alliance I mean here not an alliance entered into between states of unequal strength, such as that which the Theban state in the time of Pelopidas had with the king of Persia, and the Romans at one time with the Massilians, afterward with King Masinissa. Nor, again, do I have reference to a relation which has a temporary effect, as in the case of an enemy who is admitted to friendly terms until he pays the costs of a war, 212 or fulfills some other condition. An unequal alliance is one which, by the very character of the treaty, gives to one of the contracting parties a permanent advantage over the other; when, for example, one party is bound to preserve the sovereignty and majesty of the other, as in the treaty of the Aetolians with the Romans--that is, to put forth every effort that its sovereignty remain secure and its prestige, which is understood by the word majesty, remain unimpaired. This is what Tacitus called 'the feeling of awe for the empire,' explaining what he had in mind as follows: 'In respect to place of habitation and territories they belong on their own bank, in mind and heart they act with us.' Says Florus, 'the other peoples, also, who were not under our imperial authority, felt nevertheless its greatness, and stood in awe of the Roman people as conqueror of the nations.' Characterized by a similar inequality are certain rights which to-day are known as rights of protection, defense, and patronage; also, among the Greeks, the right of the mother cities over their colonies. As Thucydides says, the colonies in respect to legal independence were on the same plane as the mother cities, but they were under obligation 'to honour the mother city,' and to manifest their feeling by 'the customary signs of respect'--a deferential attitude, undoubtedly, and certain outward marks of honour. 2. Of the ancient treaty between the Romans, who had obtained a complete mastery over Alba, and the Latins, who were natives of Alba, Livy says: 'In that treaty the Roman state had greatly the advantage.' Rightly did Andronicus of Rhodes, following Aristotle, say, that this is characteristic of a relation of friendship between those who are 213 unequal, that more honour is granted to the stronger, more help to the one that is weaker. We know what answer Proculus gave to the question under consideration. He said that a state is independent which is not subject to the power of another, even though a stipulation may have been made in a treaty of alliance that.this state shall use its good offices to maintain the dignity of another state. If, therefore, a state bound by such a treaty remains independent, if it is not subject to the power of another, the conclusion follows that it retains its sovereignty. The same conclusion, further, must be affirmed in the case of a king. The case of an independent state and that of a king, who truly is a king, are in this matter identical. Proculus adds that the stipulation referred to is made a part of a treaty in order that 'it may be understood that one state holds a position of superiority, not that it may be understood that the other state is not independent.' This position of superiority we ought to consider as having reference not to power (for he had just said that the lesser state was not subject to the power of another), but to influence and prestige. This is brought out by an apt comparison, in the following words: "Just as we understand (says Proculus) that our clients are free men, even though they are not our equals in respect to authority, standing and legal status, so it must be understood that those also are free who are under obligation through their good offices to maintain our prestige .. " 3. Clients are under the protection of their patrons; so lesser states are by treaty placed under the protection of a state which is 214 superior in prestige. They are 'under protection, not under domination,' as Sulla says in Appian; 'under patronage, not under subjection,' as Livy expresses it. In the second book of his treatise On Duties, Cicero, characterizing the times when the Romans were more conscientious, says that with them their allies had protection, not domination. In harmony with this is the saying of the elder Scipio Africanus, that 'The Roman people prefers to bind men to it through kindness rather than through fear, and to have foreign nations joined with it in protecting care and in alliance rather than subject to it in depressing servitude.' In harmony also is what Strabo said of the Lacedaemonians after the Romans came into Greece: 'They remained free, contributing nothing except what was required by the terms of alliance.' Just as private patronage in the case of individuals does not take away individual liberty, so patronage in the case of a state does not take away independence; and independence without sovereignty is inconceivable. So in Livy you may see that the conditions 'to be under protection' and 'to be in subjection' are contrasted. According to Josephus, Augustus made the threat to Syllaeus, king of the Arabs, that if he did not refrain from injuring his neighbours, Augustus would see to it that he should become a subject instead of a friend. In the condition of subjects, in truth, the kings of Armenia were. They, as Paetus wrote to Vologeses, were under the domination of the Romans, and so were kings in name rather than in fact. Such, at an earlier time, were the kings of Cyprus and other kings who, as Diodorus says, were 'subject' to the kings of Persia. 215 4. Contradictory, seemingly to what we have said, is the statement which Proculus adds: 'Citizens of allied states are subject to legal proceedings among us, and if they are found guilty we must punish them.' In order that this statement may be understood, it is necessary to know that there are four kinds of controversies which can arise. First, if subjects of a state or of a king who is under the protection of another are charged with having violated the treaty of alliance; in the second place, if the states or kings themselves are accused of such violation; thirdly, if allies who are under the protection of the same state or king have differences among themselves; fourthly, if subjects complain that they have suffered wrongs at the hands of those to whom they are subject. In the first case, if the offense is evident, the king or state is bound to punish the offender, or to deliver him up to the party that suffered the wrong. This holds not only in the case of unequal, alliances, but also in the case of alliances made on equal terms; also, again, in the case of those who are not bound by any alliance, as we shall show elsewhere. The king or state furthermore is bound to see to it that the losses are made good. At Rome this was the business of the board of recuperators (recuperatores) . So Aelius Gallus, as quoted by Festus: 'There is recovery when between the Roman people and foreign kings, nations and states a law provides in what way property may be restored and recovered through the agency of the recuperator, and how men are to proceed for the adjustment of private interests between themselves.' However, one ally does not have the right directly to seize or punish a subject of another ally. Thus 216 the Campanian Decius Magius was placed in fetters by Hannibal and taken to Cyrene, thence deported to Alexandria; he showed that he had been placed in bonds by Hannibal in violation of the terms of the alliance, and so was released from his chains. 5. In the second case, one ally has the right to compel the other ally to abide by the terms of the treaty, and also to punish him, :i,n case he has failed to do so. But this, again, is not limited to unequal alliances. The same rule of right holds in the case of a treaty on equal terms. For in order to exact punishment from one who has connnitted an offense, it is sufficient that the party inflicting the punishment be not subject to the offender; but this point will be treated by us later. In consequence the same practice has arisen also between kings and states not in alliance. 6. In the third case, in unequal as in equal alliances, controversies are ordinarily ref erred to a conference of the allies who have no interest in the matter under dispute--such, we read, was the practice among the Greeks, the early Latins, and the Germans;--otherwise, either to arbitrators, or even to the leading member of a confederation as a common arbitrator. The latter alternative is ordinarily adopted in the case of an unequal alliance, so that controversies are settled by reference to him who has the leading place in the alliance. Even this method does not disclose an authority based on sovereign power; for kings often plead before judges appointed by themselves. 7. In the last case the allies have no right of intervention. Thus when Herod on his own initiative submitted charges against his sons to Augustus, they said to him: 'You were able to punish us yourself in 217 your own right, both as father and as king.' When charges were brought against Hannibal at Rome by some of the Cathaginians, Scipio declared that the senators ought not to interfere in a matter which belonged to the Carthaginian state. This is in harmony with the statement of Aristotle, that an alliance of states differs from a single state in this, that the allies are charged with preventing.the commission of wrong against any one of them, not with prevention of wrong-doing among the citizens of an allied state. 8. Another objection is often raised, that in the histories the word 'command' is sometimes used with reference to him who holds a position of vantage in an alliance, and 'obey' with reference to him who holds the inferior position. This, however, ought not to disturb us. For we are here concerned either with matters that relate to the common good of the alliance, or with the particular interest of him who in the alliance holds the position of vantage. In respect to matters of common interest, except at the time of a conference of the allies, even when there is an alliance on equal terms, he who is chosen as head of the alliance--'prince of the covenant' (Daniel, xi. 22)--ordinarily holds the command. Thus Agamemnon commanded the Greek kings; afterward the Spartans; then the Athenians, commanded the Greeks. In the address of the Corinthians in Thucydides we read: "It is fitting that those who have the leading place in an alliance should arrogate to themselves no privilege in relation to their own interests, but should make themselves conspicuous above the others through their careful management of the common interests. 218 Isocrates says that the ancient Athenians held the military leadership, 'assuming the responsibility on behalf of all the allies, but in such a way as to leave their independence unimpaired'; in another passage, 'in such a way that they thought their duty was to administer the command of the war, not to bear sway'; in a third passage, he adds: 'administering their affairs in the spirit of an ally, not of a master.' This right of the leading member of an alliance the Romans expressed by imperare, 'to command'; the Greeks, with greater selfconstraint, by a word meaning 'to put in order,' 'arrange.' Thus, according to Thucydides, the Athenians, having received the direction of the war against the Persians, 'arrange' (so it was said of those who were sent from Rome to Greece, that they were sent to 'arrange the affairs of free states') 'what cities should contribute money for the war against the barbarian, what cities should contribute ships.' If this, then, is done by one who is only the leading member in an ·alliance, it is not remarkable if the same thing is done by him who in an unequal alliance has, according to the terms of the treaty, the position of vantage. Understood in this sense, the right on the part of the leading ally to hold corrnnand, that is hegemony, does not take away the independence of the others. Consistent with this point of view is the statement of the Rhodians in their speech to the Roman senate, as reported by Livy: "In former times the Greeks by their own strength gained also the power to rule. Now they earnestly desire that the power to rule may remain permanently where it is; they count it sufficient to maintain their independence 219 with the help of your arms, since they are not able to maintain it with their own." In the same spirit, after the citadel of Cadmus had been retaken by the Thebans, as Diodorus relates, many states of Greece joined together, 'to the end that they might be free, but might avail themselves of the military leadership of the Athenians.' Of the Athenians themselves in the time of Philip of Macedon Dio of Prusa says that 'at this time they had lost their position of military leadership and retained only their independence.' Caesar soon names as allies the same peoples who, as he tells us, had been under the dominion of the Suevi. 9. In matters which affect the particular interest of him who holds the position of vantage in an unequal alliance, requests are of ten spoken of as commands, not rightly but in accordance with the similarity of the effect produced; in like manner the prayers of kings are often said to be conrrnands, and sick people are said to give orders to their physicians. Says Livy (Book XLII): 'Before the time of this consul'--Gaius Postumius--'no one was ever a burden or source of expense to the allies in any matter; so the public officials were provided with mules, tents, and all other military equipment, in order that they might not requisition such material from the allies.' 10. It is, nevertheless, true that in the majority of cases he who has the position of vantage in a treaty, if he is greatly superior in respect to power, gradually usurps the sovereignty properly so called. This is particularly liable to happen if the treaty is perpetual, and if it contains the right to introduce garrisons into towns, as the 220 Athenians did, when they allowed appeals to be made to them by their allies--something that the Spartans had never done. The rule of the Athenians over the allies in those times Isocrates compares to the rule of a king. With similar provocation the Latins complained that under the shadow of an alliance with Rome they were experiencing subjection as slaves. Thus the Aetolians declared that there now remained to them only a vain appearance and empty name of liberty; the Achaeans, afterward, that 'What was, in appearance, an alliance, was already a slavery, dependent on another's will.' According to Tacitus, Civilis the Batavian complains of the same Romans, declaring that his people 'were no longer regarded as allies, as formerly, but as bondmen'; and in another passage, that 'A pitiable servitude is falsely called peace.' In Livy, too, Eumenes says that the allies of the Rhodians are allies in name only, being in reality subject to the rule of another and accountable to it. The Magnesians also declared that Demetrias, though independent according to appearances, was in reality at the beck and call of the Romans. Thus Polybius observes that the people of Thessaly were in appearance independent, but in reality under the rule of Macedonia. 11. When such things happen, with the result that non-resistance on the part of the weaker passes over into the right of ruling on the part of the stronger--there will be opportunity to discuss this point elsewhere--then either those who had been allies become subjects, or there is at any rate a division of sovereignty such as, according to our previous statement, may take place. 221 That sovereignty may be held by him who pays tribute There are some allies who pay a definite amount, either as reparation for wrong-doings, or as a contribution to secure protection; these are 'allies subject to tribute,' as Thucydides calls them. Such were the kings of the Jews, and of the nations near them after the time of Antony, being 'under agreement to pay tribute,' as Appian says. I see no reason for doubting that such nations may possess sovereignty, although the confession of weakness does detract somewhat from their standing. That sovereignty may be held by him who is bound by feudal law 1. To many the problem of sovereignty in relation to feudal tenure seems more difficult; it can, however, be easily solved in the light of what has been said. In discussing this type of contract, which is peculiar to the Germanic nations and is found only where the Germans settled, two elements need to be considered, the personal obligation, and the property right. 2. The personal obligation is the same whether a person by feudal law possesses the actual right of governing, or anything else even though situated in a different place. Now, as such an obligation would not deprive an individual of the right of personal liberty, so it would not deprive a king or a state of sovereignty, which is political freedom. This is most clearly seen in the case of free fiefs, which are called frank-fiefs. These do not consist in any property rights but in a personal obligation only. Such fiefs are, in fact, only a kind 222 of unequal alliance, which we have been treating; of the contracting parties one engages to render service to the other, the other in turn to furnish defense and protection. Suppose even that the service of the vassal had been promised against all men in the case of the fief now called a liege fief (formerly the term had a wider application); that in no degree lessens his right of sovereign power over his subjects--not to speak of the fact that in such a promise there is always an unexpressed condition, provided the war be lawful, which is to be dealt with later. 3. So far as the property right is concerned, if one holds by feudal law, the right of governing may be lost on the extinction of a family, or even on account of certain crimes. But in the meantime, the power of the vassal does not cease to be sovereign; for, as we have often said, the object is one thing, the manner of possession quite another. I see that a number of kings were placed in authority by the ·Romans with the stipulation that if the royal family should become extinct the political power should revert to them; this fact was remarked by Strabo, with reference to Paphlagonia and some other kingdoms. Vattel, Book 1, Chapter 1, pars. 4-12: Every nation which governs itself, under whatever form, and which does not depend on any other Nation, is a sovereign State. Its rights are, in the natural order, the same as those of every other State. Such is the character of the moral persons who live together in a society established by nature and subject to the Law of Nations. To give a Nation the right to a definite position in this great society, it need only be truly 223 sovereign and independent; it must govern itself by its own authority and its own laws. We must therefore rank as sovereign those States which are bound to another more powerful State by an unequal alliance, in which, as Aristotle says, the more powerful State is given the greater honor and the weaker State proportionate help. [Think of Indian Sovereignty] The terms of these unequal alliances may vary widely; but of whatever character they may be, so long as the inferior ally keeps its sovereignty, or the right of self-government, it must be regarded as an independent State and as subject to the authority of the Law of Nations in its intercourse with other States. Consequently a weak State which for greater security puts itself under the protection of a more poweful one, and agrees to perform certain acts in return, without, however, divesting itself of its right of self-government and of its sovereignty, such a State, I repeat, does not cease for that reason to rank among sovereign States, whose only rule of conduct is the Law of Nations. The position of tributary States presents no greater difficulty; for although the payment of tribute to a foreign power detracts somewhat from the dignity of a State, being an acknowledgment of weakness, it leaves the sovereignty of the State intact. Formerly the payment of tribute was a common practice, weaker States thus paying a price for relief from oppression or for protection without ceasing to be sovereign. The Germanic Nations introduced a further custom of exacting homage from a conquered State, or one too weak to resist. At times great 224 States have even given sovereignties as fiefs, and sovereigns have voluntarily become the vassals of another. When the homage leaves the State in the possession of its internal independent and sovereign authority, and merely carries with it certain duties towards the lord of the fief, or even a mere formal acknowledgment, it does not prevent the State or feudatory prince from being truly sovereign. The King of Naples does homage to the Pope for his Kingdom; he is none the less accounted among the principal sovereigns of Europe. Two sovereign States may likewise be subject to the same prince without being dependent on the other; and each retains all the rights of a free and sovereign Nation. The King of Prussia is the sovereign Prince of Neufchatel in Switzerland, but this does not unite that principality to his other States; hence the citizens of Neufchatel, by reason of their independence, might assist a foreign power at war with the King of Prussia, provided that the war were not in the interest of their principality. Finally, a number of sovereign and independent States may unite to form perpetual confederation, without individually ceasing to be perfect States. Together they will form a confederate republic. Their joint resolutions will not impair the sovereignty of. the individual members, although its exercise may be somewhat restrained by reason of voluntary agreements. The obligation to fulfill agreements one has voluntarily made does not detract from one's liberty and independence. Of this character were formerly the cities of Greece, as are today the United Provinces of the Netherlands and the members of the Swiss Confederation. 225 But a people which has passed under the rule of another is no longer a State, and does not come directly under the Law of Nations. Of this character were the Nations and the Kingdoms which the Romans subjected to their Empire. Most of those they honored with the name of friends and allies were no longer real States. At home they had their own laws and State officers; but in foreign affairs they were at all points obliged to follow the orders of Rome, and of themselves they dared not make war or enter into an alliance. They could make no treaties with other Nations. The Law of Nations is the law of sovereigns; free and independent States are moral persons, whose rights and obligations we are to set forth in this treatise. Grotius, pp. 310-316: When Sovereignty or Ownership Ceases I.--Ownership and sovereignty cease when he who possessed the right is taken away and leaves no successor I have already sufficiently explained in what manner not only private properties but also sovereign powers are originally acquired, and how they are transferred; let us now see how they are terminated. We have already shown above, in passing, that such rights are extinguished by abandonment, for the reason that, when the desire ceases, ownership does not continue. There is also another mode of extinguishment, when the subject, in whom the sovereignty or the ownership resides, is taken away before there is any transfer of ownership, either expressed or implied; such a case arises in succession to one who dies intestate. If, therefore, a person dies without having given any indication of his will and without leaving any blood 226 relative, all the rights which he possessed are extinguished. In consequence, unless some human law prevents, his slaves will be free, and peoples that had been subject to his sway will become independent, because from their very nature such things cannot be acquired by possession unless they voluntarily yield their liberty. Other possessions of the deceased, however, will become the property of the first one who takes possession. II.--Similarly the rights of a family are extinguished when the family dies out The same rule is to be applied in case a family, which possessed certain rights, has become extinct. III.--So also the rights of a people are extinguished if the people ceases to exist 1. The result is the same if a people has ceased to exist. Isocrates, and after him the Emperor Julian, said that states are immortal; that is, they can continue to exist because a people belongs to the class of bodies that are made up of separate members, but are comprehended under a single name, for the reason that they have 'a single essential character', as Plutarch says, or a single spirit, as Paul the jurist says. Now that spirit of 'essential character' in a people is the full and perfect union of civic life, the first product of which is sovereign power; that is the bond which binds the state together, that is the breath of life which so many thousands breathe, as Seneca says. These artificial bodies, moreover, are clearly similar to a natural body; and a natural body, though its particles little by little are changed, does not cease to be the same if the form remains unchanged, as Alfenus argues after the philosophers. 227 2. And so the statement of Seneca, that no one of us is the same in old age as he was in youth, ought properly to be so interpreted as to be understood only of that which is material. Similarly Heraclitus, as cited by Plato in the Cratylus and by Seneca in the passage just quoted, said that we do not twice descend the same river. This saying Seneca rightly corrects thus: 'The name of the river remains the same, but the water has been borne along.' Likewise also, in comparing a river to a people, Aristotle said that rivers bear the same name, though different water is always replacing that which is flowing on. Again, it is not an empty name merely that remains, but 'the essential character', which Conan defines as an 'inherent bodily character', Philo as a 'spiritual bond', and the Latins as a spirit. In this sense, then, as Alfenus, and Plutarch On the Delayed Vengeance of the Deity, say, a people is considered the same at this time as it was one hundred years ago, although not one of the men of that time is now alive. A people survives 'so long as that common union, which makes a people and binds it together with mutual bonds, preserves its unity'; such are the words of the same Plutarch in this connexion. Hence arose the custom of speech, that in addressing a people which now is we ascribe to it what happened to the same people many ages ago. This it is possible to observe not only in the historians but also in the Scriptures, as in Mark (x. 3), John (vi. 3q; vii. 19, 22), Acts (vii. 38). Thus in Tacitus Antonius Primus serving under Vespasian reminds the soldiers of the third legion of their former exploits, how 'under Marc Antony they had defeated the Parthians, under Corbulo, the Armenians . ' 228 3. As a result of hatred, then, and not in accordance with truth, in the writings of the same Tacitus, Pisa says that the Athenians of his time are not Athenians, since these had been destroyed by so many slaughterings, but are the offscouring of the nations. That influx from abroad had perhaps lessened their prestige somewhat, but it had not made them a different people. Piso, in fact, was not unaware of this, since he reproached those very Athenians of his own time with their ancient defeats by the Macedonians and their cruelty to their fellow citizens. But while the change in the individual members does not cause a people to cease to be what it was even for a thousand years or more, yet it cannot be denied that a people may cease to exist. The extinction of a people, moreover, may be brought about in two ways: either by the destruction of the body, or by the destruction of that form or spirit which I have mentioned. IV.--Such extinction takes place if the essential parts have been destroyed A body perishes if the parts without which the body cannot exist have at the same time been destroyed, or if the corporate bond of union has been destroyed. Under the first type of destruction we must class the engulfing of peoples by the sea, as the peoples of Atlantis mentioned by Plato, and others by Tertullian; likewise the destruction of peoples that an earthquake or a chasm in the earth has swallowed up, of which there are examples in Seneca, Ammianus Marcellinus, and elsewhere; and also of those who have voluntarily destroyed themselves, as the Sidonians and Saguntines. Pliny says that fifty-three peoples of ancient Latium had perished without leaving a trace. 229 What if there are so few survivors of such a people that they cannot constitute a people? It will be possible for the ownership of the property, which the people possessed as private citizens, still to remain in their hands; but not what belonged to the people as a people. The same principle holds true also in regard to a corporation. V.--The rights of a people are extinguished when the body of the people as a whole is broken up The body politic of a people is broken up if by reason of pestilence or rebellion the citizens withdraw from the association of their own accord, or if they are so scattered by force that they cannot unite together again, as sometimes happens in wars. VI.--The rights of a people are extinguished when the form of organization, under which the people exists, is destroyed A people's form of organization is lost when its entire or full enjoyment of common rights has been taken away. In such cases the individual citizens may also become subject to personal slavery; thus, the people of Mycenae were sold by the Argives, the Olynthians by Philip, the inhabitants of Thebes by Alexander, and the Bruttians were made public slaves by the Romans. Citizens, again, may be deprived of the right of government, though personal liberty is left to them. So Livy tells us that in regard to Capua the Romans decided that it should be inhabited as a city, but that there should be no body politic, no senate, no council of the common people, and no magistrates, but that the population should be without a public assembly and without authority, and that a prefect sent from Rome should administer justice. And so Cicero in his first speech before 230 the people Against Rullus says that not even the shadow of statehood had been left to Capua. The same thing should be said of peoples that have been reduced to the form of a province, and likewise of those that have been subj ecte.d to the sway of another people. Thus Byzantium was made subject to Perinthus by Severus, and Antioch to Laodicea by Theodosius. VII.--The rights of a people are not extinguished by reason of migration If, however, a people has migrated, either of its own accord, because of famine or other misfortunes, or under compulsion, as the people of Carthage did in the third Punic war, the people does not cease to exist, provided the outward form, which I have mentioned, remains; and surely a people- does not cease to exist if only the walls of its city have been levelled. And so when the Spartans refused to allow the Messenians to take oath to maintain the peace of Greece, because the walls of their city had been destroyed, the case was decided against them by the common assembly of the allies. VIII.--Such rights are not extinguished by a change of government; and herein also the question of what is due to a new king or to a liberated people is treated 1. Furthermore, it makes no difference in what way a people is governed, whether by royal power, or by an aristocracy, or by popular government. The Roman people, in fact, is the same under kings, consuls, and emperors. Nay more, though the king rules with absolute power, the people will be the same as it was before, when it was its own master, provided that the king governs it as the head of that people 231 and not of another. For the sovereign power, which resides in the king as the head, remains in the people as the whole body, of which the head is a part; and so when the king, if elective, has died, or the family of the king has become extinct, the sovereign power reverts to the people, as I have shown above. There is no reason why any one at this point should cite Aristotle against me. Aristotle declares that the state does not remain the same when the form of government is changed; just as a melody, he says, does not remain the same when it is transposed from the Dorian to the Phrygian mode. 2. We must, in fact, recognize that there may be several forms of a single artificial thing, as in a legion there is one form of organization through which it is governed, and another by means of which it fights. Thus one form of the state is the association of law and government, another the relation to each other of those parts which rule and are ruled. The political scientist has under considera- tion the latter, the jurist the former. And this did not escape the notice of Aristotle, when he added: 'But whether, after a change in the form of government, the debts ought to be paid or not, is another question.' That is, the question of payment of debts belong to a different science, which Aristotle does not confuse with political science, lest he should himself commit the fault which he censures in others, 'of jumping from one subject of discussion to another.' 3. A people by making itself subject to a king does not cease to owe the money which it owed when free. For it is the same people, and it retains its ownership of all public property; it even retains its 232 sovereignty over itself, although this must now be exercised not by the body, but by the head. From this principle is derived the answer to the question sometimes actually raised as to the place which ought to be occupied in assemblies by one who has acquired the sovereignty over a people previously free. Of course he is entitled to the same place which the people itself had occupied. Thus in the Amphictyonic Council Philip of Macedon received the place of the Phoceans. In like manner a free people will take the place which had belonged to their king. IX.--What becomes of such rights if peoples are joined together? Whenever two peoples are united, their rights will not be lost but will be shared in common. Thus the rights first of the Sabines, and then of the Albans, were taken over by the Romans, and the peoples were made into a single state, as Livy says. The same principle should be applied in ~he case of kingdoms which are united not by treaty or by the fact merely that they have a king in common, but in a true union. X.--What becomes of such rights if a people is divided? On the contrary, it may happen that what had been a single state may be divided, either by mutual consent or by the violence of war, as the Persian Empire was divided among the successors of Alexander. When such a division takes place several sovereignties exist in the place of one, with their respective rights over the individual parts. In such cases, whatever common property there was will have to be either administered in common, or divided pro rata. 233 The same reasoning must apply also in the separation of a people which occurs by mutual consent in sending out colonies. For thus also a new people arises, possessed of its own rights. The colonists, in fact, are not sent out as slaves, but possessed of equal rights, as Thucydides says. The same author relates that the Corinthians sent a second colony to Epidamnus with equal rights. According to Dionysius of Halicarnassus, king Tullus said: 'We think it neither true nor just that mother cities should rule their colonies as if by the law of nature.' Grotius, pp. 261-3: That sovereignty can be alienated, sometimes by the king, sometimes by the people Moreover, as other things, so also sovereignty can be alienated by the one under whose control it in reality is; that is, as we have shown above, by the king, if he holds the sovereignty by inheritance, otherwise by the people, but with the consent of the king, because he also has a certain right as possessor of a kind of life interest which ought not to be taken away against his will.. These considerations apply to sovereignty in its entirety. That sovereignty over a part of a people cannot be alienated by the people against the will of the part In the alienation of a part of a people there is the additional requirement that the part whose alienation is under consideration also give consent. For those who unite to form a state form a kind of perpetual and lasting association by reason of the character of those parts which are called integral. 234 From this it follows that these parts are not so dependent on their body as are the parts of a natural body, which cannot live without the life of the body, and, therefore, may rightly be cut off for the advantage of the body. This body of which we are treating is in fact of a different kind, since it was formed from voluntary compact. For this reason, again, the right of the whole over its parts must be measured from the original intent, which we ought not to believe was such that the body should have the right to cut off parts from itself and give them into the power of another. That a part cannot alienate the sovereignty over itself except in case of extreme necessity Likewise in turn it is not right for a part to withdraw from the body unless it is evident that it cannot save itself in any other way. For, as I have said above, in the case of all rules of human devising, absolute necessity seems to make an exception, and this reduces the matter to the strict law of nature. In the eighteenth book of the City of God, Augustine says: 'Among almost all nations this utterance of nature has in some way been heard, that they should prefer to yield themselves to the conquerors rather than to be exterminated with every kind of war's destruction.' And so in the oath of the Greeks, in which those who should have yielded to the Persians were devoted to death, there was.added the exception, 'unless they should be actually forced'. The reason for the difference indicated Hence it can be clearly enough understood why, in this respect, the right which the part has to protect itself is greater than the 235 right of the body over the part. The part, in fact, employs the right which it had before entering the association, but not so the body. Furthermore no one should say that sovereignty exists in a body as in a subject, and so can be alienated by it, just as ownership can. Just as the soul, in fact, exists in bodies that are suited to it, so sovereignty resides in the corporate body as in a subject which is entirelly filled, and not divisible into several bodies. But necessity, which restores a thing to the law of nature, cannot exert its force here, because in the law of nature use in deeds is included, as eating, and as keeping, which are natural acts, but not the right of alienating, because that was introduced by act of man, and so by that fact the extent of its validity is measured. That sovereignty over a place can be alienated Nevertheless, I see nothing to hinder a people, or even a king with the consent of the people, from alienating sovereignty over a place, that is, a part of its territory, for example, a part that is uninhabited or deserted. For because a part of the people possesses freedom of choice, so also it possesses the right of refusal; but both the whole territory and its parts are the undivided common property of the people, and therefore subject to the will of the people. If, on the other hand, the people is not allowed to alienate the sovereignty over a part of the people, as we have just said, still less can a king do so, though possessed of absolute authority, since this power is not without restriction, as I have shown above. 236 Grotius, pp. 770-775: Moderation in the Acquisition of Sovereignty I.--To what extent moral justice permits sovereignty to be acquired The equity which is required, or the humanity which is praised, in respect to individuals, is so much more required and praised in respect to peoples or parts of peoples in the degree that wrong or kindness toward a large number of persons becomes more notable. As other things may be acquired in a lawful war, so there may be acquired both the right of him who rules over a people and the right which the people itself has in the sovereign power; only in so far, however, as is permitted by the measure of the penalty which arises from a crime, or of some other form of debt. To these reasons should be added the avoidance of extreme danger. But this reason is very often confused with the others, although both in establishing peace and in making use of victory it deserves particular attention for its own sake. It is possible to forgo other things from compassion; but, in case of public danger, a sense of security which exceeds the proper limit is the reverse of compassion. Isocrates wrote to Philip: 'The barbarians must be subjugated to a point which will enable you to make your country perfectly secure.' II.--It is praiseworthy to abstain from the exercise of the right to acquire sovereignty over the vanquished 1. Sallust says of the ancient Romans: 'Our ancestors, being most scrupulous persons, used to deprive the vanquished of nothing save the power to do harm.' This is a view which could worthily have been uttered by a Christian; and with it accords another sentence of the same writer: 'Wise men wage war to secure peace, and endure toil in 237 the hope of ease. 1 More than once Aristotle said: 'War was originated for the sake of peace, and business for the sake of leisure.' Cicero supports the same idea, and his is this exalted maxim: 'Let war be so undertaken that nothing else than peace may seem to be sought after.' From the same author comes this similar saying: 'So wars are to be undertaken for this reason, that men may live in peace without being wronged. ' 2. These views differ in no respect from those which theologians of the true faith set forth to the effect that the end of war is the removal of the things which disturb peace. Before the time of Ninus, as we began to say elsewhere, following Trogus, it was the custom to protect rather than to advance the frontiers of one's empire; each one's realm was limited to his own country; kings sought not empire for themselves but glory for their peoples, and, being content with victory, they abstained from acquiring dominion. So far as he can, Augustine recalls us to this condition: 'Let them see to it, nevertheless, that it may not concern good men to delight in the extent of their dominion.' He adds also this: 'It is a greater good fortune to live in harmony with a good neighbour than to subdue a bad neighbour who wages war on us. ' Furthermore, the prophet Amos severely reproves in the Ammonites this zeal for extending their borders by armed force. III.--Either by mingling them with the conquerors-To this ideal of old-time innocence the closest approach is in the wise moderation of the ancient Romans. 'What would our empire be today,' says Seneca, 'had not salutary foresight mingled the vanquished 238 with the conquerors?' 'Our founder Romulus,' says Claudius in Tacitus, 'displayed so much wisdom that on the same day he had many peoples as enemies, and then as citizens.' He adds that the cause of the downfall of the Lacedaemonians and Athenians was nothing else than the exclusion, as fore;i.gners, of those whom they had conquered. Livy says that the Roman power grew through the admission of enemies into the state. Ex~mples are to be found in the history of the Sabines, Albans, Latins, and other Italian peoples; until, at last, Caesar i:q his triumph led the Gauls, and into the Senate, too. Cerialis, in his speech to the Gauls, which is found in Tacitus, declares: 'You yourselves often command our legions; you yourselves govern these and other provinces; there is nothing shut off from you or closed to you.' And shortly after: 'Then love, then cherish, the peace and life which we, conquerors and conquered, enjoy by the same right.' At length came that most admirable step; in accordance with a constitution of the Emperor Antoninus [Caracalla] all those within the Roman world were made citizens of Rome, as Ulpian says. In consequence, as Modestinus declares, Rome became the common fatherland. And of Rome Claudian wrote: To the peace-promoting customs of this city, ••• Due it is that we are all one people. IV.--Or by leaving the sovereign power to those who had held it-1. Another form of moderation in victory is to leave to conquered kings or peoples the sovereign power which they had held. So Hercules with Priam: 239 Vanquished by his young foe's tears, 'Take up', he said, 'the ruler's reins; Sit elevated on your father's throne, But with better faith the sceptre wield.' Hercules, also, after conquering.Neleus, committed the kingdom to Neleus's son, Nestor. Similarly the Persian kings used to leave the royal authority to conquered kings; thus Cyrus to the Armenian king. Thus Alexander left royal power to Porus •. Seneca praises this practice of 'taking nothing but glory from a vanquished king'. Polybius celebrates the goodness of Antigonus, who, although he had Sparta in his power, left the Spartans 'their ancestral constitution and their freedom'; and by this act, it is narrated in the same passage, Antigonus obtained the highest praises throughout Greece. 2. In the same way the Romans allowed the Cappadocians to use whatever form of constitution they wished, and to many peoples their freedom was left after a war. 'Carthage is free and has its own laws,' say. the Rhodians to the Romans after the second Punic War. Pompey, says Appian, 'left some of the conquered peoples free.' When the Aetolians declared that there could be no sure peace unless Philip of Macedon were driven from his kingdom, Quintius said that they had stated their opinion without thinking of the Roman custom of sparing the vanquished. He added: 'Whoever is mildest to the conquered has the·,loftiest mind.' In Tacitus we read: 'From the vanquished Zorsines nothing was taken away. 1 V.--Sometimes by the imposition of garrisons-Sometimes, with the concession of sovereign power, provision is made for the security of the victors. Thus Quintius ordered that 240 Corinth should be restored to the Achaeans, yet upon the condition that there should be a garrison irt Acrocorinthus; also that Chalcis and Demetrias should be retained 7 until the anxiety with regard to Antiochus should be over. VI.--Or even by tributes and similar burdens Often the levying of tributes also has for an object not so much the restitution of the expenses that have been incurred as the security, in the future, of both victor and vanquished. Cicero says of the Greeks: 'At the same time let Asia reflect on this, that if it were not held by this Empire there is no disaster of foreign war or domestic strife that would fail to assail it; and since, moreover, this Empire can in no way be maintained without taxes, let Asia with a part of its produce contentedly purchase for itself eternal peace and rest.' In Tacitus Petilius Cerealis speaks to the Lingones and other Gauls on behalf of the Romans in the following words: 'Although we have been so often provoked, this is the only burden we have laid upon you by right of victory, wherewith we might keep the peace; for there is no quiet for the nations without armed forces, and armed forces cannot be had without pay, and pay cannot be had without tribute.' To this same problem apply also the other conditions which we mentioned when discussing unequal treaties--the surrender of arms, of a fleet, of elephants, not to maintain an army ready for battle nor an armed forceo VII.--The advantage derived from such moderation is pointed out 1. Moreover to leave to the vanquished their sovereign powers is not only an act of humanity, but often an act of prudence also. Among 241 the ins.ti tutions of Numa there is praised that which aimed to exclude any shedding of blood from the rites of Terminues, indicating that nothing is more useful in securing quiet and a sure peace than to remain within one's own frontier. Florus well remarks: 'It is more difficult to keep provinces than to win them; they are won by force, they are retained by justice.' Not unlike this is the comment in Livy: 'It is easier to gain things one by one than to hold all together'; also, the remark of Augustus in Plutarch: 'A greater task ••• than winning a great empire is the governing of an empire already in existence.' The ambassadors of King Darius said to Alexander: 'A foreign empire is a dangerous thing; it is difficult to hold what you may not be able to take. Some things it is easier to conquer than to defend; by Hercules, how much more readily do our hands receive than retain!' 2. This difficulty of holding an empire together is what Calanus of India and, before him, Oebares the friend of Cyrus explained by the comparison of a dried hide, which rises up in one spot as soon ~s you press another spot with your foot; and Titus Quintius in Livy by comparison with a tortoise, which is immune to blows when gathered into its shell, but exposed and weak as soon as it has thrust out a part of its body. Plato, On Laws, Book III, applies to this situation the saying of Hesiod: 'The half is better than the whole.' Appian observes that not a few peoples who wished to come under the rule of the Romans were rejected by them; while for other peoples kings were appointed. In the judgement of Scipio Africanus, in his 242 time Rome already possessed so much that it would be greedy to seek for more; and she would be richly fortunate if she lost nothing of what she held. The formula for making the lustral sacrifices, in which the gods were entreated to make the resources of Rome better and greater, he altered in such a way that he prayed that they might preserve Rome's resources in safety forever. VIII.--Examples; with a discussion of a change in the form of government among the vanquished The Lacedaemonians, and, at first, the Athenians, claimed for themselves no sovereignty over the cities they had captured. They wished merely that these should use a form of government modelled on their own; the Lacedaemonians, in fact, a government under the influence of the aristocrats, the Athenians one subject to the will of the people, as we learn from Thucydides, Isocrates, Demosthenes, and even from Aristotle himself in the fourth book of his Politics, chapter xi, and the fifth book chapter vii. This very thing is indicated in ~ a comedy by Heniochus, a writer of those days, in the following manner: Then drew near to them two women, Who turned all things to dire confusion; The one called Aristocracy, Democracy the other, Through whose solicitation the cities were driven to madness. A similar course is that which, according to Tacitus, was pursued by Artabanus at Seleucia: 'He placed the commons under the aristocracy', he says, 'in accordance with his own interest: for the rule of the people is close to liberty, but the despotism of the few is nearer to the licence of a king.' But the question whether changes of 243 this sort make for the safety of the conqueror does not belong to our investigation. IX.--If sovereignty is to be assumed, it is right to leave a part of it to the conquered If it is not safe to refrain from assuming any dominion over the conquered, the action may still be limited in such a way that a portion of the sovereign power may be left to them or to their kings. Tacitus calls it the practice of the Roman people 'to have kings also as instruments of subjection'. To the same author it seemed that 'Antiochus was the richest of the subject kings'. 'Kings subject to the Romans' is the phrase in the Commentaries of Musonius; also in Strabo, near the end of Book VI. Lucan writes: And all the royal purple which serves the Latin sword. Thus among the Jews the sceptre remained in the Sanhedrin, even after the confiscation of Archelaus. Evagoras, king of Cyprus, as we read in Diodorus, said that he was willing to be subject to the Persian king, but as one king to another. Alexander at different times offered to the conquered Darius this condition, that Darius should rule over others, but should obey Alexander. We have elsewhere spoken of the ways of dividing the sovereign power. To some peoples a part of their governmental power has been left, as to former possessors a part of their lands. X.--or, certainly, some degree of liberty should be left to the conquered But when all sovereignty is taken away from the conquered with respect to their private affairs and minor public matters it is still possible to leave to them their own laws, customs, and officials. 244 On Treaties and Sponsions [Think of Indian Treaties] Grotius, pp. 391-405: I. What public conventions are Ulpian divided conventions into public and private. Public conventions he explained, not, as some think, by definition, but by giving examples. His first example is the convention 'which is arranged in time of peace'; and the second, 'When the generals in command in a war conclude certain agreements with each other.' Ulpian, then, understands that public conventions are such as can be made only by the right of a higher or lower authority of government; and in this respect they differ not only from the contracts of private persons, but also from the contracts of kings which are concerned with private affairs. However, from such private contracts also causes of war are wont to arise, although more frequently from public contracts. Having, therefore, sufficiently treated of compacts in general, we ought to add some details which relate to this more excellent kind of agreement. II. Conventions are divided into treaties, sponsions, and other agreements We can divide these public conventions, which the Greeks call (articles of agreement), into treaties, sponsions, and other agreements. III. TJ:ie difference between treaties and sponsions; to what extent sponsions are binding 1. For the distinction between treaties and sponsions, Livy may be cited, in Book IX, where he correctly shows us that treaties are made by order of the highest authority, and that in respect to such 245 treaties the people itself is liable to divine wrath if it does not keep its agreements. Such treaties, according to custom, were made among the Romans by the fetials together with the ratifying priest. A sponsion is made when those who do not have from the supreme authority a commission for such an act promise something which essentially affects that authority. In Sallust we read: 'As was proper, the senate decreed that no treaty could have been made without its authorizat~on and that of the people.' Hieronymus, king of Syracuse, had made an agreement of alliance with Hannibal, as Livy relates; but afterward he sent to Carthage in order to make the agreement of alliance into a treaty of alliance. Hence the statement in Seneca the father: 'The commanding general made a treaty; the Roman people seem to have made it and is bound by the treaty.' This refers to those commanders of ancient times who had received a special commission for such an act. In kingdoms, however, the kings have the right to make treaties. Says Euripides in the Suppliants: This treaty oath Adrastus needs to swear; For having royal power, the right he has To bind the state with treaty made by him. In this passage, in fact, the verb at the end is to be read as an infinitive, as we have given it, not in the indicative. 2. Moreover, just as the magistrates do not bind the people by their acts, so a minority of the people does not. This principle favours the Romans as against the Senonian Gauls; for the majority of the people were with the dictator Camillus. It is not possible, as we find in Gellius, to treat with a people in two divisions. 246 3. But let us see wherein those are obligated who, without the authority of a people, have promised something which is within the power of the people. Some one may perhaps think that in this case the promisers have fulfilled their pledge if they have done their utmost to have their promise carried out in accordance with the principles which we have previously stated in regard to a promise made by a third party. But in this matter, in which a contract is involved, nature desires a much stricter obligation. For whoever in making a contract gives or promises something of his own wishes in turn that something in fact be furnished to him; hence, according to the civil law, which rejects the promise of another's act, the promise to have an act ratified is nevertheless binding, so far as the promiser is concerned. IV. Rejection of the classification of treaties which Menippus made According to Livy, Menippus, ambassador of King Antiochus to the Romans, made a classification of treaties rather for his own purpose than according to the rules of his craft. He said that there are three kinds of treaties which kings and states make with each other. One kind is consummated when terms are dictated to those who have been· conquered in war; in this class of treaties the victor has the decision as to what he wishes the conquered to have and to be deprived of. The second kind of treaty is made when those who are equal in war come into relations of peace and friendship by an equal alliance; in such cases restitution is asked and granted by the agreement, and if the possession of anything has been disturbed by the war a readjustment is made either in accordance with the terms of the ancient right or to 247 the mutual advantage of both parties. The third kind is consummated when those, who have never been enemies, unite in a league of friendship with each other thro.ugh a treaty of alliance; in such cases the signatories neither impose terms nor acoept terms. V. The classification of.treaties: first, tresties which establish the same rights as the law of nature; whence this arises 1. But it is necessary for us to make a classification with greater painstaking. First, then, we shall say that some treaties establish the same rights as the law of nature, while others add something thereto. Treaties of the first class not only are wont to be made between enemies who cease from war, but formerly also they were often made, and were insome degree necessary, as between those who previously had made no compacts with each other. Hence arose the rule of the law of nature, that by nature there is a kind of relationship between men, and therefore it is an impious crime that one should be injured by another. Though this rule was in force in the olden time before the Flood, yet some time after the Flood it was effaced again by evil customs, so that it considered lawful to rob and to plunder strangers without declaration of' war. This Epiphanius calls 'the Scythian fashion.' 2. In consequence the question in Homer, 'Are you plunderers?' is a friendly inquiry, of which Thucydides also makes mention. In the ancient law of Solon there are companies 'of those who go out for booty.' Indeed, as Justin says, up to the times of Tarquin piracy was considered an honour. In the Roman law this principle is stated, that if it is considered that neither friendship nor hospitality ~or any 248 treaty for the sake of friendship has been made with any peoples these are not indeed public enemies; yet whatever has come to them from the Romans should belong to them, and a free Roman captured by them would be a slave. The same thing, again, would happen if any one came from them to the Romans; and in this case also postliminy should be granted. Thus, formerly, before the period of the Peloponnesian War, the Corcyraeans were not public enemies of the Athenians, but they had neither peace nor treaties with them, as is apparent from the speech of the Corinthians in Thu~ydides. Of Bacchus Sallus says: 'Known to us neither in peace nor in war.' Hence the taking of plunder from barbarians was commended by Aristotle, and in ancient Latium the word hostis means only a stranger. 3. In this class I include also treaties in which provision is made that there shall be rights of hospitality and commerce on both sides, in so far as such rights come under the law of nature, a subject which we have treated elsewhere. According to Livy Arco uses this distinction in his speech to the Achaeans, in which he said that the question at issue is not regarding an alliance, but regarding a stipulation for granting and obtaining a right of commercial intercourse, in order that, to be specific, the slaves of the Macedonians might not find a refuge among them. The entire class of conventions the Greeks call in a strict sense 'peace,' and they contrast it with 'treaties,• as may be seen both elsewhere and in the oration of Andocides On the Peace with the Lacedaemonians. VI. Treaties which add something beyond the rights of the law of nature; what treaties are on equal terms 249 1. Conventions which add something beyond the rights based on the law of nature are either on equal or on unequal terms. Those are on equal terms which are of the same character on both sides, 'which are equal and common on both sides,' as Isocrates says in the Panegyric. To such a convention the verses of Virgil apply: Nor seek I kingdoms for myself; on equal terms Unvanquished let the nations both alliance form That shall endure for ever; The Greeks call conventions of the first type sometimes simply 'covenants,' sometimes 'covenants on like and equal terms,' as may be seen in Appian and Xenophon. The second type they call more properly 'treaties;' and in so far as these are concerned with inferiors they call them 'arrangements imposed by command.' In his speech On the Freedom of the Rhodians, Demosthenes says that such treaties ought to be avoided by those who love libe~ty, because they approach very near to servitude., 2. Treaties of both types are made for the sake either of peace or of some alliance. Equal treaties of peace are those, for example, which are commonly arranged for the restoration of captives and of captured property, and for safety; these will be discussed below in connexion with the effects and consequences of war. Equal treaties of alliance have to do either with connnerce, with joint action in war, or with other matters. Equal agreements in regard to commercial relations may have various ends in view, as, for example, that no import duties should be paid on either side, an article of 250 agreement in the ancient treaty between Rome and Carthage, containing an exception to cover that which was regularly given to the clerk and the public crier; or that no greater duties should be levied than at present; or that duties should be levied only up to a certain amount. 3. So also in an alliance for war the agreement may be that equal auxiliary forces of cavalry, infantry, and ships shall be furnished, either for every war, which the Greeks call 'an offensive and defensive alliance,' and Thucydides explains as 'having the same enemies and friends'--this you may often find in Livy also--or for protecting the boundaries only, which the Greeks call 'a defensive alliance;' or for a particular war; or against particular enemies; or against all enemies, to be sure, but with the exception of allies, as in the treaty between the Carthaginians and Macedonians, which is found in Polybius. Likewise the Rhodians by treaty promised aid to the Antigonus and Demetrius against all enemies whatsoever except Ptolemy. An equal treaty, as we have said, may apply also to other matters, with provisions such as these, that neither signatory shall have fortresses in the territory of the other, or defend the subjects of the other, or furnish a passage to the enemy of the other. VII. What treaties on unequal terms are; such treaties, again, are subdivided 1. From the discussion of treaties on equal terms it may easily be understood what unequal treaties are. Unequal terms, moreover, are promised either py the party of higher ~ank or by the party of lower rank. Such terms are unequal on the part of the superior if he promises 251 aid, but does not require it, or promises greater aid. Unequal terms on the part of the inferior, or, in accordance with what Isocrates says in the Panegyric just cited, 'those who oppress the other party more than is just,' are those which, as we have said, were called 'arrangements imposed by command.' Such treaties, again, are either accompanied by impairment of sovereignty, or are without such impairment. 2. Such treaties may be accompanied by impairment of sovereign power, as the second treaty of the Carthaginians with the Romans, which contained the provision that the Carthaginians should not make war on any one without the sanction of the Romans. From that time, as Appian says, 'the Carthaginians, by treaty, were subject to the Romans.' To this kind of treaty there may be added a conditional surrender, excepting that such a surrender involves not an impairment but a transfer of the whole sovereign power; on this subject we have spoken elsewhere. Such an agreement Livy designates as a treaty both elsewhere and in Book IX: 'The Teat es in Apulia begged that a treaty should be granted to them, and yet they should not be on equal terms, but under the sway of the Roman people.' 3. In treaties without impairment of sovereign power the burdens are either temporary or permanent. The temporary burdens are concerned with the payment of an indemnity, the destruction of fortifications, the withdrawal from certain places; or the giving of hostages, of elephants, of ships. The permanent obligations are, for example, to recognize the sovereignty and respect the majesty of the other signatory; what the force of such a stipulation is we have said elsewhere. Closely related 252 to this is the provision that the one signatory should have as enemies and friends those whom the other signatory desires; and that a passage through his territory, or supplies, should not be given to any army with which the other is at war. Then there are the other matters of less moment, that it should not be permissible to build fortresses in certain places, or to lead an army thither, or to have ships beyond a certain number, or to build a city, or to engage in navigation, or to enlist soldiers in certain places; that they should not attack the allies, nor aid enemies with provisions, nor receive persons coming from another place; and that treaties previously made with other peoples should be annulled. Examples of all these provisions may be found in Polybius, Livy, and other historians. 4. Unequal treaties, moreover, are wont to be made not only between victors and vanquished, as Menippus thought, but also between more powerful and less powerful pe~ples that have not even engaged in war with each other. VIII. That treaties with those who are strangers to the true religion are permissible by the law of nature A question frequently raised concerning treaties is whether they are lawfully entered into with those who are strangers to the true religion. According to the law of nature this is in no degree a matter of doubt. For the right to enter into treaties is so common to all men that it does not admit of a distinction arising from religion. There is, however, a question in regard to the teaching of the divine law, and in consequence not only the theologians but also some jurists treat the question; among these are Oldradus and Decianus .. 253 IX. That treaties with those who are strangers to the true religion are not, generally speaking, prohibited by the Hebraic law 1. Let us first consider the divine law as set forth in the Old Testament, and afterward discuss the teaching of the New. Before the law of Moses it was permissible to make with strangers to the religion a treaty not to inflict injury. An example is the treaty between Jacob and Laban--not to speak now of Abimelech, since it is not sufficiently established that he was an idolater. And no change in this respect was made by the law of Moses. Let the Egyptians serve as an example. They without doubt were at that time idolaters; yet the Jews are forbidden to hold aloof from them. An exception must be made of the seven peoples condemned by a divine sentence, which the Jews were chosen to execute; for Israelites are forbidden to spare them, because they are obstinate in their idolatry and refuse to submit to overlordship. To these the Amalekites likewis~ were joined by divine decree. 2. Treaties of commerce also, and other similar conventions, which are to the common advantage, or to the advantage of either party, may be entered into with pagans according to the law. Nothing, in fact, is found which is opposed to this view. Further, we have examples of the treaties which David and Solomon made with Hiram, king of Tyre; and the point is to be noted that in the Scriptures it is stated that this treaty was made by Solomon according to the wisdom which God had given him. 3. The law of Moses does indeed specially command Jews to do good to their own people, 'to love their neighbour.' Further, the peculiar .I 254 food and system of morals prescribed for the Jews scarcely admitted of familiar intercourse with other men. But from this it does not follow either that they were not permitted to do good to strangers, or even that such doing of good was not praiseworthy, though this inference has been erroneously drawn by the faulty interpretation of later teachers. From such a source comes the statement of Juvenal about the Jews: The way he does not show except to one Who shares with him his sacred rites. In this passage the example of pointing out the way stands for the forces which are least troublesome and costly, which Cicero and Seneca say ought to be granted even to strangers. Of like import is the statement of Tacitus concerning the same people: 'In their relations with one another, inflexible good faith, ready compassion; against all others, hostility and hatred.' Similarly in the New Testament we read that the Jews were not accustomed to live, 1 to have dealings,' 'to eat,' 'to join,' or 'to associate,' with those of foreign origin. Also Apollonius Mola said, in reproach of the Jews, that 'those who had different views about God were not received by them, and that they did not have anything in common with those who differed from them in mode of life.' According to Diodorus, friends of Antiochus bring against the Jews the charge that 'they alone of all peoples are unsociable with foreigners to such a degree that they consider all other men as enemies.' There follows this about the same people: 'With no other race do they eat in common, nor do they wish well to others.' 255 Presently 'hatred of the human race' is alleged against them. In Philostratus Apollonius of Tyana speaks thus of the Jews: 'They have found a kind of life so withdrawn from human intercourse that they do not even eat in common with others.' Likewise also in Josephus 'the unsociable mode of life' of the Jews is in many passages objected to. 4. That such is not the meaning of the law Christ taught us by His example, when He did not refuse to accept water from the Samaritan woman, though He is everywhere most observant of the law. But also formerly David had sought refuge among peoples not of the faith, and he is nowhere criticized on that account. In Josephus this utterance is assigned to Solomon, when dedicating the Temple and praying that God might there hear even the prayers of foreigners: 'We are not of unhuman disposition, nor ill-disposed towards strangers.' 5. Not only are the peoples who were mentioned above to be excepted from this rule, but also the Anunonites and Moabites, who are spoken of in Deuteronomy (xxiii. 6): 'Thou shalt not seek their prosperity'-this is here a better interpretation ofthe Hebraic word than 'their peace'--'nor their good all thy days forever.' By these words beneficent treaties with the peoples mentioned are forbidden, though the right to make war is not also granted; or at any rate, according to the opinion of some of the Jews, it was forbidden to seek peace from them, or even to accept it when offered. Surely the right to make war on the Ammonites is denied to the Jews in Deuteronomy (ii. 19); and Jephthah did not commence war against them until the ways of a fair pea~e had been tried, nor did David, except when provoked by cruel injuries. 256 6. There remains the question of an alliance for purposes of war. Before the giving of the law such an alliance with heathen peoples was permissible, as is apparent from the example of Abraham, who helped the impious Sodomites in war. In general no change in the law of Moses in regard to this matter is read of. Consistent with the position stated was the view of the Asmonaeans, as we see, a people both skilled in the law and very religious, as is apparent from their careful observance of the Sabbath, the defense only of themselves, and their use of weapons for no other purpose. Nevertheless, with the approval of their priests and people, they made treaties with the Lacedaemonians and the Romans; even more, they performed public sacrifices in behalf of the safety of those peoples. The cases which are cited to prove the contrary have special reasons. 7. If, in fact, God had indicated through the prophets that any kings or peoples, besides those that had been mentioned in the law, were hateful to Him and condemned to misfortune, without doubt it would have been an impiety to undertake their defense or to make an alliance with them. With this harmonizes the statement of the prophet to Jehoshaphat in regard to the king of Israel: 'Shouldst thou help the wicked, and love them that hate God? For this thing wrath is upon thee from before God.' The prophet Micah had already, in fact, foretold the unhappy outcome of the war. Then there are the words of the other prophet to Ahaziah: 'Let not the army of the Israelites go with thee; for the Lord is not with Israel, to wit, with all the children of Ephraim.' 257 That this attitude was not determined by the nature of the treaty, but by some peculiar quality of the person, is shown even by the fact that Jehoshaphat was severely reproved, with threats also, because he had entered into an alliance with Ahaziah, king of the Israelites, for the sake of commerce, similar to the alliance which David and Solomon had made with Hiram; and they, as we have said, in part were not criticized, in part they were praised, on that account. For the additional statement that Ahaziah had acted very wickedly ought to be referred to his whole life; and on that account God was hostile to him and all his undertakings. In this way the narrative is explained in the work which is entitled the Constitutions of Clement (Book VI, xviii). 8. This also should be noted, that the case of those descendants of Jacob that had deserted God, who was well known to them, was worse than that of foreign peoples. For the rest of the people took up arms against those deserters in accordance with the law, which is found in Deuteronomy, xiii. 13. 9. There are cases also where treaties are censured by reason of a fault in the intent with which they were made. Thus Asa was reproved by the prophet for the reason that he had made an alliance with the Syrian because he distrusted God. This distrust he had shown when he sent to the Syrian things that were consecrated to God. But the same king was further censured because he had put his hope in doctors, and not in God. Consequently, it no more follows from this narrative that it is inherently and universally wrong to make an alliance with such peoples as the Syrians than it is to consult 258 doctors. The intent, in fact, vitiates many acts which are not umpermissible, such as the numbering of the people in the case of David, the display of treasures in the case of Hezekiah. Similarly in another passage confidence placed in the Egyptians is censured, although it was permissible for Solomon to make an alliance with them. 10. To the considerations already presented this also should be added, that under the ancient law the Jews had clearly expressed promises of victory if only they observed the law, so that they were less under the necessity of having recourse to human help. In Solomon, again, there are not a few maxims about avoiding association with the wicked. These, however, are the admonitions of prudence, not precepts of the law; and those very admonitions, as moral precepts in most cases, have a great many exceptions. X. That treaties with those who are strangers to the true religion are not prohibited by the Christian law 1. Moreover the law of the Gospel made no change in this matter. Rather it extends even greater favour to treaties by which those who are strangers to the true religion receive help in a just cause; for the doing of good to all men, whenever there is opportunity, has not only been left free and praiseworthy, but has even been enjoined by precept. By the example of God, who maketh His sun to rise on the good and on the evil, and sendeth rain for both, we are bidden to exclude no class of men from our deeds of kindness. Tertullian well said: "So long as the covenant was confined to Israel, He properly commanded that compassion should be shown only to brethren. But when He had given to Christ 'the gentiles as His inheritance and the ends 259 of the earth for His possession,' then began to be fulfilled that which was spoken by Hosea: 'Ye are not my people, who were my people; ye have not obtained mercy, who once obtained mercy'--that is, the nation. Thenceforth Christ extended to all the law of brotherly kindness, excepting no one from His compassion, just as He had excepted no one from His invitation." 2. Now this law ought to be received with due regard to difference in degree, so that we should be doers of good to all, but particularly to those who share the same religion. In the Constitutions of Clement we read: 'Service ought to be rendered to all, but in such a way that greater consideration should be shown to those that are holy.' Says Ambrose: 'Perfect generosity is cow.mended by reason of faith, cause, place, and time, so that you labour first on behalf of the servants of the faith.' The statement of Aristotle is similar: 'It is not, in fact, fair that equal care should be taken for strangers and for friends.' 3. Furthermore, familiar association with men who are strangers to the true religion is not prohibited; and not all intercourse, but only that which is unnecessarily intimate, is forbidden even with those whose case is worse, who have fall en away from the rule of Christian teaching; and not even that is forbidden if it furnishes the hope of their correction. This is the force of the passage in the writings of Paul: 'Be yet not unequally yoked with unbelievers; for what fellowship have righteousness and iniquity? or what communion hath light with darkness? And what concord hath Christ with Belial? or what portion hath a 260 believer with an unbeliever?' The passage refers to those who joined in the feasts at the temples of idols, and thus either were guilty of idolatry, or at any rate presented the appearance of being guilty. This is shown by the words which follow: 'What agreement hath a temple of God with idols?' Statements similar to these appear in the First Epistle to the same Corinthians: 'Ye cannot partake of the table of the Lord and of the table of demons.' 4. Proof again will by no means naturally follow from this fact, thatweought not of our own will to submit to the rule of the heathen, or contract marriages with them. For in both these cases it is apparent that there is greater danger, or at any rate greater difficulty is thrown in the way of practising the true religion. Add also the consideration that such ties are more lasting, and in marriage the choice is freer, while treaties have to be made to satisfy the exigencies of the time and place. Moreover, as it is not wrong to do good to the heathen, so it is not wrong to implore their aid, as Paul invoked the aid of Caesar and the tribune. XI. Cautions in regard to such treaties 1. In such alliances, therefore, wrongfulness is not inherent nor universal, but is subject to judgement according to the circumstances. Pains must, in fact, be taken that too great intimacy may not bring contamination to the weak. With this end in view it will be advantageous that the homes be kept separate, as the Israelites dwelt apart from the Egyptians. Not without reason are those verses of Alexandrides [Anaxandrides]: 261 I cannot as your fellow-soldier fight; For neither our laws nor customs harmonize, But differ by great intervals. Here also the remarks apply which I have elsewhere made concerning the religious scruples of the Jews and Christians in respect to joint military service with the heathen. 2. But also if, as a result of such an alliance, the power of the heathen is going to be greatly increased, it should be refrained from except in direst need. Applicable here is what Thucydides said in a similar case: 'Those who are treacherously attacked, as we are by the Athenians, ought not to be looked upon with disfavour if they seek safety not only in the aid of the Greeks but also in that of the barbarians.' No right whatsoever is sufficient to warrant committing what will probably be harmful to religion, indirectly, if not directly. For as a matter of first importance the kingdom of heaven is to be sought, that is, the spread of the Gospel. 3. It were greatly to be desired that to-day many princes and peoples should take to heart the generous and noble utterance of Fulk, formerly Archbishop of Reims, who thus admonished Charles the Simple: 'Who would not be greatly alarmed that you desire the friendship of the enemies of God, and are receiving heathen armies in detestable alliance, to the destruction and downfall of the Christian name? For it makes no difference whether any one allies himself with the heathen or denies God and worships idols.' There is a saying of Alexander found in Adrian: 'They do a grievous wrong against the rights of Greeks who serve with the barbarians in war against the Greeks.' 262 XII. That all Christians are under obligation to enter a league against the enemies of Christianity At this point I shall add that, since all Christians are members of one body, and are bidden to share one another's sufferings and misfortunes, just as this principle applies to individuals, so also it is applicable to peoples as such, and to kings as such. For every man ought to serve Christ not only personally, but also with the power that has been entrusted to him. This, however, kings and peo~les cannot do while an impious enemy is raging in arms, unless they furnish aid to one another. Such aid, again, cannot be rendered effectively unless an alliance is made for that purpose. Such a league was formerly made, and the emperor of the Holy Roman Empire was unanimously chosen as· its head. To this common cause, therefore, all Christians ought to contribute men or money, accorcl,:i.ng to their strength. How can they be excused from making such a contribution, I do not see, unless they are kept at home by an unavoidable war or some other equally grievous misfortune. XIII. To which ally help should by preference be given when several are at war, is explained, with distinctions 1. This question also frequently arises. If several are at war, to which of two parties ought aid preferably to be given by one who is in alliance with both? First, then, that is to be recalled which we previously said, that there is no obligation to undertake unjust wars. Therefore that one of the allies who has a just cause for war ought to have the preference if the contest is with one who is not in alliance. The same will like- 263 wise hold if the contest is with another ally. Thus in his speech in regard to Megalopolis Demosthenes showed that the Athenians ought to give aid to their allies the Messenians against the Lacedaemonians, who were also allies, if the latter were the aggressors. The principle stated holds true only if t?e~e is no clause in the agreement forbidding that aid be sent to an ally. In the agreement of Hannibal with the Macedonians there was the clause: 'We shall be the enemies of your enemies, with the exception of the kings, states, and ports with which we have treaties of friendship.' 2. Now if allies are engaged in war with each other for unjust causes on both sides--and this can happen--it will be necessary to refrain from aiding either party .. Thus Aristides says, in his fifth speech On Leuctra: 'If indeed they were asking for aid against ·others, it would be an easy matter; but if each of the allies was requesting aid against the other they did not wish to mix in the affair.' 3. If, on the contrary, two allies are waging war against others, and each for a just cause, aid in men and money will have to be sent to both, if this can be done, just as happens in the case of personal creditors. But if the undivided co-operation of the one who has promised is required, reason demands that preference be shown to the ally with whom the treaty is of longer standing. This, according to Polybius, is what the Acarnanians said to the Spartans. And the answer given by the Roman consul to the Campanians has the same effect: 'It is right that friendships be so established that the more ancient friendship and alliance shall not be violated4' 264 4. But an exception needs to be made if the later treaty has something beyond the promise which, so to speak, contains in itself the transfer of ownership; that is, some form of subjection. For so also in a sale we say that the earlier promise receives the preference, unless a later promise has transferred ownership. So in Livy the Nepisini held the pledge of surrender more sacred than that of alliance. Others draw these distinctions more subtly, but what I have said, as more simple, is, I think, nearer the truth. XIV. Whether an alliance may be considered as tacitly renewed An alliance ought not to be considered as renewed tacitly on the expiration of the time, except in consequence of acts which admit of no other interpretation. A new obligation, in fact, is not easily presumed. XV. Whether the one party may be freed by the perfidy of the other If one party has violated a treaty of alliance, the other will be able to withdraw from it; for the individual terms of an alliance have the force of conditions. This instance in Thucydides may serve as an example: 'Those do not bear the blame of breaking a treaty of alliance who, abandoned, turn to others for help, but those who do not in fact furnish the aid which on oath they had promised.' There is another example in the same author: 'If either of the parties should deviate from the terms ever so little, the alliance would be broken.' This, however, is true only in case there has been no agreement to the contrary; for sometimes such an agreement is made in order that withdrawal from the league may not be permissible for a slight offense. CONCERNING THE HISTORICAL USE OF THE TERMS BARBARIAN AND ABORIGINE Present reactions to the use of such terms as barbarian and aborigine warrant some reference to the meaning given to them in the Law of Nations. There are some examples in the materials we have used above from Vitoria, Grotius, and Vattel. Barbarians Father Bartolome de Las Casas, In Defense Of The Indians (De Kalb: Northern Illinois University Press, 1974), pp. 42-43, explains that there are different kinds of barbarians, infers that one kind includes some Spaniards, but that the Indians are barbarians who have their own rulers and maintain political systems. Even though they lack the art and use of writing, they are not wanting in the capacity and skill to rule and govern themselves, both publicly and privately. Thus they have kingdoms, communities, and cities that they govern wisely according to their laws and customs. Thus their government is legitimate and natural, even though it has some resemblance to tyranny. From these statements we have no choice but to conclude that the rulers of such nations enjoy the use of reason and that their people and the inhabitants of their provinces do not lack peace and justice. Otherwise they could not be established or preserved as political entities for long. This is made clear by the Philosopher [Aristotle] and Augustine. Therefore 266 not all barbarians are irrational or natural slaves or unfit for gov.ernment. Some barbarians, then, in accord with justice and nature, have kingdoms, royal dignities, jurisdiction, and good laws, and there is among them lawful government. Wolff, Jus Gentium (1934), par. 52, "Of barbarous Nations,' pp. 3334, pointed out that the Greeks called those people barbarians "who used a less cultivated language, that is, other tha~ Greek, and then by the Romans those were so called who did not speak Greek or Latin; but afterward the term was transferred from the speec~ and language to the method of living •••• 11 Par. 53, "Of the cultured and civilized nation," pp. 3435, Wolff stated: "That is called a cultured nation which cultivates intellectual virtues, consequently desires to perfect the intellect, and therefore develop the mind by training. And that is called a civilized nation which has civilized usages or usages which conform to the standard of reason and politeness. We call it in our vernacular, a cul-tured people, just as with respect to their usages barbarous nations are called, uncultured peoples. But since barbarous nations have uncivilized usages, therefore to a barbarous nation is opposed a nation cultured and civilized." In par. 54, p. 35, Wolff concluded "that nations ought to be cultured and civilized, not barbarous." In par. 168, p. 89, Wolff explained that "whatever a learned and cultivated nation can contribute to make barbarous and uncultivated nations learned and more cultivated, that it ought to do." But in par. 169, p. 89, he continued: "Since a learned and cultivated nation ought to do whatever it can to make a barbarous and uncultivated nation learned and more cultivated, but since, 267 if any nation wishes to promote the perfection of another, it cannot compel it to allow that to be done; if some barbarous and uncultivated nation is unwilling to accept aid offered to it by another in removing its barbarism and rendering its manners more cultivated, it cannot be compelled to accept such aid, consequently it cannot be compelled by force to develop its mind by the training which destroys barbarism and without which cultivated manners cannot exist." Also in par. 259, p. 132: "No nation by force may compel another nation to introduce its religion into its own territory or to embrace it." Par. 260, p. 133: "Since no nation by force may compel another nation to embrace its religion, it has no right to subdue another nation and subject it to its sovereignty on account of religion." And in par. 261, p. 133: "Whatever one nation can contribute to persuade other nations to the true worship of God, that it is bound by nature to contribute. But if nevertheless the other nation cannot be induced to embrace it, that must be endured." Aborigines On the meaning and use of the term aborigine we refer to Alpheus Henry Snow, The Question of Aborigines in the Law and Practice of Nations (New York and London: G. P. Putnam's Sons, 1921). This study was "Written at the Request of the Department of State, 1919." Chapter I, "Definition of Aborigines," pp. 3-17. So far as the author of this report has been able to discover, no definition of the word 'aborigines' as a term of the law and practice of nations has been made by any text-writer of recognized standing, or 268 by any international body whose usage would determine its meaning. It therefore becomes necessary to formulate such a definition from an examination of the meaning attached to the word by lexicographers and by a study of the context of public documents of recognized authority in the law and practice of nations in which the word is used. The following definition, formulated in that manner, is adopted for the purpose of this report: Aborigines are members of uncivilized tribes which inhabit a region at the time a civilized State extends its sovereignty over the region, and which have so inhabited from time immemorial; and also the uncivilized descendants of such persons dwelling in the region. As a term of the law and practice of nations, "aborigines" is primarily a term of that division of the general public law which is not strictly national or strictly international, and which is concerned with the relations between a State recognized as one of the civilized States and uncivilized tribes under its sovereignty. Aborigines are distinguished from "colonists," the latter term including the citizens of civilized States who settle in the region. The relations of aborigines with each other, with the colonists, and with the colonizing State are necessarily subject to a special regime established by the colonizing State for the purpose of fitting the aborigines for civilization, and opening the resources of the land to the use of the civilized world. All civilized States which assume sovereignty over regions inhabited by aborigines undertake a civilizing work which, while varying in its details, is identical in its general nature and in the fundamental principles to be applied. Hence the dealings of individual 269 civilized States with aborigines under their respective sovereignties are matters of conunon interest to all nations, and the law and practice of nations properly concerns itself with the conunon and international aspects of such national action •••• Meaning of the Word as Shown by Official Documents Through the efforts of a series of reform organizations in Great Britain, the first of which began its operations in 1791, the African slave trade was prohibited to the citizens of Great Britain by act of Parliament in 1807, and in 1833 African slavery was abolished in the British colonies. During this long period of agitation these reformers had been led to study the whole question of the contact of the civilized States with the uncivilized races. Great Britain was exercising sovereignty over regions inhabited by uncivilized races in Canada, South America, Africa, Australia, New Zealand, and the islands of the Pacific. Other European States, the United States, and the States of South America exercised similar sovereignty. In spite of the varying details in dealing with each of the uncivilized tribes, it was perceived that the problem was one of the contact of civilization with uncivilization; that there were certain general principles universally applicable, and that the question was in some respects and to some extent one of common interest to all nations. Influenced by this broader aspect of the question, a part of the anti-slavery group in 1835 separated itself from the rest, and formed themselves into a society which called itself the British and Foreign Aborigines Protection Society, the remainder continuing their general 270 anti-slavery propagandist work as a society calling itself the British and Foreign Anti-Slavery Society. These two societies kept their separate identity and continuously carried on their work on their separate lines until 1909, when they merged into one, by the name of ~he British Anti-Slavery and Aborigines Protection Society, which still exists. By the influence of the Aborigines Protection Soci?tY the question of aborigines in the law and practice of nations was agitated in 1835 in the British House of Commons, and largely throug~ the influence of Thomas Fawell Buxton, who was a member of the House of Conunons and one of the leaders of the society, a select committee on the subject was appointed. After taking a large amount of evidence, this committee, which received the name of the Select Committee on Aboriginal Tribes, made its report in 1837. Gladstone was a member of the committee, and it is said that he drafted the report. It was by this report, apparently, that the word 'aborigines' received its definite sanction as a term of the law and practice of nations. In judicial decisions and diplomatic and legislative documents prior to that time the word is used sporadically and inasense not invariably, though generally confined to uncivilized persons indigenous to the soil of a certain region. This report clearly confined it, as a legal term, to this sense. By the terms of the resolution of the House of Commons the committee was authorized 'to consider what measures ought to be adopted with regard to the native inhabitants of countries where British settlements are made, and to the neighboring tribes, in order to secure to 271 them the due observance of justice and the protection of their rights, to promote the spread of civilization among them, and to lead them to the peaceful and voluntary reception of the Christian religion.' In the second paragraph of the report it is said: The extent of the question will be best comprehended by taking a survey of the globe, and by observing over how much of its surface an intercourse with Britain may become the greatest blessing, or the heaviest scourge. It will scarcely be denied in word that, as an enlightened and Christian people, we are at least bound to do to the inhabitants of other lands, whether enlightened or not, as we should in similar circumstances desire to be done by; but beyond the obligations of common honesty, we are bound by two considerations with regard to the uncivilized: First, that of the ability we possess to confer upon them the most important benefits; and secondly, that of their inability to resist any encroachments, however unjust, however mischievous, which we may be disposed to make. The disparity of the parties, the strength of the one and the incapacity of the other to enforce the observance of their rights, constitutes a new and irresistible appeal to our compassionate protection. The committee recognized that the question of aborigines was not a mere national one, but was one common to all colonizing nations, and virtually one of drawing a just line between that which is due to aborigines as human beings and original occupants of the soil on the one part and that which is due to the civilized world on the other 272 part, and especially of preventing abuses of power by civilized States and their citizens as respects the uncivilized peoples. Thus it is said: It is not too much to say that the intercourse of Europeans in general, without any exception in favor of the subjects of Great Britain, has been, unless when attended by missionary exertions, a source of many calamities to uncivilized nations. Too often, their territory has been usurped, their pLoperty seized; their numbers diminished, their character debased, the spread of civilization impeded. European vices and diseases have been introduced among them, and they have been familiarized with the use of our most potent instruments for the subtle or violent destruction of human life, viz., brandy and gunpowder •••• It is difficult to form an estimate of the less civilized natiops liable to be influenced for good or for evil by contact and intercourse with the more civilized nations of the earth. It would appear that the barbarous regions likely to be more inunediately affected by the policy of Great Britain are the south and west of Africa, Australia, the islands of the Pacific Ocean, a very extensive district of South America at the back of the Essiquibo settlement between the rivers Orinoco and Amazon, with the inunense tract which constitutes the most northerly part of the American continent and stretches from the Pacific to the Atlantic Ocean. Throughout the first part of the report, which is a statement of the facts relating to the abuse of civilized power, brought out by the evidence taken by the committee, the word 'aborigines' is not used. Where 273 it would . naturally be expected, the words 'savages,' 'barbarous peoples,' 'heathens,' 'uncivilized nations,' 'tribes,' 'native inhabitants,' or 'natives' are used. The word 'aborigines' first occurs in the heading of the second part of the statement of facts. This heading is as follows: Effects of fair dealing, combined with Christian instruction, on aborigines. Under this heading, the opening statement reads: In the foregoing survey we have seen the desolating effects of the association of unprincipled Europeans with nations in a ruder state. There remains a more gratifying subject to which we have now to direct our attention--the effect of fair dealing and of Christian instruction upon heathens. The instances are, unhappily, less numerous than those of an opposite character, but they are not less conclusive; and in reviewing the evidence before us, we find proof that every tribe of mankind is accessible to the remedial process and that it has actually been partially applied and its benefits experienced in every quarter of the world; so that, the main feature of the case before us being the ravages caused by Europeans, enough has been incidentally disclosed to show that those nations which have been exposed to our contamination might, during the same period, have been led forward to religion and civilization. Independently of the obligations of conscience to impart the blessings we enjoy, we have abundant proof that it is greatly for our advantage to have dealings with civilized men rather than with barbarians. Savages are dangerous neighbors and unprofitable customers, and if they remain as degraded denizens of our colonies they become a burden upon the State. 274 We have next to express our conviction that there is but one effectual means of staying the evils we have occasioned, and of imparting the blessings of civilization, and that is the propagation of Christianity, together with the preservation, for the time to come, of the civil rights of the natives. We have seen that a mere acquaintance with civilized men by no means prepares savages to receive Christianity, and that kind of civilization which alone can be advantageous to them or ourselves •••• We further find, in the evidence before us, that benevolent attempts have been made to instruct savages in the arts of civilized life, for the purpose of improving their condition and gradually preparing them for the truths of the Gospel, and that these attempts have been signally unsuccessful •••. So complete, indeed, has been the failure of the merely civilizing plan with varius tribes of Indians, that intelligent Americans have been led to adopt the conclusion that it is necessary to banish the Indians from the neighborhood of the white population, on the supposition that they are not capable of being reclaimed or elevated into a civilized or well-ordered community. This was not the opinion of William Penn, whose conduct toward the Indians has been deservedly held up as a model for legislators, and who "notwithstanding he purchased their lands" by an equitable treaty, "did not desire their removal," but "admitted them to full participation in the benefit and protection of the laws," and who also took pains to promote their religious instruction, and to render the intercourse with their white brethren beneficial to them. That the good whch he contemplated has been frustrated by many untoward circumstances 275 we are aware, but we do not therefore doubt the feasibility of producing a permanent impression upon uncivilized men. We consider that the true plan to be pursued is that which we find recommended by the Church Missionary Society, in their instructions to two of their emissaries: "In connection with the preaching of the gospel you will not overlook its intimate bearing on the moral habits of a people •••. Seek to apply it to the common occupation of life; and instead of waiting to civilize them before you instruct them in the truths of the gospel, or to convert them before you aim at the improvement of their temporal condition, let the two objects be pursued simultaneously." Following the statement of facts the committee inserted its 'conclusions. 1 Holding that its ivestigation had proved that 'the effect of European intercourse had been, upon the whole, a calamity on the heathen and savage nations,'. it urged in eloquent language that Great Britain should make itself a leader in the movement to make the contact between the civilized and the uncivilized races a benefit to both and a means of increasing the general civilization and welfare. After the 'conclusions,' the committee considered under the heading of 'suggestions' the fundamental principles of the just relationship between civilized and uncivilized races and the methods and processes suitable for carrying these principles into effect. It is in the text of these 'suggestions' (which in the nature of things must have been the last paper drafted by the committee), that the word 'aborigines' is used as a technical term. It would appear that the committee, while d\ unable to agree in accepting that term during the main part of its delibera- 276 tions, had found it so necessary to have a generic term applicable to the uncivilized natives in the colonies of all civilized States, that they finally agreed to sanction and adopt the word 'aborigines' for this purpose. The word occurs in the opening paragraph of the 'suggestions,' which reads as follows: Having thus adverted to some of the more remarkable of those incidents by which the intercourse between the British colonies and the aborigines in their vicinity have been characterized, it remains to consider how the recurrence of similar calamities can be most effectually averted. It is obviously difficult to combine in one code rules to govern our intercourse with nations standing in different relationships with us. Some are independent communities; others are, by the nature of treaties or the force of circumstances, under the protection of Great Britain, and yet retain their own laws and usages; some are our subjects, and have no laws but such as we impose. To this variety in circumstances must be added a variety as great in their moral and physical condition. They are found in all grades of advancement, from utter barbarism to semi-civilization. To propose regulations which shall apply to our own subjects and to independent tribes, to those emerging from barbarism and to those in the rudest state of nature, is a task from which your committee would shrink, were it not that all the witnesses, differing as they do upon almost every other topic, unite in ascribing much ·of the evil to the uncertainty and vacillation of our policy. Your committee can 277 not too forcibly recommend that no exertion should be spared and no time lost in distinctly settling and declaring the principles which shall henceforth guide and govern our intercourse with those vast multitudes of uncivilized men who may suffer in the greatest degree or in the greatest degree be benefited by our intercourse. The regulations which we would suggest for that purpose are either general or special; that is, they either extend to all parts of the globe in which we are brought into contact with uncivilized tribes or they apply to the particular case of some one settlement. In the first place, therefore, we will advert to these general regulations which we have to suggest, and which may be reduced under nine separate heads. The following extracts from the text of these nine general principles will illustrate the committee's usage of the term 'aborigines': The protection of the aborigines should be considered as a duty particularly belonging and appropriate to the executive government as administered either in this country or by the governors of the respective colonies •••• The settlers in almost every colony, having either disputes to adjust with the native tribes, or claims to urge against them, the representative body is virtually a party, and therefore ought not to be a judge in such controversies. Or if the members of the colonial legislature are not chosen by the people, but selected by the government, there is still a similar objection to their interference with the aborigines •.•• 278 Whatever may be the legislative system of any colony, we therefore advise that, as far as possible, the aborigines be withdrawn from its control. In the formation of any new colonial constitution, or in the amendment of any which now exist, we think that the initiative of all enactments affecting the aborigines should be vested in the officer administering the government; that no such law should take effect until it has been expressly sanctioned by the Queen •••• Your committee would take occasion to observe that, so far as regards that portion of the aborigines who may inhabit the country beyond our colonial frontiers, the provincial legislatures have no authority to make enactments; and thus far, therefore, there will be less difficulty in retaining the government of our relations with the aborigines in more impartial hands •.•. All contracts for service 1:nto which any of the aborigines may enter with any of the colonists should be expressly limited in their duration, to a period which should, in no case, exceed 12 months •••• So far as the lands of the aborigines are within any territories over which the dominion of the Crown extends, the acquisition of them by her Majesty's subjects, upon any title of purchase, grant, or otherwise, from their present proprietors, should be declared illegal and void •••• When the British law-is violated by the aborigines within the British dominions, it seems right that the utmost indulgence compatible with a due regard for the lives and property of others should be shown for t_heir ignorance and prejudices •.•• 279 In the case of offences connnitted beyond the frontiers, British subjects are amenable to colonial courts--the aborigines are not •••• It would, therefore, on every account be desirable to induce the tribes in our vicinity to concur in devising some simple and effectual method of bringing to justice such of their own people as might be guilty of an offence against the Queen's subjects. As a general rule, ••• it is inexpedient that treaties should be frequently entered into between the local governments and the tribes in their vicinity •••• The safety and welfare of an uncivilized race require that their relations with their more cultivated neighbors should be diminished rather than multiplied •••• To the preceding statement an exception is to be made as far as respects the pastoral relation formed between Christian missionaries and the aborigines. To protect, assist, and countenance these gratuitous and invaluable agents is amongst the mo.st urgent duties of the governors of our colonies. On the other hand, those by whom the missionaries are selected and employed, can not be too deeply impressed with a sense of the responsibility under which that choice is made. Without deviating into discussions scarcely within the province of a parliamentary connnittee, it may be observed that piety and zeal, though the most essential qualifications of a missionary to the aborigines, are not the only endowments indispensable to the faithful discharge of his office; in such situations it is necessary that, with plans of moral and religious improvement, should be combined well matured schemes for advancing the social and political improvement of the tribes, and for the prevention of any sudden changes which might be injurious to the health and physical constitution of the new converts. 280 The British and roreign Aborigines Protection Society has always based itself upon the Report of the Parliamentary Committee of 1837, and in its proceedings and publications, and those of its allied societies in other countries, the word 'aborigines' has been persistently used in the sense in which it is used in that report. In its national acts, however, Great Britain has used the word 'natives' almost exclusively. The United States, having had to deal only with the American Indians, has in its national action described them merely as 'Indians'; and the same is true of Canada. France, and the Latin countries use exclusively the word indig~nes. Germany and the Germanic countries use exclusively the word eingeborenen. It is only when the problem of the contact between civilized and uncivilized races is considered as distinct from its relation to any one civilized state, and as a matter of common interest to all civilized states thatthe word 'aborigines' is ·coming into general use. As a Latin word it fits into all languages. The Englishman, accustomed to the word 'natives,' the American thinking in terms of 'Indians,' the Frenchman using invariably the term indigenes, and the German employing the word eingeborenen can find in the word 'aborigines' a term which all can adopt in discussing the common problem which each nation is called upon to meet and solve in its colonizing activities. OBSERVATIONS ON UNJUST AGGRESSION Another work, John Eppstein, The Catholic Tradition of the Law of Nations. Prepared under the auspices of the Catholic Council For International Relations and published for the Carnegie Endowment For International Peace (London: Burns, Oates & Washbourne, Ltd., 1935), becomes involved with the "Indian Cause" in the Law of Nations in chapter XV, pp. 396-460, titled !'The Rights of Backward Races." On p. 410, the question is asked "Is then the whole Colonial enterprise to be condemned?" The answer: "God is the judge .. We cannot avoid the conclusion that every violent seizure of territory which was at the time inhabited and cultivated by a native tribe and subject to the authority of its rulers was in itself an unjust aggression." In Wolff, Jus Gentium (1934), p. 408, there is a discussion of the actions that should be taken by a nation that engages in an unjust war: Par. 789. Of the obligation to pay a penalty for unjust hostilities. He who wages an unjust war is bound to pay a penalty to the other for the hostilities which he commits. For he who wages an unjust war does wrongfully those things which cause losses to the other. Therefore, since hostilities are all warlike operations, by which force is used against an enemy and his property, and therefore losses are caused to an enemy through hostilities, he who wages ~n unjust war does a wrong to his enemy by all hostilities. Therefore, since the one to whom a wrong is done has the right to punish the offender, he who wages an unjust war is bound to pay a penalty to the other for the hostilities which he commits. 282 This is also shown in this way. He who wages an unjust war is a robber. But by the law of nature we have the right to punish a robber. Therefore, the injured party has a right to punish the one who wages an unjust war; consequently the one is bound to the other for a penalty. Of course nation is bound to nation for the penalty for a wrong, in so far as satisfaction is to be given for the wrong. For it is self-evident that there is no place here for penalties, either capital, or those affecting the person, or those which consist in infamy, such as are inflicted in a state by the sovereign upon those committing crime, but only for those which consist in payment and therefore have the character of a fine. Therefore, infamy does not attach to these penalties as to civil penalties. Just as there is no derogation from the dignity of the ruler of a state, if a penalty is added to a stipulation, so there is no derogation therefrom, if he should pay something by way of penalty to one whom he has injured by unjust force. Bartolome de Las Casas suggested to the Crown that the treatment of the Indians by Spaniards was so notoriously un-Christian that God might very well destroy Spain as punishment for the offenses of Spaniards against the Indians. There are numerous commands in the Laws of the Indies that administrators do particular things "for the sake of the king's conscience;" and the king frequently threatened these administrators that, if they did not do certain things on behalf of the Indians, it should be on their conscience, and not on his. In Catholic Spain such references had to do with the eternal salvation of the king or his subjects. 283 The Spanish kings wanted relationships between Spaniards and Indians, and the expeditions for exploration, discovery, and pacification of the Indians to proceed in an acceptable way~ They took the writings of such men as Bartolome· de Las Casas and Francisco de Vitoria seriously, thus they had detailed instructions written (Recopilacion, B4)* telling Spanish explorers and adelantados how they should proceed, by land or by sea, and the care that should be taken in the contacts made with the Indians. If the Indians received them peacefully, the missionaries should teach them the Holy Catholic faith (Bl, Tl, L2)*. If the Indians did not wish to accept the gospel peacefully, methods were described that the Spaniards should follow (Bl, Tl, L4)*. The Indians did have rights that the king wanted his Spanish subjects to respect. Under ideal circumstances, when the process of conversion and the Indian-Spanish contacts seemed to be going well, the Indians were to be introduced to the "rule of law," or to Spanish institutions, in ways that would not be oppressive (B6, Tl, Ll9)*. After five years, although the Indians were still not to be subjected to forced labor or the tribute system, they were to be "introduced to work" (B6, Tl, L20)*. Infidel Indians "converted of their own free will" were not to be required to pay tribute for ten years (B6, TS, L3)*. In Vitoria (1917, p. 186), Grotius (1925, pp. 699-700), and in Vattel (1916, Book 4, Ch. 2, par. 14 and 18) as well as in the laws of *The references are to the Recopilacion de leyes de las reynos de las Indias (4 vols. Madrid, 1681). B stands for Book, T for Title; and L for Law, with the appropriate number following each letter. 284 the Indies, it is apparent that when a ruler took over a new area, under the Law of Nations it was permissible for the king to require a tribute, homage, or other exaction from his new vassals or subjects. It was also understood that in return the ruler owed his vassals support and protection. When the vassal paid the tribute and the king extended his protection, an agreement had been reached, With all of the efforts on the part of the kings to protect the Indians in the kingdoms of the Indies, according to Charles Gibson's assessment of some three hundred years of the application of Spanish institutions to the Aztec peoples in the Valley of Mexico, included as the first paragraph of the concluding chapter of The Aztecs Under Spanish Rule (1964): The Black Legend provides a gross but essentially accurate interpretation of relations between Spaniards and Indians. The Legend builds upon the record of deliberate sadism. It flourishes in an atmosphere of indignation, which removes the issue from the category of objective understanding. It is insufficient in its awareness of the institutions of colonial history. But the substantive content of the Black Legend asserts that Indians were exploited by Spaniards, and in empirical fact they were. The story of Spanish rule over the Indians of the Americas below the viceregal level is certainly not pretty, and undoubtedly it would be just for the descendants of those Spaniards to pay a penalty, for as Wolff states above "He who wages an unjust war is a robber. Therefore, the injured party has a right to punish the one who wages an unjust war; consequently the one is bound to the other for a penalty." BIBLIOGRAPHY 287 Brierly, J. L. The Law of Nations. An Introduction to the International Law of Peace. Sixth edition, 1963. Reprinted, Oxford: at the Clarendon Press, 1976. See particularly Chapter I: "The Origins of International Law." Carlyle, R. W. and A. J. A History of Mediaeval Political Theory in the West. Vol. V, The Political Theory of the Thirteenth Century. Edinburgh and London: William Blackwood and Sons Ltd., 1928. Cohen, Felix S. Handbook of Federal Indian Law. Washington: GPO, 1941. Deloria, Vine, Jr. Behind the Trail of Broken Treaties. An Indian Declaration of Independence. A Delta Book. New York: Dell Publishing Co., Inc., 1974. Eppstein, John. The Catholic Tradition of the Law of Nations. Prepared under the auspices of the Catholic Council For International Relations and published for the Carnegie Endowment for International Peace. London: Burns, Oates & Esperabe Arteaga, Enrique. Washbourne, Ltd., 1935 •. Historia pragmatica e interna de la Univer- sidad de Salamanca. Salamanca, 1917. Esteve-Abril, Ana Himilce. "The Controversy in Sixteenth Century Spain Concerning the Legal and Social Status of the Indian." Unpublished M.A. thesis. Chapel Hill: University of North Carolina, 1944. Fiske, John. The Discovery of America. With some account of Ancient America and the Spanish Conquest. First appeared in 2 vols., Boston, 1893; then in 3 vols., Boston and New York: Houghton, Mifflin and Co., The Riverside Press, Cambridge, 1902 •. Fiske, John. Old Virginia and Her Neighbors. 2 vols. Boston and New York: Houghton, Mifflin and Co., the Riverside Press, Cambridge, 1902. 288 Fuente, Vicente de la. Palacios Rubios: Su Importancia Juridica, Pol1- tica, y Literaria. In Revista General de Legislacion y Jurisprudencia. XX.XVI, p. 242. Madrid, 1870. Garcia Gallo, Alfonso. "La posicion de Francisco de Vitoria ante el problema indiano." Revista de la Facultad de Derecho y Ciencias Sociales, ano 4, no. 15 (julio-agosto, 1949), 853-72. Garcia Samudio, Nicolas. "El descubrimiento de America y la obra del padre Vitoria.n Revista de Indias, 9 (1949), 299-306. Garcia Samudio, Nicolas. "El descubrimiento espiritual de America." Revista de Indias, 11 (1951), 485-99. Synthesis of the Discovery and of the appearance of International Law under Vitoria. Gibson, Charles.. The Aztecs Under Spanish Rule .. A History of the Indians of the Valley of Mexico, 1519-·1810. Stanford, California:. Stanford University Press, 1964. Gongora del Campo, Mario. "La conquista.de America ante la doctrina de la guerra justa." Mensaje de la Biblioteca Nacional [Quito] nums. 10- 11 (julio, 1940), 64-77. Gonzalez Ditton, E. 11 La releccion 'de jure belli.rn Mercurio Peruano, ano 21, vol. 27, num. 234 (Sept. 1945), 496-99. On Vitoria. Grotius, Hugo. De Jure Belli Ac Pacis Libri Tres. A publication of the Carnegie Endowment for International Peace. Francis W. Kelsey Translation. Oxford: at the Clarendon Press, and London: Humphrey Milford, 1925. Grotius, Hugo. The Freedom of the Seas, or the Right Which Belongs to the Dutch to take part in the East Indian Trade. Translated with a revision of the Latin text of 1633, by Ralph Van Deman Magoffin .. 289 Carnegie Endowment for International Peace. New York: Oxford University Press, 1916. Latin title Mare Liberum. Hanke, Lewis. "Pope Paul III and the American Indians," Harvard Theo- logical Review, vol. 30, no. 2 (April, 1937). Hanke, Lewis. "The Requerimiento and its Int~rpreters," Revista de Historia de America. Year 1, No. 1 (1938). Haring, Clarence H. The Spanish Empire in America. New York: Oxford University Press, 1947. Hoebel, E-. Adamson. The Law of Primitive Man. A Study in Comparative Legal Dynamics. New York: Atheneum, 1970. Jaramillo, L. "Francisco Vitoria." Universidad Pontlfica Bolivariana [Medellin], 1 (1946), 304-16. Analysis of his De indis y De iure belli. Juan Gines de Sepulveda: Tratado sabre las justas causas de la gtierra contra las indios. Segunda edicion. Mexico: Fonda de Cultura Economica, 1941. Sepulveda justified Spain's right to subdue Indians on the Aristotelian argument that certain human beings are slaves by nature. Las Casas, Bartolome de. Historia de las Indias. Edicion de Agustln Millares Carlo. Prologo de Lewis Hanke. Fonda de Cultura Economica. Mexico, 1951. 3 tomos. Obra escrita en 1559; primera edicion en 1875. Also Madrid, 1957. 2 tomos; Mexico, 1965. 3 tomos; English translation by Andree Collard. History of the Indies.• New York: Harper and Row, 1971. Las Casas, Fray Bartolome de. In Defense of the Indians. The Defense of the late Bishop of Chiapa against the persecutors and slanderers of the peoples of the New World discovered across the seas. Translated, 290 edited, and annotated by Stafford Poole, C.M. De Kalb: Northern Illinois University Press, 1974. Lowie, Robert H. The Origin of the State. New York: Harcourt, Brace and Co., 1927. Macedonio Urquidi, J. "Fray Francisco de Vitoria y el~ 'derecho de gentes."' Pan-America: Revista de Derecho Internacional Americana [Buenos Aires], I, num. 6 (julio, 1946) , 50-59. Millan, Enrique. "El Padre Vitoria o la concepcion humanitaria del Derecho." Bolivar [Bogota], no. 30 (junio, 1954), 923-36. Miranda, Jose. Vitoria y los intereses de la Conquista de Ainerica. Mexico: El Colegio de Mexico, 1947. A discussion of ideas, Vitoria's relationship to the conquest, spiritual life, the state, encomenderos, etc. Picon-Salas, Mariano. A Cultural History of Spanish America. Berkeley and Los Angeles: University of California Press, 1963. Recopilacion de leyes de las reynos de las Indias. 4 vols. Madrid, 1681. Savelle, Max. The Foundations of American Civilization. A History of Colonial America. New York: Henry Holt and Co., 1942. Savelle, Max. The Origins of American Diplomacy: The International History of Angloamerica, 1492-1763. New York: The Macmillan Co., 1967. Scott, James Brown• The Spanish Origin of International Law. Francisco de Vitoria and His Law of Nations. Carnegie Endowment for International Peace. Oxford: at the Clarendon Press, and London: Humphrey Milford, 1934. 291 Snow, Alpheus Henry. The Question of Aborigines in the Law and Practice of Nations. New York and London: Putnams, 1921. Story, Joseph. Commentaries on the Constitution of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Boston: Hillard, Gray and Co., 1833. Toynbee, Arnold. The World and the West. New York and London: Oxford University Press, 1953. U.S. Department of the Interior, Office of the Solicitor. Federal Indian Law. Washington, D.C.: Government Printing Office, 1958. Vattel, Emmerich de. The Law of Nations or the Principles of Natural Law. The Charles G. Fenwick translation of the 1758 edition. Washington: The Carnegie Institution of Vazquez Franco, Guillermo. Washing~on, 1916. La conquista justificada: Los justos titulos de Espana en Indias. Montevideo: Ediciones Tauro, 1968. A treatment of the Spanish justification for dominance over the Indies and their struggle for justice. Vitoria, Francisco de. De Indis et de Iure Belli. Lectures or readings ·given in 1532, first published in 1557, with an improved edition in 1565. English translation by John Pawley Bate, LLD., as edited by Ernest Nys. Washington: Carnegie Institution of Washington, 1917. Vitoria, F. de. "Relecciones Sobre las Indios y el Derecho de Guerra." Coleccion Austral. DCXVIII, Buenos Aires, 1946. Wolff, Christian. Jus Gentium Methodo Scientifica Pertractatum. First published as part of an 8 vol. work, Frankfort, 1740..,.48, this appeared in 1749 as a single volume with the same title. The English trans- 292 lation is by Joseph H. Drake. Carnegie Endowment for International Peace. Oxford: at the Clarendon Press, and London: Humphrey Milford, 1934. Zavala, Silvio. Las Instituciones Juridicas en la Conquista de America. Madrid: Centro de Estudios Historicos, 1935. Zavala, Silvio. Philad~lphia: Zavala, Silvio. New Viewpoints on the Spanish Colonization of America. University of Pennsylvania Press, 1943. The Political Philosophy of the Conquest of America. Translation by Teener Hall. Mexico, 1953. OCCASIONAL PAPERS OF THE AMERICAN WEST CENTER UNIVERSITY OF UT AH 1. Clark S. Knowlton, et al. Summary of Response to the Minority Education Inquiry. 1972. Out of print. 2. Mary Ellen Sloan . Indians in an Urban Setting: Salt Lake County, Utah (1972). 1973. 3. Vincent Mayer, et al. Toward a History of the Spanish-Speaking People of Utah: A Report of Research of the Mexican-American Documentation Project. 1973 . 4. Clark Knowlton , editor. Social Accommodation in Utah. 1974. 5. Stephen Michael Christopher Hunt. Native American Adjustment to the City: The Salt Lake County Case. 1976 6. S. Lyman Tyler. An Essay on the Historiography of the Indians of the Americas. 1977. Second printing. 7. S. Lyman Tyler. Source Materials for Comparative Studies of the Indians of the Americas. 1977. 8. Cynthia Sturges, editor. Historic Preservation: A Utah Case Study. 1978. 9. John S. Sylvester and Gregory C. Thompson , editors . Ethnic Oral History. 1973; revised edition , 1978. 10. Floyd A. O'Neil and Kathryn L. McKay. A History of the Uintah-Ouray Ute Lands. 1978. 11. A Canadian-United States Conference on American Indian Curriculum Development. 1978. 12. Floyd A. 0 'Neil and Gregory C. Thompson. A History of the Indians of the United States: A Syllabus. Edited by Laura Bayer, 1979. 13 . Floyd A. O 'Neil and Gregory C. Thompson. A History of the Indians of the Americas: A Syllabus. 1979. 14. S. Lyman Tyler. Human Rights and the Native Peoples of the Americas. 1979. 15. S. Lyman Tyler, editor. Concerning The Indians Lately Discovered; The Indian Cause Before the Law of Nations: Colonial Period. 1980.