Franciscus de Victoria, De Indis: Reading Guide

Franciscus de Victoria was a Spanish Dominican. He studied at the University of Paris, where he was influenced by a revival of interest there taking place in the work of Thomas Aquinas. He returned to Spain and became professor of theology at Salamanca in 1526. His lectures on the Indians and on the law of war were given originally in 1532 and published after his death in 1557.

On the Indians Lately Discovered: First Relectio

Section I

Victoria begins by arguing that it is legitimate to hold academic disputation concerning a government matter.

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 propertly and justly. But then, when we hear of so many massacres, so many plunderings of otherwise innocent men, so many [Indian] princes evicted from their possessions and stripped of their rule, there is certainly ground for doubting whether this is rightly or wrongly done. (p. 119).

Question: Were the aborigines (i.e., the original Indian inhabitants of Spanish America) true owners of their property and jurisdictions before the coming of the Spaniards? In scholastic style Victoria gives short arguments for and against (cf. Thomas Aquinas's 'objections' at the beginning of each article) before giving his own answer to the question.

For: Slaves can have no property, but the Indians were natural slaves (in Aristotle's sense), since they 'seem little different from brute animals and utterly incapable of governing'.

Against: 'On the opposite side we have the fact that the people in question were in peaceable possession of their goods... Therefore, unless the contrary is shown, they must be treated as owners and not be disturbed in their possession unless cause be shown' (p. 120).

To answer the question Victoria argues against various reasons that might be given why the Indians were not true owners. First, some have said (John Wyclif and others) that no sinner has dominion (dominium, 'lordship', i.e., ownership of property or governmental power or jurisdiction): but this doctrine had been condemned by the Council of Constance as heresy (pp. 121-2). Some say that dominion is lost by heresy, and therefore by unbelief. But 'unbelief does not prevent anyone from being a true owner' (p. 123). In support Victoria quotes bible passages that attribute dominion to various unbelievers.

Can it be said that the Indians lacked dominion because they lacked reason?

Read from 'Twenty-Third' to the end of section I.

'Slaves by nature': Victoria waters down Aristotle's notion of natural slavery, making it equivalent to a need to be governed. For Aristotle a slave's actions were for his master's benefit, whereas government was for the benefit of the governed.

Section II

Given that the Indians were genuine owners, Victoria asks how could the Spaniards have come into possession of them and their country. First he examines a number of possible titles to be rejected as illegitimate.

First, that the Emperor is lord of the whole world, and therefore of the Indians also. Like medieval Spanish and French writers, Victoria rejects the emperor's claim to rule the whole world (pp. 131-4).

Second, that the Pope is lord of the whole world, and has granted rule of the Indians to the Spaniards. Victoria answers that the pope is not civil or temporal lord of the whole world (cf. Ockham, Short Discourse, Book II). Even in spiritual matters the pope is not ruler of the whole world: 'But the pope has no spiritual jurisdiction over unbelievers, as even our opponents admit, and, as seems (1 Corinthians, chapter 5) to have been the express teaching of the Apostle: 'For what have I to do to judge them also that are without?'' (p. 136). (Victoria follows the established interpretation of this text, namely that the pope and bishops have no authority over unbelievers.) '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' (p. 136; cf. Ockham, Short Discourse, Book II, chapter 20).

The pope has no temporal power over the Indian aborigines or over other unbelievers... For he has no temporal power save such as subserves spiritual matters. But he has no spiritual power over them (1 Corinthians 5:12). Therefore he has no temporal power either. 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. (p. 137).

Third, the right of discovery. '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)'. The reference is to Justinian's Institutes, a source-book of Roman law. 'Therefore, as the Spaniards were to first to discover and occupy the provinces in question, they are in lawful possession' (p. 139). Victoria answers:

Not much... need be said... because, as was proved above, the barbarians were true owners... 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... It gives no support to a seizure of the aborigines any more than if it had been they who had discovered us. (p. 139).

Fourth, the Indians refused to accept the Christian faith.

If the French refused to obey their king, the King of Spain could compel them to obedience. Therefore, if the Indian aborigines refuse to obey God, who is their true and supreme Lord, Christian princes can compel them to obedience. (p. 139).

Victoria answers that before the Indians heard of Christ they committed no sin in not believing, because their ignorance was 'invincible' (i.e. not such that they could overcome it by any effort). And 'the Indians are not bound, directly the Christian faith is announced to them, to believe it': it would be rash and imprudent for them to believe immediately, without adequate investigation.

If the Saracens were at the same time to set their creed before them... they would not be bound to believe them... 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. (p. 143).

Read sections 12-15.

Fifth, the Indians commit sins. Victoria answers:

Christian princes cannot, even by the authorization of the pope, restrain the Indians from sins against the law of nature or punish them because of those sins... The writers in question build on a false hypothesis, namely, that the pope has jurisdiction over the Indian aborigines... 'For what have I to do to judge them also that are without?' Whereon St Thomas [Aquinas] says: 'The prelates have received power over those only who have submitted themselves to the faith'. (p. 146).

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... but because of either a special gift from God or because their enemies had hindered their passage or had attacked them. (p. 147).

Sixth, voluntary choice. But 'fear and ignorance, which vitiate every choice, ought to be absent'; and the aborigines who at first appeared to accept Spanish rule may have been afraid or ignorant of the meaning of what they appeared to accept (p. 148).

Seventh, special grant from God: But this would have to be confirmed by miracles (p. 148).

Section III

In this section Victoria reviews the possibly legitimate titles by which the Indians could have come into the power of Spain. He says that just as the Spaniards cannot rightly prevent French people from travelling into Spain and living and trading there (he writes before immigration restrictions), similarly the Spaniards have a right under the law of nations to travel into America and live and trade there. They also have a right to preach the gospel there.

Read paras. 6-11.

If Indians are converted the Spaniards may help them resist persecution by Indians who have not been converted. If a large number are converted, the pope may depose their former rulers, if they remain unbelievers, and give them Christian rulers, since unbelieving rulers might try to get them to abandon the faith: 'As St. Thomas expressly says (2-2, q. 10, a. 10), the Church could free all Christian slaves who are in bondage to unbelievers even if that bondage was in other respects lawful' (p. 159).

Another possible title is that the Spaniards could intervene to prevent human sacrifices, 'being entitled to rescue innocent people from an unjust death' (p. 159).

Read para. 18.

Second Relectio

Since it appears that only just war could give the Spaniards any title to acquire dominion over the Indians, Victoria offers a short discussion of the law of war. Following Augustine he rejects the view that Christians are forbidden by the gospel to go to war. Their rights and duties in the matter are the same as those of everyone else under the natural law and the law of nations.

He distinguishes between defensive and offensive war. A defensive war is one in which force is used to repel force, in accordance with natural law: 'As we resist violence and injury. For, indeed, it happens under this law that whatever anyone does for the protection of his body is considered to have been done legally' (Digest, 1.1.3 (in Readings)). Cf. Gratian's Decretum, dist. 1, c. 7: 'Natural law is... the repelling of force with force'. An offensive war might better be called a punitive war, 'where we are trying to avenge ourselves for some wrong done to us' (Victoria, p. 167). The justification for offensive war is that

even a defensive war could not be waged satisfactorily, were no vengeance taken on enemies who have done or tried to do a wrong. For they would only be emboldened to make a second attack if the fear of retribution did not keep them from wrongdoing... There can be no security... unless enemies are made to desist from wrong by the fear of war. (p. 167).

(Note that 'vengeance' and 'retribution' did not mean then, as they do now, punishment motivated by malice or hatred, but any punishment.)

According to Victoria, anyone, even a private person, may wage defensive war; anyone can make this kind of war in defense of his person and property. ('War' does not imply armies: two individuals fighting are at war.) But offensive war can be waged only by a State.

A private person is entitled... to defend himself and what belongs to him, but has no right to avenge a wrong done to him, nay, not even to recapt property that has been seized from him if time has been allowed to go by since the seizure. But defense can only be resorted to at the very moment of the danger, or, as the jurists say, incontinenti, and so when the necessity of defense has passed there is an end to the lawfulness of war... But a State is within its rights not only in defending itself,. but also in avenging itself and its subjects and in redressing wrongs. (p. 168)

Otherwise there would not be sufficient disincentive to wrongdoing. This leads to a discussion of the question what political entities are to count as states.

Read paras. 10-14.

'wrong received': Offensive war is like an exercise of jurisdiction within a state. By reason of wrongdoing, the foreign state becomes temporarily subject to the avenging state.

'Liber 83 Quaestionum': The quotation reads: 'Those wars are described as just wars which are waged in order to avenge a wrong done, as where punishment has to be meted out to a city or state because it has itself neglected to exact punishment for an offense committed by its citizens or subjects or to return what has been wrongfully taken away'.

'degree of punishment': Notice the notion of 'proportionality' between the good achieved by war and the harm done.

Read paras. 15-19

This leads to a discussion of several doubts arising from what has been said so far.

Read paras. 22-26

Several other doubts are then discussed. In connection with one of them the notion of 'proportionality' is again invoked.

Read para. 33

Another doubt is whether innocent people may be killed.

Read paras. 34-7.

'even knowingly': Even if it is known that some of the effects of the action will be evil, it may be right to do the action. This is sometimes called 'the principle of double effect': An action with an evil side-effect may be permissible if there is no other way of achieving the good effect intended and the evil is not out of proportion to the good. Suppose some action will probably have several effects, some good and some evil; then, even though it would not be right to aim at such an evil effect, and even though this evil result is foreseeable, the action can be done for the sake of the good effect - provided there is no other way, and provided the evil is not disproportionate to the good.

'Great attention... must be paid' to proportionality.

Read paras. 46-7

Various other questions are discussed, and Victoria sums up:

Read para. 60

Questions for discussion

1.What is Victoria's view of the power of the pope? Does it give religious leaders too much scope for intervening in civil affairs?

2.Does he give the Europeans too many justifications for war with the aborigines?

3.Does he put enough limits on the conduct of warfare?

4.How do his views on the rights of the aborigines compare with Ockham's on the rights of the laity?

5.How do his views on warfare compare with those of Augustine and Thomas Aquinas?