A companion to Early Modern Spanish imperial political and social thought 9789004412798, 9004412794

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A Companion to Early Modern Spanish Imperial Political and Social Thought

Brill’s Companions to European History volume 21

The titles published in this series are listed at brill.com/bceh

A Companion to Early Modern Spanish Imperial Political and Social Thought Edited by

Jörg Alejandro Tellkamp

LEIDEN | BOSTON

Cover illustration: Manuscript page from Juan Ginés de Sepúlveda, Democrates secundus de iustis belli causis, Universidad de Salamanca (España). Biblioteca General Histórica, Ms. 2634 folio 32v. Library of Congress Cataloging-in-Publication Data Names: Tellkamp, Jörg Alejandro, author. Title: A companion to Early Modern Spanish imperial political and social  thought / edited by Jörg Alejandro Tellkamp. Description: Leiden ; Boston : Brill, [2020] | Series: Brill’s companions  to European history, 2212-7410 ; 21 | Includes bibliographical  references and index. Identifiers: LCCN 2019055592 (print) | LCCN 2019055593 (ebook) |  ISBN 9789004412798 (hardback) | ISBN 9789004421882 (ebook) Subjects: LCSH: Spain—History—House of Austria, 1516-1700. |  Spain—Politics and government—1516-1700. | Spain—Intellectual  life—History—16th century. Classification: LCC DP171 .T45 2020 (print) | LCC DP171 (ebook) |  DDC 325/.346001—dc23 LC record available at https://lccn.loc.gov/2019055592 LC ebook record available at https://lccn.loc.gov/2019055593

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISSN 2212-7410 ISBN 978-90-04-41279-8 (hardback) ISBN 978-90-04-42188-2 (e-book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Acknowledgments vii Contributors viii Introduction 1 Jörg Alejandro Tellkamp

part 1 Historical Foundations 1

Spanish Theories of Empire: A Catholic and Polycentric Monarchy 17 Manuel Herrero Sánchez

2

Before Vitoria: Expansion into Heathen, Empty, or Disputed Lands in Late-Mediaeval Salamanca Writings and Early 16th-Century Juridical Treatises 53 José Luis Egío and Christiane Birr

3

The “School of Salamanca” and the American Project 78 Miguel Anxo Pena González

part 2 Towards New Normative Orders 4

Colonial Law: Early Modern Normativity in Spanish America 105 Tamar Herzog

5

Natural Law and Natural Right in the Spanish Scholasticism 128 Merio Scattola ✝

6

Dominion Rights: Their Development and Meaning in the History of Human Rights 149 Virpi Mäkinen

7

Princes and Prices: Regulating the Grain Market in Scholastic Economic Thought 172 Wim Decock

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part 3 Ethics and Politics of the Conquest and Colonization 8

Conquista and the Just War 199 Christian Schäfer

9

The Debate of Valladolid (1550–1551): Background, Discussions, and Results of the Debate between Juan Ginés de Sepúlveda and Bartolomé de las Casas 222 Francisco Castilla Urbano

10

Caramuel on the Right of Discovery 252 Daniel Schwartz

11

Spanish Colonialism as Perpetual Dominion in the Writings of Juan Solórzano Pereira 273 Felipe Castañeda

12

The Debate over the Enslavement of Indians and Africans in the Sixteenth- and Seventeenth-Century Spanish Empire 295 Luis Perdices de Blas and José Luis Ramos Gorostiza

13

The “New World”: The Shaping of Utopia 318 Beatriz Fernández Herrero General Bibliography 341 Index of Historical Names 368 Index of Modern Names 370 Index of Subjects 373

Acknowledgments No volume like this could have been completed without the help and support of colleagues and friends. Julian Deahl invited me to work on the idea of a Companion on early modern Spanish imperial thought. Kate Hammond, Irini Argirouli and Alessandra Giliberto expertly continued to solve my every doubt and question. My thanks go first and foremost to the authors who contributed to this volume and who were generous with their insights as well as with their patience. Merio Scattola, however, deserves a special place in this respect. Being very ill, he managed to submit a complete draft of his paper weeks before passing away and I am very grateful to his wife, Renata Lago, for granting me permission to go ahead with the edition and publication of his article. I remember Merio as an outstanding scholar and a gentle soul and I am humbled by the fact that one of his last writings is part of this volume. The culmination of this volume is to a large extent the result of the hard work of Carlos Diego Arenas Pacheco who translated and revised five of the articles, for which I am most thankful.

Notes on Contributors Christiane Birr is affiliate researcher at Max Planck Institute for European Legal History (Frankfurt) and leads the project “The School of Salamanca. A Digital Collection of Sources and a Dictionary of its Juridical-Political Language”. Her recent publications include “Dominium in the Indies. Juan López de Palacios Rubios’ Libellus de insulis oceanis quas vulgus indias appellat (1512–1516)”, Rechtsgeschichte 26 (2018), 264–283. Felipe Castañeda is currently Professor at the Department of Philosophy and Vice-Dean for Research at the Faculty of Social Sciences of the Universidad de los Andes in Bogotá. He focusses on topics related to the conquest and colonization of America. His publications include (as editor) Juan Solórzano y Pereira: pensar la Colonia desde la Colonia (2006) and (as co-translator) Aristóteles Sobre la República-Libro I según la traducción latina y escollos de Juan Ginés de Sepúlveda (2015). Francisco Castilla Urbano is Professor of Philosophy at the University of Alcalá. He has published extensively of theories of conquest such as El pensamiento de Francisco de Vitoria. Filosofía política e indio americano (1992), El pensamiento de Juan Ginés de Sepúlveda: vida activa, humanismo y guerra en el Renacimiento (2013). He has edited Discursos legitimadores de la conquista y colonización de América (2014), Visiones de la conquista y la colonización de las Américas (2015) and (with Mª José Villaverde), La sombra de la leyenda negra (2016). Wim Decock is Professor of Legal History at the Universities of Leuven and Liège in Belgium and an associate researcher at the Max-Planck-Institute for European Legal History in Frankfurt and the Center for the Study of Law and Religion at Emory University, USA. He has published Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650) (2013). José Luis Egío is affiliate researcher at Max Planck Institute for European Legal History in Frankfurt and teaches Philosophy at Goethe University. His recent publications

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include “Matías De Paz and the Introduction of Thomism in the Asuntos De Indias”, Rechtsgeschichte 26 (2018), 236–262. Beatriz Fernández Herrero received her Ph.D. at the University of Santiago de Compostela. She teaches moral philosophy and among her publications stand out La utopía de América (1992), País de Utopía (2013) and Mundos posibles. Utopía para tiempos de crisis (2016). Manuel Herrero Sánchez is Associate Professor of Early Modern History at Pablo de Olavide University in Seville. His research focuses on the comparative approach to the history of the mercantile republics of the Netherlands and Genoa, and on the complex constitution of the Hispanic Monarchy, Europe’s first transnational, polycentric and global empire. He has recently published Repúblicas y republicanismo en la Edad Moderna (2017). Tamar Herzog is Monroe Gutman Professor of Latin American Affairs and Professor of Spanish and Portuguese History at Harvard. Jurist and historian, she is the author of six monographs, most recent among them Frontiers of Possession: Spain and Portugal in Europe and the Americas, Upholding Justice: State, Law and the Penal System in Quito and Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America. Virpi Mäkinen is Senior Lecturer in Theological and Social Ethics at the University of Helsinki. She specializes in medieval and early modern moral philosophy and political thought and her recent publications include New Perspectives on Aristotelianism and Its Critics (co-ed. with Miira Tuominen and Sara Heinämaa, 2014) and Transformations in Medieval and Early-Modern Rights Discourse (co-ed. with Petter Korkman, 2006). Miguel Anxo Pena González is Director of the Institute for History and Professor of History of the Church and Spirituality at the Pontifical University of Salamanca, where he is in charge of Estudia el Humanismo and Proyección del pensamiento salmantino del siglo XVI. His many monographs include La Escuela de Salamanca. De la Monarquía hispánica al Orbe católico (2009).

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Luis Perdices de Blas and José Luis Ramos Gorostiza are Professors of the History of Economic Thought at the Universidad Complutense in Madrid. Specialized on the economic thought in Spain, they publish, among others, on the topic of slavery, such as “Blanco White, Spanish America, and Economic Affairs: The Slave Trade and Colonial Trade”, in History of Political Economy 46(2014), 573–608. Merio Scattola was Professor of Philosophy at the University of Padua and he was a frequent guest at the Max Planck Institute for European Legal History and the HerzogAugust-Bibliothek in Wolfenbüttel. Among his writings are Das Naturrecht vor dem Naturrecht. Zur Geschichte des ‘ius naturae’ im 16. Jahrhundert (1999) and Dalla virtù alla scienza. La fondazione e la trasformazione della disciplina poli­ tica nell’età moderna (2003). He passed away in August 2015. Christian Schäfer is Professor of Philosophy at the University of Bamberg. He has published widely in ancient and medieval philosophy. His recent books include a commentary on Aquinas’s Quaestiones disputatae de malo (2013) and a new edition and translation of Juan Ginés de Sepúlveda’s Democrates secundus (2018). Daniel Schwartz is a Senior Lecturer at the Departments of Political Science and International Relations at the Hebrew University of Jerusalem. He is the editor of Interpreting Suarez (2011) and the author of Aquinas on Friendship (2007) and The Political Morality of the Late Scholastics (Cambridge, 2019). Jörg Alejandro Tellkamp is Professor of Philosophy at the Autonomous Metropolitan University in Mexico City. His research focuses on medieval epistemology and the political thought of 16th and 17th century Spanish and Colonial Scholasticism on which he has published extensively, most recently “Francisco de Vitoria on self-defense and killing innocents: the limits of ‘double effect’”, in Beneyto, J.M. and Corti Varela, J. (eds.), At the origins of modernity: Francisco de Vitoria and the discovery of International Law (2017), 155–173.

Introduction Jörg Alejandro Tellkamp “There never was, of course, a ‘Spanish Empire’”.1 Those words by Anthony Pagden seem to contradict the very purpose of this volume, which is centered on Spain’s imperial ambitions that emerged during the 15th century and which culminated with the conquest of territories overseas in the 16th century. Certainly Pagden is correct in stating that the political and territorial unity required for establishing an empire was absent in early modern Spain, because, for instance, Naples was still a kingdom and Milan a duchy at the time. This volume takes a different stance in assuming that political and territorial unity as a criterion for empire has to give way to an idea of a monarchy that revolves around multiple semi-autonomous centers, such as the viceroyalties in the Americas—Peru or New Spain, for instance—that relate to a dominating authority, i.e., the Emperor. From the outset it should be made clear that the volume is not concerned with the historical intricacies of how Spain’s rule was exercised in the Netherlands or Italy. It deals instead with the structural elements of such rule, its normative language and the way it was implemented in the one territory that indisputably had imperial features, i.e., the Americas. In fact, the idea that Spanish rule over Spain, the Netherlands, Italy, and the various lands overseas has to be seen as revolving around multiple centers defies the more traditional view of there being only one political center from which minor centers flowed and on which they depended. Instead the theory has been advanced that political relations within the Spanish monarchy “allowed for the existence of many different interlinked centers that interacted not only with the king but also among themselves, thus actively participating in forging the polity. Rather than national, proto-national, or ‘colonial,’ they were multi-territorial.”2 It is therefore not so much a question whether Spain achieved a highly successful administration based on some kind of unified policy, but rather “how individuals, groups, and political entities belonging to 1  Pagden, A., Spanish Imperialism and the Political Imagination, New Haven and London, 1990; Elliott, J.H., Imperial Spain 1469–1716, London, 1990, 3. On the historiography of “Spanish Empire” see Hausser, C. and Pietschmann, H., “Empire. The Concept and its Problems in the Historiography on the Iberian Empires in the Early Modern Age”, in Culture & History Digital Journal 3 (2014), doi: http://dx.doi.org/10.3989/chdj.2014.002. 2  Cardim, P., et al., “Introduction”, in id. (eds.), Polycentric Monarchies: How Did Early Modern Spain and Portugal Achieve and Maintain a Global Hegemony?, Eastbourne, 2012, 4. See, also, the article by Manuel Herrero Sánchez in this volume.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_002

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the Iberian monarchies framed their goals, sought out to accomplish them, and whether they achi[e]ved their aims.”3 This approach, as opposed to the traditional idea of concentric circles of power, helps accommodate a plurality of points of view and ideological discrepancies involved in coming to terms with Spain’s political and social outlook and its dynamic relationship with the possessions overseas. Even if Spain and its political outreach did not culminate in the sort of political unity expected from an empire, it nevertheless shaped a world through various kinds of expertise and knowledge, be it juridical, linguistic, theological, or political.4 Spain’s involvement in Europe and the Americas, its historical processes, and ideological or rather theological underpinnings should certainly be considered as the main motives that led to the kind of normative language this volume sets out to explore in the context of the history of political and social thought in early modern Spain. Its aim is to present in a multifaceted way the conceptual bases—historical, theological, juridical, and economical, among others— of approaching the theoretical framework on which the early modern Spanish monarchy and its transcontinental expansion was established. The particular period from approximately 1450 to 1650 encompasses a range of theories regarding the foundation of political communities and their relationship with other communities. Although there are, of course, antecedents in this respect, for instance, in the 13th and 14th century in authors such as Thomas Aquinas, Dante, and Marsilius of Padua, there seems to be a distinctively Hispanic approach to empire which tends to amalgamate established theories and make them fruitful in the context of conquest and expansion, incorporating at the same time experiences and narratives that originated in the Americas and that shed a different light on cherished belief systems. The political thought of this period in Spain has a characteristic history not because its medieval roots had been neglected or even rejected—in fact, quite the opposite was the case— but because it had to encompass a rather novel perspective in the process of coming to terms with the social and political dimensions of being an incipient imperial power.5 Early modern Spanish political and social thought provided a distinctive approach to the monumental task of curbing the political and economic ambitions of this new European and transcontinental power with a series of moral 3  Cardim, “Introduction”, 5. 4  Mazín, Ó., “La incorporación de las Indias en la monarquía hispánica: una lectura comparada”, in Pardo Molero, J.F. (ed.), El gobierno de la virtud. Política y moral en la Monarquía Hispánica (siglos XVI–XVIII), Madrid, 2017, 271. 5  See Hausser and Pietschmann, “Empire. The Concept and its Problems”, s.p.: “The Castillian expansion under the Catholic Kings followed late medieval Iberian traditions”.

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and legal limitations set forth by a normative discourse rooted in a Christian worldview. Its distinctive character has broadly the following three features. First, the lively and often controversial debate about the moral and legal dimensions of monarchy and empire was part of an academic culture with the University of Salamanca at its center. This includes, for example, Francisco de Vitoria’s well-known discussion in Relectio de Indis (1539) about whether Spanish political domination in the Americas could be justified, even though it had already been de facto established by imperial as well as papal authority. Vitoria concludes that such a justification is ultimately possible, based on certain conditions warranted by natural law, ius gentium, and the overarching wish to spread the Gospel. Second, there was an array of dissenting opinions on various issues, ranging from endorsing imperial expansion as a form of transmitting, even by force, the benefits of Spanish Christian civilization (one might think of Juan Ginés de Sepúlveda) to calling into question essential aspects of this approach, i.e., justifying the expansion on account of a universal power held by the Spaniards. In fact, controversial discussions were held almost from the very beginning of Spanish expansion. For example, Alonso de Cartagena’s thoughts on the conquest of the Canaries in the 15th century set the tone for the sort of arguments that were used when the Spaniards arrived in the Americas. At the beginning of the 16th century, these arguments are also tangible in the writings of authors such as Matías de Paz and Bartolomé de las Casas, who developed a deeper understanding of the reasons an empire should have in order to expand.6 The third distinguishing feature of this period is that the theoretical approach through moral, juridical, and theological disquisitions to Spanish imperial claims on discovered and supposedly unoccupied lands was not a countercultural phenomenon occurring on the fringes of society and academia; discussions rather took place from within the Spanish political and religious establishment. This becomes apparent when in December 1511 Antonio de Montesinos’ sermons denounced the crimes perpetrated by the Spaniards in the Caribbean, after which a set of rules, the Laws of Burgos, was published in 1512 under the authority of King Ferdinand II.7 Establishing moral checks in order to rein in expansionist ambitions and transmitting those ideas to the royal court seems to have been constant during the 16th century. Francisco 6  See the article by Christiane Birr and José Luis Egío in this volume. 7  On the Ordenanzas Reales para el buen regimiento y tratamiento de los Yndios, see Sánchez Domingo, R., “Las Leyes de Burgos de 1512 y la doctrina jurídica de la Conqusita”, in Revista Jurídica de Castilla y León 28 (2012), 16 (http://www.jcyl.es/web/jcyl/AdministracionPublica /es/Plantilla100Detalle/1248367026092/Publicacion/1284233984600/Redaccion—consulted on 8 May 2018).

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de Vitoria as well as Domingo de Soto, who was in fact Charles V’s confessor, were in close contact with the court, and the same could be said of other authors. Additionally, it should not be forgotten that publications had to pass muster with a political and ecclesiastical authority before being printed, which again proves that the bond between scholarship and government had to be quite close. Taking these three points into account, as well as the polycentric nature of the Spanish monarchy, it is the aim of this volume to offer a multifaceted approach that shows essential aspects of how the political normative language of 16th- and 17th-century Spain was framed, which debates it generated, and what it means for our understanding of the intellectual culture of a period that has seen many conflicting assessments. The focus is not on the ideological component of contemporary theories, as in post-colonial studies, but on tracing the arguments to their original sources, highlighting the essential notions on which the theories are grounded, and showing how conceptual shifts resulted in different interpretations of political power and its response to social phenomena.8 The political aspects of the Spanish monarchy in the 16th and 17th century cannot be understood without considering its expansionist ambitions, which led to debates that were exceptionally sophisticated from a theological and philosophical point of view. The sheer quantity alone of treatises, lectures, and books on Spain’s American expansion that were written during that period warrants a closer look. As mentioned, the emphasis of this volume is on normative theories and concepts with their theological, legal, and moral underpinnings and it is clear that Spain’s changing geopolitical status and its often violent interference overseas was the occasion for many authors to develop their theories. Some of them, such as Bartolomé de las Casas, sought to show that the reality of conquest rendered many theoretical constructs invalid. The apparent gap between the academic discourse and the way imperial claims interfered in real life can hardly be overstated, since the destruction through war and disease of a vast and complex social world of indigenous populations in the Caribbean and pre-colonial Mexico and South America significantly reshaped those societies. It is Bartolomé de las Casas himself who is at the heart of this narrative. Having travelled extensively for most of his life and having witnessed the actual brutality of the Spaniards almost from the very beginning of the 16th century, he 8  In this respect it might be useful to consider the distinction between a political point of view of conquest and a cultural one; see Anghie, A., Imperialism, Sovereignty and the Making of International Law, Cambridge, 2005, 13–31.

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had a solid grasp of the conceptual aspects of the political theory of his time.9 But he is certainly best known for his denunciations of the atrocities perpetrated by the Spaniards, whose moral status diminished with every outrage, depicting their actions in often shocking and graphic detail. His most famous writing in this regard is, without doubt, the Very Brief Report on the Destruction of the Indies (Brevísima relación de la destrucción de las Indias), which was published long after the events he reports. Here we read: Española was the first to receive Christians and the devastation and ruin of those peoples began; it was the first to be destroyed and depopulated. […] They entered the villages and they did not spare small children, old men, pregnant women, and even women who had just given birth from slicing them open and hacking them into pieces as if they were sheep in their sheepfold. They took bets on whether someone could cut a man in two with one stroke or sever someone’s head with an axe or disembowel him.10 This is only a small sample but it is as drastic and explicit as the remainder of the Brevísima relación. It purports to show the transformation for the worse of an otherwise blameless indigenous population at the hands of mindless invading Spaniards whose moral depravity was as evident as their hunger for gold. This view, which was at the root of the leyenda negra, the Black Legend,11 was clearly rhetorically enhanced and it was probably not so much designed to throw a shadow on Spain’s general imperial ambitions as to counter views deemed apologetic of an expansionist interpretation of conquest, such as those held by Sepúlveda.12 It is easy to dismiss las Casas’ account as demagogic, but it unquestionably points at the need to recognize the “reality on the ground” and to underscore the basic humanity of everyone the Spaniards were dealing with. Las Casas’s moral impetus thus contains a lesson that is immediately striking to our modern moral sensitivities, but which was not as obvious at the 9  This is evident in his late writing on royal power; see Las Casas, B. de, De regia potestate o derecho de autodeterminación, L. Pereña et al. (eds.), (Corpus Hispanorum de Pace, 8), Madrid, 1984. 10  Las Casas wrote this treatise in 1542, almost 30 years after the events he describes. The Brevísima relación de la destrucción de las Indias was finally published in 1552 shortly after his famous debate with Sepúlveda in Valladolid in 1550. The translation is my own. 11  See Castilla Urbano, F., “Argumentos hispanos para la construcción de la ‘Leyenda Negra’ (siglos XVI–XVII)”, in Villaverde Rico, M.J. and Castilla Urbano, F. (eds.), La sombra de la leyenda negra, Madrid, 2016, 101–139. 12  Francisco Castilla Urbano discusses the Dispute of Valladolid in chapter 10.

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beginning of the 16th century. The recognition of “the other” as not only being different, but at the same time being essentially equal to the Spaniards implies that the universal normative moral and legal order accepted in Spain had somehow to be applied overseas as well.13 It is therefore important to stress not only what the historical processes consisted in and what the ideas were that stood behind them, but also to understand how the developing normative discourse, which comprises notions such as natural law and the law of nations, came about. One of the main motifs is clearly religious, in that it was commonly assumed that only the propagation of the Gospel could, in the end, legitimize political dominion, thus paving the way for an orbis christianus. In this respect Francisco de Vitoria’s arguments from his January 1539 Relectio de indis should be recalled.14 There he famously engages in a discussion about the just titles, i.e., about the legitimation Spain’s ambitions could be based on. After establishing that the indigenous population are, in fact, the rightful owners of their lands and possessions, he continues to reject a series of arguments that were advanced in order to justify political dominion over the lands discovered, such as the argument that the Indians’ supposed barbarity would suffice to justify their submission, or that the Emperor or Pope has dominium iurisdictionis over the entire world. The third part of the Relectio asks how it was possible for the Spaniards not only to arrive and establish themselves in the Americas, but, crucially, how they could take over political power thus subjecting the native population. Vitoria’s basic idea is very simple: sociability and social exchange are facts of human nature (titulus naturalis societatis et communicationis), the normative meaning of which is corroborated by ius gentium.15 Because the law of nations is generally accepted, so, necessarily, are the normative principles that are derived from it, such as that ab initio, in the state of innocence, there was common ownership of everything. After the Fall, private property was established, 13  This is obviously a nod to Todorov, T., The Conquest of America. The Question of the Other, R. Howard (trans.), Oklahoma, 1999. 14  See Vitoria, F. de, De indis, in Hernández Martín, R. (ed.), Relecciones jurídicas y teológicas, Salamanca, 2017, vol. 2, 481–739. 15  Lawrance translates naturalis societatis et communicationis as “natural partnership and communication”, which I feel somehow misses the point; see Vitoria, F. de, Political Writings, Pagden, A. (ed.) and Lawrance, J. (trans.), Cambridge, 1991, 278. Añaños Meza suggests that the term communicatio should not be read as simply meaning communication in our contemporary sense, but rather as pointing to goods that are shared and that imply certain obligations. Añaños Meza, M.C., “El título de ‘sociedad y comunicación natural’ de Francisco de Vitoria”, in Anuario Mexicano de Derecho Internacional 12 (2012), 574.

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yet certain domains remained common, such as rivers, seas, ports, etc.16 The ensuing normative principle is that of the common “right to travel and dwell (ius peregrinandi et degendi) in those countries, so long as they do no harm to the barbarians, and cannot be prevented by them from doing so”.17 From there Vitoria argues that certain activities carried out by the Spaniards not only do not cause harm, they even are beneficial, such as exercising the right to preach the Gospel (ius praedicandi). Should the indigenous population use aggression (iniuria) to resist these rights invoked by the Spaniards, then they would, strictly speaking, deny the Spaniards a right, in this case to travel and to do whatever is considered to be not harmful. Acts of aggression call for a response, such as exercising the right to defend oneself. This in turn might lead to a just war, which, if won, justifies another set of rights that are established post bellum, such as keeping the spoils of war, demanding reparations, and eventually exercising dominium iurisdictionis over the lands of the people that have committed the aggression. The following quotation from Vitoria’s lectures on the Secunda Secundae gives a brief summary of the arguments he would spell out in detail in the Relectio de indis: The Christians cannot occupy the lands of the infidel, when they are their true owners, even when they are not Christians. If they [the infidel] take them by force, the opposite is the case; in that case they [the Christians] can strike again, as is clear in Africa, which the Saracens have taken from the Christians. This corollary is clear, because after private property has been established, those lands could receive the infidel even if they refused to give us or the prince something of what they possess. Because they are, therefore, true owners, if they refuse to give them to us, it follows that we cannot withhold and capture them, just as no one can seize the lands of those Indians. Also, no Christian prince is superior to them. Also, neither is the Pope superior to them in earthly or in spiritual matters, if they have not been baptized […]. It is true that we can preach to them, and if they impede the teachings of Christ so that they cannot be preached, by right of war we can strike them down for the Gospel to be spread or when danger is imminent; we can take for our safety some of their goods, because this is grounded on the law of nations. This is like 16  Vitoria, F. de, De Justitia (qq. 57–66), Beltrán de Heredia, V. (ed.), Comentarios a la Secunda secundae de Santo Tomás, Salamanca, 1934, vol. 3, 78: “Prima divisio rerum fuit facta ab initio, id est statim postquam Adam habuit filios potentes uti ratione”. 17  Vitoria, Political Writings, 278.

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when Spaniards can become the owners of a town in France which they need for their safety; they can seize it and much more if the Spaniards have been subjected to bad actions by the French, since all of this is due to the law of nations. The same can be said of the infidels.18 This position was not uncontested, however. Domingo de Soto, Vitoria’s pupil and successor in Salamanca, points out that self-defense and certain punitive measures, although in accordance with the law of nations, do not warrant taking over political rule of the community that has caused the war in the first place. We have that the Emperor in no way has an Empire over the whole world. Based on which right do we obtain the overseas Empire which is being discovered? I truly do not know. The Gospel says, “Go and preach the Gospel to all creatures” (Mk. 16), from which we have obtained the right to preach everywhere on earth and, consequently, we have been given the right to defend ourselves against whoever hinders our ability to preach. Hence, we can defend ourselves against them at their expense, if we are not certain. But seizing their goods and subjecting them to our Empire beyond this, I do not see from where we have obtained such a right.19 As if to permit the possibility of not only spreading the Gospel but also justifying Spanish political dominion, Soto adds that: “I do not say this to condemn everything that has been done to the Indians (insulanos), because God’s judgments are unfathomable, and maybe God wanted so many people to be converted in a way unknown to us.”20 Soto knows that this subterfuge must have been perceived as speculation, because no one can know for certain what God’s will exactly consists in. The contrast between Vitoria’s and Soto’s points of view highlights two templates for establishing arguments that justify the Spanish presence in America. Based on ius gentium, Vitoria recurs to the principle of hospitality, free movement, and justified self-defense in order to claim that the spoils of the ensuing just war include the exercise of political power. Soto accepts those basic 18  Vitoria, Comentarios a la Secunda secundae de Santo Tomás, vol. 3, 81. 19  Soto, D. de, De dominio, J. Brufau Prats (ed.), Relecciones y opúsculos, Salamanca, 1995, vol. 1, 176. See also Allemann, D., “Empire and the Right to Preach the Gospel in the School of Salamanca, 1535–1560”, in The Historical Journal 62 (2019), 35–55. 20  See Soto, De dominio.

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principles but denies that taking over political rule is a consequence warranted by the premises, unless, of course, God wills it. Natural reason, however, has no access to God’s will and, therefore, the strategy proposed by Vitoria cannot be conclusive. Dealing with monarchy and the expansion of empire does, therefore, recur to a language of rights and laws. As has been laid out at the beginning of this introduction, this is to say that a structured effort had to be made to come to terms with the question of whether such a language could be construed as valid beyond the confines of European normative discourses. Thinkers such as Vitoria and others would point to the broader context of natural law and, consequently, of ius gentium to maintain that on the one hand the specificities of the people conquered and governed should be taken into account, but also, crucially, on the other hand that there is a set of normative principles that ultimately overrides local ideas of political and social relationships. In this respect, for instance, anthropophagy and human sacrifice were seen as “prohibited by divine and natural law”, thus rendering Aztec rituals invalid.21 In addition to the general normative theories that were formulated (a) with the legal and theological tradition in mind and (b) in light of previously unknown social facets of imperial expansion, a host of issues were debated in the realm of economic and moral theory. Thus, discussions of the role of money and the necessity of establishing a just price have contributed significantly to our understanding of the social dimension of the Spanish Empire as well as of the history of economic thought.22 Discussions of the slave trade and how to deal with the poor can also be found in the economic foundation of social relations.23 In the end, the venerable Aristotelian dictum that communal life has to respond the necessities of living and living well was put to a severe test considering the dramatically changed geopolitical situation that the Spanish monarchy had to face. The present volume consists of three parts that are designed to reflect the various theoretical and historical layers mentioned in this introduction. The first part, “Historical Foundations”, aims at establishing a vocabulary for the political and intellectual dynamisms behind Spanish expansionism. The second, “Towards New Normative Orders”, presents the general conceptual bases of talking about laws and rights and points out several particularities, 21  Vitoria, F. de, De temperantia, in Hernández Martín, R. (ed.), Relecciones jurídicas y teológicas, Salamanca, 2017, vol. 2, 440. 22  See Wim Decock’s article in this volume. 23  Perdices de Blas and Ramos Gorostiza discuss the topic of slavery in this volume.

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such as the cases of ownership, colonial law, and economic policy. The third, “Ethics and Politics of Conquest and Colonization”, dwells on various issues ranging from theories of the just war and colonization to slavery and utopia. The volume’s first article “Spanish Theories of Empire: A Catholic and Polycentric Monarchy” by Manuel Herrero Sánchez focuses on the idea that the Spanish Empire has to be conceived of as a polycentric monarchy. Herrero Sánchez highlights the historical mechanisms and theories behind the attempt to establish an imperial entity centered on the monarch which, at the same time, is diverse from the point of view of territory, administration, and justice. He thus disentangles the various aspects of Spanish political providentialism, offering an up-to-date survey of recent scholarship on the issue. In their article, “Before Vitoria: Expansion into Heathen, Empty, or Disputed Lands in Late-Medieval Salamanca Writings and Early 16th-Century Juridical Treatises”, José Luis Egío and Christiane Birr present a long neglected aspect of the history of the right of conquest showing that the juridical and theological tradition of the late 15th and early 16th century paved the way for discussions within the School of Salamanca on the relationship between infidelity and right to dominion. Contrary to the received view that sees the beginning of those discussions in Francisco de Vitoria, they show that his ideas can only be understood in their whole complexity if we look back to the 15th century. From the dynamic of expansion initiated by the Castilian and Portuguese kingdoms in Africa arose dilemmas for which the juridical framework of convivencia with Jews and Muslims was not suitable any more. Focusing on the jurist Alonso de Cartagena and the theologian Bernardino López de Carvajal, Egío and Birr stress the similarities and differences between those 15th-century writings, the tradition of common law, and the first treatises on the so-called “affair of the Indies” (asuntos de Indias), e.g. by Juan López de Palacios Rubios and Matías de Paz. In “The ‘School of Salamanca’ and the American Project”, Miguel Anxo Pena González further explores the paradigm shift that occurred when confronting the reality of conquest with the requirements of a morally acceptable political rule. At the center of this shift is the School of Salamanca, which was broadly based on humanistic methods. The juridical and moral dimension implicit in coming to terms with this new social reality presupposed a thorough analysis and, most importantly, the freedom to express opinions and theories even if they collided with political and economic interests. In this sense, this article aims to show that one of the main tenets of the School of Salamanca led to a profound commitment with the disenfranchised native population in the Americas.

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Merio Scattola’s “Natural Law and Natural Rights in Spanish Scholasticism” gives a broad analysis of the various theoretical strands in 16th- and 17thcentury discussions in Spain and their repercussions on later developments. After defining Spanish Scholasticism, Scattola examines the various epistemic and historical layers implicit in an explanation of natural rights and natural law. He shows ultimately how those theories laid the foundation of a unified theory of rights. The peculiarities of the implementation of normative and juridical orders in Spanish colonial America is analyzed by Tamar Herzog in “Colonial Law: Early Modern Normativity in Spanish America”. She shows that colonial law displays a series of traits that incorporates local customs within the legal framework of ius commune as well as with canon law. For instance, in the case of Solórzano Pereira’s Política Indiana, a reconstruction of early modern and modern Spanish American law is effectively possible. In “Dominion Rights: Their Development and Meaning in the History of Human Rights” Virpi Mäkinen traces the history of the concept of dominium and its relevance for an articulate theory of rights in Spanish Scholasticism. In the end she points at how those discussions set the conceptual bases for a modern notion of human rights. Wim Decock in “Princes and Prices. Regulating the Grain Market in Scholastic Economic Thought” aims to show the fundamental contribution of Iberian thinkers to the development of economic thought in the 16th and 17th centuries. Decock discusses notions such as interest, usury, and just pricing that occurred in early modern scholastic thought, and he goes about investigating the scholastic analysis of problems which lie at the crossroads of politics, law, and economic analysis, as, for example, in the cases of price fixing, the notions of natural and legal price, and the debate on price regulation. In the 16th and 17th centuries, the passionate debate about the rightfulness of the Spanish conquest of the Americas centers on the question of the just war (bellum iustum), applying traditional arguments of classical and medieval philosophy about just warfare (ius in bello) and the legitimate titles for warfare (ius ad bellum) to the novel situation of the cultural encounter with the peoples of the New World. This is the topic of Christian Schäfer’s paper, “Conquista and the Just War”, which presents and discusses the most important and influential theories of this debate, particularly with regard to the prominent positions of Vitoria, Las Casas, Sepúlveda, Acosta, and Suárez. In “The Dispute of Valladolid (1550–1551): Background, Discussions, and Results of the Debate Between Juan Ginés de Sepúlveda and Bartolomé de las Casas”, Francisco Castilla Urbano takes a fresh look at one of the most

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well-known public debates of the 16th century. After exploring the antecedents that led to the debate between the humanist Sepúlveda and the Dominican las Casas, Castilla Urbano gives a thorough account of the results and the impact it had on Spanish policies in the Americas. In “Caramuel on the Right of Discovery”, Daniel Schwartz discusses the political and moral ideas of the Cistercian Juan Caramuel y Lobkowitz, whose work expands on the notion of res nullius in the process of adjudicating ownership rights. In this respect either goods, such as minerals, or territories become a matter of human or political relevance when their discovery produces a relevant kind of knowledge, thus resembling intellectual property more than mere physical ownership. “Spanish Colonialism as Perpetual Dominion in the Writings of Juan de Solórzano y Pereira” by Felipe Castañeda shows how, in the 17th century, the Spanish Empire could be justified as an endeavor to bring about the humanization and evangelization of the native population, but at the same time it had to be accepted as a process of perpetual dominion. This essay examines some of the main arguments, advanced by Juan de Solórzano Pereira (1575–1655), in favor of retaining the New World. Solórzano’s arguments contribute to an understanding of the compatibility between the Christianization—which, it was argued, would in the end create conditions of equality between Indians and the Spanish—and the purpose of controlling the Indies for all time. Slavery was one of the main instruments of economic development, yet at the same time it generated a host of moral dilemmas. In “The Debate over the Enslavement of Indians and Africans in the Sixteenth- and SeventeenthCentury Spanish Empire”, José Luis Ramos Gorostiza and Luis Perdices de Blas outline the moral and legal intricacies first of Indian slavery and then the slavery of the so-called aethiopes. They discuss legal and natural slavery, which goes back to Aristotle, and analyze, among other authors, Bartolomé de Albornoz, Francisco García, and Luis de Molina. Beatriz Fernández Herrero, in “The ‘New World’: The Shaping of Utopia”, shows that Spain’s involvement in the Americas could also be approached from a utopian perspective best seen in Vasco de Quiroga’s works and the Jesuit reducciones in South America. Utopia is, then, a moral as well as political notion that explains an ideological debate of sorts after the Spaniards established themselves on the American continent. It comprises theological and juridical concepts, but also takes into account the practical aspects of political rule. In this sense, the Spanish possessions became a test case that allowed the political practicality of normative theories to be assessed. In this regard, the Americas can be thought of as a new ideal space for Europe, but also as a reflection of the human dimension of living in society.

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The overarching aim of this volume consists in offering an interdisciplinary approach to Spanish political imperial theory of the 16th and 17th century, all of which led the editor to invite historians, theologians, jurists, economists and philosophers to contribute to it with papers that would reflect the state of the discussion. The purpose of the volume is thus based on the conviction that a historically multifaceted period of intellectual history, such as the one which this volume engages in, could not be dealt with from the one-dimensional perspective of one academic discipline alone. Also, that scholars from nine different countries accepted to contribute to this volume not only underscores the desire to formulate a rich perspective that emerges at the intersection of the various academic disciplines, but it also allows to put the different national academic discourses into a dialogue. In the end, the reader will have to judge whether this has been successful or not. To conclude, there are some final words of caution I would like to add. In the first place, some readers might see the approach taken in this volume as incomplete, as, for instance, a thorough analysis of tyrannicide or a more general approach to economic and monetary theory are missing. Even as the volume is perfectible in this regard, it was the aim to highlight underlying normative notions of Empire for which authors like Vitoria are known. Secondly, the main focus of imperial theorizing developed mostly in relation with Spain’s ambitions overseas on the American continent and for that reason alone Spanish domination, with the notable exception of Manuel Herrero’s article in this volume, of large portions of Europe is not being discussed as comprehensively, not because it is not relevant, but because in the European context normative theorizing of imperial expansion was not as systematic as in relation to Spanish transatlantic enterprises. In the third place, this Companion is dedicated solely to Spanish imperial theories, and not, for instance, to Portuguese expansionist ambitions, although some authors, such as Luis de Molina or Francisco Suárez, could be seen as serving either approach. The thrust of Portuguese imperial expansion seems to have been quite different from the Spanish and a comprehensive examination of its theoretical underpinnings would merit a Companion to Portuguese Imperial Theory.

part 1 Historical Foundations

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chapter 1

Spanish Theories of Empire: A Catholic and Polycentric Monarchy Manuel Herrero Sánchez Both the dynastic union between the crowns of Castile and Aragon (after the marriage of Isabella and Ferdinand in 1469) and the 1479 Treaty of Alcáçovas (which put an end to the War of the Castilian Succession and laid the foundations for the distribution of Atlantic zones of influence) allowed to focus the military forces of Iberian Christians on conquering the last Muslim enclave in Granada and on its projects of ultramarine expansion, which culminated in 1492 with the discovery of America.1,2 Two years later, the Treaty of Tordesillas sanctioned, with slight corrections, the line of demarcation established by Pope Alexander VI, who in his Bulls of Donation had divided the world between the Portuguese and the Castilians, who, in turn, saw their conquest over the new territories legitimized in exchange for overlooking the evangelization of American Indians. At the same time, the Spanish union of crowns facilitated the consolidation of a powerful alliance between the eastern Iberian territories threatened by the French, and gave new vigor to the territorial advance of the Aragonese crown in the Mediterranean with the conquest of the kingdom of Naples in 1503, which reinforced its already solid presence in Sicily and Sardinia. A series of fortuitous deaths (behind which many Iberian contemporaries saw the hand of divine providence) concentrated political authority over an imposing variety of territories under the sovereignty of Charles of Habsburg, who in 1519 (the same year Hernán Cortés set sail to conquest what would eventually become the Viceroyalty of New Spain) was elected emperor of the Holy Roman Empire. By appropriating the domains that belonged to the houses of Trastámara, Burgundy, and Habsburg, Charles V gathered under the same crown some of the most dynamic territories in Europe—those with the highest density of urban development and the highest number of jealous defenders 1  Translated by Carlos Diego Arenas Pacheco. 2  The present chapter is part of the research project REXPUBLICA, A Monarchical Res Publica. The Spanish Monarchy, A Polycentric Imperial Structure of Urban Republics (PGC2018095224-B-I00), Pablo de Olavide University, ES-41013, Seville, Spain, which is under my direction and is funded by the Spanish Ministry of Economy and Competitiveness within the ERDF (European Regional Development Fund).

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_003

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of local privileges and freedoms. Charles accomplished this concentration of power while conserving the traditional mechanisms of territorial aggregation based either on hereditary rule or on military conquest, which the kings of Aragon or the dukes of Burgundy had adopted in their respective policies of territorial expansion. Such mechanisms consisted in respecting the full autonomy the aggregated territories and in maintaining the integrity of their respective jurisdictional systems. This was diametrically opposed to what Castile had done after incorporating the Muslim kingdom of Granada, the Canary Islands, and the newly discovered territories overseas but it was analogous to the aggregation of the kingdom of Navarre after its military conquest in 1512, where local privileges, liberties, and institutions were preserved in accordance with the Aragonese and Burgundian pactist model.3 Thus, an imposing imperial structure was formed, characterized by territorial dispersion and by a multi-oceanic, multinational, and multiethnic composition, with dominions in Europe, America, Asia, and Africa. Like the Portuguese empire, the Hispanic network of territories of very diverse constitutions (kingdoms, principalities, duchies, free cities, seigniories)4 operated for the first time on a global scale and did not take long to reach a hegemonic position in international politics. The possibility of a consolidated universal monarchy, which seemed to be a potential scenario after the 1530 coronation of Charles V by Pope Clement VII in Bologna,5 spurred the establishment of a series of allegiances and antagonisms among other European nations.6 In the same way, the transformations inherent to the incorporation of domains into such a heterogeneous framework triggered numerous responses to the complex system of Iberian power, a situation that stirred thinkers to reflect on its nature and on the political position of each aggregated territory within the network. In this chapter, after analyzing the responses of recent historiography on the Spanish monarchy, we will examine what contemporaneous authors had to say about the Spanish imperial structure. We will attend to issues such as the scope 3  Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), Mexico, 2012. 4  It is worthwhile to quote here the description on the monarchy that the jurist Cerdán de Tallada wrote in 1604: “Esta monarquía de España que con el tiempo, por medio de matrimonios, sucesiones naturales y jurídicas extrínsecas, por derechos, acciones y conquistas concedidas a los reyes de España por la Sede Apostólica, por justas causas, se han unido en la persona real de nuestro rey y señor tantos reinos, provincias, señorías y repúblicas”. Quoted in Canet Aparisi, T., Vivir y Pensar la Política en una Monarquía Plural. Tomás Cerdán de Tallada, Valencia, 2009, 169. 5  D’Amico, J.C., Charles Quint maître du monde: entre mythe et réalité, Caen, 2004. 6  Ruiz Ibáñez, J.J. (ed.), Las vecindades de las monarquías ibéricas, Madrid, 2013.

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of providentialist thought, the sacrality of power, and the authoring of political discourses that ranged from those confident in universalism to those that, influenced by republicanism and ideas on the limitation of monarchical power, were hesitant about the reach of imperial policy. Our aim is to analyze the transformations that this typology of antagonistic or legitimizing discourses went through between the sixteenth and seventeenth centuries and to observe how these ideas in the end engendered a different way of understanding the role of the Indies within the Empire. 1

Scholarship on the Spanish Monarchy: Between Catholic Empire and Polycentric Monarchy

The impulse experienced by scholarship on imperial history in the last few decades has allowed us to recognize the inappropriateness of applying nationalist parameters to approach political realities characterized by a high degree of heterogeneity.7 During the early modern period, strong territorial fragmentation and the existence of superimposed sovereignties, together with the instability generated by the Protestant rupture, which dealt a heavy blow to the ecumenical idea of Christianity, stimulated the creation of a varied typology of imperial theories.8 In line with the perspectives of global and connected history, scholars have increasingly produced comparative analyzes of different imperial systems.9 Such studies, however, have not succeeded in completely banishing nationalist narratives, which, as some cases in the field of Atlantic history show,10 are reluctant to disappear.

7  Burbank, J. and Cooper, F., Empires in World History: Power and the Politics of Difference, Princeton, 2011. 8  Armitage, D. (ed.), Theories of Empire 1450–1800, An Expanding World: The European Impact on World History, Farnham, 1998, XVIII; Pagden, A., Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–c. 1800, New Haven/London, 1995. 9  For a comparison between the English and the Spanish Empires, see Elliott, J., Empires of the Atlantic World: Britain and Spain in America 1492–1830, New Haven/London, 2006. 10  For an example from Spanish scholarship, see Martínez Shaw, C. and Oliva Melgar, J.M. (eds.), El sistema atlántico español (siglos XVII–XIX), Madrid, 2005. Jack Green has questioned the existence of a unique British Atlantic by underscoring the sharp differences between the different geographies that constituted the Empire. See Greene, J.P., Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture, Chapel Hill, 1988. Cañizares-Esguerra has emphasized the hybrid character of Atlantic spaces. See Cañizares-Esguerra, J., “Entangled Histories: Borderland Historiographies in New Clothes?”, in American Historical Review 112 (2007), 787–799.

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Consequently, if it is difficult to speak of a strictly English, French, or Portuguese empire, it is even more inappropriate and reductionistic to talk about a Spanish empire, given that its imperial structure was characterized above all by its transnational nature,11 and required for its adequate functioning the active participation of agents who, like the Genoese, were not under the direct jurisdiction of the Catholic monarch.12 Besides, the nationalist approach assumes the existence of ties of colonial dependence between the metropolis (Castile? The crowns of Castile and Aragon?) and the rest of the domains. According to this viewpoint, the metropolis organized its colonies through a series of control mechanisms and centralizing guidelines, the focus on which is not only inadequate to understand the relationship between the crown and its different domains in Europe, but it also takes no account of the high degree of autonomy of the American viceroyalties, which could hardly be considered political peripheries, as Alejandra Osorio has rightly pointed out.13 Consequently, in what follows, by “the Spanish imperial system” or “the Spanish monarchy” we will mean a sui generis political structure, which, far from being the mere sum of the parts under Castilian rule, gave shape to a global network of diverse territories interested in defending their local autonomy. The aggregated territories were in permanent conflict for primacy, but were ultimately linked by a series of agreements, family networks, and common interests, their subjection to the jurisdiction of the same sovereign, and the practice of the same religion. This was an imperial political structure that, despite not lacking the unity of state monism or a model of full sovereignty, was supported by mechanisms of interaction that were efficient enough to expand its territories, to secure its hegemonic position in European politics, and to impose a range of cosmopolitan cultural patterns difficult to characterize as merely Spanish, since they comprised Flemish, Italian, Iberian, and American elements.14 Since 1940, when John Parry underscored the signs of “genuine imperialism” associated with Castilian maritime expansion, characterized by the elaboration 11  Kamen, H., Empire: How Spain Became a World Power, 1492–1763, New York, 2004; Álvarez-Ossorio, A. and García, B. (ed.), La Monarquía de las naciones. Patria, Nación y Naturaleza en la Monarquía de España, Madrid, 2004. 12  Enrique Otte considered it is better to speak of a Spanish-Genoese imperial system. See Herrero, M., et al. (eds.), Génova y la Monarquía Hispánica (1528–1713), 2 vols., Genoa, 2011. 13  Osorio, A.B., Inventing Lima: Baroque Modernity in Peru’s South Sea Metropolis, New York, 2008. 14  A recent study that emphasizes the essentially Spanish character of this imperial structure is Rivero, M., La monarquía de los Austrias. Historia del Imperio español, Madrid, 2017, 18–19.

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of an imperial theory that rested on the “conviction that the duty of civilized nations is to undertake the political, economic and religious tutelage of more primitive peoples”,15 Anglo-American historiography has shown a keen interest in the Iberian imperial model as a counterexample to the English case. To a large extent, and as Eva Botella has rightly indicated, this approach was heir to a seventeenth-century British stereotypical perspective on the Spanish empire, which was considered at the time the most compelling justification of English expansionist policy due to the inability of its Spanish antagonist to promote the economic development of the colonies.16 According to this perspective, Great Britain, with its dynamic naval empire (essentially commercial in nature), its strong parliamentary tradition, its staunch anti-Catholicism, and its alleged respect for individual and religious freedom, was completely opposed to what the British described as the declining Iberian imperial model, construed as eminently territorial, with an economy based on mining, subjected to the absolute authority of the monarch, militarized, Catholic, and intolerant.17 This strand of historiography lives on in modern scholarship, as can be seen in a comparative study by John Elliott where he contrasts English and Spanish Atlantic spaces and where he, despite stressing the importance of urban network within the Iberian imperial structure, underscores the high degree of institutionalization and bureaucratization that would end up limiting local autonomy and the development of legal and religious plurality: In other words, we see in colonial Spanish America the operations of an intrusive (if not always effective) state. In British America, by contrast, 15  Parry, J.H., The Spanish Theory of Empire in the Sixteenth Century, Cambridge, 1940, 1. In a recent study on the concept of “empire” and its adequacy to the Iberian case, Christian Hausser and Horst Pietschmann argued that the idea of a “Spanish Empire” was coined by J.H. Parry, although Helmut Koenisberger considered that the concept of “empire” should be used only for Charles V’s reign, since Philip II refused to employ the title of Emperor so as not to make enemies with the cadet branch of the Habsburg. See Hausser, C. and Pietschmann, H., “Empire. The concept and its problems in the historiography on the iberian empires in the Early Modern Age”, in Culture & History Digital Journal, 3 (2014). doi: http://dx.doi.org/10.3989/chdj.2014.002. 16  Botella Ordinas, E., “Debating Empires, Inventing Empires: British Territorial Claims against the Spaniards in America, 1670–1714”, in The Journal for Early Modern Cultural Studies, 10 (2010), 142–168. Tamar Herzog has argued that Locke’s theories on the concept of property, associated with the purported civilizing function of labor and commerce, originated long before in the Hispanic Americas. See Herzog, T., Frontiers of Possession: Spain and Portugal in Europe and the Americas, Cambridge, MA, 2015. 17  Botella Ordinas, E., “Exempt from Time and from its Fatal Change: Spanish Imperial Ideology, 1450–1700”, in Renaissance Studies 26 (2012), 581.

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the royal authority looks unimpressive; the institutions of imperial minimal control and the imperial state, in consequence, more noticeable.18 This dichotomous vision responds to a Whig interpretation of history that excludes Iberian and Mediterranean societies from the intellectual processes of modernity due to their alleged theocratic character and their purported absolutist and reactionary disposition.19 Not surprisingly, and as we have pointed out recently, the monolithic historiography on modern republicanism proposed by the so-called Cambridge School has been characterized by a predominantly Atlantic and Anglocentric approach that puts the territories under the jurisdiction of the Catholic King beyond this framework of analysis.20 In recent years, scholars have developed a radically opposite narrative that tends to emphasize the innovative and versatile élan of the Spanish empire, as well as the close ties and continuities between the different European imperial projects.21 Far from the alleged antagonism between the Catholic and the Protestant worlds, works by Annabel Brett and Harald Braun have argued that thinkers like Mariana, Francisco Suárez, Francisco Vázquez de Menchaca, Hugo Grotius, or Johannes Althusius were part of the same theoretical and conceptual discourse, in which the discussion of concrete practical and political interests was based on scholastic jurisprudence and on moral philosophy.22 For his part, Jorge Cañizares-Esguerra has underscored the continuity between the Iberian colonizing experience and the attitude of English Puritans in their mission to expunge idolatry and paganism among Native Americans.23 The

18  Elliott, J., “Empire and State in British and Spanish America” in Gruzinski, S. and Wachtel, N. (eds.), Le Nouveau Monde Mondes Nouveaux. L’expérience américaine, Paris, 1996, 366. 19  Gil Pujol, X., “Pensamiento político español y europeo en la Edad Moderna. Reflexiones sobre su estudio en una época post-’whig’”, in Pérez Álvarez, M.J. and Rubio Pérez, L. (eds.), Campo y campesinos en la España Moderna; culturas políticas en el mundo hispano, vol. 1, Madrid, 2012, 297–320. 20  Herrero Sánchez, M., “Líneas de análisis y debates conceptuales en torno al estudio de las repúblicas y el republicanismo en la Europa moderna”, in Herrero Sánchez, M. (ed.), Repúblicas y republicanismo en la Europa Moderna (siglos XVI–XVIII), Madrid, 2017, 17–89. 21  Bethencourt, F., “Iberian Atlantic: Ties, Networks, and Boundaries”, in Braun, H. and Vollendorf, L. (eds.), Theorising the Ibero-American Atlantic, Leiden, 2013, 15–36. 22  Braun, H., “Juan de Mariana, la antropología política del agustinismo católico y la razón de estado”, in Criticón, 118 (2013), 99–112; Brett, A., Liberty, right and nature: Individual rights in later scholastic thought, Cambridge, 1997. 23   Cañizares-Esguerra, J., Puritan Conquistadors Iberianizing the Atlantic, 1550–1700, Stanford, CA, 2006.

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hybrid character of European transoceanic imperial projects could explain, in the words of Serge Gruzinski, the dynamism and diversity of discourses and cultural phenomena engendered by the first truly global period in history, in which the Iberian empires had an evident leadership.24 Both the work of María Portuondo on the impulse that Spanish authorities gave to a utilitarian cosmographic science25 and the study by Mauricio Nieto Olarte, who locates in the Spanish Atlantic world the origins of modern empiricism as the foundation of the scientific revolution, describe a world well away from inquisitorial obscurantism, from censorship, and from the mystical-theological universe which have been traditionally associated with the Spanish empire.26 Despite its valuable contributions, these historians have focused on the moment of greater expansion of the Spanish imperial apparatus, and seems to offer no adequate account of the gradual cultural and political distancing from the most innovative European centers by a large part of the Catholic Monarch territories (Castile and the Spanish Americas, with the exception of Milan, the Netherlands, Catalonia, and Naples)—a distancing that since the second half of the 17th century contributed to the growing marginalization of Hispanic thinkers and scientists from the circuits of the république des lettres. According to Cañizares-Esguerra, this cultural divide could be linked to the predominance of manuscript culture over the printed book in the Hispanic world, which led to the diminishing awareness of sixteenth-century Spanish contributions to European culture and contributed to the consolidation of the Black Legend and a historiography of Spanish decline.27 Since the 1650s, while the most innovative sectors of Spanish society sought abroad the cure-all that could overcome the stagnation of monarchical power, the rest of Europe embraced a distorted image of the Spanish empire, which culminated in the strongly anti-Hispanic critical vision of Enlightenment thinkers who considered the religious intolerance and the expansionist and authoritarian nature of the Spanish imperial structure as an insurmountable barrier to economic development and freedom of thought.28 24  Gruzinski, S., Les quatre parties du monde: histoire d’une mondialisation, Paris, 2004. 25  Portuondo, M., Secret Science. Spanish Cosmography and the New World, Chicago, 2009. 26  Nieto Olarte, M., “Scientific Practices in the Sixteenth-Century Iberian Atlantic”, in Braun, H. and Vollendorf, L. (eds.), Theorising the Ibero-American Atlantic, Leiden, 2013, 141–158. 27   Cañizares-Esguerra, J., “La memoria y el estado: la monarquía de España en el siglo XVI”, in Iberoamericana 54 (2014), 177–185. 28  See Amelang, J., “The Peculiarities of the Spaniards Historical Approaches to the Early Modern State” in Amelang, J. and Beer, S. (eds.), Public power in Europe studies in historical transformations, Pisa, 2006, 39–56; also Rawlings, H., The Debate on the Decline of Spain, Manchester, 2012.

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Apart from this kind of sterile debates about the greater or lesser degree of modernity of the Spanish imperial structure, there seems to be a certain consensus when it comes to highlighting the tendency of the Spanish crown, in keeping with the classic statist paradigm, to rationalize public administration and to centralize the sovereign power of the king at the expense of the rest of the territories, corporations, and multiple jurisdictional organs that constituted it.29 The successes or failures of Spanish public administration have been evaluated based on this paradigm. Thus, while the publication of the Leyes Nuevas de Indias (New Laws of the Indies) in 1542 has been described as an innovative measure designed to curtail the illegitimate feudal pretensions of the encomenderos and to protect Indians from abuse, the strengthening of the criollo elite by increasing the venality of public offices since the end of the sixteenth century has been interpreted as a concession aimed at ensuring social stability and the support of the American territories in exchange for the crown’s abandonment of its purported absolutist program.30 It is assumed that the ultimate goal of the Spanish crown should consist, following Bodin’s model of full sovereignty, in strengthening central authority at the expense of peripheral territories, as happened during Philip II’s reign in Flanders, in Aragon, and during the projects of homogenization carried out by the Count-Duke of Olivares. These exceptional political measures ended up causing enormous domestic and international tensions, and ultimately forced the crown to return to a politics of consensus and respect for local autonomy, which contributed to the stability of such a diverse territorial conglomerate.31 29  This has happened despite the existence of a productive historiography that has emphasized the jurisdictional plurality and the fragmented character of Spanish political power. See Schaub, J.F., “La Penisola Iberica nei secoli XVI e XVII: la questione dello stato”, in Studi Storici 36 (1995), 9–50. 30  In an excellent essay on the spatial transformations on American territories, Marcello Carmagnani describes these kinds of measures as a “renuncia a su tarea de progresiva centralización político-administrativa del territorio”, Carmagnani, M., “La organización de los espacios americanos en la Monarquía española (siglos XVI–XVIII)” in Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), México, 2012, 344. 31  In a recent article Manuel Rivero has brought attention to the policies that strengthened the mediating role of Madrid’s court and contributed to solve the constitutional crisis of the 1640s, in detriment of peripheral authorities and the power of viceroys, tribunals, and local audiencias, and which had the objective of imposing a balance of powers similar to the one exercised in France and Britain. See Rivero Rodríguez, M., “La reconstrucción de la Monarquía Hispánica: La nueva relación con los reinos (1648–1680)”, in Revista Escuela de Historia 12 (2013), s. (http://www.redalyc.org/articulo.oa?id=63839927002; consulted 4 September 2018). For a different point of view, see also Herrero Sánchez, M., “El declive de la Monarquía Hispánica en el contexto internacional durante la segunda mitad del

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The dynamic between center and peripheries as the backbone of the Spanish monarchy lies at the heart of the concept of a composite monarchy.32 Based on the vocabulary used by contemporaries, who spoke of “the kingdoms of Your Majesty of which your monarchy is composed” (los reinos de Vuestra Majestad de que está compuesta su monarquía; Baltasar Álamos de Barrientos), or of “this aggregation of crowns” (esta agregación de coronas—Juan de Palafox y Mendoza), scholars have made reference to the gradual processes of incorporation of territories, whose political identities the crown was committed to preserve together with their local laws, parliaments, and privileges.33 As Juan de Solorzano Pereira pointed out in his Política Indiana, although “all these kingdoms are united and are constituted like a monarchy”, they should not lose their full autonomy, because “the kingdoms have to be ruled and governed as if the king who holds them together were the king of only each one of them”.34 Based on such a principle, the operation of the Spanish dynastic structure was supported by bilateral negotiations between the sovereign and provincial elites, and by the establishment of solid links between the king, local aristocracies, and urban oligarchies who benefited from royal patronage. Real politics, however, was only carried out at the Spanish court, which interacted with the different peripheral courts where governors or viceroys, as the alter ego of the sovereign, acted as his mediators with local authorities.35 The relevance of court structure in the configuration of the Habsburg monarchy provides the foundation for another historiographical paradigm that analyzes the nature of this system of power.36 According to this approach, which replaces the centrality of the modern state by the prominence of the court, the two main components of the Spanish Catholic monarchy were be the king and siglo XVII” in Saavedra, M.C. (ed.), La decadencia de la Monarquía Hispánica en el siglo XVII. Viejas imágenes y nuevas aportaciones, Madrid, 2016, 40. 32  This is a term coined by Koenigsberger to explain the practice of power of political structures that congregated multiple territories with their own local parliaments. See Koenigsberger, H., “Monarchies and parliaments in early modern Europe. Dominium Regale or Dominium Politicum et Regale”, in Theory and Society 5 (1978), 191–217. It was developed by Elliott, J., “A Europe of Composite Monarchies”, in Past & Present 137 (1992), 48–71. See also Gil Pujol, X., “Visión europea de la Monarquía española como Monarquía compuesta, siglos XVI y XVII” in Russell, C. and Gallego, A. (eds.), Las monarquías del Antiguo Régimen, ¿monarquías compuestas?, Madrid, 1996, 65–95. 33  Gil Pujol, X., La fábrica de la Monarquía. Traza y conservación de la Monarquía de España de los Reyes Católicos a los Austrias, Madrid, 2016, 21–22. 34  Solórzano Pereira, J., Política Indiana, book IV, ch. XIX Madrid, 1648, 37. 35  Cardim, P. and Palos, J.L. (eds.), El mundo de los virreyes en las monarquías de España y Portugal, Frankfurt, 2012. 36  Martínez Millán, J., “La articulación de la Monarquía Hispana a través del sistema de cortes”, in Fundación 12 (2014–2015), 32–64.

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the royal house. Together with the government of the different royal houses and the court entourage surrounding the monarch, monarchical authority itself made use of a polysynodal system located in the court close to the sovereign. In this system, the different incorporated territories (Aragon, the Indies, Italy, Portugal, and Flanders) had their own local councils that functioned as a private court composed of members hailing from the peripheries, who exercised functions of both government and representation. It was a structure capable of integrating territories in a seamless way, and that seemed to comply effectively with the universalist design of the Austrian dynasty and its pretension to become the ruling house over all the other European royal houses with which it had established marital ties (tu felix Austria nube), and over the Amerindian dynasties who, like the Incas or the Mexicans, had allegedly surrendered their governing rights to Charles V (an argument that was used to characterize Spanish rule over the American territories as the legitimate successor to native authority).37 The different peripheral courts, headed by a viceroy who acted as a proxy between the Crown and the local authorities, did not give form to a composite and disaggregated system of power, but strongly hierarchical and directed by a single head, the king. As bishop Juan de Palafox y Mendoza (1600–1659) pointed out: “a monarchy, no matter how large it may be, shall consist of twenty offices upon which everything depends, since six presidents, eight viceroys, one prime minister [valido], four state councilors, and four general captains govern all the State of peace and war”.38 Palafox’s statement was compatible with the resolute defense of liberties and privileges of the local territories; something that, in his view, constituted the cornerstone that supported the stability of the entire system. Recurring to a biblical simile, Palafox, the staunch defender of the political autonomy of criollos, compared the Catholic monarch with king David, who governed the twelve tribes of Israel respecting their political autonomy and supporting his authority on the sacred bonds of religion. Catholicism, of which the Spanish king was the main supporter domestically and internationally, served as a new ark of the alliance.39 The crucial role of the Catholic religion in the structuring 37  Rivero, La monarquía de los Austrias, 301–302. 38  Quoted by Rivero, La monarquía de los Austrias, 303. For a study of the viceroyal model based on this historiographical perspective, see Rivero Rodríguez, M., La edad de oro de los virreyes. El virreinato en la Monarquía Hispánica durante los siglos XVI y XVII, Madrid, 2011. 39  Brading, D., “The Catholic Monarchy”, in Gruzinski, S. and Wachtel, N. (eds.), Le Nouveau Monde Mondes Nouveaux. L’expérience Américaine, Paris, 1996, 384. According to Juan de Mariana, religion was the vinculum societatis that gave cohesion to any society. See Braun, H., Juan de Mariana and Early Modern Spanish Political Thought, Aldershot, 2007.

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of the Spanish monarchy involved, in addition, a certain conception of power that, as Giovanni Levi has indicated, forced the sovereign to be respectful of the local forms of government in the incorporated territories.40 The firm defense of the freedom of local political communities, the consensus of which was essential to carry out any type of public reform, facilitated the aggregation of such diverse territories, and acted as an incentive to the loyalty of local elites against alternative political models that were detrimental to their liberties and privileges. As the occupation of the territories in the Spanish Netherlands (which had experienced a palpable erosion of their self-government) by the French army during the second half of the seventeenth century showed, the Catholic Monarch sustained the stability of its multiple domains on a model of government that was diametrically opposed to that of the French or the English, both born in response to the bloody civil conflicts of the wars of religion. Compared to the consolidation of political centers like London and Paris, which, governed either by a parliamentary or a monarchical absolutist model, had managed to promote administrative centralization at the expense of local privileges, the Spanish empire never saw its “capital” city turn into a centralist power, despite the permanent establishment of the court and the polisynodal apparatus in Madrid since 1561. Spain’s capital never managed to play a leading role similar to that of the other two European cities. It was doubtful whether the geographical location of the court of the Catholic king, far from main communication routes, hindered effective decision-making and favored the surrendering of attributions to peripheric centers such as Brussels, Naples, or Mexico, since they were better positioned to give an immediate response to the peremptory affairs of northern Europe, the Mediterranean, or the government of the Philippines, the last of which depended entirely on the Viceroyalty of New Spain. In addition, the monarchy was supported by a series of centers of an essentially commercial nature that lay outside the radius of relationships between Madrid and the network of peripheral courts. As the case of Antwerp when compared to Brussels and, for a long time, that of Seville when contrasted to Madrid, not only were they, as important commercial centers, more dynamic and more populated; they were also essential contributors to the proper functioning of the Hispanic imperial system from which, in turn, they extracted important benefits.

40  Giovanni Levi, “Prólogo”, in Herrero Sánchez (ed.), Repúblicas y republicanismo, 13–14: “De este modo, por las venas del Imperio circulaba sangre comunitaria y, al menos, en este sentido, republicana”.

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The Spanish empire, thus understood, was a polycentric monarchy with numerous local centers of power, whose government functioned not solely as proxies in a bilateral relationship with Madrid but also relied on a plurality of interconnections between them that could even work without supervision from the Madrid court.41 We do not want to suggest that hierarchies did not exist or that all centers had an identical role in government, nor do we intend to downplay the central role exercised by the crown and its conciliar apparatus. The remarkable fragmentation of sovereignty into an impressive variety of centers of power fostered the arbitral function of the monarch, who acted as the main mediator in processes of negotiation, rivalry, and competition between the different corporations, political entities, individuals, and family networks that the imperial system comprised. The monarch, as head of the political body, formed an organic unit with the rest of the members of the imperial system. Each of the individual parties represented, in turn, the whole of government, something that supported and guaranteed the defense of their respective attributions. Apart from the permanent clashes between the different instances of power that caused incessant protocolary altercations (as Alejandro Cañeque has pointed out in his work on ceremonial politics in New Spain), the existence of a multiplicity of seigniorial, ecclesiastical, and professional jurisdictions and privileges was at the root of a state of permanent conflict that forced a constant reevaluation of past consensuses.42 In order for the monarch to exercise his arbitral role in such a complex web of jurisdictions he was forced to rely on a flow of information proceeding from the local sphere, as Arndt Brendecke has analyzed in his work on the reform of the Council of the Indies carried out by Juan de Ovando in the 1570s and on the transmission of local decisions and demands to the Madrid court.43 We must not forget that empires are structures built by human beings and not mere impersonal institutional apparatuses; an idea that has encouraged recent analyzes of these imperial political frameworks from a bottom-up perspective. Lauren Benton, for instance, studies the pluricentric nature of the 41  Cardim, P., et al. (eds.), Polycentric Monarchies. How did Early Modern Spain and Portugal Achieve and Maintain a Global Hegemony?, Eastbourne, 2012. 42  Cañeque, A., The King’s Living Image: The Culture and Politics of Viceregal Power in Colonial Mexico, New York/London, 2004. 43  Brendecke, A., Imperio e información, funciones del saber en el dominio colonial español, Madrid/Frankfurt, 2012; Brendecke, A., “Informing the Council. Central Institutions and Local Knowledge in the Spanish Empire”, in Blockmanns, W., Holenstein, A. and Mathieu, J. (eds.), Empowering Interactions: Political Cultures and the Emergence of the State in Europe, 1300–1900, Farnham, 2009, 235–252.

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legal systems in the first colonial empires, and underscores the active role played by the natives in the interpretation and transformation of the legal apparatus.44 Another notable contribution is Tamar Herzog’s study on the configuration of the Spanish-Portuguese border, both in the Iberian Peninsula and in America, which Herzog describes as being determined to a large extent by the dynamic role exercised by local communities, rather than as the result of a unilateral decision sanctioned by international treaties.45 In the same way, Bernardo García’s work on the republics of Indians of New Spain is based on the conviction that the most fruitful perspective for studying this territory starts not from a top-down view of the political structure (i.e., the king and the Council of the Indies in Madrid), but from a focus on the local roots of the imperial system, where a heterogeneous group of local agents operated with legitimacy and authority enough to, for instance, collect tribute for the crown; a tangible expression of the complex multiplicity of sovereignties shared by the representatives of the king, the Spanish cities, the towns of Indians, the encomenderos, and the religious orders.46 The decisive role of the local sphere in the configuration and functioning of the imperial structure under the jurisdiction of the Habsburgs was determined, likewise, by its incorporation of the most dynamic urban centers in Europe. This might explain the survival of a strong republican political culture, according to which the city, with its privileges and exclusive jurisdictions, was the most appropriate space for the defense of the common good. The Spanish empire was a monarchy composed of urban republics in which the power of the sovereign was consolidated by the constant founding of new cities, as evidenced by the essentially urban impulse of the Iberian territorial expansion in America.47 The city was the clearest expression of order and 44  Benton, L., Law and Colonial Cultures: Legal Regimes in World History, 1400–1900, Cambridge, 2002. 45  Herzog, T., Frontiers of Possession. On the border as a space of interaction rather than as an insurmountable wall, see Favarò, V., Merluzzi, M., and Sabatini, G. (eds.), Fronteras. Procesos y práctica de integración y conflictos entre Europa y América (siglos XVI–XX), Madrid, 2017. 46  García Martínez, B., Los pueblos de la sierra. El poder y el espacio entre los indios del norte de Puebla hasta 1700, México, 1987 and García Martínez, B., “Nueva España en el siglo XVI: territorio sin integración, ‘reino’ imaginario” in Mazín and Ruiz Ibáñez (eds.), Las Indias occidentales, 243–254. 47  Nader, H., “‘The more communes, the greater the king’, Hidden Communes in Absolutist Theory”, in Blickle (ed.), Theorien kommunaler Ordnung in Europa, Munich, 1996, 215–223. Herrero Sánchez, M., “La Monarquía Hispánica y las repúblicas europeas. El modelo republicano en una monarquía de ciudades”, in Herrero Sánchez, M. (ed.), Repúblicas y republicanismo en la Europa Moderna (siglos XVI–XVIII), 273–328; Aranda Pérez, F.J. and

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civilization, the most appropriate space to ensure the rights of the community and the possibility of negotiation with the crown. The evangelizing effort that legitimized the conquest of the American territories, therefore, could only be carried out through the creation of an impressive network of cities.48 Let us not forget that, as Tamar Herzog has argued for the cases of Castile and the Indies, the mechanisms of incorporation to the community (avecindamiento) were sustained by the consensus of local communities (as happened in other polycentric political structures such as the United Provinces, the Holy Roman Empire, and the rest of the territories under the jurisdiction of the Catholic monarch), in contrast to other more centralized political models, such as the French and the English, where it depended to a greater extent on the will of the central power.49 The strong autonomy of the cities loyal to the Spanish crown and their role as central political spaces also explain their permanent rivalry, by which they sought to obtain privileges and immunities from the crown that would be greater than (or at least equal to) those of their rivals. This situation fostered expressions of loyalty to the crown and the elaboration of histories of cities, which, almost like probanzas de méritos, listed the city’s services to the crown and how they compared to those of their antagonists.50 Given that governance related directly to commercial policies emanated from the local sphere, as Oscar Gelderblom has rightly pointed out in the case of cities in the Netherlands, competition between cities for obtaining greater market shares or attracting foreign trade led to the development of important institutional innovations, but also stimulated interurban conflicts within the imperial network itself.51 This phenomenon greatly hampered the application of royal

Rodrigues, J.D. (ed.), De Re Publica Hispaniae. Una vindicación de la cultura política en los reinos ibéricos en la primera modernidad, Madrid, 2008. 48  See Díaz Ceballos, J., “La urbs y la civitas de Veracruz en el inicio de la conquista de México”, in Jiménez Estrella, A. and Lozano, J. (eds.), Actas de la XI reunión científica de la FEHM, Granada, 2012, 984–995. Lucena Giraldo, M., A los cuatro vientos. Las ciudades de la América Hispana, Madrid, 2006. 49  Herzog, T., Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America, New Haven, 2003. 50  Kagan, R., “La corografía en la Castilla Moderna. Género, Historia, Nación”, in Studia Historica. Historia Moderna, 13 (1995), 47–59. Centenero de Arce, D., De repúblicas urbanas a ciudades nobles. Un análisis de la evolución y desarrollo del republicanismo castellano (1550–1621), Madrid, 2012. 51  Gelderblom, O., Cities of Commerce. The Institutional Foundation of International Trade in the Low Countries, 1250–1650, Princeton/Oxford, 2013.

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protectionist measures such as those implemented in England and France in the second half of the seventeenth century.52 As Horst Pietschmann has warned, although the political and social structures of the Spanish empire seemed to promote differences and separation rather than unity,53 we must not forget that the Spanish monarchy was something more than the simple overlapping of different territories and political powers. Obedience and fidelity to the same monarch, who acted as head of the body politic and as the last jurisdictional instance, constituted one of the main agents of cohesion, as we have argued above. Yet there were other mechanisms of cohesion and articulation. As the seventeenth-century Spanish scholar Baltasar Álamos de Barrientos attested, “agreement and friendship” between the different territories under the Catholic monarch allowed for the creation of new connections between them.54 The fact that they were part of the same political structure facilitated the circulation of juxtaposed transnational networks with different geographies and chronologies, which ultimately reinforced the polycentric nature of the empire while allowing for the consolidation of shared vocabularies, patterns of behavior, and common political and aesthetic models. As Marcello Carmagnani has argued based on Walter Christaller’s Central Place Theory, Iberian imperial expansion developed as the interconnection of a plurality of central places that formed networks specialized in the supply of a wide range of well-differentiated (and constantly renegotiated) economic, political, social, military, and cultural services to the empire.55 This was a dynamic and versatile structure capable of attracting the most innovative and active economic, political, and cultural participants, who were interested in the opportunities of growth born out of the structure’s capacity to operate in fragmentation and local peculiarities. The Spanish empire was thus a structure where transnational networks of different kinds were able to operate in an impressive variety of jurisdictional, political, fiscal and economic spaces, and to establish relationships with local elites through marriage links or other mechanisms of integration. The Spanish monarchy intertwined in a series of 52  Grafe, R., “Polycentric States. The Spanish Reigns and the ‘Failures’ of Mercantilism”, in Stern, P. and Wennerlind, C. (eds.), Mercantilism Reimagined: Political Economy in Early Modern Britain and Its Empire, Oxford, 2013, 241–262. 53  Pietschmann, H., “L’État et les communautés: comment inventer un empire?”, in Gruzinski and Wachtel (eds.), Le Nouveau Monde Mondes Nouveaux, 448. 54  Quoted by Gil Pujol, X., “Integrar un mundo. Dinámicas de agregación y de cohesión en la Monarquía de España”, in Mazín and Ruiz Ibáñez (eds.), Las Indias occidentales, 75. 55  Carmagnani, M., “La organización de los espacios americanos en la Monarquía española (siglos XVI–XVIII)”, in Mazín and Ruiz Ibáñez (eds.), Las Indias occidentales, 331–355.

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networks of aristocrats, bureaucrats, military officers, and jurists who circulated within its extensive network of courts, embassies, and local tribunals, which shared the same political culture, government guidelines, and common imperial experiences.56 These eminently political formations sometimes overlapped with commercial and financial structures that operated in different geographical spaces and connected other urban nodes, as evidenced by the variegated Genoese agencies that operated in the main ports of the monarchy.57 The variety of transnational agents who circulated within the monarchy and found it easy to integrate within local communities provided the monarchy with a strong cosmopolitan influence, compatible with a powerful local autonomy. 2

Providential Imperialism in a Catholic Monarchy

The process of integration of such disparate territories was also stimulated by the universalizing function of the Catholic religion, which became one of the main hallmarks of the monarchy. The defense and propagation of Catholicism through the evangelization of the American and Asian territories under Spanish rule (which joined in the conflict against Islam and Protestantism) acted as a catalyst of cohesion, attracted to the monarchy networks of European Catholic exiles, and provided the crown with an instrument of discipline and fundamental social control that served to consolidate the stability of the imperial system and legitimize its aggressive foreign policy.58 The messianic spirit that guided the Catholic monarchs in the conquest of Granada, the expulsion of the Jews, and the incorporation of an entire new continent into the dominions of Christendom, experienced a remarkable impulse during Charles V’s reign. The neo-ghibelline imperial ideology of the Holy Roman chancellor Mercurino di Gattinara, of a strong apocalyptic and Erasmian bent, aspired to impose peace among the Christian princes through the implantation of a Christian empire; an aspiration that would ultimately 56  Yun Casalilla, B., (ed.), Las redes del Imperio. Élites sociales en la articulación de la Monarquía Hispánica, 1492–1714, Madrid, 2009; Pardo Molero, J.F. and Lomas Cortés, M. (eds.), Oficiales Reales. Los ministros de la Monarquía Católica (siglos XVI–XVII), Valencia, 2012. 57  For the Genoese case, see the bibliography indicated above in note 11. On the converso and Sephardic networks, which acquired greater importance in the 1630s and which, in the words of Francesca Trivellato, were characterized by their communitarian cosmopolitanism, see Herrero Sánchez, M., “Conectores sefarditas en una Monarquía policéntrica. El caso Belmonte/Schonenberg en la articulación de las relaciones hispano-neerlandesas durante la segunda mitad del siglo XVII”, in Hispania 76 (2016), 445–472. 58  Ruiz Ibáñez, J.J. and Pérez Tostado, I., (eds.), Los exiliados del rey de España, Madrid, 2015.

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suffer a hard blow with the growth of the Reform within the Holy Empire.59 This ideology was also nourished by the Humanistic recovery of Roman imperial iconographical and cultural heritage,60 but did not seem to overestimate the evangelizing mission carried out in the New World by the crown of Castile, where there circulated an alternative providentialist current that drew from Augustine, the converso Hebrew tradition, and Franciscan theology.61 Such current connected with the jealous defense of Castilian autonomy of neogoticist roots, associated with the late medieval aspiration to form an Iberian empire independent from Holy Roman rule. As Victor Frankl indicated, these postulates consolidated after the conquest of Mexico and Moctezuma’s alleged donation of his imperial rights to the Spanish crown; a donation that, although fictitious, had a strong symbolic content, since it not only reinforced the purported legitimacy of the occupation, but also provided a legitimacy that was independent of the papal donation contained in the Alexandrian bulls due to its grounding on civil law. In the words of Hernán Cortés, “the possession of it [the conquered territories] would authorize your Majesty [Charles V] to assume anew the title of Emperor, which it is no less worthy of conferring than Germany itself”.62 Charles V’s abdication in 1555 entailed transferring the imperial title to the cadet branch of the Habsburgs without any detriment to the hegemonic position of Philip II’s reign, who, driven by the strong zeal of the CounterReformation, bound the imperial ideology of the crown even more strongly to the defense of the Catholic religion. Spain’s monarchy, after incorporating the Portuguese empire in 1581, became the armed wing of Catholicism not only in Europe, but on a global scale. This new impulse to the crown stimulated an already strong messianic ideology that permeated the entire empire and that led authors to compose innumerous texts that extolled the excellence and the preeminence of the Catholic monarchy over the rest of European powers. As the protomédico Gregorio López Madera wrote in 1597, the kings of Spain could be considered “true emperors in their kingdoms due to having so many vassal kings”, a situation that rendered Philip II “the greatest and most powerful

59  Headley, J.M., “The Habsburg World Empire and the Revival of Ghibellinism”, in Medieval and Renaissance Studies 7 (1978), 93–127. 60  Dandelet, T.J., The Renaissance of Empire in Early Modern Europe, Cambridge, 2014. 61  Stuczynski, C., “Providentialism in Early Modern Catholic Iberia: Competing Influences of Hebrew Political Traditions”, in Hebraic Political Studies 3 (2008), 377–395. 62  Frankl, V., “Imperio particular e Imperio universal en las Cartas de Relación de Hernán Cortés”, in Cuadernos Hispanoamericanos 165 (1963), 443–482.

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Prince in the world […] who owns more lands and kingdoms than any of the former monarchs”.63 By the start of the seventeenth century, the idea of the providential role of the Spanish empire permeated the cultural and political life of Castile, where two different schools of thought provided opposite interpretations, according to Claude Stuczynski: on the one hand, an “inclusive” providentialism of Erasmian tradition was very influential on the first generation of Jesuits, who were characterized by a cosmopolitan, pragmatic, and reforming zeal of Pauline inspiration, by a strong belief in the universal mission of the monarchy, and by their advocacy of political uniformization and a mercantilist development of trade; on the other hand, an “exclusive” providentialism of a firm anti-converso inclination influenced certain authors and bureaucrats who, nostalgic for a glorious past seen from the eyes of an Old Testamentarian political theology, saw Iberia as the true heir to Israel.64 The stamp of this “exclusive” providentialism can be seen in the writings of authors such as Gregorio López Madera, Juan Eusebio Nieremberg, or Juan de Salazar, who talked of Spain’s providential destiny as the champion of Catholic interests in the world. In his Política Española, Salazar described the Spanish empire as God’s chosen people and its monarch as a new prophetic leader capable of guiding an increasing number of peoples along the path of true religion.65 In line with this prophetic providentialism, Tommaso Campanella published his De monarchia hispanica discursus in 1601, where he extolled the role of the Spanish monarchy as the head of a universal Catholic empire.66 Campanella’s treatise proposed an imperial politics diametrically opposed to the model of full sovereignty proposed by Jean Bodin in 1576, who argued against any form of mixed government and for a gradual separation between secular and ecclesiastical powers. Campanella’s providentialism was fully compatible with a providentialist current, which, as mentioned above, was anything but anachronistic. In his preface, Campanella expresses his messianic characterization of the Spanish monarchy loudly and clearly: “Universal monarchy, coming from East to West through the Assyrians, Persians, Medes, Greeks, and Romans […] has finally reached the Spaniards, to whom, after a long period of servitude 63  See López Madera, G., Excelencias de la monarchia y reyno de España, Valladolid, 1597. Quoted by Fernández Albaladejo, P., “Imperio de por sí: la reformulación del poder universal en la temprana Edad Moderna”, in Cheiron 17–18 (1992), 20–21. 64  Stuczynski, C., “Providentialism in Early Modern Catholic Iberia”, 382. 65  Iñurritegui Rodríguez, J.M., La gracia y la república: el lenguaje político de la teología católica y el Príncipe cristiano de Pedro de Ribadeneyra, Madrid, 1998. 66  On the work of Campanella see Ernst, G., Tommaso Campanella: The Book and the Body of Nature, Dordrecht, 2010.

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and war, it has been completely granted by Fate”.67 In keeping with the theory of traslatio imperii, Empire, through its westward transmission, fulfilled a line of biblical prophecies that predestined the Iberians to become the last universal monarchy: Therefore, Cyrus’s authority belongs to the king of Spain, who, after being named the Catholic king by the Pope, will easily attain the principality of the world; and we see by his actions that he has already been instituted as such, because he initially liberated the Church from the Moors of Granada, and now also from the Belgian, English, and French heretics; he also supports with many endowments so many bishops, cardinals, monasteries; he has instituted in the entire world a continual sacrifice, since mass is celebrated in his empire every half-hour.68 Against the Castilian regalist tradition that extolled the preeminent role of the monarch, for Campanella the only viable way for the Catholic king to reach the universal monarchy was to follow the examples of Constantine and Charlemagne, who only acquired greater authority after their submission to the Church and the Pope: “if Spain wants to attain the monarchy, its king must publicly confess his dependence on the Pope”.69 In Alain Milhou’s words, the Spanish monarchy’s “deficit of sacredness” in comparison with the French crown seemed to make it necessary that, in order to achieve the goal of uniting all humanity around a single religion, the king of Spain had to become a servant to the Pope, following the recommendations of Giovanni Botero or 67  Campanella, T., La Monarquía Hispánica, Marino (ed.), Madrid, 1982, 7. This version is based on the 1640 Amsterdam edition. Pagden, A., “Instruments of Empire: Tommaso Campanella and the Universal Monarchy of Spain”, in Padgen, A., Spanish Imperialism and the Political Imagination. Studies in European and Spanish-American Social and Political Theory 1513–1830, New Haven, CT, 1990, 37–63. 68  Campanella, La Monarquía Hispánica, 25. 69  Campanella, La Monarquía Hispánica, 35. On the apocalyptic interpretation of monarchy in the final days, see John Marino’s study on the work of Juan de Garnica on the Hispanic Monarchy of 1595, who, like Campanella, resorted to the Bible, prophecy, numerology, and astrology to predict the end of the world, although Garnica “strongly diverges from Campanella’s praise for a secular and spiritual papacy”. Marino, J.A., “An Anti-Campanellan Vision on the Spanish Monarchy and the Crisis of 1595”, in Marino, J.A. and Kuehn, T. (eds.), A Renaissance of Conflicts: Visions and Revisions of Law and Society in Italy and Spain, Toronto, 2004, 367–393. On the importance of prophecy see Silvério Lima, L.F., “Between the New and the Old World: Iberian Prophecies and Imperial Projects in the Colonization of the Early Modern Spanish and Portuguese Americas”, in Crome, A. (ed.), Prophecy and Eschatology in the Transatlantic World, 1550–1800, London, 2016, 33–64.

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Robert Bellarmine.70 It comes as no surprise then that the printed versions of De monarchia hispanica edited since 1620 (until then it had circulated only in manuscript copies) incorporated numerous paragraphs taken from Botero. It was precisely its theocratic character, together with the unacceptable idea of a submission of the Catholic monarch to Rome, that explain the limited impact of Campanella’s work in the domains of the Catholic king, at least contrasted to the success it achieved among Spain’s enemies, for whom the book seemed to demonstrate the threat of an international papist conspiracy to implant a universal Catholic monarchy under Spain’s tutelage.71 Philip II’s attempts to reinforce the Crown’s autonomy and to bestow a character of sacrality to the throne did not seem to be enough to dispense with the support of the Church in the eyes of Campanella. The efforts to provide a greater providential charisma to the king (who in numerous apologetic writings was described as a new Solomon, son of Charles V, equated to David as a divinely chosen King) culminated in the construction of El Escorial as the new Temple of Jerusalem, which was an architectonic project that was ultimately criticized and likened to the Tower of Babel due to its high cost and exuberance.72 In the same way, the replacement of the rudimentary ceremonial of the Castilian court with a rigid Burgundian etiquette, and the canonization of Hermenegild, son of the Visigothic king Liuvigild, were part of a program of exaltation of a monarchy thought to be of divine and universal (Catholic) origin. The monarch’s efforts of self-exaltation, however, did not seem to match well with the ironclad republicanism of a large part of his domains: the Netherlands, Italy, and Aragon, but also Castile and the Indies.73 The absence of symbols of sovereignty (scepter, crown, royal purple) in the portraits of kings and viceroys, analyzed by Cañeque, was associated with the representation of an austere and virtuous monarch, contrasted with the classic descriptions of Moctezuma covered with feathers and dressed in gold.74 70  Milhou, A., Pouvoir royal et absolutisme dans l’Espagne du XVIe siècle, Toulouse, 1999, 86–94. 71  Headley, J.M., Tommaso Campanella and the Transformation of the World, Princeton, 1997. 72  Milhou, Pouvoir Royal, 96. 73  For the republicanism in New Spain, Quijano Velasco, F., Las repúblicas de la Monarquía. Pensamiento constitucionalista en Nueva España, 1550–1610, México, 2017. 74  Alejandro Cañeque also points out how the crowning moment of the consecration of the king in a monarchy that lacked a coronation ceremony consisted of the erection of the royal pennant of Castile before a crowd gathered in the public squares of the main cities of the kingdom. Cañeque, A., “El simulacro del rey”, in Aznar, D., Hannotin, G. and May, N. (eds.), À la place du Roi. Vice-rois, gouverneurs et ambassadeurs dans les monarchies françaises et espagnole (XVI. XVIII siècles), Madrid, 2014, 181–205.

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In Campanella’s project, the submission of the Catholic monarch to the Pope was accompanied by a policy of imperialist uniformization that did not fit well with the pactist and constitutional tradition upon which the Spanish monarchy had been built.75 His proposals had striking coincidences with the reformist political program espoused by the Count-Duke of Olivares during the 1620s, when the Spanish crown was participating in the military conflicts that ravaged Europe. Campanella argued for the implementation of policies of homogenization and Hispanicization of the rest of the Spanish domains: “And, since the King of Spain must become lord of all the world, he should convince all peoples to adopt Spanish customs, that is, he should make Spaniards out of all of them; and as to the government, he also make them participants of the army, as the Romans used to do and the Turks still do today”.76 Although the union of souls around Catholicism was described as the main engine moving this universal empire, other mechanisms of solidarity and collaboration had to be applied. Along with the promotion of a policy of mixed marriages, which would allow to combine the strengths and disposition of different physical and mental constitutions, like those of the Flemings, Italians, Spaniards, or Africans, the monarch had to encourage a policy of mobility within his domains, e.g. by sending Neapolitan prisoners to populate the vast American domains,77 or by granting lands and honors to the conquerors of the Indies as a stimulus to keep the spirit of expansion and military discipline alive.78 Connected with this project of social mobility were Campanella’s calls to implement policies of mercantile reactivation that involved all peoples under the jurisdiction of the crown in a common enterprise. To facilitate this endeavour, it was necessary for the crown to promote economic prosperity and trade through the building of a solid navy, capable of connecting a multitude of dispersed territories. 75  His universalism of prophetic overtones should not make us forget that Campanella had participated in a plot in Calabria to implant an ideal republic in line with his City of the Sun, a crime for which he would spend a long time in prison, Ernst, G., Tommaso Campanella, 67–84. 76  Campanella, La Monarquía Hispánica, 73. This kind of proposals were not alien to Giovanni Botero, for whom every monarchy should aspire to have a single language, a single currency, and a single system of customs. See Pagden, Lords of All the World. 77  Díez del Corral, L., “Campanella y la Monarquía Hispánica”, in Revista de Occidente 54 (1967), 165. 78  Campanella also called for a program of propagandistic exaltation of conquest “ut gesta sua, Graecorum atque Romanorum gesta multis modis superantia, literis descripta et ad posteros transmissa, aeternitatis memoriae consecraret”; see Campanella, La Monarquía Hispánica, 269–270. Hernando, C., Las Indias en la Monarquía Católica. Imágenes e ideas políticas, Valladolid, 1996, 62.

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After his release from prison in 1628, Campanella placed himself under the protection of pope Urban VIII and was finally exiled to France in 1634. In this period, Campanella participated in the controversial propagandist movements prior to the breakout of hostilities between Madrid and Paris with the writing of a conspicuously anti-Spanish tract, his Monarchia di Francia. Without renouncing to his idea of a universal monarchy, Campanella accused the Spanish monarch of having betrayed the mission that had been assigned him by providence. The Spanish king, said Campanella, had failed to implement a program of uniformization capable of uniting the inefficient polycentric structure of a gigantic monarchy, whose system of communications and travel dependent entirely on the naval and financial services of the Republic of Genoa. In Campanella’s eyes, this situation would lead to Spain’s defeat by the emerging French monarchy, whose model of government, despite its ambition to attain supremacy in Europe, did not seem to adapt to Campanella’s universalist and ecumenical aspirations.79 3

Constitutional Pacts, Raison d’État, and the Balance of Powers in the Conservation of a Monarchy of Urban Republics

While the optimistic providentialism of certain authors was fading out, the growing symptoms of exhaustion derived from a permanent state of war and the palpable economic crises that affected some of the most dynamic Spanish domains led to the emergence of a generation of authors whose thought was closer to Giovanni Botero’s Tacitism. This new generation, as the figure of Diego Saavedra Fajardo demonstrates, favored prudence and stability as the best methods to strengthen the Spanish monarchy. Against Campanella’s anti-scholastic sensualism and religious fervor, Saavedra Fajardo, trained in the Aristotelian empiricism of the University of Salamanca and far from Campanella’s prophetic and messianic excesses, stood out due to his mundane and devotional frame of mind, equal to that of Peter Paul Rubens, both of whom greatly admired Lipsius and who were internationally recognized.80 79  Meinecke, F., La idea de la razón de Estado en la edad moderna, Madrid, 1983. 80  Contrasted to the initially scarce diffusion of Campanella’s works, Saavedra Fajardo was one of the most widely published and read authors in the early seventeenth century. His most important work, the Empresas políticas, were published 53 times: 21 in Spanish, 15 in Latin (published almost entirely in Amsterdam), 6 in Italian, 4 in French, 4 in German, 2 in Dutch, 1 in English. For an excellent overview of his thought, see Murillo Ferrol, F., Saavedra Fajardo y la política del barroco, Madrid, 1989. On the influence of Justus Lipsius on Saavedra, see López Poza, P., “La política de Lipsio y las Empresas políticas de Saavedra

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A virtuous diplomat in constant movement through the lands of the Empire and Italy, Saavedra Fajardo would become one of the first plenipotentiaries of the Catholic monarch in the Westphalian Congresses. His life and thought constitute an eloquent example of the cosmopolitan spirit of those who defended the principles of a monarchy of urban republics and who, as critics of absolute monarchy, favoured anti-imperialist policies and encouraged respect for the local constitutional orders of the multiple domains under the king’s authority. Far from the universalist imperialism favoured by intellectuals like Juan Ginés de Sepúlveda, who asserted that the alleged political and military supremacy of the Spanish empire rested on its cultural superiority, Saavedra grounded his ideas on the defense of natural law and on a Thomistic conception of power, according to which it is only through the people ceding their political authority to the monarch that he receives his power from God (potestas est a Deo per populum). These ideas had a deep-rooted tradition in Castile: they coincided, for instance, with Francisco de Vitoria’s attacks against divine right imperialism in his debates over the legitimacy of Spain’s rule over the Indies. Vitoria’s condemnation of both imperial and papal universal dominion questioned the validity of the Alexandrian bulls, in which the pope unjustifiably assumed the authority to divide the world between the two Iberian monarchies. Papal sovereignty possessed in no case a right to universal property and transfer of dominion that could be legitimized by the rational and practical postulates of natural law, such as those warranting mobility rights or imposing the obligation to assist allies.81 This criticism of papal dominion was fundamental for the likes of Fernando Vázquez de Menchaca or Gregorio López Madera, who argued for the full autonomy and independence of the Spanish king with regard to any kind of superior authority. For Vitoria and Saavedra Fajardo, however, criticizing papal universal dominion did not entail defending imperial universal dominion. Saavedra Fajardo was therefore closer to the contractarian theses of Juan de Mariana and his firm antagonism against a universal monarchy that he Fajardo”, in Res publica 19 (2008), 209–234. The impact of Saavedra Fajardo’s work on the De la Court brothers has been analyzed by Weststeijn, A., “España en el espejo holandés: Radicalismo republicano tras la Paz de Westfalia”, in Herrero Sánchez (ed.), Repúblicas y republicanismo en la Europa Moderna, 249–272. 81  Pagden, A., “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians”, in Pagden, A. (ed.), The Languages of Political Theory in Early Modern Europe, Cambridge, 1986, 79–98. Hernando, The Indies in the Monarchy, 70–73. This criticism against the validity of the papal bulls as a basis for the legitimate occupation of the Indies was not shared by such influential thinkers as Francisco López de Gomara, José de Acosta, Antonio de Herrera Tordesillas, or Juan Solórzano Pereira. See Brading, “The Catholic Monarchy”, 385–386.

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ultimately considered a serious threat to civil community. Based on a republican standpoint, Mariana pointed out how free city-states had been subjugated by the greed and ambition of the founders of great empires such as Cyrus, Alexander, or Caesar, who, since they allowed themselves to be dragged “by the avidity of more power or their ambition to obtain praise and glory”, they should not be considered legitimate rulers, but rather “fierce predators”.82 For his part, Domingo de Soto, who also shared the conviction that every ruler had been chosen by the people to preserve their political community, questioned the pretensions of the Spanish monarchy to imperial dominium since, in his opinion, the king ran the risk of legitimizing the political ambitions of his own enemies. This type of universal domain could only possess a qualified legitimacy in cases where a general assembly was held and a large number of participants gave their consent.83 This conciliar approach to international politics was after all behind the Westphalian Congresses, and Saavedra Fajardo would defend it vehemently. In the same way, the idea of a general assembly of nations could have inspired Saavedra Fajardo’s proposal in 1640 when, in the midst of a constitutional crisis, he called for the creation of a system of Cortes Generales composed of members of all the supreme councils of the king and two deputies from each of his territories. This system would have provided the monarchy with a common forum that preserved the full autonomy of each of the parties involved.84 In no way did Saavedra Fajardo’s aspiration to articulate spaces of consensus followed the proposals for forced cohesion promoted by Campanella, and which depended on a project of legislative, cultural, and linguistic unification that went against the constitutional foundations of the Spanish monarchy. Saavedra was more akin to bishop Juan de Palafox, who accused the CountDuke of Olivares of having tried to implement a model of French inspiration alien to a multi-territorial monarchy, the stability of which depended on a respectful cooperation between the different nations it comprised. Measures like these, instead of allowing for the restoration of the monarchy, had almost caused its complete fragmentation by worsening its crises. Like Campanella, Saavedra Fajardo believed in the law of impermanence that weighed on the entire natural world, according to which, by divine will, the inexorable fate of all empires was corruption and death.85 For this reason, he recommended the 82  Braun, “Juan de Mariana, la antropología política”, 105–106. 83  Pagden, Lords of All the World, 50. 84  Gil Pujol, “Integrar un mundo”, 90. 85  See his famous empresa 60, “O subir o bajar”, in Saavedra Fajardo, D., Idea de un príncipe político cristiano representada en cien empresas, Díez de Revenga, F.J. (ed.), Barcelona, 1988 (1st edition, 1640).

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good governor to submit to divine providence, since, as he claimed, “it is a mad presumption to try to undo the decrees of God” (es loca presunción intentar des­hacer los decretos de Dios; empresa 87). Just as, according to Catholic doctrine, any individual human had free will to choose how to live his own life, the virtuous ruler, far from resigning himself to an unrelenting fate, must know how to shape his destiny through prudence and good deeds. Thus, in his empresa 88 Saavedra declared that: it is a mad presumption is to try to undo the decrees of God. […] But this must not be a dead resignation that believes everything is already ordered ab aeterno and that our diligence and judgement cannot reverse it [the divine order], since this same lack of courage would be what provoked that divine order. It is necessary that we act as if everything depended on our will, because God uses us to bring about our adversities and joys. Although only divine providence can know what awaits us, a correct political leadership based on prudence and wisdom could mitigate natural political decline, because, as Saavedra insisted by taking king Solomon as an example: “The prince’s knowledge is more feared than his power. A wise prince is the safety of his vassals. And an ignorant one is their ruin” (empresa 4). However, in contrast to the active political life of Machiavelli’s republican vivere civile, Saavedra was in favor of a professionalization of the art of government that only the connoisseurs of the arcana of politics could access, since he considered government professionals to be the only people capable of governing with prudence as their main guide for action. His was a position that, as Xavier Gil Pujol rightly pointed out, was similar to the misgivings that Tridentine Catholicism harbored about the unmediated reading of the Holy Scriptures by people without theological training.86 The appeal to the Bible was not something exclusive to Protestant thinkers; it rather became a central element in Catholic political literature due to the need to establish una buena razón de estado based on a Church tradition that could provide an alternative political discourse to that proposed by the reviled Machiavelli. Compared to the providential and prophetic zeal with which Campanella interpreted Scripture, Saavedra Fajardo (who, in the words of Jorge García López, seemed to read the Bible through the eyes of Tacitus),87 did not hesitate, in the prologue to the second edition of his Empresas 86  Gil, “La Razón estado”, 365–367. 87  García López, J., “La Biblia en la prosa culta del siglo XVII”, in del Olmo Lete, G. (ed.), La Biblia en la l, vol. 2, El Siglo de Oro, Madrid, 2008, 265–288.

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(Milan, 1642), to justify in the following way the fact that his Bible quotations multiplied sevenfold compared to the Munich edition published two years before: with particular zeal and attentiveness I have tried to weave this fabric with the political stamens of Cornelius Tacitus, for he is a great master of princes and one who with the best of minds penetrates the nature of princes and discovers the customs of the palaces and the courts and the errors or successes of the government […] But I confirm the main maxims of State in this second printing using testimonies from the Sacred Letters, because the policy that has passed through its crucible is silver that was seven times purged and refined by the fire of truth.88 The didactic and exemplary role he attributed to the Bible drew him to the historical books (the books of Kings, Ezra, Judith, Esther, and Maccabees) and to the political deeds and discourses of the prophets, whom he cited interspersed with references from Roman history. Sacred and secular history became a fountain of virtue from where the monarch could draw the necessary knowledge to preserve his domains. The education of the prince and the learning of the rules of good government constituted the central purpose behind his Empresas políticas, aimed at training a Christian prince both in the government of his state and in his relationship with other princes. Saavedra warned against any abrupt change in government as the greatest danger to the preservation of the monarchy, “the main responsibility of the prince”. The bitter experience of Olivares’ government proved to him that the main task of a good governor, the true reason of state, consisted in defending the privileges and the constitutional structure of the monarchy: “The prince should try to accommodate his actions to the style of his country and to that which his predecessors followed” (empresa 59).89 Without going so far as to justify tyrannicide as Juan de Mariana had done, 88  See also López Poza, S., “La erudición en las Empresas políticas de Saavedra Fajardo”, in Strosetzki, C. (ed.), Actas del V Congreso Internacional de la Asociación Internacional Siglo de Oro, Madrid, 2001, 819–820. 89  He says elsewhere that “así se han de gobernar las naciones según sus naturalezas, costumbres y estilos” (Empresa 81). However, Saavedra finally exonerated the Count-Duke of Olivares and blamed the failure of his policy to the fate of every empire: “Infelices los sujetos grandes que nacen en las monarquías cadentes porque o no son empleados o no pueden resistirse de sus ruinas y envueltos en ellas caen miserablemente sin crédito ni opinión y a veces parecen culpados en aquello que forzosamente debía suceder”. Quoted in Aldea, Q., España y Europa en el siglo XVII: correspondencia de Saavedra Fajardo, vol. 3, Madrid, 2008, LXXVI.

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Saavedra Fajardo abhorred authoritarian rule, and he harshly criticized princes who did not worry about the preservation of the law, because “tyranny is nothing else but ignorance of the law by princes who usurp its authority” (empresa 21). In the international arena, this defense of political stability was joined by a resolute commitment to negotiation and diplomacy. The prince was to be guided by reason and prudence and, according to Botero, his objective should be not conquest, but conservation. Proposals like Saavedra and Botero’s were presented as a counterpoint to the ideology of imperialist expansionism advocated by Campanella (who, as we saw above and not without reason, would ultimately cede the role of universal Catholic monarchy to the renewed and thriving French monarchy). As Saavedra stressed in his numerous libels, manifestos, and pamphlets, which argued in favor of a diplomatic solution to the conflict ravaging the Europe of his time, the French Crown “disturbed the domains of others”, while the Spanish monarch was inclined “to preserve public peace”. Indeed, the Spanish military defeat stimulated a radical change in the crown’s policies, just like the fall of Olivares triggered the abandonment of homogenizing programs.90 From then on, and in keeping with Saavedra Fajardo’s postulates, the Spanish monarchy abandoned the idea of a providential Christian universalism in favor of participating in a world of alliances and balances supported by an international law that Castilian theorists had helped shape. Both in his diplomatic correspondence and in the short works that he distributed to support the cause of the Spanish king, Saavedra warned the United Provinces, the German princes, and the Swiss Cantons about the dangers posed to their stability by the French model of full sovereignty. According to his proposals, divine providence could offer unsuspected ways to ensure the survival of a monarchy guided by prudence and morality through an alliance with Protestant princes, an alliance destined to disrupt the designs of a Machiavellian sovereign who, like the king of France, not only allowed heresy within his kingdom, but also aspired to submit the rest of Europe to his tyrannical form of government. Saavedra Fajardo was convinced that religious unity was a central element for political harmony and the maintenance of solid bonds between the members of the community. He stated bluntly: “there can be no concord or peace among those who feel God differently […] Freedom of conscience is the ruin of states” (empresa 60). Nevertheless, he considered it lawful and even necessary to establish a defensive alliance with the Protestant 90  Fernández Albaladejo, P., “Rethinking identity: crisis of rule and reconstruction of identity in the monarchy of Spain”, in Braun, H. and Pérez Magallón, J. (eds.), The Transatlantic Hispanic Baroque. Complex identities in the Atlantic World, Surrey, 2014, 129–149.

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kingdoms. Francisco de Vitoria had already argued in favor of a Catholic alliance with heretics based on 1 Peter 2 and Romans 13, where Peter and Paul command civil obedience even when governors are infidels.91 According to Saavedra Fajardo, then, the religious conflicts that had torn the continent apart for more than a century could not be resolved merely through tolerance and freedom of conscience, but by the implementation of an international politics based on the principle cuius regio, eius religio, according to which each sovereign could exercise domestic religious authority over his subjects without interference from external powers. Based on these premises, Saavedra paved the way for further negotiations with the United Provinces, which culminated in the Westphalian Treaties, precisely at the time when the Spanish monarchy was coming out of the constitutional crisis of the 1640s. The Spanish king thus became the defender of international stability against the harassment of the nascent French universal monarchy, which would adopt an aggressive expansionist policy after the turbulence of the Fronde and Louis XIV’s victory. Louis XIV’s policy was accompanied by the application of economically protectionist measures that reaffirmed the French model of absolute sovereignty, and which threatened not only Dutch trade, but also the economic and political life of the free cities of the Empire, republics such as the Genoese, which lacked a strong military power of their own, and the rest of independent political structures within the Empire or in Italy. Ultimately, the Habsburgs would become their main defender.92 During the second half of the seventeenth century, the Spanish monarchy established alliances with the United Provinces and England, and the Viennese Habsburgs received the dynastic leadership of their house. Both events entailed a gradual delegation of responsibilities in the military defense of Spanish European possessions, which were now under the aegis of Spain’s allies, and a strengthening of local autonomy. This resulted in a high degree of political stability, despite the notable military decline, i.e., a concrete proof that consensus within a polycentric monarchy was not obtained through violence alone, but also through a respect for local liberties, constitutions, and privileges. In this context, the relative participation of the territories under Spanish rule in the design of a common imperial policy underwent notable changes. The Low Countries, once a key agent in the hegemonic position of the Spanish monarchy, lost their leading role. The cession of the plazas de la 91  Murillo Ferrol, Saavedra Fajardo, 205–206. 92  Herrero Sánchez, M., “Paz, razón de estado y diplomacia en la Europa de Westfalia. Los límites del triunfo del sistema de soberanía plena y la persistencia de los modelos policéntricos (1648–1713)”, in Estudis. Revista de Historia Moderna 41 (2015), 43–65.

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barrera (a buffer zone between the Dutch Republic and Kingdom of France by allowing the Dutch to occupy a number of fortresses within the Spanish Netherlands) to the United Provinces, as well as Madrid and Brussels’ efforts to reinforce Flanders’ jurisdictional dependence to imperial rule as an integral part of the Burgundian Circle, are the effects of a line of action diametrically opposed to that adopted by Louis XIV, who in his expansionist ambition would ultimately incorporate the conquered territories in the Netherlands and the Rhine Valley to the kingdom of France, thus breaking the ties that bound them to the Empire.93 In contrast, the economic significance of the American territories for the adequate functioning of the Spanish imperial system was deeply revalued since the mid-seventeenth century. To a large extent, this could account for the transformation of the concept of universal monarchy, a transformation that, as pointed out by Franz Bosbach, was characterized by the abandoning of a providentialist theory of empire in favor of an essentially economic interpretation of hegemony, according to which the economic exploitation of the Indies could serve as a fundamental mechanism for the strengthening of the Empire.94 Up to the late seventeenth century, the American territories not only had played a secondary role in the crown’s global strategy, but the wealth and luxury that American silver afforded the Spaniards were the targets of criticism for their supposedly pernicious effects on the cultivation of civic virtue, and also for their role in the rise of inflation and national debt.95 This disdain for American wealth was eloquently expressed by Saavedra Fajardo when he wrote in his Empresa 69: “Mount Vesuvius yields more on its slopes that the hill of Potosí in its bowels, even though they are made of silver”. In the Treaty of Münster (1648) the Spanish monarchy had been forced to renounce for the first time to its theoretical monopoly in the Americas by tacitly recognizing the Dutch settlements in the Indies, as well as the English possessions in 1670 and the French in 1697. Such concessions signaled the growing importance of non-European territories for the negotiation of international conflicts. Their importance was accompanied by a notable increase in piracy and smuggling, stimulated by the active connivance of local authorities in 93  Braun, G., Du Roi-Soleil aux Lumières. L’Allemagne face à l’Europe française, 1648–1789, Villeneuve d’Ascq, 2012, 28. 94  Bosbach, F., “The European Debate on Universal Monarchy”, in Armitage (ed.), Theories of Empire, 81–98. 95  This critical attitude towards the allegedly pernicious moral and economic effects of transmarine empires was not exclusive to the Spanish monarchy, Armitage, D., “Empire and Liberty: A Republican Dilemma”, in Skinner, Q. and Van Gelderen, M. (eds.), Republicanism: a Shared European Heritage, vol. II, Cambridge, 2002, 29–46.

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the Indies who possessed considerable levels of autonomy. It was precisely at this moment when, driven by the dynamism of American societies and by the imitation of economic models from the rest of Europe, the Spanish imperial authorities experienced a remarkable change of attitude towards the position that the American territories could have as a contributing element for the regeneration of an empire in crisis. Proposals for the reform of the monopoly on the Indies (like projects for the establishment of commercial companies similar to the Dutch or for the opening of a free port that involved the rest of the subjects of the Spanish empire in American trade) led to a notable reduction in trade taxation, the resumption of the asientos or licenses for slave trade, the prominence of the port of Cádiz, and the multiplication of treaties that, like the Norte de la contratación de las Indias Occidentales [Guide to Contracts in the Western Indies] published in 1672 by José de Veitia Linaje, were the reflection of the importance of the Indies for imperial reform. This change of attitude also demonstrated the increasingly political and economic active role played by criollos, as well as their desire to equate the prerogatives and privileges of the American territories to those enjoyed by the rest of the king’s dominions. The criollo plan to accomplish their goal, namely the redefinition of the legal status of the Indies, culminated in 1680 with a monumental legislative compendium. The autonomy of the Indian territories would be reinforced after the enthronement of Spain’s first Bourbon king, Philip V. While in Europe the loss of the Italian and Flemish territories, and the implementation of the Nueva Planta decrees (by which the territories of the crown of Aragon lost their privileges as a punishment for having supported the Habsburg candidate to the throne during the War of Spanish Succession) led to the centralization of public administration and a legislative unification that followed the French model, in the Indies the situation followed a very different path. In the American territories, loyalty to the new dynasty during the war, the concessions granted to the British in the Peace of Utrecht (a navío de permiso, which authorized a British ship to trade annually with the English colonies, and an asiento for slave trade), and a strong local autonomy did not allow for the erosion of the polycentric model of government, that is, until the second half of the eighteenth century, when, after the resolution of the conflict with Lisbon in 1750 and as a result of the disastrous effects of the Seven Years’ War, the Spanish crown implemented a battery of homogenizing policies that transformed the Spanish Indies into mere colonies at the service of the metropolis. At least for the survival of the Spanish empire, the results of those policies would ultimately prove to be disheartening.

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Braun, H., Juan de Mariana and Early Modern Spanish Political Thought, Aldershot, 2007. Braun, H., “Juan de Mariana, la antropología política del agustinismo católico y la razón de estado”, in Criticón 118 (2013), 99–112. Brett, A., Liberty, right and nature: Individual rights in later scholastic thought, Cambridge, 1997. Brendecke, A., “Informing the Council. Central Institutions and Local Knowledge in the Spanish Empire”, in Blockmanns, W., Holenstein, A. and Mathieu, J. (eds.), Empowering Interactions: Political Cultures and the Emergence of the State in Europe, 1300–1900, Farnham, 2009, 235–252. Brendecke, A., Imperio e información, funciones del saber en el dominio colonial español, Madrid/Frankfurt, 2012. Burbank, J. and Cooper, F., Empires in World History: Power and the Politics of Difference, Princeton, 2011. Canet Aparisi, T., Vivir y pensar la política en una monarquía plural. Tomás Cerdán de Tallada, Valencia, 2009. Cañeque, A., The King’s living Image: The Culture and Politics of Viceregal Power in Colonial Mexico, New York/London, 2004. Cañeque, A., “El simulacro del rey”, in Aznar, D., Hannotin, G. and May, N. (eds.), À la place du Roi. Vice-rois, gouverneurs et ambassadeurs dans les monarchies françaises et espagnole (XVI. XVIII siècles), Madrid, 2014, 181–205. Cañizares-Esguerra, J., Puritan Conquistadors Iberianizing the Atlantic, 1550–1700, Stanford, 2006. Cañizares-Esguerra, J., “Entangled Histories: Borderland Historiographies in New Clothes?”, in American Historical Review 112 (2007), 787–799. Cañizares-Esguerra, J., “La memoria y el estado: la monarquía de España en el siglo XVI”, in Iberoamericana 14 (2014), 177–185. Cardim, et al. (eds.), Polycentric Monarchies. How did Early Modern Spain and Portugal Achieve and Maintain a Global Hegemony?, Eastbourne, 2012. Cardim, and Palos, J.L. (eds.), El mundo de los virreyes en las monarquías de España y Portugal, Frankfurt, 2012. Carmagnani, M., “La organización de los espacios americanos en la Monarquía española (siglos XVI–XVIII)”, in Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), México, 2012, 331–355. Centenero de Arce, D., De repúblicas urbanas a ciudades nobles. Un análisis de la evolución y desarrollo del republicanismo castellano (1550–1621), Madrid, 2012. D’Amico, J.C., Charles Quint maître du monde: entre mythe et réalité, Caen, 2004. Dandelet, T.J., The Renaissance of Empire in Early Modern Europe, Cambridge, 2014.

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Díaz Ceballos, J., “La urbs y la civitas de Veracruz en el inicio de la conquista de México”, in Jiménez Estrella, A. and Lozano, J. (eds.), Actas de la XI reunión científica de la FEHM, Granada, 2012, 984–995. Díez del Corral, L., “Campanella y la Monarquía Hispánica”, in Revista de Occidente 54 (1967), 313–335. Elliott, J., “A Europe of Composite Monarchies”, in Past & Present 137 (1992), 48–71. Elliott, J., “Empire and State in British and Spanish America”, in Gruzinski, S. and Wachtel, N. (eds.), Le Nouveau Monde Mondes Nouveaux. L’expérience américaine, Paris, 1996, 365–382. Elliott, J., Empires of the Atlantic World: Britain and Spain in America 1492–1830, New Haven/London, 2006. Ernst, G., Tommaso Campanella: The Book and the Body of Nature, Dordrecht, 2010. Favarò, V., Merluzzi, M., and Sabatini, G. (eds.), Fronteras. Procesos y práctica de integración y conflictos entre Europa y América (siglos XVI–XX), Madrid, 2017. Fernández Albaladejo, P., “Imperio de por sí: la reformulación del poder universal en la temprana Edad Moderna”, Cheiron, 17–18 (1992), 11–23. Fernández Albaladejo, P., “Rethinking identity: crisis of rule and reconstruction of identity in the monarchy of Spain”, in Braun, H. and Pérez Magallón, J. (eds.), The Transatlantic Hispanic Baroque. Complex identities in the Atlantic World, Surrey, 2014, 129–149. Frankl, V., “Imperio particular e Imperio Universal en las Cartas de Relación de Hernán Cortés”, in Cuadernos Hispanoamericanos 165 (1963), 443–482. García López, J., “La Biblia en la prosa culta del siglo XVII”, in del Olmo Lete, G. (ed.), La Biblia en la literatura española, vol. 2, El Siglo de Oro, Madrid, 2008, 265–288. García Martínez, B., Los pueblos de la sierra. El poder y el espacio entre los indios del norte de Puebla hasta 1700, México, 1987. García Martínez, B., “Nueva España en el siglo XVI: territorio sin integración, ‘reino’ imaginario” in Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), Mexico, 2012, 243–254. Gelderblom, O., Cities of Commerce. The Institutional Foundation of International Trade in the Low Countries, 1250–1650, Princeton/Oxford, 2013. Gil Pujol, X., “Visión europea de la Monarquía española como Monarquía compuesta, siglos XVI y XVII”, in Russell, C. and Gallego, A. (eds.), Las monarquías del Antiguo Régimen, ¿monarquías compuestas?, Madrid, 1996, 65–95. Gil Pujol, X., “Integrar un mundo. Dinámicas de agregación y de cohesión en la Monarquía de España”, en Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), Mexico, 2012, 69–108.

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Gil Pujol, X., “Pensamiento político español y europeo en la Edad Moderna. Reflexiones sobre su estudio en una época post-‘whig’”, in Pérez Álvarez, M.J. and Rubio Pérez, L. (eds.), Campo y campesinos en la España Moderna; culturas políticas en el mundo hispano, vol. 1, Madrid, 2012, 297–320. Gil Pujol, X., La fábrica de la Monarquía. Traza y conservación de la Monarquía de España de los Reyes Católicos a los Austrias, Madrid, 2016. Grafe, R., “Polycentric States. The Spanish Reigns and the ‘Failures’ of Mercantilism”, in Stern, P. and Wennerlind, C. (eds.), Mercantilism Reimagined: Political Economy in Early Modern Britain and Its Empire, Oxford, 2013, 241–262. Greene, J.P., Pursuits of Happiness: The Social Development of Early Modern British Colonies and the Formation of American Culture, Chapel Hill, 1988. Gruzinski, S., Les quatre parties du monde: histoire d’une mondialisation, Paris, 2004. Hausser, C. and Pietschmann, H., “Empire. The concept and its problems in the historiography on the iberian empires in the Early Modern Age”, in Culture & History Digital Journal, 3 (2014). doi: http://dx.doi.org/10.3989/chdj.2014.002. Headley, J.M., “The Habsburg World Empire and the Revival of Ghibellinism”, in Medieval and Renaissance Studies 7 (1978), 93–127. Headley, J.M., Tommaso Campanella and the Transformation of the World, Princeton, 1997. Hernando, C., Las Indias en la Monarquía Católica. Imágenes e ideas políticas, Valladolid, 1996. Herrero Sánchez, M., “Paz, razón de estado y diplomacia en la Europa de Westfalia. Los límites del triunfo del sistema de soberanía plena y la persistencia de los modelos policéntricos (1648–1713)”, in Estudis. Revista de Historia Moderna 41 (2015), 43–65. Herrero Sánchez, M., “Conectores sefarditas en una Monarquía policéntrica. El caso Belmonte/Schonenberg en la articulación de las relaciones hispano-neerlandesas durante la segunda mitad del siglo XVII”, in Hispania 76 (2016), 445–472. Herrero Sánchez, M., “El declive de la Monarquía Hispánica en el contexto internacional durante la segunda mitad del siglo XVII”, in Saavedra, M.C. (ed.), La decadencia de la Monarquía Hispánica en el siglo XVII. Viejas imágenes y nuevas aportaciones, Madrid, 2016, 39–58. Herrero Sánchez, M., “Líneas de análisis y debates conceptuales en torno al estudio de las repúblicas y el republicanismo en la Europa moderna”, in Herrero Sánchez, M. (ed.), Repúblicas y republicanismo en la Europa Moderna (siglos XVI–XVIII), Madrid, 2017, 17–89. Herzog, T., Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America, New Haven, 2003. Herzog, T., Frontiers of Possession: Spain and Portugal in Europe and the Americas, Cambridge, MA, 2015.

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Kagan, R., “La corografía en la Castilla Moderna. Género, Historia, Nación”, in Studia Histórica. Historia Moderna 13 (1995), 47–59. Kamen, H., Empire: How Spain Became a World Power, 1492–1763, New York, 2004. Koenigsberger, H., “Monarchies and parliaments in early modern Europe. Dominium Regale or Dominium Politicum et Regale”, in Theorie and Society 5 (1978), 191–217. López Poza, S., “La erudición en las Empresas políticas de Saavedra Fajardo”, in Strosetzki, C. (ed.), Actas del V Congreso Internacional de la Asociación Internacional Siglo de Oro, Madrid, 2001, 819–820. López Poza, P., “La Política de Lipsio y las Empresas políticas de Saavedra Fajardo”, in Res publica 19 (2008), 209–234. Lucena Giraldo, M., A los cuatro vientos. Las ciudades de la América Hispana, Madrid, 2006. Marino, J.A., “An Anti-Campanellan Vision on the Spanish Monarchy and the Crisis of 1595” in Marino, J.A. and Kuehn, T. (eds.), A Renaissance of Conflicts: Visions and Revisions of Law and Society in Italy and Spain, Toronto, 2004, 367–393. Martínez Millán, J., “La articulación de la Monarquía Hispana a través del sistema de cortes”, in Fundación 12 (2014–2015), 32–64. Martínez Shaw, C. and Oliva Melgar, J.M. (eds.), El sistema atlántico español (siglos XVII–XIX), Madrid, 2005. Mazín, Ó. and Ruiz Ibáñez, J.J. (eds.), Las Indias occidentales. Procesos de incorporación territorial a las Monarquías Ibéricas (siglos XVI al XVIII), Mexico, 2012. Meinecke, F., La idea de la razón de Estado en la edad moderna, Madrid, 1983. Milhou, A., Pouvoir royal et absolutisme dans l’Espagne du XVIe siècle, Toulouse, 1999. Murillo Ferrol, F., Saavedra Fajardo y la política del barroco, Madrid, 1989. Nader, H., “‘The more communes, the greater the king’, Hidden Communes in Absolutist Theory”, in Blickle, P. (ed.), Theorien kommunaler Ordnung in Europa, Munich, 1996, 215–223. Nieto Olarte, M., “Scientific Practices in the Sixteenth-Century Iberian Atlantic” in Braun, H. and Vollendorf, L. (eds.), Theorising the Ibero-American Atlantic, Leiden, 2013, 141–158. Osorio, A.B., Inventing Lima: Baroque Modernity in Peru’s South Sea Metropolis, New York, 2008. Pagden, A., “Dispossessing the Barbarian: The Language of Spanish Thomism and the Debate over the Property Rights of the American Indians”, in Pagden, A. (ed.), The Languages of Political Theory in Early Modern Europe, Cambridge, 1986, 79–98. Padgen, A., Spanish Imperialism and the Political Imagination. Studies in European and Spanish-American Social and Political Theory 1513–1830, New Haven, CT, 1990. Pagden, A., Lords of All the World: Ideologies of Empire in Spain, Britain and France c. 1500–c. 1800, New Haven/London, 1995.

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Pardo Molero, J.F. and Lomas Cortés, M. (eds.), Oficiales reales. Los ministros de la Monarquía Católica (siglos XVI–XVII), Valencia, 2012. Parry, J.H., The Spanish Theory of Empire in the Sixteenth Century, Cambridge, 1940. Pietschmann, H., “L’État et les communautés: comment inventer un empire?”, in Gruzinski, S. and Wachtel, N. (eds.), Le Nouveau Monde Mondes Nouveaux. L’expérience américaine, Paris, 1996, 431–445. Portuondo, M., Secret Science. Spanish Cosmography and the New World, Chicago, 2009. Quijano Velasco, F., Las repúblicas de la Monarquía. Pensamiento constitucionalista en Nueva España, 1550–1610, México, 2017. Rawlings, H., The Debate on the Decline of Spain, Manchester, 2012. Rivero Rodríguez, M., “La reconstrucción de la Monarquía Hispánica: La nueva relación con los reinos (1648–1680)”, in Revista Escuela de Historia 12 (2013) (http:// www.redalyc.org/articulo.oa?id=63839927002; consulted 4 September 2018). Rivero Rodríguez, M., La edad de oro de los virreyes. El virreinato en la Monarquía Hispánica durante los siglos XVI y XVII, Madrid, 2011. Rivero Rodríguez, M., La monarquía de los Austrias. Historia del Imperio español, Madrid, 2017. Ruiz Ibáñez, J.J. (ed.), Las vecindades de las monarquías ibéricas, Madrid, 2013. Ruiz Ibáñez, J.J. and Pérez Tostado, I., (eds.), Los exiliados del rey de España, Madrid, 2015. Schaub, J.F., “La Penisola Iberica nei secoli XVI e XVII: la questione dello stato”, in Studi Storici 36 (1995), 9–50. Silvério Lima, L.F., “Between the New and the Old World: Iberian Prophecies and Imperial Projects in the Colonisation of the Early Modern Spanish and Portuguese Americas”, in Crome, A. (ed.), Prophecy and Eschatology in the Transatlantic World, 1550−1800, London, 2016, 33–64. Stuczynski, C., “Providentialism in Early Modern Catholic Iberia: Competing Influences of Hebrew Political Traditions”, in Hebraic Political Studies 3 (2008), 377–395. Yun Casalilla, B., (ed.), Las redes del Imperio. Élites sociales en la articulación de la Monarquía Hispánica, 1492–1714, Madrid, 2009.

chapter 2

Before Vitoria: Expansion into Heathen, Empty, or Disputed Lands in Late-Mediaeval Salamanca Writings and Early 16th-Century Juridical Treatises José Luis Egío and Christiane Birr 1

Introduction. The Need to Reconsider the Framework of Early American Debates1

It is usual for contemporary scholars to present a uniform view of the relationship between infidelity and the right to dominion such as the one espoused by the theologians and jurists who studied and taught at the University of Salamanca in the Early Modern Period. Accordingly, most studies2 see in Francisco de Vitoria the pivotal thinker theologian, who, from a theological point of view, identified the historical dilemmas, which arose from 1  This article has been written as part of the project The School of Salamanca. A Digital Collection of Sources and a Dictionary of Its Juridical-Political Language, which is a longterm research project of the Academy of Sciences and Literature Mainz in cooperation with the Goethe University Frankfurt and the Max Planck Institute for European Legal History, Frankfurt am Main. 2  A classic perspective on Vitoria as the pioneer and the central figure in Salamanca’s interventions in the so-called asuntos de Indias, in James Brown Scott, who, rephrasing Vitoria from a very anachronistic perspective, considered him as the author who first asked for the recognition of the recently discovered heathen peoples as equal players in the international community: “Thus we have international law as synonymous with, or largely derived from, the law of nature, and we have a majority of mankind possessing the right to incorporate in the law of nations existing at any time further rules or principles, in order to adapt it to newer conditions, when and as they arise […]. With this passage we have reached a turning point in the world’s history”, Brown Scott, J., The Catholic Conception of International Law. Francisco de Vitoria, Founder of the Modern Law of Nations, Washington, 1934, 25. Despite their clearly anachronistic character, Brown Scott’s interpretations resonated substantially among contemporary scholars and they are still commonplace in the literature on Vitoria. A recent example of this acritical repetition of themes and negligent oblivion of late-mediaeval doctrinal developments can be found in Harmut Behr, who considers both Vitoria and Las Casas as founders “of one of the most important tools for organizing international politics”. For Behr, they are also the legal theorists who extended “human rights to Indians” and introduced “a body of legal restrictions and guidelines in international politics”, Behr, H., A History of International Political Theory. Ontologies of the International, London, 2010, 77.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_004

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the ‘discovery’ of new non-Christian peoples on islands in the Atlantic.3 Nevertheless, the complexity of the ideas underlying this rich debate can be understood only if it is approached as part of a broader perspective. In order to show the key elements of the constant and problematic evolution of reflections on infidelity and dominion among the theologians and jurists at Salamanca, some previous steps of this debate will have to be retraced, thus going back to the first half of 15th century. In that period, Castilian and Portuguese scholars and Italian jurists who were working for the Roman Curia, undertook consultations and produced important declarations on the matter that, a century later, would become one of Vitoria’s main preoccupations. Looking back to the 1430s, the starting point chosen for this study, is that of the dynamic expansion initiated by Castile and Portugal in Africa that gave rise to dilemmas for which the juridical framework of the centuries-old notion of convivencia of Christians, Jews and Muslims was not entirely applicable.4 Among the long list of European jurist and theologians who gave profound opinions on the would-be legitimacy of Christian expansion into territories never previously under the jurisdiction of the Church, are some jurists and theologians trained at the University of Salamanca. The purpose of this article is not to provide an exhaustive account of what could loosely be called Salmantine thought pertaining to the issue of this kind of territories, inhabited mostly by heathens, a kind of infidel not to be considered as clear hostes of 3  Vitoria himself shared this idea with his audience at the beginning of Relectio De Indis prior, stating: “Nec satis scio an unquam ad disputationem et determinationem huius quaestionis vocati fuerunt theologi digni, qui audiri de tanta re possent”, this as per the bilingual edition of Ernest Nys and Herbert Francis Wright, Washington, Carnegie Institution, 1917, 222. Vitoria seems to ignore the important debates “ad propositum negotium barbarorum” that took place in the Junta de Burgos in 1512. If not, he would be disdainful of the knowledge and authority not only of jurists trained at Salamanca, such as Juan López de Palacios Rubios, but also of important theologians such as Matías de Paz, his fellow Dominican. Both of them were present at the Junta de Burgos and sent Ferdinand II a full-length and detailed treatise about the legitimate manner of exercising dominion over the Amerindian peoples. 4  An in-depth study of Castilian and Portuguese overseas expansion in the Late Middle Ages from a legal-historical perspective in García Gallo, A., Las bulas de Alejandro VI y el ordenamiento jurídico de la expansión portuguesa y castellana en África e Indias, Madrid, 1958. Unfortunately, later historians of political thought did not pay much attention to García Gallo’s analysis of the framework in which the early American debates took place. Still not having been translated into English, the important remarks of García Gallo have gone unnoticed by later international scholars. Among the most recent accounts on Portuguese overseas expansion in the Modern Era: Newitt, M., A History of Portuguese Overseas Expansion, 1400–1668, London-New York, 2005; Bethencourt, F., and Ramada Curto, D., Portuguese oceanic expansion, 1400–1800, Cambridge, 2007. A thoughtful study of the dilemmas arising from early Portuguese Atlantic expeditions can be found in Marcocci, G., A consciência de um impêrio, Coimbra, 2012.

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the Christians. We rather focus on some salient writings by the jurist Alonso de Cartagena and the theologian Bernardino López de Carvajal in 15th century and by the jurist Juan López de Palacios Rubios at the beginning of 16th century. There are other substantial Salamantine contributions on this issue, such as the one made by the Dominican friar Matías de Paz whose theological and philosophical point of view anticipates key elements found in Vitoria. Like him, de Paz was a teacher at the Dominican college at Valladolid (San Pablo) and at the University of Salamanca, and he authored a treatise called De dominio regum hispaniae super indos.5 Being the first Thomistic defense of infidels’ dominion, it was written as an answer to the consultations conducted by King Ferdinand II during the Junta de Burgos in 1512.6 2

Infidelity and Dominion in the Spanish/Portuguese Debates and Papal Bulls Regarding the Canary Islands: The Juridical Perspective of Alonso de Cartagena

Beginning in the 14th century and only some decades after reaching the Mediterranean Sea during the so-called Reconquista, the Castilians and Portuguese explored territories located on the African coast, encountering populations whose theological status was similar to that of the American natives. During that period, a steady contact with heathens, who had no or very little knowledge of the Christian faith and who professed polytheistic and animistic religions, was established. Scholars such as Alonso de Cartagena, a famous converted Jew who, at the beginning of 15th century became a doctor in Civil and Canon Law and a teacher of Canon Law at the University of Salamanca, reported on some of the juridical and theological dilemmas that arose from those early conquests.7 5  Paz, M. de, “De dominio regum hispaniae super indos”, Beltrán de Heredia, V. (ed.), in Archivum fratrum praedicatorum 3 (1933), 133–181. 6  Considering the length and the complexity of De dominio and the conceptual innovations made in it, de Paz’ particular contribution will be analyzed in a forthcoming publication to be published in Rechtsgeschichte—Legal History Rg 26 (2018). 7  The literature on Cartagena has grown substantially in recent decades. A few significant contributions include: Lawrance, J., “Alonso de Cartagena”, in Gerli, M., Medieval Iberia: An Encyclopedia, London/New York, 2003, 203–205; Pérez Gallardo, L., Alonso de Cartagena (1385–1456). Una biografía política en la Castilla del siglo XV, León, 2007; Villacañas, J.L., “La ratio teológico-paulina de Alonso de Cartagena”, in Flórez Miguel, C., Hernández Marcos, M. and Albares Albares, R. (eds.), La primera escuela de Salamanca (1406–1516), Salamanca, 2012, 75–94.

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As part of the juridical assessment that he gave to the delegation sent by John II of Castile to the Council of Basel, Cartagena wrote the treatise Allegationes super conquesta insularum Canarie contra Portugalenses.8 The Allegationes were presented by the royal jurist Luis Álvarez de Paz to Pope Eugene IV (at Bologna, by the end of 1436) and to the Council of Basel in 1438. Eugene IV, who, in previous years, had been hesitant about Iberian claims on the Canary Islands, had a clear preference for the Portuguese.9 In the bull Creator Omnium, issued at the end of 1434, he made his view known about the theological and juridical status of the natives.10 Following a report by the Bishop of Rubicón, Fernando Calvetos, Eugene took a lenient view as to the kind of infidelity in which the native Guanche population of the Canary Islands lived and declared that, having had no contact with [other] “infidels or heretics”, they had lived according to natural law until their recent Christianisation, still to be concluded. The bull also stated that missionary efforts were being hindered by the arrival of slaving and pillaging expeditions. In Creator Omnium, Pope Eugene IV condemned the attacks on the dominium rerum of the natives—not only their enslavement, but also the 8   For some interesting juridical and political thoughts on the Allegationes see Suárez Fernández, L., “La cuestión de los derechos castellanos a la conquista de Canarias y el Concilio de Basilea”, in Anuario de Estudios Atlánticos 9 (1963), 11–21; Rumeu De Armas, A., El Obispado de Telde, Madrid, 1960; (revised second edition, Telde, 1986); Pérez Voituriez, A., Problemas jurídicos internacionales de la Conquista de Canarias, La Laguna, 1958; Pérez Embid, F., Los descubrimientos en el Atlántico y la rivalidad castellano-portuguesa hasta el tratado de Tordesillas, Sevilla, 1948; Villacañas Berlanga, J.L., “La primera expansión atlántica”, in Colom González, F. (ed.), Modernidad iberoamericana: cultura, política y cambio social, Madrid-Frankfurt, 2009, 61–89; Rojas Donat, L., Derecho y Humanismo en la expansión ultramarina portuguesa y castellana, Chillán, 2011. 9   Muldoon provided a summary of the contents of these early bulls favouring Portuguese interests. Muldoon, J., Popes, Lawyers and Infidels. The Church and the Non-Christian World. 1250–1550, Philadelphia, 1979, 119–124. The most complete collection of Papal bulls, letters and juridical-theological reports on Portugal’s Atlantic ambitions at this time can be found in Dias Dinis, A.J. et al. (eds.), Monumenta Henricina, Volume V (1434–1436), Coimbra, 1963. For a historical perspective of the disputes between Spaniards and Portuguese, often under the mediation of the Pope see Suárez Fernández, L., Relaciones entre Portugal y Castilla en la época del infant don Enrique, 1393–1460, Madrid, 1960. Drawing on previous literature and improving it with new archival findings, Jeremy Lawrance clarified some important uncertainties regarding the historical context of the disputes over the Canaries. Lawrance, J., “Alonso de Cartagena on the affair of the Canaries (1436–37): Humanist rhetoric and the idea of the nation-state in fifteenth-century Castile”, Nottingham, 2013. Available at: http://eprints.nottingham.ac.uk/2172/. Lawrance’s article includes an extensive bibliography about Cartagena’s Allegationes. 10  Eugene IV, Creator omnium, in Raynaldi, O. and Theiner, A. (eds.), Annales Ecclesiastici, Tomus XXVIII (1424–1453), Bar-Le-Duc, 1874, 219–220.

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appropriation of their goods—but did not address the problematic issue of the dominium iurisdictionis exerted by the natives before the arrival of the Europeans. The enacting provisions of the bull decreed excommunication for anyone who has captured islanders or stolen their goods, stating that said islanders were either already baptised or were “willingly approaching baptism” (ad baptismus voluntarie venientes).11 Regardless of its precise scope, it is clear in Creator Omnium that Eugene IV made dominium rerum dependent on faith or on a positive disposition to receive it. Faith appears, then, as indispensable for holding tituli of dominium. At this point, it has to be asked to which extent Alonso de Cartagena took into account the pontifical arguments on the Guanche and how he assessed their infidelity and right to dominion. In the Allegationes contra Portugalenses, the existence of natives’ rights to dominion over goods, lands and people was not even considered.12 Cartagena’s disdain for the natives is so extreme that he felt no need to explain whether barbarianism, infidelity or other elements were what rendered the islanders incapable of exerting dominion or whether other elements annulled and delegitimised dominion previously held. Regarding dominium iurisdictionis, Cartagena stated briefly that, even if inhabited—thus not being res nullius, such as Madeira before the arrival of Castilian expeditionists—the islands were “devoid with respect to superior government” (vacuae per respectum ad superioritatem).13 The Portuguese claim to dominion was especially worrisome to Cartagena, and, although to a lesser degree, those of other kings and noblemen able to threaten the Castilian advance in the archipelago vexed him as well. Among the juridical arguments put forward by Cartagena to refute those claims, the following shed light on the problematic relationship between dominion and infidelity: a) According to Cartagena, Castilian kings never granted the captains who explored and ruled over some of the Canary Islands since the mid14th century a “supremum dominium” over them. That would have been 11  Eugene IV, Creator omnium, “Similem excommunicationis sententiam incurrere volumus omnes et singulos, qui eosdem Canarios baptizatos, aut ad Baptismus volontarie venientes, capere aut vendere, vel servituti subiicere attentabunt, a qua aliter, quam ut praefertur, nequeant absolutionis beneficium obtinere”. 12  Cartagena, A. de, Allegationes factae in concilio Basiliensi super conquesta insularum Canarie contra Portugalenses, anno 1435, Biblioteca Nacional, RES/35, f. 53, as published in the contemporary edition by González Rolán, T. et al. (eds.), Diplomacia y humanismo en el siglo XV, Madrid, 1994. 13  Cartagena, Allegationes, 134: “[…] Et intelligo vacuitatem non per respectum ad habitatores, sed per respectum ad principem catholicum, nullus erat catholicus princeps qui in eis quasi possideret suppremum dominium”.

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contrary to the principle of inalienability of the royal patrimony, which began to emerge in this same period (Cortés de Valladolid, 1442; Partidas, Ley V, Título XV, Partida II).14 As a result, only a restricted dominion in accordance with Spanish tradition (iuxta morem Hispaniae), ius commune and leges regni was granted.15 b) From an historical perspective, the bulls granted by several popes to provide the islands with bishops after Henry III and John II begged for it (ad supplicationem). This was another proof of Castilian dominion, given that “neither kings use to beg nor are they hindered by provisions of the churches that are not under their rule” (nec enim solent reges supplicare nec se impedire de provisione ecclesiarum quae non sunt sub dominio suo).16 c) Showing great historical creativity, Cartagena also considered the Canary Islands as part of the North African lands under Visigoth rule (5th–8th centuries). As support for this claim, he invoked authorities such as Isidore of Seville, various chronicles (the most important of which being De Rebus Hispaniae, written by Rodrigo Ximénez de Rada in the mid-13th century) and the Acts of the 4th, 5th and 6th Councils of Toledo.17 In these acts are mentioned overseas churches (Marrocco and Rubicón), which, as dependencies of the Archdiocese of Seville, are ruled by bishops. Cartagena and other royal jurists of this period strategically identified Rubicón as the re-discovered Canaries. d) Cartagena appealed lastly to the common opinion of the people (communis opinio populi) in order to justify the historical continuity of the Visigothic kingdom in Hispania and the contemporary Castilian monarchy.18 As Cartagena stated, most Europeans employed the word 14   See Clavero Arévalo, M.F., “La inalienabilidad del dominio público”, in Revista de Administración Pública 25 (1958), 21–23. Also Manzano Manzano, J., “La adquisición de las Indias por los Reyes Católicos y su incorporación a los Reinos castellanos”, in Anuario de Historia del Derecho Español 21–22 (1951–52), 17–31. 15  Cartagena, Allegationes, 64: “[…] Non quod umquam supremum dominium donaretur alicui, sed concede bantur iuxta morem Hispaniae, sicut solet concedi dominium oppidorum seu castrorum ducibus, comitibus et baronibus […], videlicet iure superioritatis et supremi resorti et omnibus aliis regalibus, quae secundum ius commune et leges regni debent excipi, semper exceptis”. 16  Cartagena, Allegationes, 62. 17  Translated into Spanish and annotated in the edition of Fernández Valverde, J., Historia de los hechos de España, Madrid, 1989. 18  Making an anachronistic interpretation of this and other “patriotic” passages, it is clear that Lawrance is acritical of Quentin Skinner’s characterization of the 13th–16th centuries as the age of the formation of the modern concept of State. In that respect he considered the Allegationes as “a symptom” of the emergence of “the theoretical concept of a panHispanic national state and empire”; see Lawrance, “Alonso de Cartagena on the affair

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Hispania when referring to Castile, so the continuity of both monarchies was, in fact, engraved on the soul of the people.19 Explicitly denying any claim of using such continuity as a weapon against other Christian Iberian rulers, Cartagena thought it necessary to take it into account against those saracens and infidels (sarraceni et infidels) who, having no legal title (nullum titulum), had, at some point, usurped the dominia belonging to the Visigoth kings in Hispania.20 The strategy employed by Cartagena is cunning. Giving his preference for historical arguments, he minimised the weight of geographical distances, which could benefit the Portuguese, along with theological speculations as to the nature of the natives’ infidelity. The status of the heathen islanders is therefore equal to that of the hostile Saracens. Despite the significant differences between their theological condition, Cartagena managed to incorporate both into the category of usurpers. Jurists and theologians of this period agree on the idea that Christian princes could legally wage war against this kind of infidel usurpers by appealing to the right of recovery (ius recuperationis). Cartagena referred to this right and also to ius postlimini, a concept drawn from Roman law and used in contemporary ius gentium.21 According to it, after the end of

of the Canaries”, 18. The nature of Cartagena’s patriotism and monarchism has been explained in their proper contemporary terms in: Castilla Urbano, F., “Patriotismo y legitimación monárquica en el pensamiento de Alonso de Cartagena: los escritos de Basilea”, in Revista española de filosofía medieval 19 (2012), 139–158; Maravall, J.A., “El concepto de monarquía en la Edad Media española”, in Maravall, J.A., Estudios de historia del pensamiento español. Edad Media, vol. 1, Madrid, 1999, 57–77. 19  Cartagena, Allegationes, 120: “Et videamus si poterimus considerare per communem populi opinionem quod monarchia Hispaniae descendit ad dominum nostrum regem […]; et multi sunt qui numquam audierunt nominare Castellam, sed Hispaniam […]; non ergo provenit hoc ex ignorantia rei, sed quia est inhibitum in cordibus hominum quod principatus Hispaniae continuatur in reges Castellae”. 20  Cartagena, Allegationes, 122: “Nec hoc dico quasi velim attenuare titulos aliorum principum, absit hoc a me; praesumendum est enim verisimiliter quod illa quae habent aliqui principes ex hiis quae antiquitus fuerunt de monarchia Hispaniae, utpote rex Franciae linguam occitanam, et alii reges aliqua regna in Hispania, habuerunt ea ex iustis titulis […]. Ideo haec nullatenus intendo tangere, sed illa quae detinent sarraceni et infidels, quae notoriae fuerunt de illo principatu et in quibus constat illos nullum titulum habere”. 21  Cartagena, Allegationes, 132: “Ut in narratione facti diximus, dominus rex Henrricus fecit occupari vel proprius loquendo recuperari insulam Lanceloti cum intentione recuperandi ommes. […] Nam illae provinciae et insulae quae ad dominum nostrum regem pertinent, iure successionis universalis, ut dixi […], reddibunt ad eum iure postliminii”.

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the usurpation of a certain territory, the occupier or later possessors should return the territory in its entirety “to the original legal authority”.22 Despite of his emphasis on Castilian authority to exercise dominion on the Canary Islands, Cartagena claims to be in favour of sending Portuguese friars there, even accepting the deployment of Portuguese troops to protect them. This claim notwithstanding, Cartagena denied that this kind of missionary campaign and the Papal bulls supporting them would involve the acquisition of a “supreme ownership and rule and jurisdiction” (supremo dominio et principatu et iurisdictione) over the natives.23 This reasoning shows a clear relationship between juridical arguments and very tangible circumstantial interests. Given that Cartagena thought that the Portuguese would soon benefit from a Papal bull to establish their dominion over the archipelago, he tried to refute the same jurisdictional implications that most Spanish jurists and theologians would later draw from the bulls issued by Alexander VI.24 3

Infidelity and Dominion from a Theological Perspective: Bernardino López de Carvajal’s Sermons (1490–1493)

Some decades later, the concepts of dominion and infidelity as understood by the scholars in Salamanca during the 15th century continued to evolve. These matters were discussed intensively in two sermons delivered at the Roman Curia by Bernardino López de Carvajal shortly before (1490) as well as soon after (1493) the fall of Granada and the first voyage of Columbus. Doctor in

22  See Woltag, J.C., “Postliminium”, in Max Planck Encyclopedia of Public International Law (http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e378 ?rskey=QTZLaP&result=1&prd=EPIL; consulted on 20 December 2017); Hernández -Tejero, M., “Aproximación histórica al origen del ius postliminii”, in Gerión 7 (1989), 53–64. 23  Cartagena, Allegationes, 150. 24  See Solórzano Pereira, J. de, De Indiarum iure, Madrid, 2000, Book II, Chapters XVI–XX, 16–245. Also Las Casas, B. de, Tratado comprobatorio del imperio soberano y principado universal que los reyes de Castilla y León tienen sobre las Indias, in Las Casas, B. de, Tratados, vol. 2, México, 1965, 1105 “[…] Muchas e diversas cosas debían y habían de ocurrir, así para el descubrimiento e indagación de las tierras y gentes dellas (como arriba se dijo) como para la promoción de los bienes espirituales, para la promulgación de la fe e introdución e asiento de la cristiana religión, y encaminamiento y vocación e conversión dellas, como también las temporales, que son asentar orden cristiana y concierto político apurado en aquellas repúblicas conveniente y proporcionado al culto divino y cristiano, fundando y asentando justas leyes y fueros, y buenas costumbres donde faltasen […]. Todo lo cual fuera imposible hacerse ni efectuarse sin potestad pública, que llaman los juristas jurisdicción, y ésta no convenía ser sino soberana y alta por dos razones ya tocadas”.

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theology at the University of Salamanca, disciple of Pedro de Osma and his substitute in the Chair of Theology (from 1475 to 1480), Carvajal went soon after his university training (in 1482) to the Roman Curia. After 1488, he became there a diplomatic agent on behalf of King Ferdinand II and Queen Isabella.25 He also went on to become a cardinal in 1491.26 The important events that took place in this period allowed him to play a major role in the negotiation of crucial bulls and briefs, the best known and most thoroughly studied of which being the Alexandrine Bulls.27 Although thousands, if not millions of pages have been written about Pope Alexander VI’s Bulls of Donation, little attention has been paid to the juridical ideas of his main petitioner and negotiator.28 In 1490, Carvajal addressed a sermon to the Sacred College of Cardinals giving thanks to God for the victory over the Muslims of Baza, only 80 kilometres away from Granada.29 The imminent fall of Granada encouraged him to address in the sermon the question that would later become the key utrum in the debates about the Indies, namely, whether infidels held true and legitimate dominion over their goods and republics.30 Carvajal articulated in scholarly fashion the opposing views on infidels’ dominion of various theologians and canonists who had taken positions favouring either Innocent IV’s thesis or the opposite ideas of Hostiensis. Having delineated the two positions, Carvajal clearly opted for that of Hostiensis and his followers. Generally speaking, his sermon served to underpin his stance against the thesis that infidels can hold dominion with a string of 31 Biblical excerpts.

25  Goñi Gaztambide, J., “Bernardino López de Carvajal y las bulas alejandrinas”, in Anuario de historia de la Iglesia 1 (1992), 93–97. 26  Fernández de Córdova Miralles, A., “Imagen de los Reyes Católicos en la Roma pontificia”, in En la España Medieval 28 (2005), 269–270. 27  Rapid progress in the conquest of Muslim Andalusia, culminating with the fall of Granada in January of 1492; appointment of the Valencian Rodrigo de Borja as Pope in August 1492; first news of the existence of inhabited lands in the Western Atlantic, reported to Queen Isabella and King Ferdinand in March of 1493. 28  The only existing monograph about his life and writings is far from being an accurate academic work. The figure and acts of Carvajal are instead presented in almost hagiographic terms. Fernández Sánchez, T., El discutido extremeño Cardenal Carvajal, Cáceres, 1981. 29  López de Carvajal, B., In Commemoratione Victoriae Bacensis Civitatis, Rome, 1490, A contemp. Latin-Castilian edition in De Miguel Mora, C., Bernardino López de Carvajal. La conquista de Baza, Granada, 1995. Unfortunately, the introductory “Estudio” of De Miguel Mora is purely philological; juridical and theological questions are barely mentioned. 30  López de Carvajal, In Commemoratione, s.p.: “Haec est Victoria quae vincit mundum fides nostra. Pro cuius intelligentia et introductione problema nobis disputabile exponitur, utrum videlicet apud infideles sint vera iura dominii, principatus et regni an non. In quo sunt qui affirmative sentiant, sunt qui negative”.

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While Innocent IV acknowledged that dominion can be exerted by some categories of infidels (that is to say dominion over territories which had never been under the jurisdiction of the Church and which exercised by infidels who did not deserve to be attacked according to the traditional casuistry of just war), it is certain that this stance would have allowed only for a limited expansion of the Castilian monarchy in Muslim Africa and Asia. Hostiensis’ notion of faith as a sine qua non title of dominion, however, left the door open to wider conquests. Overriding the infidel’s claim to dominion, Hostiensis’ canonical perspective allowed to avoid the complicated casuistry of just titles (justos títulos), which would intensify dramatically in the American debates.31 Until this point, the theologians and jurists working for the Castilian monarchy and who were giving sermons in presence of the Pope or of the Sacred College of Cardinals, targeted Muslim rights of dominion over Asia and Africa as primary objectives for future military campaigns. Among them were, in the 1460s, Cartagena’s pupil and University of Salamanca alumnus Sánchez de Arévalo and, in the 1480s, Pere Boscà and Alessandro Geraldini.32 It was Carvajal who changed the traditional approach and decided to focus on heathens, whose existence was, in fact, so significant to him that he felt compelled to specify that, legally, they could also be fought if they were usurpers of former Christian lands.33 31  As is well known, in his Relectio De Indis prior and Relectio De Indis posterior, Vitoria evaluates about fifteen tituli of just war that had been or could be invoked. In later writings on this same issue, the number of tituli to be taken into account would increase, such as in a Relectio read by Alonso de la Veracruz in the early 1550s at the University of Mexico; see Veracruz, A. de la, De dominio infidelium et iusto bello, Burrus, E.J. (ed.), The Writings of Alonso de la Vera Cruz, vol. 2, Rome-St Louis, 1968. 32  See Boscà, P., Oratio Petri Bosca […] in celebritate victorie Malachitane, Rome, 1487 and Geraldini, A., Oratio in obsequio canonice exhibito per illustrem comitem Tendille per protonotarium Metimnensem et per ipsum protonotarium Geraldinum nomine Serenissimorum Ferdinandi Regis et Helisabeth Regine Hispaniae Innocentio octauo eius nomine Pontifici Maximo, Rome, 1486. Sánchez de Arévalo gave several rousing expansionist sermons in 1462 in the presence of Pope Pius II: Sermo […] in graciarum acionibus [sic] ob natiuitatem primogenite serenissimi et potentissimi principis domini Henrrici regis Castelle et Legionis; Oratio super recuperatione ciuitatis de Gibraltar. The sermon related to the taking of Gibraltar was first published by Otero, S. “Rodrigo Sánchez de Arévalo. Discurso a Pío II con motivo de la conquista de Gibraltar (1462)”, Revista Española de Teología 37 (1977), 153–158 and re-edited in Otero, S., Manuscritos de autores medievales hispanos, vol. 1, Madrid, 1987, 165–170. López Fonseca and Ruiz Vila have recently translated into Spanish and published in a bilingual edition (Latin-Castilian) some of Sánchez de Arévalo’s sermons and speeches, Sánchez de Arévalo, R., Discursos al servicio de la Corona de Castilla, Madrid, 2013. 33  Specifically applying to heathens, the criteria developed by Pope Innocent IV served to distinguish which of the infidels’ dominia should be respected and which should be

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One of the arguments in Carvajal’s sermon that would resound during the first American conquests (for example, in chroniclers such as Fernández de Oviedo) is the idea that the Gospel was preached and received “in almost the whole orb” (in toto fere orbe) soon after the resurrection of Christ.34 This historical assumption is, of course, very problematic. From a theological perspective, it allowed—by hook or by crook—for every infidel to be considered as living in some degree of apostasy, guilty of divine lèse-majesté. Taking the hypothesis seriously, every Christian was permitted to appropriate the goods of infidels and take over jurisdiction, especially with a pontifical admonition.35 Three years later, in 1493, Carvajal was the first European theologian to include the islands recently discovered in the Western Atlantic in the imperialist and theocratic framework to which he and many other scholars of this time adhered. This is an important milestone for the European global awareness that can be found in another sermon, which Carvajal addressed to Alexander VI as the principal spokesman of the embassy sent to Rome by King Ferdinand II in order to pay homage to the newly elected Pope. The embassy arrived in Rome in April of 1493, soon after the first news of Columbus’ discoveries. Updating recovered by Christian princes. See López de Carvajal, B., In Commemoratione Victoriae Bacensis Civitatis, s.p. See Innocent IV, Innocentii quarti Pont. Maximi super libros quinque Decretalium, Frankfurt, 1570: “Secus tamen intelligit in terris vel dominiiis primo a christianis possessis: & inde a paganis usurpatis: in quibus solo iure intrusionis rapinae & violentiae defendi possunt”. 34  Fernández de Oviedo, G., Historia general y natural de las Indias, Madrid, 1851–1855, Primera parte, L. II, C. VII, 29: “Mas á mi paresçer (só la protestaçion por mi hecha en el proemio ó libro I), digo que en aquestas nuestras Indias justo es que se tenga é afirme que fue predicada en ellas la verdad evangélica […]. E si desde nuestra Castilla se cultivó acá é transfirió la noticia del Sancto Evangelio en nuestros tiempos, no çessa por esso que desde el tiempo de los apóstoles no supiessen estas gentes salvajes de la redempçion chripstiana é sangre que nuestro Redemptor, Jesu Chripsto, vertió por el humano linaje: antes es de creer que ya estas generaçiones é indios destas partes lo tenian olvidado; pues que In omnem terram exivit sonus eorum, et in fines orbis terrae verba eorum. Conforme á lo que es dicho del psalmista David, diçe Sanct Gregorio sobre el capítulo diez y seis de Job estas palabras: la Sancta Iglesia há ya predicado en todas las partes del mundo el misterio de nuestra Redempçion. Assi que, estos indios ya tuvieron noticia de la verdad evangélica y no pueden pretender ignorancia en este caso: quédese esto á los teólogos, cuya es esta materia”. 35  López de Carvajal, In Commemoratione, s.p.: “Vera ratio dominii &principatus non est: quam vis hanc continuatam successionem posse probare sit admodum difficile: quum in omnem terram exiverit sonus apostolorum: & evangelium Christi in toto fere orbe praedicatum & receptum sit. Pagani igitur hac sententia magis tyranni possessores in regnis vel dominiis quam iure dominii censendi sunt. Possunt ergo omnia ab eis tanquam ab intrusis & iniustis possessoribus armis peti & auferri per fideles: maxime stante mandato auctoritate & licentia vicarii dei omnipotentis: cuius est omnis terra &plenitudo eius”.

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again the theocratic ideas of Hostiensis, he widened their scope to the “precious islands” that, on behalf of the Spanish king, have been discovered on “the road to the Indies”.36 This brief mention is extremely important. It clearly shows that Carvajal took Spanish dominion over the islands for granted even before any Papal bull was issued. It becomes clear at this point that, instead of granting or conferring anything, Alexander’s bulls acted as a kind of corroboration and endorsement of an established theoretical point of view. The kind of Hostiensism that Cartagena advocated as an obvious perspective (without feeling himself compelled to quote Hostiensis or other authorities) and that he conscientiously defended against the supporters of Innocent IV, became a kind of official and very widespread position in the following years. The theories against the dominion of infidels appear not only in treatises and sermons, but also in royal documents related to negotiations preceding new Papal bulls. A striking example can be found in the instructions given by King Ferdinand II, here (in 1510) acting as King of Aragon, to his ambassador in Rome, Jerónimo de Vich, which states that war against the indigenous populations is justified when they wage war against Christians or when the Pope himself has issued a corresponding bull.37 4

Infidelity and Dominion from a Jurist’s Point of View: Juan López de Palacios Rubios (1512–1516)

Only two years after Ferdinand’s instruction to his Roman ambassador, the debate about the indigenous dominion and the legitimacy of the Spanish 36   López de Carvajal, B., Oratio super praestanda solenni obedientia Sanctissimo D.N. Alexandro Papae vi ex parte Christianissimorum dominorum Fernandi & Helisabet Regis & Reginae Hispaniae, Rome, 1493, s.p.: “Subegit quoque sub eis Christus Fortunatas Insulas, quarum fertilitatem mirabilem esse constat. Ostendit et nuper alias incognitas versus Indos, quae maxime ac plene omnibus mundi preciosis existimantur, et Christo per regios internuntios brevi pariturae creduntur”. 37  See Lopetegui, L. and Zubillaga, F., Historia de la Iglesia en la América española: Desde el descubrimiento hasta comienzos del siglo XIX, Madrid, 1965, 62–64: “[…] Porque así como algunos quieren decir que para mayor justificación de la dicha guerra convenía que Su Santidad, por su bula apostólica, declarase guerra contra todos los infieles, y nos diese la conquista de todo lo que Nos adquisiésemos de las tierras de los infieles porque dicen que de derecho no es permitido a los príncipes cristianos facer guerra en todas las tierras de todos los infieles, salvo en el reino de Jerusalem, sino en caso que los dichos infieles fagan la guerra a los cristianos, o que la guerra sea declarada contra ellos por el Sumo Pontífice (…) querríamos que, desde luego, procurasedes de ganar de nuestro muy Santo Padre una bula en que generalmente declarase la dicha guerra contra los infieles, y diese a Nos, para Nos y nuestros sucesores reyes de Aragón, todo lo que con ayuda de Dios Nuestro Señor conquistásemos de las tierras de los infieles”.

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presence in the Americas began to gather momentum. It was sparked by severe Dominican criticism of the political reality and the atrocities committed by settlers in the West Indies; in particular it was triggered by the highly controversial Christmas sermon of Antonio de Montesinos in 1511 in the newly consecrated cathedral of Hispaniola.38 Montesinos and representatives of the island’s government were called to Spain, and the King set up a commission of jurists and theologians to investigate the allegations and to devise a legal-political strategy.39 Juan Rodríguez Fonseca, bishop of Burgos and superintendent of the Casa de Contratación, chaired the so-called Junta de Burgos, presiding over its seven high-ranking members, three theologians and four jurists.40 One of these jurists was Juan López de Vivero, who took his by-name of Palacios Rubios from his birthplace.41 Having studied and taught civil and canon law in Salamanca and Valladolid, he went on to become the leading crown jurist of the Catholic kings and as such he was appointed as member of the Castilian Crown Council in 1504.42 For the following twenty years until his death in 1524, Palacios Rubios was one of the main protagonists in Castilian legislation43 being deeply involved in the juridical and administrative

38  The main church of Santo Domingo had been consecrated as cathedral on August 8, 1511: Las Casas, B. de, Werkauswahl, Delgado, M. (ed.), vol. 2, Paderborn, 1995, 225 note 7. 39  Martín de la Hoz, J.C., “Introducción”, in López de Palacios Rubios, J., De las Islas del Mar Océano (Libellus de Insulis Oceanis), Pamplona, 2013, 12; Zavala, S., “Introducción”, in Zavala, S. and Millares Carlo, A. (eds.), De las Islas del mar Océano por Juan López de Palacios Rubios. Del dominio de los Reyes de España sobre los indios por Fray Matias de Paz, México/Buenos Aires, 1954, VII–CXXX, XII; see also Hanke, L., The Spanish Struggle for Justice in the Conquest of America, Dallas, 2002, 17 sqq. to Montesinos’ sermon and ibid., 23 sqq. to the Junta of Burgos. 40  Namely the Dominican theologians Matías de Paz, Pedro de Covarrubias and Tomás Duran, and the licentiates Gregorio, de Sosa and Santiago, beside Juan López de Palacios Rubios: Bullón, E., Un colaborador de los Reyes Católicos: El doctor Palacios Rubios y sus obras, Madrid, 1927, 123 sq. 41  The most detailed biography is still that of Bullón, Un colaborador. See also Martín de la Hoz, “Introducción”, 14 sq. 42  Fuente, V. de la, “Nuevas noticias acerca de Palacios Rubios: descubrimiento de su libro sobre las indias y juicio crítico sobre él”, in Revista General de Legislación y Jurisprudencia 36 (1870), 243–256, 246 suggests that Palacios Rubios had been present at the discussions between Columbus and the professors of Salamanca in 1486, although he does not mention such a participation in his treatise. 43  For example, as one of the four members of the commission who authored the Leyes de Toro, 1505, as well as their most influential commentator see Martín de la Hoz, “Introducción”, 14. On the posthumous print publication of the commentary by Palacios Rubios’ son Alonso de Vivero see Fuente, V. de la, “Palacios Rubios considerado bajo el aspecto de su importancia literaria y jurídica”, in Revista General de Legislación y Jurisprudencia 1869 (34), 163 sq.

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organisation of the Conquista of the Americas.44 As members of the Consejo Real, he and the bishop of Burgos had handled questions of the Conquista before.45 In December 1512, the Junta presented its findings, subsequently cast into the legal form of the Laws of Burgos, which was the first attempt to control the Conquista by legislation.46 To bring the cycle of discussion and legislation to a close, Ferdinand II asked Palacios Rubios and the theologian Matías de Paz to write a treatise on the topic of the Spanish presence in the Indies, resuming the debate from a juridical and a theologian point of view respectively.47 Palacios Rubios finished his treatise between 1512 and the beginning of 1516,48 producing a substantial text of more than 180 handwritten pages in folio: the Libellus de insulis oceanis quas vulgus indias appellat.49 In seven chapters, Palacios Rubios discusses the fol44  Bullón, Un colaborador, 144 cites Bartolomé de Las Casas’ reminiscences in the Historia de las Indias, lib. 3, ca85: “Ya dijimos que no estaban otros en este Consejo por entonces con el Cardenal sino el Adriano, y el obispo de Ávila, y el licenciado Zapata, y el doctor Carvajal y el doctor Palacios Rubios, y a éste el Cardenal en estos negocios de las Indias daba más credito que a los otros”. 45  Also the two licentiates de Sosa and Santiago were crown councillors with prior experience in questions of the Indias: Bullón, Un colaborador, 120 citing Antonio de Herrera, Historia general de los hechos de los castellanos en las islas y Tierra Firme del mar Océano, 1a Decada, libr. 10, ca6. 46  Bullón, Un colaborador, 122 sq. gives a copy of the Junta’s memorandum. It contains seven points: (1) Amerindians are free persons and to be treated as such by the Spanish administration and settlers. (2) Amerindians have to be taught the Christian faith; the responsibility for this missionary activity lies by the king. (3) Amerindians are to be held to work for their own and for good of the community. (4) The work demanded of the Amerindians may not be excessive, and daily and yearly times without work must be provided for their recreation. (5) Amerindians must have private houses and fields, and they have to have time enough to cultivate them. (6) Amerindians should live in permanent contact with Spaniards, as it is hoped that by daily contact, they will adopt a Christian way of life faster and more fully. (7) Amerindians have to be payed adequately for the work demanded from them by the Spaniards. 47  Palacios Rubios, Libellus, 44 writes about the king requesting him to summarize his position in form of a treatise. 48  Ferdinand II, who was the addressee of the text, died on January 23rd, 1516. Martín de la Hoz, “Introducción”, 15 suggests that the treatise had been written in 1512, in the midst of the discussion about Montesinos’ sermon and the future Leyes de Burgos. That would make Palacios Rubios work almost simultaneously on the questions of the Castilian conquests of the Indies and of Navarre: Fuente, “Palacios Rubios”, 165. 49  For a description of the manuscript Bibl. Nacional (Madrid) MS 17641 see Martín de la Hoz, “Introducción”, 24; Zavala, “Introducción”, XXI. The text was never printed during the 16th and 17th century. In 1954, Agustín Millares Carlo y Silvio Zavala published a Spanish translation of the treatises of Palacios Rubios y Matías de la Paz: De las Islas del mar Océano por Juan López de Palacios Rubios. Del dominio de los Reyes de España sobre los indios por Fray Matias de Paz, México-Buenos Aires, 1954. A critical edition of the Latin

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lowing topics: the indigenous way of life and the aptitude of the Amerindians to adopt the Christian faith (chapter 1);50 the original freedom of the indigenous peoples and their (unlawful) enslavement by the Spanish conquerors (chapter 2);51 the dominium as property of the Amerindians (chapter 3);52 the political power and jurisdiction of the caciques (chapter 4);53 the transference of iurisdictio and political power in the Americas to the Spanish king by the pope (chapter 5);54 some recommendations for missionaries (chapter 6);55 finally, the taxes, tributes and labour the Spanish crown could demand from the Indian subjects in the Americas (chapter 7).56 The question of the potestas of indigenous caciques proves to be the most complicated problem of the discussion, and Palacios Rubios treats it in the longest chapter of his treatise presenting the problem thus:57 We have to talk about the power and jurisdiction that of the lords of those islands—who are called caciques—hold over their subjects: if they can keep and exercise it still today, after baptism. To this [question] the answer is […] that those caciques and lords, before they converted to Christendom, held no power or dignity nor jurisdiction whatsoever in their own right, but only based on a precarious permission of the Church; neither do they hold nor can they use this power today, if your Majesty prohibits it.58 The conclusion seems clear enough: there never was autonomous indigenous political power or jurisdiction, neither before nor after the conquest. But a closer look at the argumentation and justification of this seemingly clear-cut result shows the difficulties and moral dilemma the crown jurist finds himself in. He chooses a two-pronged approach to answer the question of the caciques’s power to his own satisfaction: first, Palacios Rubios discusses at length text was published only in 2013 by a team from the University of Navarra, together with the revised Spanish translation: Palacios Rubios, Libellus. 50  Palacios Rubios, Libellus, 46 sqq. 51  Palacios Rubios, Libellus, 92 sqq. 52  Palacios Rubios, Libellus, 122 sqq. 53  Palacios Rubios, Libellus, 198 sqq. 54  Palacios Rubios, Libellus, 332 sqq. 55  The text of this chapter is missing in the manuscript Bibl. Nacional (Madrid) MS 17641, cfr. Palacios Rubios, Libellus, 372 sq. 56  Palacios Rubios 2013, 374 sqq. 57  Palacios Rubios, Libellus, 198 sqq. 58  Palacios Rubios, Libellus, 199 (translation by Christiane Birr).

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the origin and nature of political dominion per se,59 and, second, he applies this general findings to the specific case of non-Christian rulers and, even more specifically, to the case of the American caciques.60 Where Alonso de Cartagena, because of the Spanish superiority, had disdainfully claimed the Canary Islands to be res nullius, even though they were populated by the Guanches, because of the lack of a true government,61 Palacios Rubios regards the Amerindians as neighbours in the biblical sense whom the Spaniards are obliged to love and to help, because they all share the same human nature.62 So for him, the question of the legal and moral status of indigenous caciques appears as genuinely difficult which he feels compelled to tackle from the very beginning: to find the origin of earthly jurisdiction, one has to go back to the creation of the world, as reported in Genesis.63 At first, every sphere in the spiritual and the temporal world governed itself. Jurisdiction came into existence with God’s punishment of Lucifer and his followers among the angels: it was the first decision with enforced consequences of a hierarchical superior regarding the fate of another being.64 Until the Deluge, God ruled the world himself, without any human king or sovereign.65 Their era began only with Noah, who, in setting up rules for humans and animals on board the Arc, became the first human legislator.66 He was followed by a long line of patriarchs, judges, kings, priests and other authorities; kingdoms and empires took turns in ruling the world.67 At the time Christ was born, all political power and jurisdiction in the world had at some point been 59  Palacios Rubios, Libellus, 198 sqq. 60  Palacios Rubios, Libellus, 276 sqq. 61  Cfr. above at footnote 12. 62  Palacios Rubios, Libellus, 280: “Infideles, enim, dicuntur proximi nostri quod debemus diligere et lucrifacere quantum possumus, ratione humanitatis, cum sint nostrae naturae participes”. 63  Palacios Rubios, Libellus, 198: “Ad huius conclusionis ellucidationem, necessario inchoandum est a potestatis sive iurisdictionis origina et processu”. 64  Palacios Rubios, Libellus, 198: “A principio quidem creavit Deus coelum et terram et omnia quae in eis sunt, angelicam et humanam naturam, spiritualia et temporalia, ipsaque per se ipsum rexit, sicut factor rem suam gubernat. Videns autem in coelo angelos ingratos et supervinentes poena debita punivit eosque a coelo proiecit, ut habet Isaias, ca14. Et iste fuit primus actus iurisdictionis”. 65  Palacios Rubios, Libellus, 200: “Deus, ergo, rexit mundum per se ipsum usque ad tempora Noe”. 66  Palacios Rubios, Libellus, 200: “Ex tempore vero Noe coepit Deus creaturas suas regere per ministros, quorum primus ipse Noe, qui fuit rector populi quod apparet ex eo quod Dominus Arcae gubernationem sibi comissit”. He also repeats the myth that at the end of his long life, Noah himself came to Spain, founding two cities (in Galicia and Asturia) and thereby completing his reign over all peoples (ibid.). 67  Palacios Rubios, Libellus, 202–204.

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held by four empires, which was passed on in a chronological line: from the Israelites to the Assyrians to the Persians or Medes to the Greek and, finally, to the most powerful of them all, the Romans.68 The line of essentially secular holders of power and jurisdiction came to an end, as God established the fifth and ultimate regnum during the reign of Augustus: the reign of Christ and, consequently, of the church.69 Christ became the dominus mundi, holding spiritual and secular power over all men, including the infidels.70 That we do not see in the Gospels Christ wielding his worldly power and jurisdiction is a matter of choice: Christ prioritized the redemptory instruction and salvation of mankind for which he only used his spiritual power, leaving the practice of secular rule as a lesser matter to others.71 Christ transferred this whole and undivided power onto St Peter by entrusting him with the “keys of the kingdom of heaven” (Matthew 16:18–19) and ordering him to “feed my sheep” ( John 21:17).72 As St Peter’s successor, the pope follows in this perfectio potestatis, and therefore the papal power comprises 68  Palacios Rubios, Libellus, 220–222 bases this version of world history on Nebuchadnezzar’s dream of a quadripartite statue (Daniel 2:31–33) and its interpretation by St Jerome and St Augustine. In their reading, the statue’s iron and clay feet stand for the Romans who had subjugated all other kingdoms, just as iron subdues all other metals: “[…] Nam sicut ferrum metala domat, sic regnum romanorum sibi omnia regna subiecit” (ibid., 222). The universal taxing ordered by Augustus, which led to Jesus to be born in Bethlehem instead of Nazareth, neatly established the universality of the Roman reign, non sine misterio just at the moment in which the true Lord and monarch of the world was born (ibid.). 69  Palacios Rubios, Libellus, 222 substantiates this with a chain of allegations from the prophets of the Old Testament (Micah 5:2) via the evangelists Matthew 2:6 and Luke 1:32–33 and the church father St Augustine into the heart of canon law, Gratian’s Decrete (C. 23 1. 4 c. 38, taken from a letter of St Augustine to Donatus). 70  Palacios Rubios, Libellus, 224–226. To underline the completeness of Christ’s power, he cites an impressive array of authorities: from the Psalms, St John the Evangelist, St Paul’s Letter to the Philipians to the theologians Peter Lombard, Thomas Aquinas and Ricardus de Mediavilla and the jurists and canonists Oldradus de Ponte, Albericus de Rosate, Johannes Antonius de Sancto Georgio. He takes special care to support these authorities with apposite allegations from canon law whenever possible, so that citations of the Decretum, the Liber Extra or the Liber Sextus accompany the biblical and doctrinal references (ibid., 232–236). 71  Palacios Rubios, Libellus, 226–228: “Sed quamvis Christus utranque habuerit potestatem sive iurisdictionem, scilicet, spiritualem et temporalem, quando inter homines fuit, sola spirituali usus est, ut ex discurso evangelistarum liquide constat, quia cum opus praecipuum ad quod Redemptor Christus venerat in mundum erat instructio et redemptio nostra, cui ipse totus erat intentus, alia utpote minora aliis relinquebat”. See also ibid., 244 where Palacios Rubios cites the cleansing of the temple (Matthew 21:12–17, Mark 11:15–19, Luke 19:45–48, John 2:13–16) as Christ’s one and only use of his potestas vel iurisdictio temporalis. 72  Palacios Rubios, Libellus, 232–236.

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the two swords of secular and spiritual rulership over the whole world.73 The Americas belonging to the orbis mundi and the Indians being as human as any European,74 are subject to the church’s power and jurisdiction as well as the Christian nations,75 because today’s infidels may very well be tomorrow’s Christians.76 Palacios Rubios followed Hostiensis in his assertion of papal supremacy in spiritual and secular matters: even before the arrival of the Spaniards, the caciques had held their potestas only by a tacit and precarious papal ­permission.77 That applies even more to the current situation since the pope actually knows about the existence of the caciques and their peoples. Although as pagans they are not yet members of Christ’s flock, the church (or the pope as its head) holds jurisdiction and power over them, exercising it, however, in an indirect way.78 In this respect the American caciques held their power because of a tacit permission of the Church, even before the Europeans and the pope knew of their existence, which is a position that Bartolomé de las Casas would brush aside as “quite absurd”.79 This papal tacit permission is, however, only “precarious” and does not transfer any kind of dominion or possession onto the pagan rulers; it just grants them a “certain holding” of political power, but only as long as the permission 73  Palacios Rubios, Libellus, 240: “Unde Romanus Pontifex successit beato Petro in perfectione potestatis et dignitate vicariatus, qua ipse beatus Petrus a Christo in Ecclesia sublimatus est”. 74  Palacios Rubios, Libellus, 53 defining the Amerindians at the beginning of his treatise as “homines rationales mansueti, pacifici & fidei nostri capaces”. 75  Palacios Rubios, Libellus, 238, 253, 270, 274. 76  Palacios Rubios, Libellus, 274: “Verum tamen est quod pagani, et infideles, non sunt ex ovibus Christi fidei adhesione, de nullo tamen est diffidendum, quia qui hodie sunt Iudaei vel pagani, cras poterunt esse christiani”. 77  Palacios Rubios, Libellus, 286: “Infidelibus, autem, permissa est ex quadam Ecclesiae permissione tacita et precaria, per quam eis permissus est iurisdictionis usus ex iusta et inevitabili causa quia Ecclesia per se vel per suos ministros eam exercere non potuit; siquidem exercendi facultatem habuisset indubitanter posset, quia datus est sibi universalis mundus pro navicula vel dioecesi; unde in qualibet mundi parte papa sedere ac iudicare potest, etiam inter infideles, advocando, si opus fuerit ad se causas apud alios ceptas […], vel prohibendo et vetando infidelibus ne amplio iurisdictione utantur, quia iudicium solvitur ventate eo qui iudicare iussit”. 78  Palacios Rubios, Libellus, 276: “Habebat etiam Ecclesia vel papa eius prelatus iurisdictionem et potestatem in istos insulares antequam ad fidem converterentur, quia totus mundus est datus Petro et successoribus”. Interestingly, Palacios Rubios changes slightly wording and perspective in this final part of chapter 4: after having extolled the pope’s plenitudo potestatis, he now writes about the church’s iurisdictio and potestas over pagan peoples. 79  Palacios Rubios, Libellus, 199, note 1: “Absurdum valde”.

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is not withdrawn. There is no independent legal position the caciques can claim, neither is there tradition or custom or the usually heal-all figure of the immemorial prescription.80 The Church can end the permission of the secular ruler to whom she has donated the iurisdictio and take the power of the caciques for her own at any time.81 That Palacios Rubios’ discussion of the topic does not end here, may hint at certain doubts in this matter. In fact, he goes on to explore the prerequisites for the pope—or the Spanish king—to punish the infidel rulers by taking their power away. Infidels who, like the Amerindians, are only governed by the law of nature, can be punished in this way, if they transgress “nature’s ­precepts”.82 Palacios Rubios cites Augustinus de Ancona, a 13th century theologian and disciple of Thomas Aquinas (who puts it very well, pulchre loquitur, as the jurist comments approvingly): the pope has to observe the natural law on which he has no influence because it is immediately communicated by God to every rational being.83 He is, however, entitled to punish pagan transgressors because everybody can be justly punished for violating a law he “received” and which he is therefore obliged to obey. Yet, pagans cannot be punished for not holding the precepts of the positive divine law derived from the Old and New Testament nor for any breach of (Christian) positive law. Not having “received” those laws, they were not bound by them.84 In practice, however, a punishable breach of the natural law can be seen as a consequence of polytheistic 80  Palacios Rubios, Libellus, 292: “Ecclesia, ergo, quae ex precaria permissione permittit infideles iurisdictionem habere per quam permissionem nec dominium nec possessio transferri videtur […], sola quaedam detentatio ad nutum vel voluntatem Ecclesiae duratura”. 81  Palacios Rubios, Libellus, 294–296. For eventual misgivings, Palacios Rubios may have had regarding this drastic position towards the caziques, cfr. in the following paragraphs. 82  Palacios Rubios, Libellus, 276: “Unde, poterit papa punire gentilem qui non habet nisi legem naturae, si contra naturae praecepta fecereit, sicut Dominus punivit Sodomitas qui contra legem naturae peccabant” citing Genesis 19:14 which is taken up in X 5.31.4 and C. 2 q. 1 c. 20. 83  See Palacios Rubios, Libellus, 278. On papal power see Ancona, A. de, Summa de potestate ecclesiastica, Rome, 1584, q. 23 art. 4, 139: “Legis naturalis Papa debet esse obseruator, non enim potest ipsam mutare: quia sicut ab ipso non ponitur, ita ab eo non deponitur, sed immediate talis lex a Deo menti rationali imprimatur”. 84  Ancona, Summa, q. 23 art. 4, 139: “Quia igitur legis naturalis Papa debet esse obserutaor: omnes Paganos, & transgressores talis legis iuste potest punire. Nam vnusquique iuste potest puniri pro transgressione illius legis, quam recipit, & quam profitetur obseruare: aliter secundum Augustinum contra quemquam sententia ferri non potest, nisi sit conuictus, vel sponte confessus. Pagani vero, & omnes barbarae nationes per legem diuinam veteris, vel noui testamenti conuinci non possunt: Nec per legem positiuam, cum neutram recipiant. Vnde sicut per solam legem naturae, qua coguntur profiteri, conuinci possunt: ita per ipsam possunt iuste puniri”.

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practice, for Palacios Rubios refers to Innocent’s IV dictum that it is natural to adore just one God.85 5

Conclusions: Cartagena, López de Carvajal, Palacios Rubios. An (Almost) Unproblematic Adaptation of the European Tradition of ius commune to a New Context

To sum up, the writings of Cartagena, López de Carvajal and Palacios Rubios are a good example of the way in which some of the skilled and extremely well-read jurists and theologians trained at the University of Salamanca tackle the legal and political questions arising from the Atlantic discoveries with the intellectual tools of the European tradition. Reading those texts, one can almost forget the otherness of the Canaries and the Americas: the doctors of Salamanca adapt the well-established knowledge and legal regimes nearly seamlessly to the new situation—on paper, at least. As we mentioned above, for Cartagena the occupation of and domination over the Canaries was not a new problem but a kind of solution to a historical debt that originated in the Muslim and Pagan usurpations of former ChristianVisigothic lands, which should be understood from the point of view of the Roman juridical principle of ius postliminii (as mentioned in the Institutes I, 12, 5). For López de Carvajal the Spanish expansion over Africa and over the still little-known islands discovered by Columbus in the Atlantic Ocean is a sort of natural continuation of a string of providential victories obtained by the Christians on the Iberian Peninsula during the so-called Reconquista. It is no coincidence that Carvajal chose the biblical passage of 1. John 5, 4 (haec est victoria quae vincit mundum fides nostra) to open the sermon he addressed to the Sacred College of Cardinals in 1490. His dream of a sudden Christian conquest of Africa, Asia and other unexplored regions seems to be boosted by a historical context in which the concept “infidel” has still not been problematized in the same urgent and comprehensive way in which Matías de Paz, Francisco de Vitoria, Bartolomé de Las Casas and later Salamanca’s masters and students discussed the asuntos indianos. In fact, the problematization of the traditional typology of infidels and the specific conceptualization of those who were unintentionally ignorant of Christian faith, seems to emerge later and presented difficulties in the SpanishSalmantine juridical and theological context. While, in the 1430s, some Italian consultations about the Canaries ordered by Eugene IV took already into 85  Palacios Rubios, Libellus, 278.

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account this theological diversity and considered as highly problematic to apply to ignorant Pagans the severe juridical framework that was applied to other infidels in this same period, contemporary Salmantine writings about this issue intentionally passed over these problematic questions.86 From a legal perspective it is important to notice that, assuming that the later Derecho Indiano is the product of a crisis of the ius commune, as Víctor Tau Anzoateguí puts it, that arose from the contact of European normativity with the realities of the Americas, Palacios Rubios’ text shows no sign that such a crisis might be imminent.87 On the contrary, he follows this same tradition of ius commune to which Cartagena’s Allegationes strictly adhere. Soon afterwards, Bartolomé de Las Casas and others would draw on their personal experiences in the Americas and insist more loudly than ever on the necessity to find new, more apposite solutions for the American questions. Referring, for instance, to the polemical question of the legitimate casus belli against the infidels, Las Casas recognized that in the past different authors, such as Oldradus, Petrus Arrancanus, and others, “treated this matter when war against the infidel could be established”.88 In his opinion, the discovery of a previously unknown kind of infidel created a host of problems when contrasting the dominium of Guanches and Amerindians. In fact, for Las Casas previous canonical rules and theological and juridical authorities on the matter of the dominium of the infidel were clearly outdated and needed to be reconsidered. The ‘discovery’ of a plethora of Pagan peoples and existence of the American continent itself, both completely unexpected facts for men of the Middle Ages, would force 16th century jurists and theologians not only to reconsider the traditional approach, but to find new ways of argumentation, distancing themselves from the authorities of the past and from previous history itself. The hiatus between justifications of Castilian expansion in the Eastern Atlantic in the 15th century and later American debates is related to the 86  Written by two Italian jurists, the civilist Antonio Minucci da Pratovecchio and the canon lawyer Antonio de Rosellis. Minucci da Pratovecchio, A. and de Rosellis, A., Quidam princeps seu rex catholicus, non recognocens superiorem, vult inducer bellus contra sarracenos, non possidentes nec detinentes terras ipsius regis, sed detinentes terras quae fuerunt aliorum christianorum, quemadmodum in Barbariam, in de Sousa Costa, A.D. (ed.), Monumenta Henricina, Coimbra, 1963, Vol. V, 285–320 and 320–343. 87  Tau Anzoateguí, V., El Jurista en el Nuevo Mundo. Pensamiento, Doctrina, Mentalidad, Frankfurt a.M., 2016, 39. 88  Las Casas, B. de, Argumentum Apologiae Reverendi Fratris Bartholomei a Casaus Episcopus quondam Chiapensis adverso Genesium Sepulvedam theologum cordubensem 1550, A. Losada, (ed.), Juan Ginés de Sepúlveda. Fray Bartolomé de las Casas, Madrid, 1975, ff. 182r–182v.

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conceptual disruption denounced by Las Casas and the contact of European normativity with the realities of the Americas, which points at the collapse of the kind of historical argumentation for which humanist jurists such as Cartagena stood in the context of the conquest of Canary Islands.89 Bibliography Sources

Ancona, A. de, Summa de potestate ecclesiastica, Rome, 1584. Boscà, P., Oratio Petri Bosca […] in celebritate victorie Malachitane, Rome, 1487. Cartagena, A. de, “Allegationes factae in concilio Basiliensi super conquesta insularum Canarie contra Portugalenses, anno 1435”, in González Rolán, T. et al. (eds.), Diplomacia y humanismo en el siglo XV, Madrid, 1994. Dias Dinis, A.J. et al. (eds.), Monumenta Henricina, vol. V (1434–1436), Coimbra, 1963. Fernández de Oviedo, G., Historia general y natural de las Indias, Madrid, 1851–55. Geraldini, A., Oratio […] in obsequio canonice exhibito per illustrem comitem Tendille per protonotarium Metimnensem et per ipsum protonotarium Geraldinum nomine Serenissimorum Ferdinandi Regis et Helisabeth Regine Hispaniae Innocentio octauo eius nomine Pontifici Maximo, Rome, 1486. Las Casas, B. de, “Tratado comprobatorio del imperio soberano y principado universal que los reyes de Castilla y León tienen sobre las Indias”, in Las Casas, B. de, Tratados, vol. 2, México, 1965. Las Casas, B. de, “Argumentum Apologiae Reverendi Fratris Bartholomei a Casaus Episcopus quondam Chiapensis adverso Genesium Sepulvedam theologum cordubensem”, in Losada, Á. (ed.), Juan Ginés de Sepúlveda. Fray Bartolomé de las Casas, Madrid, 1975. Las Casas, B. de, Werkauswahl, Delgado, M. (ed.), vol. 2, Paderborn et al., 1995. López de Carvajal, B., In Commemoratione Victoriae Bacensis Civitatis, Rome, 1490. López de Carvajal, B., Oratio super praestanda solenni obedientia Sanctissimo D.N. Alexandro Papae vi ex parte Christianissimorum dominorum Fernandi & Helisabet Regis & Reginae Hispaniae, Rome, 1493.

89  In fact, neither with “cronicas communiter receptas”, nor “per sapientes antiquos et vetustos doctores”, nor “per subscriptiones conciliorum”, nor “per matriculas seu libros censuales antiquos”, nor “per communem populi opinionem” (the “quinque species probationis” that Cartagena took into account while defending the rights of the Castilian Crown over the Canaries), was it possible to claim a credible title of dominion over the New World; see Cartagena, Allegationes, 74–76.

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Millares Carlo, A. and Zavala, S., (ed.), De las Islas del mar Océano por Juan López de Palacios Rubios. Del dominio de los Reyes de España sobre los indios por Fray Matias de Paz, Mexico/Buenos Aires, 1954. Minucci da Pratovecchio, A. and de Rosellis, A., Quidam princeps seu rex catholicus, non recognocens superiorem, vult inducer bellus contra sarracenos, non possidentes nec detinentes terras ipsius regis, sed detinentes terras quae fuerunt aliorum christianorum, quemadmodum in Barbariam, in de Sousa Costa, A.D. (ed.), Monumenta Henricina, Coimbra, 1963, Vol. V. Paz, M. de, “De dominio regum hispaniae super indos”, in Beltrán de Heredia, V. (ed.), Archivum fratrum praedicatorum 3 (1933), 133–181. Sánchez de Arévalo, R., Discursos al servicio de la Corona de Castilla, Madrid, 2013. Solórzano y Pereira, J., De Indiarum iure, 3 vols., Madrid, 2000–01. Veracruz, A. de la, De dominio infidelium et iusto bello, in Burrus, E.J. (ed.), The Writings of Alonso de la Vera Cruz, vol. 2, Rome-St Louis, 1968.



Secondary Literature

Behr, H., A History of International Political Theory. Ontologies of the International, London, 2010. Bethencourt, F., and Ramada Curto, D., Portuguese oceanic expansion, 1400–1800, Cambridge, 2007. Bullón, E., Un colaborador de los Reyes Católicos: El doctor Palacios Rubios y sus obras, Madrid, 1927. Castilla Urbano, F., “Patriotismo y legitimación monárquica en el pensamiento de Alonso de Cartagena: los escritos de Basilea”, in Revista española de filosofía medieval 19 (2012), 139–158. Clavero Arévalo, M.F., “La inalienabilidad del dominio público”, in Revista de Administración Pública 25 (1958), 21–23. De Miguel Mora, C., Bernardino López de Carvajal. La conquista de Baza, Granada, 1995. Fernández de Córdova Miralles, A., “Imagen de los Reyes Católicos en la Roma pontificia”, in En la España Medieval 28 (2005), 269–270. Fernández Sánchez, T., El discutido extremeño Cardenal Carvajal, Cáceres, 1981. Fernández Valverde, J., Historia de los hechos de España, Madrid, Alianza, 1989. Fuente, V. de la, “Palacios Rubios considerado bajo el aspecto de su importancia literaria y jurídica”, in Revista General de Legislación y Jurisprudencia 34 (1869), 160–176. Fuente, V. de la, “Nuevas noticias acerca de Palacios Rubios: descubrimiento de su libro sobre las indias y juicio crítico sobre él”, in Revista General de Legislación y Jurisprudencia 36 (1870), 243–256. García Gallo, A., Las bulas de Alejandro VI y el ordenamiento jurídico de la expansión portuguesa y castellana en África e Indias, Madrid, 1958.

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Goñi Gaztambide, J., “Bernardino López de Carvajal y las bulas alejandrinas”, in Anuario de historia de la Iglesia 1 (1992), 93–97. Hanke, L., The Spanish Struggle for Justice in the Conquest of America, Dallas, 2002. Hernández-Tejero, M., “Aproximación histórica al origen del ius postliminii”, in Gerión 7 (1989), 53–64. Lawrance, J., “Alonso de Cartagena”, in Gerli, M. (ed.), Medieval Iberia: An Encyclopedia, London/New York, 2003, 203–205. Lawrance, J., “Alonso de Cartagena on the affair of the Canaries (1436–37): Humanist rhetoric and the idea of the nation-state in fifteenth-century Castile”, Nottingham, 2013. Lopetegui, L. and Zubillaga, F., Historia de la Iglesia en la América española: Desde el descubrimiento hasta comienzos del siglo XIX, Madrid, 1965. Manzano Manzano, J., “La adquisición de las Indias por los Reyes Católicos y su incorporación a los Reinos castellanos”, in Anuario de Historia del Derecho Español 21–22 (1951–52), 17–31. Maravall, J.A., “El concepto de monarquía en la Edad Media española”, in Maravall, J.A., Estudios de historia del pensamiento español. Edad Media, vol. 1, Madrid, 1999. Marcocci, G., A consciência de um impêrio, Coimbra, 2012. Muldoon, J., Popes, Lawyers and Infidels. The Church and the Non-Christian World. 1250–1550, Philadelphia, 1979. Newitt, M., A History of Portuguese Overseas Expansion, 1400–1668, London/New York, 2005. Otero, S. “Rodrigo Sánchez de Arévalo. Discurso a Pío II con motivo de la conquista de Gibraltar (1462)”, in Revista Española de Teología 37 (1977), 153–158. Pérez Embid, F., Los descubrimientos en el Atlántico y la rivalidad castellano-portuguesa hasta el tratado de Tordesillas, Sevilla, 1948. Pérez Gallardo, L., Alonso de Cartagena (1385–1456). Una biografía política en la Castilla del siglo XV, León, 2007. Pérez Voituriez, A., Problemas jurídicos internacionales de la Conquista de Canarias, La Laguna, 1958. Rojas Donat, L., Derecho y Humanismo en la expansión ultramarina portuguesa y castellana, Chillán, 2011. Suárez Fernández, L., Relaciones entre Portugal y Castilla en la época del infant don Enrique, 1393–1460, Madrid, 1960. Tau Anzoateguí, V., El Jurista en el Nuevo Mundo. Pensamiento, Doctrina, Mentalidad, Frankfurt, 2016. Villacañas Berlanga, J.L., “La primera expansión atlántica”, in Colom González, F. (ed.), Modernidad iberoamericana: cultura, política y cambio social, Madrid-Frankfurt, 2009, 61–89.

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Villacañas, J.L., “La ratio teológico-paulina de Alonso de Cartagena”, in Flórez Miguel, C., Hernández Marcos, M. and Albares Albares, R. (eds.), La primera escuela de Salamanca (1406–1516), Salamanca, 2012, 75–94. Woltag, J.C., “Postliminium”, Max Planck Encyclopedia of Public International Law (http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690 -e378?rskey=QTZLaP&result=1&prd=EPIL; last consultation on 20 December, 2017).

chapter 3

The “School of Salamanca” and the American Project Miguel Anxo Pena González Already since the first chronicles of the Indies it has been usual to interpret the discovery and colonization of the Americas as a projection or as a part of European history, as if America and its contact with Europe only had value if it rested on Old World representations.1,2 On the opposite side, some have even produced interpretations that argue in favor of a completely different historiography, one which rests on the idea of a Globalatinization, as it were, of the world.3 However, in light of the most recent historiography, these series of ideas and their influence on our own contemporary criteria for studying the American question require an attentive reexamination. Since the mid-fifteenth century, the violent conflicts and clashes in the Old World ended up configuring what we call early modernity. Without being the dominant anthropology, the general idea of humankind in this period suffered from a certain pessimism, born from a society in constant conflict due to religious confrontations and the emergence of new national states.4 The idea of a global Christian Empire had already been openly rejected by most European intellectuals and, in this context, the new national states strove for a more 1  Translated by Carlos Diego Arenas Pacheco. 2  Let us bring to mind the descriptions of the natural world written by chroniclers, chiefly based on classical models of mythology and fiction. See Mataix, R., “De la alegoría de América a las alegorías de la Patria. Ambigüedades persistencias y mutaciones imaginarias de la colonia a la independencia”, in Tierras prometidas de la colonia a la independencia, Bellaterra, 2011, 203–38; Hernández, B., “Las Indias y la tradición clásica en autores franceses del siglo XVI”, in Clásicos para un Nuevo Mundo. Estudios sobre la tradición clásica en la América de los siglos XVI y XVII, Bellaterra, 2016, 147–69; Pino Díaz, F. del, “Describir la naturaleza del Nuevo Mundo, a partir de cuentos y mitos. Apuntes sobre la estrategia ‘naturalista’ del Inca Garcilaso”, in Horizontes compartidos. Conversiones, mitos y fundaciones en el Nuevo Mundo, Bellaterra, 2018, 209–31. 3  See Rabasa, J., Tell Me the Story of How I Conquered You. Elsewheres and Ethnosuicide in the Mesoamerican Colonial World, Austin, 2011. 4   Historically speaking, this was not something new, since such prominent figures as Innocent IV, Thomas Aquinas, William of Ockham, or Jean Gerson considered that the secular and spiritual powers belonged to two different independent spheres.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_005

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effective control of their domestic political, social, and economic policies. At the same time, the political and spiritual role of he who had traditionally been considered the judge among the various Christian princes, the pope, was harshly questioned both by the princes themselves and by Christian theologians and jurists. This new way of thinking politics coincided with an opposite movement: namely, a series of centralizing ideologies for which the pope occupied a leading place.5 1

The Uniqueness of a New World

This pessimistic way of thinking about both world and politics would have followed expected paths had it not been for the novelty of the American question. The American project proved to be a global revolution that expanded the cultural and political possibilities of sixteenth-century Europe, something that also found its realization, for instance, in the theological and pseudoscientific questions about the origin of Indians.6 The myriad of new experiences and questions about them stirred a plethora of different interpretations of the American event and continues to do so.7 Regardless of the interpretation of the American question one wishes to adopt, there is no doubt that Christopher Columbus’s initial intention was to reach India and East Asia in order to establish a commercial route of his own and to exercise a colonizing influence on those lands. The concept of colonization that the crown of Castile adopted was closer to Roman practice than to Phoenician and Greek colonization in Antiquity. For Phoenicians and Greeks, colonization was mainly the starting point for diverse maritime commercial projects. In contrast, the Roman conception of colonization was closely related to conquest, military domination, and political control, which progressively brought about the cultural transformation of the conquered peoples.8 When assimilating the vanquished, their public (and 5  See Schatz, K., Der Päpstliche Primat. Seine Geschichte von den Ursprüngen bis zur Gegenwart, Würzburg, 1990, 114–117. 6  See Huddleston, L.E., Origins of the American Indians. European concepts, 1492–1729, Austin, 1967, 33–44; Lynch, J., New Worlds. A Religious History of Latin America, New Haven, CT, 2012, 1–31. 7  The recent demonstrations against monuments commemorating Columbus in the United States is enough proof of this. 8  See Finley, M.I., Ancient Slavery and Modern Ideology, New York, 1980; Patterson, O., Slavery and Social Death. A Comparative Study, Cambridge, 1982; Bradley, K.R., Slaves and Masters in the Roman Empire. A study in Social Control, New York-Oxford, 1987.

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arguably also their private) behavior was modified according to specific and determined patterns, which would allow them to participate in what Romans thought to be the best and most characteristic aspects of their culture, including the cultivation of letters and humanitas. The Roman model, as can be seen, was diametrically distinct from the Greek and Phoenician economic motivations and opened significant possibilities for the conduction of cultural and political life. In this way, the American project, originally based on an economic motivation, led very soon to policies of cultural transformation shaped by Catholicism and its way of conceiving of humanity and its place in the world. A new way of thinking about society and the newly discovered lands was developed by European intellectuals.9 A historian has even asserted that Columbus and the Catholic Monarchs had “a real contract by which a kind of commercial enterprise was created, with the monarchs as capitalist partners and he as an industrial collaborator, the former reserving for themselves the political sovereignty over the discovered lands and a large part of its economic benefits”.10 It seems appropriate to begin our exploration with this claim, since it is precisely the American event that rendered a new European interpretation of humanity and the world possible. In the context of a Europe exhausted by innumerable conflicts and confrontations, where religion was no longer a conciliatory force but a cause of conflict and dissent, the New World appeared as a unique opportunity to dream about and devise a new Christian world, composed of believers of a piety already forgotten in old Europe. Accordingly, the new believers, namely the American natives, were compared to the primitive Christian communities of the Acts of the Apostles.11 When in April of 1493 the Catholic monarchs attended the baptism of a group of Americans in Barcelona, they were witnesses to a reevaluation of the 9   The Franciscan observance contributed in no small degree to this. See Bataillon, M., “Evangélisme et millénarisme au Nouveau Monde”, in Courants religieux et humanisme à la fin du XVe et au début du XVIe siècle, Paris, 1959, 22–5; Baudot, G., Utopie et histoire au Mexique. Les premiers chroniqueurs de la civilisation mexicaine (1520–1569), Toulouse, 1977, 86–102. 10  Céspedes del Castillo, G., “América hispana”, in Historia de España, Barcelona, 1983, v. VI, 64. 11  See Baudot, G., “Les missions franciscaines au Mexique au XVI ème siècle et les ‘Douze Premiers’”, in Diffusione del francescanesimo nelle Americhe, Assisi, 1984, 21–152; Acker, G. van, “El humanismo cristiano en México: los tres flamencos”, in Escudero Imbert, J., (ed.), Historia de la evangelización de América. Trayectoria, identidad y esperanza de un Continente. História da evangelização da América. Trajetória, identidade e esperança de un Continente. Simposio internacional. Ciudad del Vaticano, 11–14 de mayo de 1992. Actas, Roma, 1992, 795–819.

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Indians’ human and spiritual dignity. This signaled a shift from a strictly colonizing approach to the American question to the promotion of the Indian in a human and Christian sense. The shift was also the fruit of the accumulation of knowledge of the American lands, where social and political events were already exercising a decisive influence even over the Iberian Peninsula. Therefore, even if the Capitulations of Santa Fe (1492) between the monarchs and Columbus had a strictly commercial motivation, the shift in the perception of the newly discovered lands that occurred a year later proved to be a point of no return, even despite its limitations.12 After that moment, new juridical discourses and interests that entailed an anthropological and cultural revaluation of the new lands were put into play. The American territories, after Spaniards stopped valuing them exclusively as a place for economic exploitation, started to play a relevant and active role as the birthplace of a new (Christian) Indian society. The direct and most important consequence of this revaluation was that the geographical and cultural center started to shift towards the west. The European geography, culture, and history began to slowly lose their preeminence.13 After this first step in the reconfiguration of the discourse on the New World, the human and spiritual (if not the cultural) dignity of the Indians was recognized in the Alexandrian bulls, where the pope spoke of the need to send learned, educated, and experienced evangelizers who could provide Indians with a reasoned preaching that could attract them to both Christian faith and mores.14 The bulls imposed a moral and religious obligation on the crown, which was from then on forced to take responsibility not only of the administration and resolution of the myriad of Spanish interests and difficulties in the New World, but also of the progressive transformation of the land and its peoples. The following year, king Ferdinand obtained from pope Alexander VI the title of Vicar Apostolic in the Indies, and in 1508 the Catholic kings were granted the Patronato Real by pope Julius II, which gave the rulers the right to

12  See Fernández Herrero, B., La utopía de América: teoría, leyes, experimentos, Barcelona, 1992. 13  See Hanke, L., “The Theological Significance of the Discovery of America”, in Revista de História 25 (São Paulo, 1974), 133–145. 14  Alexander VI, “Inter caetera (3 maii 1493)”, in Metzler, J. (ed.), America Pontificia. Primi saeculi evangelizationis (1493–1592), Città del Vaticano, 1991, 74: “[…] Viros probos et Deum timentes doctos, peritos et expertos ad instruendum incolas et habitatores prefatos in fide catholica et bonis moribus inbuendum destinare debeatis omnem debitam diligentiam in premissis adhibentes”.

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oversee and administer the presence of the Church in the Spanish territories in the New World.15 For both religious and royal authorities, it was important to motivate both conquistadors and colonizers to treat Indians humanely. The project was slow, complicated, and at certain times impossible, because colonizers followed interests that were diametrically opposed to those of religion and political administration, even in such fundamental areas as the conception of society and power. The ideological conflicts between crown and colonizers posed difficulties to their mutual interests and would ultimately lead to the recognition of equal rights for Indians and Castilians. Soon afterwards, and as a way of protecting the native population, official legislation became openly favorable towards the Americans. Thus, the Laws of Burgos (1512), but most importantly the New Laws (1542), were almost an evocation of queen Isabella’s concerns, at least as we know them from her own testament.16 More than equality or justice, the principle of equity was at the basis of the Laws of the Indies, which meant paying special attention to the needs of each citizen as a member of a specific group. This idea had undoubtedly a link to a Christian and humanist anthropology: a unique feature of early modern Iberian thought.17 It is important to show how the motivation behind the New Laws did not originate in the Iberian court but in the Indies, even though, naturally, their promulgation depended on the authority of the Castilian crown. The new legislation, with all its limitations, was developed as a contextualized response to the social and political praxes of the newly discovered lands, and even continued to allow thinkers to question the treatment of Indians and the exploitation of American resources (as Bartolomé de las Casas had done); so much so that even Charles V himself came to doubt his right title over the American territories. This sensitivity in the search for justice was not easy to find in other contemporaneous legal codes. It was something unique and characteristic of the Castilian crown.18 As already mentioned, Castilian law allowed for and even favored a constant revision of its application based on the concreteness of social 15  Cf. Alexander VI, “Piis fidelium (25 iunii 1493)”, in Ibid., 83–86; Julius II, “Universalis Ecclesiae regimini (28 julii 1508)”, in Ibid., 104–107. 16  A Christian notion of distributive justice was behind this process, according to which goods and benefits were distributed according to particular needs and merit. In the case of the Indians and their rights, this conception was rendered concrete in protectionist legislations. 17  See Pena González, M.A., “Otra forma de humanismo: la preocupación por el hombre”, in eHumanista 29 (2015), 72–91. 18  See Pérez Fernández, I., El Derecho Hispano-Indiano. Dinámica social de su proceso histórico constituyente, Salamanca, 2000, 278–300.

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practices. This was a sensibility that could be found nowhere else in Europe, where the main function of law was the defense of the rights of monarchs and the privileged classes. The Laws of the Indies, in contrast, had at stake the rights (and even the survival) of entire populations that had been completely unknown just a few years before. Moral and legal debates questioned the nature of colonialism itself and generated an atmosphere of deep reflection and debate, where each individual felt the obligation to defend the ideas he considered most appropriate,19 and where the concrete social and political praxes of the American lands became the main elements for moral judgement and evaluation. Theologians and jurists, therefore, would play a leading role in that context. 2

The Scholarly Contribution

Academic discussions on the Indies were in large part linked to the school of theological, philosophical, and legal thought developed at the University of Salamanca, the most important academic institution in antiguo régimen Castile. The group of scholars and authors who participated in the discussions at Salamanca gave rise to the so-called “School of Salamanca”, a school of thought of a very unclear and, at least according to some scholars, controversial definition. If there is something clear, however, is that secondary literature has so far offered only unclear and ambiguous answers to the questions regarding the identity of the school, the group of scholars belonging to it, and its duration. This lack of clarity has allowed recent scholars to propose different definitions and descriptions of the School. The frequent use and abuse of the term “School of Salamanca” (especially during the second half of the twentieth century, when Spanish scholarship on this period of Hispanic thought coincided with the fall of the Francoist regime) makes it necessary for scholars to develop a critical notion of what we meant by it.20 To pursue this goal, more than trying to attain a precise definition (which seems to us a 19  See Maravall, J.A., “Las Indias y la Corona de Castilla”, in id., Estudios de Historia del pensamiento español, Madrid, 1984, 429. 20  Scholars have proposed this critical approach in the last decades. See Belda Plans, J., “Hacia una noción crítica de la ‘Escuela de Salamanca’”, in Scripta Theologica 31 (1999), 367–411; Id., La Escuela de Salamanca y la renovación de la teología en el siglo XVI, Madrid, 2000; Pena González, M.A., “Aproximación histórica al concepto ‘Escuela de Salamanca’”, in Salmanticensis 52 (2005), 69–119; Id., “El concepto ‘Escuela de Salamanca’, siglos XVI–XX”, in Rodríguez-San Pedro, L.E. (ed.), Historia de la Universidad de Salamanca. III.1. Saberes y confluencias, Salamanca, 2006, 251–300.

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matter of mere erudition), we will try to employ the historical and intellectual context of the University of Salamanca at the turn of the sixteenth century to lead us to a perhaps less precise but certainly more substantiated understanding of what the School was. There is no doubt that this unique intellectual period at the University of Salamanca, when theology reigned as the supreme science, was characterized by the work of scholars who were able to develop an original thought independently of external pressures and with full awareness of its role in society.21 Salmantine professors were convinced that their scholarly work was destined to exercise a strong social impact, due most likely not to the little attentiveness with which their contemporaneous society received their teachings but to the social ascendancy that intellectual religious men enjoyed in their time. What characterized Salamantine scholars was not their agreement on every argumentative detail, but their dependence on scholastic thought, and particularly on Aquinas’ Summa theologiae. In a society where religion permeated everything, Salmantine theologians were guided by a series of standard scholastic readings, which they interpreted and reused freely. Their scholarly and social success was, then, due to both their reliance on tradition and on their original approach to standard university texts. Additionally, they believed themselves guided by a Christian universalist mentality, which, again, connected them to both the original ideas of modernity and of traditional medieval thought.22 Theologians at Salamanca paid close attention to the social impact of the Church Fathers, who had developed a thorough scriptural theology of social engagement. Their scriptural, patristic, and medieval sources allowed Salmantine theologians to defend the idea that universal and inalienable personal rights arose from human nature itself. For that reason, we can argue that theological thought at Salamanca was eminently practical and opposed to any form of legalistic thought for which rights are not recognized but granted by human authorities. The main target of Salmantine criticisms were universalist political ideas such as those defended by the Holy Roman Empire and papal theocracy, 21  See Pena González, M.A., Aproximación bibliográfica a la(s) ‘Escuela(s) de Salamanca’, Salamanca, 2008; id., La Escuela de Salamanca. De la Monarquía hispánica al Orbe católico, Madrid, 2009. 22  This form of Christian universalism conjoined a Roman law notion of the cives who fully participates in the rights of a multinational Empire with a notion of the Christian believer who, adhering to Christian universalism, was supposed to be open to all peoples and nations. This idea, obviously, was not new and exclusive to the Salmantines, and can arguably be traced back to primitive Christianity. See, for instance, Acts 1:8: “Et eritis mihi testes in Hierusalem et in omni Iudaea et Samaria et usque ad ultimum terrae”.

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which, so they argued, failed to be truly universal (and, therefore, Catholic) due to their hierarchical character. Against this hierarchical conception of rights and supported by natural law, Salmantine scholars defended the political sovereignty of all peoples and paved the way for intellectual confrontation with the institutional powers of their time. According to Salmantines, every political community had the right and the duty to appoint the holders of political power, either by choice or by tacit consent. The prince, for this very reason, was understood to receive his powers directly from the people and not immediately from God. This was, therefore, a natural law conception of the state, which argued that the political societies of gentiles were just as legitimate as those of Christians. The evolution and development of these ideas greatly influenced the American project of the Spanish colonizers and offered new elements for ethical discussion. It can be said that the European discovery of America offered Europeans a previously unavailable field of thought, one that not only gave them a much broader perspective on the world and their place in it, but also allowed them to challenge what their immediate historical context offered them.23 The ideas defended by Salmantine theologians posed a challenge for those who defended the absolute sovereignty of the emperor. To this end, Francisco de Vitoria developed his principles of the universal natural rights of humankind based on the authority of Aquinas (something that he learned from his teacher Peter Crokaert). Vitoria, by denying the pope’s dominion over the world and the newly discovered lands, proposed innovative and unavoidable practical questions to which he, his disciples, and subsequent generations attempted to respond.24 In treating said questions, professors at Salamanca proposed original reflections, coherent with what they considered most practically appropriate, and based on what their brethren in the Americas reported about their daily experiences in the New World. Salmantine professors, despite never having visited the Americas, took into account the numerous concrete problems that the American project entailed. They brought together, therefore, theoretical arguments and concrete experiences. Their scholarly work eschewed abstract theological speculation and offered a theology not only of a more positivist character, but also with broader interdisciplinary pretensions. 23  It is interesting to note the importance of canon law for this intellectual process, as Tubau has argued. See Tubau, X., “Canon Law in Juan Ginés de Sepulveda’s ‘Democrates Secundus’”, in Bibliothèque d’Humanisme et Renaissance 73 (2011), 265–277; id., “Los derechos de los indígenas americanos y la tradición jurídica medieval”, in Tierras prometidas. De la Colonia a la Independencia, Bellaterra, 2011, 399–426. 24  See Vitoria, F. de, Relectio de Indis, Pereña, L. and Pérez-Prendes, J.M. (eds.), Madrid, 1967, 43–75.

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For them, it was no longer enough to collate and comment on standard authorities; their method required arguments based on concrete facts. The Iberian intellectual tradition, particularly that of the last few decades before the sixteenth century, characterized by a struggle for a just legal order and social organization, might have also contributed to the practical character of scholarship in Salamanca. An example of said intellectual endeavour was the contribution of humanist scholars at the royal court. The presence of scholars in the highest levels of public administration became even more conspicuous during the reign of Charles V, who also strived towards a more just political and juridical organization.25 Castilian humanism, of a clearly Stoic bent, led Salmantine authors to remain faithful to the best that traditional scholasticism had to offer and to show particular attention to legal, economic, and political issues, which granted them an autonomy that scholars of previous generations had not enjoyed. Iberian humanists developed a form of humanism with clear theological nuances, something that was particularly attractive to students of their time because of the originality of their approach. America had enlarged the horizon of the problems that a theologian had to treat based on the scholastic method and the medieval principles that had produced a singular synthesis between faith and reason. Theological reflection, which during the late Middle Ages had traditionally been oriented towards supernatural doctrines, recovered its concern for the concrete, so much so that, without abandoning dogmatic issues, discussions on earthly realities of contemporaneous importance were examined with the utmost theological attention. Based on such an approach, Francisco de Vitoria, remaining within the traditional frameworks of Catholic theology, affirmed unambiguously that the idea of the alleged rational inferiority of the Indians was based on faulty arguments. One could say that the success and uniqueness of the School was its most authentic respect to tradition. A clear example of this is found in the following statement by Francisco de Vitoria: The office and calling of the theologian is so ample, that no argument or controversy on any subject can be considered foreign to his profession. But there are never many really outstanding men in any discipline at any 25  See Biersack, M., “Die institutionelle Verankerung des Humanismus in Spanien”, in Scientia valescit. Zur Institutionalisierung von kulturellem Wissen in romanischem Mittelalter und Früher Neuzeit, München, 2009, 157–170; Tubau, X., “Derecho, política y propaganda: los juristas y el imperio de Carlos V”, in La escondida senda. Estudios en homenaje a Alberto Blecua, Barcelona, 2012, 121–123; Biersack, M., “The Adoption of Humanism in Catholic Spain (1470–1520)”, in Reformation & Renaissance Review 21 (2019), 27–46.

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one time, as Cicero once said of orators; perhaps this is the reason why there are now, to put it no more strongly, so few really good and solid theologians. For theology is, as the Greek name implies, the chiefest and first of all sciences and disciplines in the world. Small wonder, then, that so few have achieved mastery in so vast a subject.26 It is also true that, whether consciously or not, the authors sought to capture the attention of their audience, directing their attention to the most current topics, a strategy that would give them more visibility to a wider audience. In this intellectual atmosphere at the University of Salamanca, the great scholastic baggage, and particularly Aquinas, was read, exposed, and interpreted. The method employed by Salmantines for approaching practical problems, as well as the strict order of their argumentation, their capacity for synthesis, and the hierarchy of ideas in their lessons and texts offered a significant novelty that went beyond the limits of the curriculum at the Salmantine faculty of theology, which was still based on Peter Lombard’s Sententiae. In addition to their being captivating to young students, the theologians’ innovations exhibited a modern and humanist sensibility, which directed its gaze to the human being of modernity and to those events and historical circumstances that had a direct bearing on the questions of practical theology, such as the question of the good life and the moral limits of economic activities. They also emphasized what we in our days may call the question of the Other, who was concretized in a singular way in the Indian and his existence as a real, existent human being. This attentive look at humankind and its problems, read and interpreted from a theological mentality of an eminently juridical and moral character, also had concrete repercussions on the legal field, as well as on the social organization of the nascent modern states and the overseas provinces and viceroyalties. In this sense, in the framework of the sixteenth and seventeenth centuries, abstract theological concerns gave way to more or less intricate formulations that involved concrete problems and motivations, which were treated by the Salmantines based on the safe foundation of authorities like Aquinas and Augustine, whom they read and interpreted eclectically. The body of thought elaborated by the School of Salamanca, whose originality manifested itself particularly in the concerns of its early decades, also implied a series of modifications to the scholastic method that scholars had learned in their formation. Said changes can be summarized in the 26  Vitoria, F. de, Relectio de Potestate Civili. Estudios sobre su Filosofía Política, Cordero Pando, J. (ed.), Madrid, 2008, 7. Translation in Vitoria, F. de, Political Writings, Pagden, A. and Lawrance, J. (eds.), Cambridge, 2001, 3.

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abandonment of a strict adherence to a specific school, and an eclectic selection of what seemed most convenient for teaching and explaining their problems, regardless of whether ideas and arguments came from the Thomistic, Scotist, or even the Nominalist school (the impact of which was generally moderate), as well as the opening up of university scholarship to new methodologies, fundamentally those of a positive character, which greatly enriched the reflection and discourse at the University of Salamanca. The Salmantines’ use of scientific methods and the use of a careful and elegant Latin prose even garnered them the respect of Renaissance humanists. Professors recurred to a well elaborated rhetoric and pedagogy not only for captivating their audiences, but also due to their openness to the immediacy of practical problems, understood as issues that could and should also be approached from professional theology and in university settings. This openness to practical problems, which we have been considering as a trait of sixteenthcentury Salmantine theologians, was not entirely new, since theologians of the second half of the fifteenth century also dealt with social problems that their time, so multiform and conflictive, offered them.27 Since the end of the fifteenth century, students had been offered a solid humanistic education, which included an attentive study of practical issues.28 Theologians, within their possibilities and limits, but perhaps with more energy and effectiveness than other scholars, applied the light of revelation to the examination of social, political, and economic problems. And, we should not forget, this was something that took place at a time of great discoveries, some of them impossible to imagine in previous centuries. For the same reason, sixteenth-century scholars relied 27  See Vázquez Janeiro, I., “La teología del siglo XV”, in Rodríguez-San Pedro, L.E. (ed.), Historia de la Universidad de Salamanca. III.1. Saberes y confluencias, Salamanca, 2006, 174. Fifteenth-century European theology was characterized by the predominance of a logical and dialectical conceptualism that, due to its connection with the Nominalist school, lay far from the metaphysical realism of classical scholasticism. In contrast, fifteenth-century Iberian theology, especially as practiced in the second half of the century, had as its main characteristics its interest in practical problems, its use of an apologetic and allegorical method, and the literary, political, and theological influence of Italian humanism. Perhaps due to its having been written in Spanish, fifteenth-century Iberian theology was largely uninfluential in the rest of Europe. Moreover, the influence of the logical, ethical, and political works of the Aristotelian corpus since the fourteenth century is a feature of Iberian thought that cannot be ignored. Aristotelian practical philosophy (Nicomachean Ethics, Politics) legitimized the social preoccupations of Spanish theologians. See Pena Búa, P., “La ‘Escuela Moderna’ en la Salamanca del siglo XV”, in Pena González, M.A. and Rodríguez-San Pedro, L.E. (eds.), La Universidad de Salamanca y el Pontificado en la Edad Media, Salamanca, 2014, 408–410. 28  See Fuertes, J.L., “La estructura de los saberes en la primera Escuela de Salamanca”, in Cauriensia 6 (2011), 103–145.

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on a theology of a peculiar and original character, which allowed them to influence the course of real politics, even though their impact was felt only in a very gradual way. The use of Aquinas’ Summa, introduced at the Salmantine faculty of theology by Francisco de Vitoria, soon became a compulsory and standard resource for scholars. Their Thomism allowed Salmantines to establish connections with modern thought. However, precisely because of the importance that this new wave of scholasticism was acquiring, the different groups that integrated the University of Salamanca, like the Studium Generale and the incorporated colleges and convents, began to elaborate their own interpretations on Aquinas, and arrived at different and sometimes opposite conclusions. As a useful starting point, no one can deny the existence of a particular school of thought in sixteenth-century Salamanca, which was shaped by a particular way of thinking and doing theology. The great authors of the Spanish Golden Age were already aware of the originality of Salmantine thought. In this regard, it is enough to remember the eminent theologian Melchor Cano who, without any doubt, was a disciple of Francisco de Vitoria.29 Perhaps the element that contributed the most to configure and construct the image of the School for posterity was Vitoria’s Relectiones. A relectio was a lecture that professors taught publicly and officially throughout the academic year. It was only natural that for such an important moment in university life a topic of pressing (or even controversial) interest was chosen, something that ultimately attracted the attention of a wider audience and responded to relevant practical problems. The entire university community attended this academic event, but before Vitoria they had almost gone unnoticed. It was then when relectiones took on a particularly relevant role in university life. It is important to note that their success depended not on their textual quality, but rather on the effectiveness of their oral transmission. Vitoria, after all, would not publish his Relectiones during his long stay at Salamanca. His transcribed lectures were printed posthumously. 29  See Cano, M., De locis theologicis libri duodecim, Salmanticae, 1563, [lib. XII, c. 1], 385a. Cándido Pozo’s opinion on the matter is still relevant to gauge the influence of Vitoria’s thought: “Los teólogos de Salamanca han visto en él al padre de la Escuela salmantina e incluso de la renovación de la Teología en el siglo XVI. Aun limadas sus frases de lo que pueden tener de exclusivismo, es evidente la amplitud y profundidad del influjo de Vitoria que contrasta con la exigüidad de su producción literaria. Vitoria sentía una gran dificultad—conocida y confesada por él mismo—en preparar originales para la imprenta. Pero poseía un eminente ‘don de magisterio’, que le permitió transfundir su espíritu— en unas clases llenas de interés y viveza y en el trato personal afable y comprensivo—a una brillante constelación de discípulos”. Pozo, C., La teoría del progreso dogmático en los teólogos de la Escuela de Salamanca, Madrid, 1959, 53–54.

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Unlike what happened with scholasticism in the seventeenth century, the immediate success of the School of Salamanca was not owed as much to the publishing of texts as to oral teaching, an activity in which students and the general audience played a preponderant role. The work of the latter, as note-takers or as witnesses to the event, would be of utmost importance when the work of the teachers went to press. An element not to be neglected is the fact that the Royal and Pontifical University of Salamanca, following the model of the University of Paris, was organized around the classrooms of the Studium Generale and the associated schools and convents. In this way, university thought was enriched by the scholarly work carried out not only in the general faculties of Theology, Canon Law, and Civil Law, but also in the incorporated schools and in convents. Among the latter, the Dominican convent of San Esteban, where the great masters of the Order of Preachers resided, is often mentioned in secondary literature, but less attention has been paid to the convent of San Francisco. This convent had went through the fifteenth and sixteenth-century conflicts on the Rule of St Francis and the abandonment of conventuality in favor of observance,30 which led to the withdrawal of Franciscan presence in the general faculties and their focus on their own Studium Generale.31 In this specific context, we can find Franciscan scholars who reflected on the great problems of the moment, including those dealing with the New World, while neglecting topics that in previous decades had a significant importance. Franciscans cultivated in particular the genre of conversion literature and other genres that dealt with the concrete problems of their historical context.32 30  The triumph of Franciscan observance meant that, while scholarly learning was still valued, the Order rejected the reception of academic degrees, which entailed that Franciscans could not hold academic positions at universities. The scholars of the Order could only be part of the faculty of the Franciscan Studia. See Roest, B., A History of Franciscan Education (c. 1211–1517), Leiden, 2000; id., Franciscan Learning, Preaching and Mission c. 1220–1650. Cum scientia sit donum Dei, armatura ad defendendam sanctam fidem catholicam …, Leiden, 2014. 31  As Clara Ramírez argues, “el alejamiento de las aulas universitarias no significó que los franciscanos de Salamanca abandonaran los estudios. El convento franciscano de la ciudad contaba con un importante Estudio, el cual permaneció en funcionamiento aunque los frailes no acudieron a las escuelas de la Universidad, ni se graduaron”. Ramírez, C.I., “Las órdenes religiosas en la Edad Moderna. El contexto”, in Rodríguez-San Pedro, L.E. (ed.), Historia de la Universidad de Salamanca. I. Trayectoria y vinculaciones, Salamanca, 2003, 568. 32  Important Salmantine scholars belonging to the Franciscan Order, like Alfonso de Castro, authored works of apologetics, like his Adversus omnes haereses libri XIII, where the centrality that discussions on Judaism and Islam occupied in previous centuries was replaced by a focus on the Reform. Alfonso de Castro also discussed doctrinal controversies that

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Particular attention was paid to the historical aspects of natural law, showing a sometimes elementary and inchoate application of a method attentive to social reality. This is something that can be seen in the teachings of Francisco de Vitoria and Domingo de Soto, in their daring and creative application of theology in the treatment of the burning issues of their time and, above all, in the way they took into account reports that were transmitted to them and that they themselves are able to collect.33 However, it is important not to lose sight of the fact that originality was not exclusive to the faculty of theology. Daring and innovative thought could also be found in the most traditional field at the University of Salamanca: that of law, both canonical and civil. A clear example of this Martín de Azpilcueta, doctor Navarrus, who considered himself the reformer of the Salmantine faculty of law, just as Vitoria was the reformer of the theological faculty and Juan Martínez Silíceo that of the faculty of arts.34 In the long sixteenth century, Salmantine scholars proved capable of generating new ways of doing scholarship. 3

Problems and Reflections, Corroborated by Missionary Practice

As said before, Salmantine scholars, following the fundamentally theoretical scholastic method, also reflected upon concrete facts. The field where principles, arguments, sententiae, and auctoritates were applied was extended, and their importance was considered in a completely new way. Scholars elaborated arguments and reached conclusions that were no longer merely speculative, but also included strong ethical evaluations relating to diverse social concerns. The principles that could be considered as the original achievements of scholasticism: the clear presentation of issues and questions, the use of precise and unambiguous concepts and terminology, its logical and systematic argumentation, etc. had by then an interesting application, since they were instrumental raged within the Church itself. His work, published in 1534, was, despite its controversial nature, a reasoned invitation to Catholicism. 33  It is extremely important to emphasize this, since very often scholars characterize these authors almost as mere jurists. As mentioned before, however, their training and work as theologians, at a time when theology was considered the queen of sciences, implied an almost multidisciplinary and exceptionally diverse approach to practical problems. 34  We can find Azpilcueta’s high opinion of himself in a letter addressed to the Governor of Milan. Here, he presents himself as the reformer of canon law at Salamanca and compares himself to Vitoria, the reformer of theology. See Azpilcueta, M. de, “Tenor Epistolae praefatae apologeticae”, in id., Opera omnia, I, Lugduni, 1589, 460.

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in the elaboration of a nuanced reflection on practical issues. In that intellectual milieu, dogma, morality, law, spirituality, asceticism, and exegesis were developed simultaneously. The multidisciplinarity practiced in Salamanca forces us not to limit the School only to a certain locality or a small number of outstanding authors. The ideas produced by Salmantine scholars extended even beyond the peninsula and reached unexpected places. Although it is true that over the years the problems treated by the School changed, a series of common places remained as points of reference, namely, specific concerns from the religious, social, and political spheres. All of this would ultimately configure the particular character of Spanish thought.35 We can find the fundamental ideas of Salmantine professors scattered not only throughout scholarly texts published during the sixteenth century, but also in religious, moral, and pastoral books and booklets. Most of those foundational issues and proposals were developed before the Council of Trent in response to the ruptures and conflicts that conciliarism caused during the fifteenth century. Catholic scholars generally opted for a staunch and militant uniformity, which would even be translated into prohibitions against the interpretation of conciliar canons and into the selection of Thomism as the “official” theology of the Church.36 The fundamental ideas produced by the Salamantine teachers were as follows: – The doubts about the legitimacy of the Spanish titles of dominion over America, which were concretized in a concern for Indians and the question of just war. The main contributions to these topics were elaborated by Domingo de Soto and Francisco de Vitoria, who examined the principles and practices that were to sustain the evangelization and the policies that governed American natives. – Economic issues, particularly those dealing with fair price and the excessive imbalance of prices, the commercial activities of Flemish merchants and the importation of raw materials from the West Indies, which hurt European economy and particularly that of Castile. These concerns also included topics referring to alms, usury, the legality of trade, etc. Salmantines discussed how economy was to be regulated: having the common good as its main point of reference. 35  Although these characteristics did not lead scholars to homogeneous conclusions and argumentations, they are a synthesis of the concrete problems that occupied the reflections of Salmantines, who, in their role as vassals and servants to the Spanish monarchy, were in open opposition to other manifold interests. 36  This was carried out by the prohibition of interpreting and commenting on conciliar decrees since their publication. Such prohibition was formulated by Pius IV in 1563.

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The problem of civil obedience or disobedience, in contrast to the authoritarian and theocratic political conceptions current at the moment. These issues would acquire a pressing and tangible importance in the drama of English Catholics under James I, but also referred to the treatment of Indians and settlers in the Americas under the rule of conquistadors or official Spanish authorities, who did not always act following the law. – The debate on the freedom of the seas, the battle for the control of maritime routes and the freedom to navigate them, together with the benefits they produced for European kingdoms, including the Castilian crown. This was a somewhat later concern, but one that was already present in Francisco de Vitoria’s Relectiones. These discussions acquired special relevance in the writings of Fernando Vázquez de Menchaca.37 Additionally, a particularly relevant issue were the West Indies and the treatment of Indians. Theologians, especially the great Dominican masters, had a deep and detailed knowledge of the Americas based on the reports that missionaries transmitted them. Missionaries constantly sent accounts to scholars in Iberia since they expected responses to their problems based on Church teachings and the moral sensitivity of their times. As such, social issues, particularly those originated in the Indies or that in one way or another were a direct or indirect consequence of colonialism acquired their own value and importance apart from mainstream theological, dogmatic, and moral discussions.38 Salmantine scholarship contributed to the development of moral, political, and legal science, and even innovated new literary genres that allowed for their reflections to be better expounded. It is true that Salmantine thought was expressed in academic texts, but precisely because of this, the connection between moral theory and law was one of its most vivid expressions. Domingo de Soto was the first and perhaps the most unique exponent of this approach with the publication of his Tractatus de Iustitia et Iure,39 where its author, based on a theology perfectly imbricated with law, attempted to give answers to contemporaneous problems based on

37  See Carpintero, F., “Fernando Vázquez de Menchaca”, in Universal Jurists. II. Modern Jurists, Madrid, 2004, 198–202. 38  Some authors have credited the influence of Seneca on Spanish scholars as the cause for the eminently practical character of Salmantine thought. 39  Domingo de Soto’s work was the prototype to diverse other Tractatus de iustitia et iure authored by other Spanish scholars, the most influential of which was written by the Jesuit Luis de Molina. This is another demonstration of the tendency of Salmantines to attend to the same problems from different theological viewpoints.

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the tradition of natural law.40 Soto’s more pragmatic solutions had a scholarly antecedent in the numerous commentaries De legibus authored by diverse theologians. The scholarly work done at Salamanca, as said above, was a broad and dynamic thought, open to its concrete historical context. Perhaps the most important source for the thought of Salmantine scholars, as can already be intuited, was Aquinas’ Summa Theologiae I–II, particularly the questions on law. The “School of Salamanca”, therefore, found a strong and lively support in the disciples of the first teachers, who, supported by their brilliant theological formation and by a particular apostolic vision, were able to create a vigorous theology, deeply connected to reality. A critical moment or place of departure in this process, which also signals the close relationship between missionaries and scholars, was the Christmas of 1511, when a group of Dominicans from San Esteban de Salamanca settled on the island of Santo Domingo and produced the first major criticisms against the colonizers. It was the beginning of what would ultimately become the legislation of the Indies, particularly that of the sixteenth century. The Laws of the Indies showed a particular concern not only for the protection of the natives, but also for what thinkers called “spiritual government”.41 The issue was much deeper and much more relevant than what Bartolomé de Las Casas’s interventions or his disputes with the eminent jurist Juan Ginés de Sepúlveda could reflect. When at the end of 1541 the Dominican informed Charles V about the mistreatment of the Indians and the abuses of the encomenderos, the emperor was strongly impacted. Charles himself was the same who a few years before had written to the prior of the Dominican convent at Salamanca about what Francisco de Vitoria and other religious professors taught in their chairs.42 Ius gentium and the rights of the Indians were novel subjects: the first author who wrote about this question was John Major, a professor at the Collège de Montaigu in Paris, who would significantly influence Francisco de Vitoria.43 For his part, the emperor was informed of the situation in the Americas, and took action against some members of the Council of the 40  As Virginia Aspe points out, “la ley natural es el instrumento clave de integración y diversificación en la discusión del siglo XVI novohispano […] los hombres del XVI americano pudieron insertar cierta variabilidad cultural en cuestiones substanciales de la ley natural. Su contribución marcó un avance en el reconocimiento de las legítimas diferencias entre los hombres”; see Aspe, V., “El concepto de ley natural como instrumento integrador en el imaginario novohispano”, in Tópicos 34 (2008), 81–82. 41  See García Añoveros, J.M., La Monarquía y la Iglesia en América, Madrid, 1990, 51–54. 42  See “Carta de Carlos V al prior de San Esteban de Salamanca (10 de noviembre de 1539)”, in F. de Vitoria, Relectio de Indis, 152–153. 43  It is enough to note all the times that Vitoria cites this author in his Commentarium in Summam Theologicam. See Pena González, M.A., “El concepto ‘Escuela de Salamanca’,

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Indies. To settle the most pressing questions of the age, Charles V summoned the Junta de Valladolid, from which the New Laws of 1542 would issue. 4

The Projection of a School of Thought

Salmantine scholars were not concerned about studying the natives of the West Indies in their particularity. Their claim was completely different and broader: to study human being and its relationship with God, a starting point from which they arrived at the problem of the Americans and their social and political praxes, allegedly contrary to Christian charity. This concern, on the other hand, did not issue exclusively from the cultural and humanist university context, but was also produced organically through the multiple experiences in the viceroyalties themselves. Americans and European settlers in the New World would adopt the reformist tendencies born in Iberia as their own, which had as main figures the likes of Ximénez de Cisneros and Hernando de Talavera. It can be argued that America gave rise to new strains of utopian thinking and served as an incentive for existing ones.44 People like Juan de Zumarraga, Alonso de la Veracruz, Vasco de Quiroga, and Francisco Cervantes de Salazar contributed to the thinking of utopia, always with careful attention to the constant possibility of expanding the horizons of Christian thought. It is important to insist that this understanding of the New World is not something that was only produced and developed during the first decades of colonization, as Eugenio Ímaz pointed out in his classic study on Renaissance “Utopias”.45 An example of this is the early existence of schools for Indians, particularly in the New Spain, like the Imperial College of Santa Cruz de Tlatelolco, founded by Franciscans in 1536 as the first institution of higher education in the New Spain. One of its most eminent professors was the Salamanca-trained Bernardino de Sahagún, who evinced that singular synthesis of interdisciplinarity and humanism that characterized Hispanic intellectuals at the time.46 siglos XVI–XX”, in Rodríguez-San Pedro, L.E. (ed.), Historia de la Universidad de Salamanca. III.1. Saberes y confluencias, Salamanca, 2006, 261. 44  See Serés, G., “La translatio como traducción y traslado al Nuevo Mundo”, in Clásicos para un Nuevo Mundo. Estudios sobre la tradición clásica en la América de los siglos XVI y XVII, Bellaterra, 2016, 433–463. 45  See Ímaz, E., “Topía y Utopía”, in T. Moro – T. Campanella – R. Bacon, Utopías del Renacimiento, 15th ed., Mexico, 2001, 13–14. 46  See Méndez Arceo, S., La Real y Pontificia Universidad de México. Antecedentes, tradición y despacho de las reales cédulas de erección, Mexico, 1952 (repr. 1990), 40.

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This institution would gradually become a laboratory for historical and linguistic research. Franciscans supported it in their conviction that serving Indians also meant knowing them in their own identity: their language, culture, and traditions.47 This antecedent to the Royal and Pontifical University of Mexico is also important because its scholarly practice was not due only to the work of Europeans, but also to that of the Indians, who were the direct collaborators of Sahagún and other friars, and who were agents of the historical, cultural, linguistic, and evangelizing projects initiated by the Franciscans.48 At the Colegio, Andrés de Olmos and Arnaldo Bassacio taught rhetoric, logic, and philosophy. The scholarly work done at the Colegio implied a social, cultural, and Christian recognition of the full humanity of Indians, an educational practice that also impacted the Iberian Peninsula. This is also shown in the founding regulations of the University of Mexico, where it was proposed that Indians and the children of Spaniards should study together (although only a handful of Indians would actually study at the University).49 It is necessary to mention that not all missionaries were convinced of this way of proceeding, and considered that the Indians were intellectually limited. A clear example of this was the Dominican Domingo de Betanzos, who was opposed to the Indians being admitted to institutions of higher education, an opinion that became increasingly more frequent and that was particularly evident in the prohibition of imparting sacred orders on Indians. However, Indians definitely had more social mobility than traditionally recognized.50 In the same line of thought and recognizing equally the human and culturally diverse nature of Indians, we can mention the Augustinian Alonso de la Veracruz and his work at the school in Tiripetío, Michoacán, where the teaching of grammar reached truly unsuspected levels. To him we owe the first academic library of the New World. Veracruz, following his Salmantine teachers, also commented on Aquinas, while also conversing with the Indian reality. His knowledge of concrete realities in the Americas is reflected in his intellectual production, and in his very thoughtful and nuanced assessments when 47  See Murillo Gallegos, V., Cultura, lenguaje y Evangelización. Nueva España, siglo XVI, Mexico, 2012, 181–212. 48  It is important not to lose sight of the fact that the missionary task was even more important than the anthropological one. See Gil, F., “La evangelización franciscana del Nuevo Mundo y la educación. De la ‘Tlacahuapahualiztli’ náhuatl a una pedagogía del encuentro”, in Nuevo Mundo 7 (2006), 3–26. 49  See Méndez Arceo, S., La Real y Pontificia Universidad de México, 123; Menegus, M. and Aguirre, R., Los indios, el sacerdocio y la Universidad en España. Siglos XVI y XVII, Mexico, 2006, 55–68. 50  See Menegus, M. and Aguirre, R., Los indios, el sacerdocio y la Universidad en Nueva España, 19–53.

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producing a moral and legal exegesis of conquest or domination. He also paid careful attention to the real concerns of contemporaneous society and their historical dilemmas. Veracruz’s contributions to the recognition of the dignity of the Indians became more evident after he moved to Spain to defend the interests of the Indians and the regular clergy. His concerns affected and motivated the reevaluation of fundamental issues of his time, like the right of the Indians to property and the legality of encomiendas. We can find these discussions in his treatise De dominio infidelium et iusto bello, where he expressed independent and careful judgments, supported by the argumentative guidelines set by Salmantine scholasticism. In his writings, Veracruz showed himself as a fair and moderate man who was always able to weight the best alternatives available. He argued that the encomienda and some tributary burdens could not continue oppressing the Indians.51 For Alonso de la Veracruz, the human will had a close relationship with moral and overall practical decisions, and in the American context it had to take into account the diversity of peoples and their traditions. His thought depended on his wide range of scholastic readings, especially of Duns Scotus. His position opened him to attacks by his opponents, but he remained steadfast in his principles with an autonomy that characterized him at all times. Independently of the conflicts between the different evangelizing projects carried out in the New World, where especially Franciscans and Dominicans clashed strongly, it is interesting to note that their conflict of ideas at no time questioned the basic principles of humanity as defined in the natural law tradition espoused by scholastic theology: the intellectual patrimony of the mendicant orders. In the background, references to the God in whom they believed and to their proposed ways of making him visible in the world were always present. This element, which may seem exclusively theological in nature, was part of the cultural framework in which they were formed and to which they owed their spiritual identity. Additionally, the intellectual formation of the missionaries was of a deep and solid humanistic and theological character, which allowed them to reflect on concrete problems independently of the limits placed by a specific school of thought. In this sense, the missionary urgency experienced in those lands also transferred to the Salmantine classrooms not only as subjects of study, but also as traditions on how to approach problems 51  See Cerezo de Diego, P., Alonso de la Veracruz y el Derecho de gentes, Mexico, 1985, 266– 303; Velasco Gómez, A., “Fray Alonso de la Veracruz: humanista, crítico del Estado imperial y del poder de la Iglesia”, in id., Fray Alonso de la Veracruz: universitario, humanista, científico y republicano, Mexico, 2009, 291–303.

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of evangelization. Salmantines themselves felt part of a common evangelical and intellectual project, the importance and thoughtfulness of which was able to bridge the interoceanic distance. In that context, natural human rights were considered as based upon the condition of being children of God. This is precisely one of the great achievements of the School of Salamanca that found in Francisco de Vitoria its most brilliant expression: the grounding of international law on human nature. Understood in such a way, natural rights were recognized as universal and their authority as prior to even that of the Gospel. This idea is what led Ángel Losada to speak of “an ideological ascension towards the conquest of human rights, characteristic of sixteenth-century Spanish humanism”.52 The American experiences were also conducive to the replacement of the old medieval notion of Christendom by that of an international order, formed by the community of all peoples sharing the same rights, where the norms of natural law and the law of nations reign supreme.53 Salmantine thought was, then, based on the demands of justice without losing sight of reality and its concrete historical circumstances. In Salmantine classrooms ideas were contrasted and events studied attentively, as missionaries in the Indies had done before when elaborating a first synthesis and assessment of the American experience. The results of the discussions would ultimately be expounded by Salmantine professors in their chairs. This, which is something that scholars have insisted on very little, was of great importance, since it was the demands of justice as explicated by Salmantine professors that shaped further missionary endeavours. For this reason, the doctrines that Salmantines elaborated had a slow process of formulation and revision and were strongly marked by a communitarian and reformist character. Their teaching did not remain locked in their always exclusive university milieu and reached different areas of society, including those of government and the monarchy itself, most of whose members, we should not forget, had been educated at that very same university. It is necessary to consider one last aspect. All these concerns and sensitivities were born in spaces linked to the religious sphere and, in a particular way, inside the confessional booth, a place where different practical and moral dilemmas were confronted and evaluated. The sacrament of confession was 52  Losada, A., “Introducción”, in Losada, Á. (ed.), J. Ginés de Sepulveda and B. de las Casas, Apologia, Madrid, 1975, 11. See Pagden, A., “Conquest and the Just War: the ‘School of Salamanca’ and the ‘Affair of the Indies’”, in Muthu, S. (ed.), Empire and Modern Political Thought, Cambridge, 2012, 30–60. 53  See Aspe, V., “Del Viejo al Nuevo Mundo: el tránsito de la noción de dominio y derecho natural de Francisco de Vitoria a Alonso de la Veracruz”, in Revista Española de Filosofía Medieval 17 (2010), 153–155.

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precisely one of the forces or aspects that allowed theory to have a projection and impact on the lives of people. Consider, in this respect, the attitude of the missionaries or other priests who denied the sacraments to encomenderos or other oppressors of the Indians. These preoccupations were expressed in manuals for confessors, the authors of which attempted to offer objective criteria in this regard. 5

Between Theory and Praxis: A Debate

Needless to say, theory is not necessarily reflected in real praxis. In the same way, one thing was the School of Salamanca as configured in the sixteenthcentury university framework and another very different one is what researchers have been telling us since the nineteenth century. What was discussed in the classrooms did not have a direct reflection in the life of the Indians, although its impact on some particular laws of the Indies is undeniable. This can even be seen in the codicil that accompanied the testament of Queen Isabella, where she pleaded: and consent not and allow not that the Indians, inhabitants and dwellers of the aforementioned Indies and Tierra Firme, those we have won for ourselves and those that are still to be taken, be wronged in their bodies or goods, but take care that they be well and justly treated, and if they have been wronged, they [Spaniards] should remedy it and make sure that no one exceeds in anything that is ordered and commanded to us by the apostolic letters that contain the aforementioned concession.54 When later generations carried forth the contribution of Salmantine scholars they adopted Aquinas as their main official source, which unfortunately reduced spontaneity and originality to the conclusions to which the first teachers had arrived. A more institutionalized scholarship emerged, one which would garner a large number of followers in both the theological and legal fields, and of which Gregorio López would be a particular example. The glossator of 54  “Testamento y Codicilo de la Reina Isabel La Católica” (12 de octubre y 23 de noviembre de 1504), Madrid, 2013, [§. XI], 43: “[…] E no consientan nin den lugar que los yndios, vezinos e moradores de las dichas Yndias e Tierra Firme, ganadas e por ganar, reçiban agrauio alguno en sus personas ni bienes, mas manden que sean bien y justamente tratados, e si algund agrauio han reçebido, lo remedien e provean por manera que no se exçeda en cosa alguna lo que por las letras apostólicas de la dicha conçession nos es iniungido e mandado”.

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Alfonso X’s Partidas had directed his efforts towards preparing a fixed and definite a legal text that clearly challenged and limited Vitoria’s systematic goals. This progressive officialization is noticeable especially in the two authors who authored a series of institutional syntheses of the Salamantine teachers’ output, namely Bartolomé de Medina and Domingo Báñez, who worked more as members of an academic corporation than as intellectuals concerned with giving answers to the most pressing questions. The most famous of the Salamantine teachers, like Francisco de Vitoria or Domingo de Soto, whose humanism was their most conspicuous trait, had expressed richer and broader opinions, where human dignity, seen both from a theoretical perspective and in relation to practical problems, was at the center of their discussions. For this reason, the School of Salamanca also assumed a certain Socratic character that impelled its members to seek truth and transmit it to others through teaching, something that prohibited their teachings from being extremely rigid and open to external pressures. On the contrary, with Báñez and his colleagues the university fell into a sectarian Thomism and the incessant struggles between the different religious orders. Any contribution that stemmed from nominalism or from non-Christian sources was seen as a danger that had to be eradicated. For them, Aquinas had already said the final word on any topic. Other contemporaneous and later authors, fundamentally Jesuits, would offer new ways of approaching social problems taking into consideration the contributions of the School. The contribution of the School of Salamanca was distant from the kind of discussions developed since the second half of the sixteenth and during the seventeenth century in other European frameworks and contexts, especially those touched by the Reformation, and whose more notorious representatives were Hugo Grotius, Alberico Gentili, Jean Bodin, Henricus Ranzovius, Johannes Althusius, Robert Filmer, and even John Locke, who abandoned the Salmantine moral and theological intellectual horizon in favor of a strictly political viewpoint. Their works responded to their particular projects, almost always determined by the figure of a sovereign monarch in opposition to other models of sovereignty, generally those of the Catholic countries. These new thinkers of the European context were clearly influenced by the thought of our Spanish classics, especially that of Francisco de Vitoria, Martín de Azpilcueta, Francisco Suárez, and Luis de Molina, from whom they borrowed but seldom cited. Since they were oriented towards a very different end and guided by divergent concerns, these new thinkers represent another tradition of thought, completely different from that of the renowned “School of Salamanca”.55 55  See Kingsbury, B. and Straumann, B. (eds.), The Roman Foundations of the Law of Nations. Alberico Gentili and the Justice of Empire, Oxford, 2010.

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Bibliography

Primary Sources



Secondary Literature

Azpilcueta, M. de, Opera omnia, I, Lugduni, 1589. Cano, M., De locis theologicis libri duodecim, Salmanticae, 1563. Metzler, J. (ed.), America Pontificia. Primi saeculi evangelizationis (1493–1592), I, Città del Vaticano, 1991. Sepúlveda, J.G., and Las Casas, B. de, Apología, Losada, Á. (ed.), Madrid, 1975. Vitoria, F. de, Political Writings, Pagden, A. and Lawrance, J. (eds.), Cambridge, 2001. Vitoria, F. de, Relectio de Indis, Pereña, L. and Pérez-Prendes, J.M. (eds.), Madrid, 1967. Vitoria, F. de, Relectio de Potestate Civili. Estudios sobre su Filosofía Política, Cordero Pando, J. (ed.), Madrid, 2008.

Belda Plans, J., La Escuela de Salamanca y la renovación de la teología en el siglo XVI, Madrid, 2000. Pagden, A., “The ‘School of Salamanca’ and the ‘Affair of the Indies’”, in History of Universities 1 (1981), 71–112. Pagden, A., American Social and Political Theory, 1513–1830, New Haven & London, 1990. Pagden, A., Lords of all the World. Ideologies of Empire in Britain, France and Spain, c. 1500–c. 1800, New Haven & London, 1995. Pena González, M.A., Aproximación bibliográfica a la(s) ‘Escuela(s) de Salamanca’, Salamanca, 2008. Pena González, M.A., La Escuela de Salamanca. De la Monarquía hispánica al Orbe católico, Madrid, 2009. Pena González, M.A. & Rodríguez-San Pedro, L.E. (eds.), La Universidad de Salamanca y el Pontificado en la Edad Media, Salamanca, 2014. Rodríguez-San Pedro, L.E. (ed.), Historia de la Universidad de Salamanca. I. Trayectoria y vinculaciones, Salamanca, 2003. Rodríguez-San Pedro, L.E. (dir.), Historia de la Universidad de Salamanca. III.1. Saberes y confluencias, Salamanca, 2006. Tubau, X. “Canon Law in Juan Ginés de Sepulveda’s ‘Democrates Secundus’”, Bibliothèque d’Humanisme et Renaissance 73 (2011), 265–277.

part 2 Towards New Normative Orders

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chapter 4

Colonial Law: Early Modern Normativity in Spanish America Tamar Herzog Colonial law is often the term scholars use to describe the collection of norms that regulated life in early modern Spanish America. While most direct their attention to royal decision-making, legal historians routinely suggest that, during this period (and perhaps in others), Law (derecho) was not the same as legislation (ley). In the early modern period, legal rules originated in a multiplicity of sources, most important and quotidian among them reflecting not what the king willed, but what society and the church instructed. 1 Customs Customs (costumbres, sometimes also identified as fuero or derecho consuetudinario) were practices followed by most members of the community for a sufficient length of time to become binding.1 Described as naturally emerging among people who shared the same space or activity, customs, jurists explained, began with the introduction of new ways of doing and understanding things (usos). Although initially not mandatory, their repetition overtime transformed these habits in true legal prescriptions. Oral rather than written and sometimes incredibly local and encompassing only a small group of individuals, on occasions, customs could apply to multiple groups and communities and to very large geographical extensions. When customs were particularly stable and when they covered a wide range of activities, they obtained the status of fuero. There were fueros, that is, customs, of towns, of certain professions, of certain groups, and so forth.2 1  Siete Partidas, Partida 1, título 2. Also see Levene, R., “El derecho consuetudinario y la doctrina de los juristas en la formación del derecho indiano”, in Hispanic American Historical Review 3 (1920), 144–151, and Tau Anzoátegui, V., El poder de la costumbre. Estudios sobre el Derecho Consuetudinario en América hispana hasta la emancipación, Buenos Aires, 2001. 2  On the validity of customs in colonial Spanish America see Altamira y Crevea, R., Estudios sobre las fuentes de conocimiento de la historia del derecho indiano. La costumbre jurídica en la colonización española, Mexico, 1949, Dougnac Rodríguez, A., Manual de historia del derecho

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_006

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How to prove the presence and contents of customs was a highly debated affair. Their inclusion and reproduction in texts that sought to fix both their content and validity, was often the easiest method to attest to their existence. Yet, customs could also be established by the parties who recognized their legitimacy, or because they formed part of judicial knowledge (what judges or other officers of justice were supposed to know). Most frequently, however, customs were substantiated by oral testimonies of witnesses who attested that the members of a certain group considered them binding. Witnesses usually classified customs as immemorial. Rather than confirming their long duration as many have suggested, immemoriality implied that no one remembered where, when, and how these customs had emerged. Signaling to a forgotten rather than a prolonged chronology, immemoriality was a category of proof. According to jurists, because no one knew where, when, and how the immemorial originated, what was qualified as such required no corroboration because in practice (and now also in theory) it could have none. Paradoxically, arguing that customs were immemorial was an extremely efficient way to substantiate them, while also confessing that no one knew why this was the case. Because it was a powerful juridical tool and not necessarily a reflection of reality, immemoriality was frequently invoked even when, strictly speaking, it was unnecessary because the customs witnesses described had a clear point of departure, which they clearly remembered. 2

Ius commune (or Revived Roman Law)

If customs (and fueros) were the first and most important legal source in early modern Spanish America, the second source of almost equal weight was doctrine (doctrina). Doctrine included a complex system of knowledge, organization, and interpretation, which was to a large degree common to many European countries. Also identified as Ius Commune or, in Spanish, derecho común, and presently described by scholars as “Medieval revived Roman Law,” this system comprised of a huge plethora of juridical commentary, interpretation, and elaboration dating from the late medieval and the early modern period.3 Clearly distinguished from Classical Roman Law, that is, from the Law that regulated life in Ancient (both Republican and Imperial) Rome, Ius indiano, Mexico, 1994, 259–260 and Levene, “El derecho consuetudinario”. On customs in European law, see Herzog, T., A Short History of European Law: The Last Two and a Half Millennia, Cambridge, MA, 2018, 119–130. 3  These questions are treated in greater length in Herzog, A Short History, 75–92.

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Commune was born in the eleventh and twelfth centuries in Northern Italy alongside the emergence of universities. It initially consisted of juridical discussions aimed at understanding ancient Roman legal texts, mostly the Corpus Iuris Civilis (a collection of Roman sources compiled in the Eastern Empire between 529 and 534 AD). Yet, as law professors and their students (now identified as “jurists”) gradually built up a corpus of textual exegesis, they also created a new legal method. They imagined categories, coined terms, invented techniques, and found new solutions that allowed them to analyze problems, answer questions, and explain how best to approach legal phenomenon. The elaboration and eventual institutionalization of this new juridical method revolutionized not only the work of jurists but also a wider social, political, economic, and legal universe. The attractiveness and prestige of what was proposed was such that, by the thirteenth, fourteenth, and fifteenth century, the new legal method, now considered a science, swept throughout Europe, gradually becoming the way, often the only way, to relate to legal questions.4 It is hard to explain how this process of penetration and diffusion took place.5 Some historians suggest that the constant mobility of jurists across Europe and their employment in key positions in municipal bodies and royal courts enabled it. Others tie this success to the superiority of the new legal science, which was particularly suitable to the demands of a growingly urbanized and economically dynamic Europe. Yet a third group argues that if Ius Commune penetrated to so many polities so quickly, it was because their leaders so willed. Associated with the Roman Empire and enjoying its prestige, authorities and powerful individuals all over Europe imagined that the new legal method would allow them not only to consolidate their power but also to expand it. Yet, if this was their intention, they soon found that they were bitterly wrong. Rulers might have facilitated the penetration of Ius Commune to their territories, but they were unable to control its circulation and dissemination. When they realized that intellectuals followed this system not because they were instructed to do so, but because they believed it was the best possible

4  The literature on Ius Commune is enormous. I found the following most useful: Bellomo, M., The Common Legal Past of Europe, 1000–1800, Cochrane, L.G. (trans.), Washington, DC, 1995, and Hespanha, A.M., A cultura jurídica europeia. Síntese de un milénio, Lisbon, 2012. 5  Font Rius, J.M., “La recepción del derecho romano en la península ibérica durante la edad media”, in Recueil des mémoires et travaux publiés par la Société d’Histoire du Droit et des Institutions des Anciens Pays de Droit Écrit 6 (1967), 85–104, Clavero, B., Historia del derecho: Derecho Común, Salamanca, 1994, 31–59 and Torrent Ruiz, A.J., “La recepción del derecho justinianeo en España en la baja edad media (siglos XII–XV). Un capítulo en la historia del derecho europeo”, in Ridrom: Revista internacional de derecho romano 10 (2013), 26–119.

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method, rulers turned their back on it. In many European territories, they attempted to stop additional penetration of Ius Commune, or they searched to influence which jurists (doctores) should be followed. These attempts, however, were mostly in vain. Enactments that prohibited or limited recourse to Ius Commune mostly failed to obtain the desired results, Ius Commune continuing to dominate the European legal universe until the late eighteenth century and, according to many, until the present time. These developments were also clear in Spain and Spanish America. Introduced into the Iberian Peninsula formally by King Alfonso X in the thirteenth century through the enactment of the Siete Partidas, by the fifteenth century, Ius Commune profoundly altered Spanish law. Its presence was so clear that Spanish legal historians identify the early modern period as the period of Derecho Común. Prominent in Peninsular Spain, its penetration to Spanish America was almost immediate. Whether through the citation of Spanish sources, because of the circulation of jurists and the teaching curricula in universities, or because actors used it in their legal dealings, as early as the sixteenth century, Spanish America legal literature and legal practice testified to Ius Commune utter predominance.6 3 The Co-penetration of Customs and ius commune There are many opinions regarding how both customs and Ius Commune operated. Some suggest that they formed two parallel universes. Others see them as merging into one. For the former, Ius Commune was the product of scholarly debates that took place in law faculties. As a result, it was by definition disconnected from everyday life, in which customs mandated. For the later, even if this were true—and most research currently indicates that it was not—, it is nevertheless clear that, by referencing ancient texts and pretending to engage in their exegesis, late medieval and early modern jurists elaborated a body of new rules that could and often was applied in practice. Rather than faithful to the past, they were attuned to the needs of their society. This was precisely the reason why their work was criticized in the sixteenth century by a more historically orientated school (usually referred to as mos gallicus, that is, the French way).7 Inspired by humanism, the members of the historically orientated school accused earlier jurists (now identified as members of a mos italicus, an Italian school) of willfully de-contextualizing Roman texts, 6  Luque Talaván, M., Un universo de opiniones. La literatura jurídica indiana, Madrid, 2003. 7  These debates are described in Herzog, A Short History, 120–122.

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and/or failing to consider them archeologically, separating their different layers according to where they were written, by whom, when, and for which purpose. Whereby some argue that Ius Commune supplied a theory, not a practice of law, and others disagree, members of a third group suggest instead that, rather than explaining ancient texts, what Ius Commune jurists did was to recompile, systematize, and explain the pre-existing customary law.8 According to this theory, while they studied Roman texts, jurists also answered questions and observed and registered the juridical practices. They engaged with and identified the existing norms and gave them new meanings. Thus, although they did not list or describe customs as later generations would do, Ius Commune jurists nevertheless explained their extension and rationale. By doing so, they systematized the existing customs, converting them through their abstraction into principles of law. One example of how this happened were juridical discussions regarding naturalization. The customary laws of the various Italian city-states allowed for naturalization. Roman law also had norms regulating how foreigners could be transformed into citizens. By observing both, and by using the terms, categories, and discussions of Ius Commune, late medieval jurists ended up elaborating a theory that conceptualized naturalization and explained what it required.9 They suggested that the highly diverse practices that they registered nevertheless all conveyed the same idea, namely, that naturalization required a change of nature that could be proved by observing behavior. Thereafter, Ius Commune jurists listed the conditions for naturalization, and detailed how they could be proved, including which legal presumptions could be used. The theory that came into being utilized Roman taxonomies and Roman debates, but it also codified, systematized, and abstracted the customs of the Italian city-states. Once formed, this theory circulated across Europe. It was particularly powerful in Spain and Spanish America where it was used to identify who Spaniards were and distinguish them from foreigners. Regardless of the question whether Ius Commune created new norms, or only proposed new techniques to approach and understand existing rules, early modern documentation demonstrates that individuals living in Spain and 8  The first to popularize this notion was Bellomo, The Common Legal Past. On how legal doctrine could bring about new customs see Miceli, P., “El derecho consuetudinario en Castilla. Una crítica a la matriz romántica de las interpretaciones sobre la costumbre”, in Hispania: Revista española de historia 63 (2003), 9–28. 9  These questions are treated in greater length in Herzog, A Short History, 89–92 and in Herzog, T., Defining Nations: Immigrants and Citizens in Early Modern Spain and Spanish America, New Haven, 2003.

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Spanish America were extremely familiar with the contents of both customary law and Ius Commune. They were aware, for example, that if they wanted to use a certain piece of land, they needed to possess it for a sufficient length of time. They also knew that possession required that they undertake certain activities and they understood that, unless they protested when others attempted to do the same, their silence would be interpreted as consent and would allow competitors to acquire rights.10 Cognizant of these rules were individuals of very distinct social, educational, and economic backgrounds. Some might have had a law degree or were at least literate, some might have held administrative and judicial office, but most did not. Notwithstanding, and even if they did not grasp the complexity of what they proposed, what this huge plethora of individuals said and did resonated to a surprising degree with both customs and juridical doctrine. It is hard to ascertain how these juridical notions reached such a wide variety of individuals across so many countries. When asked, most actors explained that this was the way things were. Referring to processes of socialization, they attested that they heard stories from their parents, relatives, and friends and observed what was unfolding around them. Mostly unaware that what they described replicated juridical debates, they attested that they acted as they did because it was natural, because it was universally followed, and because it made sense. This resulted in actors rarely openly mentioning, or explicitly citing, doctrine or customs. Indeed, if they followed what these normative sources prescribed (which they did almost always), it was because they considered them so obvious and so consensual that no explanation or proof was required. This silence led many historians to underestimate the importance of customs and doctrine. It also led others, who did not consider customs and doctrine as legal sources, or who did not know what they dictated, to imagine a false gap between law and its application. Nevertheless, in both Spain and colonial Spanish America (and many other European countries), Ius Commune and customs were like a diving duck. Whether seen on the surface or disappearing deep in the water, they were always there.11

10  Herzog, T., Frontiers of Possession: Spain and Portugal in Europe and the Americas, Cambridge, MA, 2015, 33–69 and 149–142. 11  Goethe was said to have referred to the “enduring life of Roman law, which, like a diving duck, hides itself from time to time, but is never quite lost, always coming up again alive”. Goethe, J.W., Conversations of Goethe with Eckermann and Soret, J. Oxenford (trans.), London, 1875, 389–390, conversation that took place on April 6, 1829.

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Canon Law and Moral Theology

Canon law and Christian moral theology supplied an additional normative source.12 Canon law was the law of the (Western) church, covering its institutional structures, authorities, laws, and procedures, as well as Christian doctrine regarding such diverse issues as conversion, baptism, marriage, taxation, church property, contracts, testaments, sins and crimes. Until it was compiled and systematized in the twelfth century, Canon law was dispersed in multiple texts. The twelve-century compilation (Decretum), although unofficial, was so popular and so reliable, that it was followed as if it was formally sanctioned.13 Other Canon law compilations followed, most important among them the thirteenth-century Decretales (also identified as Liber Extra because reproducing texts that were not included in the Decretum) and Liber Sextum (adding a sixth volume to the five already existing volumes of the Decretum) and the fourteenth-century Clementinae. By the early sixteenth century, these different bodies received the designation Corpus Iuris Canonici, literally, the body of Canon law. This body was further supplemented, interpreted, and systematized by the work of a multiplicity of jurists who, in the following generations, commented on its various texts, and glossed their meaning. While jurists gradually identified and assembled the laws of the church (Canon law), Christian moral theology (that dealt with ethical issues and instructed believers how to behave), had no central place, where its tenets could be located. Based on the scriptures and the writings of the fathers and doctors of the church, Christian moral theology was developed by a wide plethora of authors of lesser or greater reputation that were followed to a lesser or greater degree. By the sixteenth and seventeenth century, however, the members of the School of Salamanca (also known as the Second Scholastic), most particularly Francisco Vitoria, Domingo de Soto, Melchor Cano, Luis de Molina and Francisco Suárez, became particularly renowned. Giving moral theology the status of an autonomous sub discipline, these authors dealt with a great 12  Ullman, W., The Church and the Law in the Earlier Middle Ages: Selected Essays, London, 1975, Winroth, A., The Making of Gratian’s Decretum, Cambridge, 2000, Hartmann, W., and Pennington, K., eds., The History of Medieval Canon Law in the Classical Period, 1140–1234: from Gratian to the Decretals of Pope Gregory IX, Washington, DC, 2008 and Duve, T., “El corpus iuris canonici: una introducción a su historia a la luz de la reciente bibliografía”, in Prudentia Iuris 61 (2006), 71–100. On canon law as a normative order alongside Roman law and local laws, see García de la Madrid, M., Historia de los tres derechos, romano, canónico y español, Madrid, 1831 and Pampillo Baliño, J.P., “El corpus iuris canonici: su importancia e influencia en la tradición jurídica occidental”, in International Studies on Law and Education 19 (2015), 65–72. 13  These questions are treated in greater length in Herzog, A Short History, 84–85.

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variety of questions ranging from the just price of goods to the rights of Spain to the Americas. Theologians by preparation, the engagement of these intellectuals in moral and political issues, led many to view them also as jurists and to consider their opinions as binding. Both Canon law and Christian moral theology were potentially universal. That is, they applied to all Christians and, from the Reformation, to all Catholics. Notwithstanding, as happened with Ius Commune, because local customs were recognized by the church as normative, and because local interpretations and applications were frequent, the actual norms that were followed could vary from one location to the next.14 The importance of Canon Law and Moral Theology to the legal order cannot be overestimated. During the early modern period, the church was the governing institution closest and most immediate to most people and its norms were much more prescriptive of daily routine than local, municipal, or royal decisions. The church not only had a law of its own but also tribunals (ecclesiastical courts) where it was applied. Canon law and moral theology instructed Christians what they should believe in, but also how to behave, for example, whether to forgive a criminal or forget a debt. Because it involved ethical questions, moral theology was particularly central to the development of many key issues, and the values it sought to propagate explained the formation of many customs as well as affected their interpretation.15 It is therefore not surprising that, in the early modern period, litigants could cite passages from the Bible, or the opinions of theologians, in their legal dealings.16 It is also not surprising that, during the same period, the council of the Indies could debate whether 14  The idea of a particular Spanish and Spanish American Canon law was upheld, for example, in Murillo Velarde, P., Curso de derecho canónico hispano e indiano, Michoacán, 2004, 4 vols. [Madrid, 1791]. Also see Duve, T., “Catequesis y Derecho Canónico entre el viejo y le nuevo mundo”, in Schmidt-Riese, R. (ed.), Catequesis y Derecho en la América colonial, Madrid, 2010, 131–145 and Cárdenas Bunsen, J.A., Escritura y derecho canónico en la obra de fray Bartolomé de las Casas, Madrid, 2011. 15  The way Canon law influenced penal law is explored in Alonso Romero, M.P., El proceso penal en Castilla, siglo XIII–XVIII, Salamanca, 1982 mainly 15–28. Its influence on contract law is described in Decock, W., Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650), Leiden/Boston, 2013 and Duve, T., “Las doctrinas contractuales generales en el pensamiento normativo de la Escuela de Salamanca y el derecho canónico”, in González, A.L. and Zorroza, M.I. (eds.), In umbra intelligentiae. Estudios en homenaje al Prof. Juan Cruz, Pamplona, 2011, 221–238. Also see Grossi, P., El orden jurídico medieval, Madrid, 1996, 121–134 and 203–220, where, among other things, the effect of church law on contracts and legal personhood is briefly described. 16  Herzog, T., “Sobre la cultura jurídica en la América colonial (siglos XVI–XVIII)”, Anuario de Historia del Derecho Español 65 (1995), 903–912 and Herzog, T., Upholding Justice: State, Law and the Penal System in Quito, Ann Arbor, 2004, 82.

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judges required a law degree or whether a theologian was equally fit to adjudicate conflicts even in royal courts (audiencias).17 Customs, Ius Commune (which most now regard as including both revived Roman and Canon law), and moral theology, thus regulated everyday activities in colonial Spanish America. They instructed, for example, what contracts and liabilities were, how one obtained the right to use the land, what were the duties of parents to their children, or how could individuals bequeath their properties in a will. Mostly important in matters that today would be identified as pertaining to private and personal law, these legal sources were also omnipresent in penal and public law (to use an anachronism). 5

Royal and Municipal Enactments

The last (and least important) in the list of legal sources operating in Spanish America were royal and municipal enactments. These usually covered the relations between subjects and the authorities and mostly defined the privileges and duties of both. Although on occasions abundant, even in fields, in which they seemed crucial, royal and municipal enactments never operated on their own. Instead, they constantly interacted with and were modified by the doctrine, customs, Canon law, and moral theology.18 Emblematic of these entanglements were the regulations governing the work of royal officials. This work was normalized by a series of royal decisions, decrees, and ordinances, which endowed individuals with certain powers as well as limited what they could do. Still, as far as contemporaries were concerned, it was equally guided by Cannon law and moral theology that instructed judges and administrators how to behave, which considerations to take into account, and how to reach a decision. Canon law, moral theology, customs, and doctrine also identified which conduct was unbecoming of officials, and which practices were on the contrary legitimate. This co-penetration between customs, doctrine, Canon law, moral theology, and royal and municipal enactments could be best explained by the nature of early modern law. According to contemporary perceptions, law was not an 17  Herzog, T., “¿Letrado o teólogo? Sobre el oficio de Justicia a mediados del siglo XVIII”, in Scholz, J.M. (ed.), Fallstudien zur spanischen und portugiesischen Justiz 16.–20. Jahrhundert, Frankfurt, 1994, 697–714. 18  Ramos Núñez, C., “Ius Commune y derecho real en la práctica forense de Manuel Lorenzo de Vidaurre”, in González Vales, L.E. (ed.), XIII congreso del Instituto Internacional de Historia del Derecho Indiano: Actas y estudios, San Juan de Puerto Rico, 2003, vol. 1, 403–430.

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order invented or made by humans. What kings and municipal authorities did when they discussed, explained, and announced the law was to discover what it already contained. Having no pretension to create new norms, royal and municipal enactments were not “legislation” the way we understand this term today because neither kings nor the municipal authorities were able or authorized to change the existing legal situation. Instead, they were charged with protecting the status quo. As a result, according to our present-day perceptions, their activities were judicial rather than legislative (to use an anachronism). What they aimed was to solve a particular problem by applying a norm that, theoretically, predated the problem and did not depend on royal or municipal will.19 As judged usually do, these authorities considered the circumstances of each case, and deliberated on which rule to apply, and what the consequences would be. The judicial nature of royal and municipal enactments was clear in the way they were worded. Rather than enouncing abstract principals that would apply in the future, as current day legislation does, these decisions mostly narrated the concrete circumstances that needed resolution and described how the authorities proceeded to resolve them. As happened with most sentences during the early modern period, royal enactments rarely explicitly cited the norms, which they applied. As a result, they could be mistakenly viewed as creating new norms. However, such was never the case. Instead, contemporaries knew (or at least trusted) that the decision of the king was justified by a pre-existing rule. Because kings were judges, not legislators, those who believed that their decisions were unjust could appeal them, sometimes by using the formula obedecer y no cumplir.20 This formula, which had been often misunderstood, was not a mechanism to disobey the law. Instead, it was a legitimate tool allowing the interested parties (perceived as litigants) to appeal a royal decision (royal enactment) by arguing that the king (as a judge) reached the wrong conclusion not because the rule he applied was incorrect (by definition, it could not be incorrect), but because the king was not well informed of the circumstances of the case. Because royal decision was based on incomplete or untruthful presentation, appeal was not only possible, but presenting it formed part of duty of all vassals to inform the monarch. And, while the monarch deliberated, the vassals’ duty was to refuse to comply with the unjust (in the sense of illegal) 19  Vallejo Fernández, J., Ruda equidad, ley consumada. Concepción de la potestad normativa (1250–1350), Madrid, 1992. Also see Grossi, El orden jurídico medieval, 140–152. 20  Tau Anzoátegui, V., “La ley ‘se obedece pero no se cumple’. En torno a la suplicación de las leyes en el derecho indiano”, in id., La ley en América hispana del descubrimiento a la emancipación, Buenos Aires, 1992, 69–143.

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order. By not complying and by informing the king of the correct circumstances to which the pre-existing rule had to be applied, vassals could ensure that the king—by definition a just judge—would take the correct decision. Until the late seventeenth century, no Spanish monarch pretended that his decisions were arbitrary, that is, that they were his to make or that they could modify the legal situation. In the eighteenth century, however, royal jurists began advancing the hypothesis that the king was sovereign, that is, that he was above the normative order, which he could modify at will.21 This was an extremely contentious argument, most Spanish political theorists and jurists rejecting it altogether. These exchanges between different political and juridical factions reflected a much larger debate, taking place almost everywhere in Europe. In England, this debate led to a series of civil wars. In France, it generated repeating conflicts between the king and the upper echelons of royal judiciary (the parlements). In Spain and Spanish America, similar confrontations took place, leading individuals and communities to argue against royal pretensions to absolutism mostly by invoking their fueros and traditions. Here as elsewhere, customary law became a formidable tool of opposition and was used in the creation and retention, but also invention, of communal identity and memory.22 In practice, in their dealing with one another and in the courts, actors often cited royal enactments. They appealed to a particular legal text, for example, the Siete Partidas or to the various recopilaciones of royal decisions (Nueva Recopilación, Novísima Recopilación, and Recopilación de Indias). However, those citing these books knew that the norms they included were not a royal creation. Instead, they were but a dim reflection of a much larger legal universe. The Siete Partidas, enacted by King Alfonso X in the thirteenth century, is the most obvious example. Legal historians have long asserted that the Partidas collected and condensed a great variety of juridical doctrines, selectively choosing what to include and how. The aim of this collection was to introduce Ius Commune to Castile, as well as control how this would be done. Because in the thirteenth century when the Partidas were enacted, this 21  Jean Bodin’s Six Books of the Commonwealth was therefore, in some respects, as revolutionary (and as rejected) as was Machiavelli’s The Prince. 22  According to Diego Saavedra Fajardo (1640), cited in Tau Anzoátegui, “La costumbre”, 126, “customs were laws not written on paper but instead on the spirit and memory of everyone … as it was common consent that introduced, instituted, and retained them”. How customs interacted with memory and became a political tool is beautifully described in Wood, A., The Memory of the People. Custom and Popular Senses of the Past in Early Modern England, Cambridge, 2013. Some of these issues are studied in greater length in Herzog, A Short History, 124–151.

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proposition was too radical, the Partidas were initially but a marginal legal source. Notwithstanding, because of the gradual penetration of Ius Commune to Castile through other mechanisms (mainly the circulation of jurists and the establishment of law faculties), by the fifteenth and sixteenth century, the Partidas became a convenient tool allowing literate Castilian to have an easy access to the pan-European doctrine. The Partidas served as a comfortable guidebook to those who did not have the ability, will or time, to examine the Roman sources that the Partidas reproduced, or to those who preferred Spanish to Latin. Actors with greater juridical and intellectual ambitions used the Partidas alongside a gloss that summarized and explained the original juridical doctrine. The more adventurous consulted the writing of jurists directly, bypassing the Partidas altogether. The Partidas, in other words, was not an independent normative source, nor was it comprehended as a legislative piece. It was a restatement of Roman law and was treated as a mere depository of knowledge. And, if the kings hoped that this restatement would modify the existing legal order or would limit which parts of Ius Commune would penetrate to Castile, jurists constantly rejected these claims, maintaining the validity of the original doctrine, whether the kings agreed with it or not.23 While the Partidas was a local compilation of Medieval Roman law, meant to both conserve and change it, Castilian recopilaciones (la Nueva and la Novísima) and the Recopilación de Indias, were collections of royal decisions. Part of a larger literary and juridical genre that appeared in Europe in the sixteenth century, the recopilaciones stripped the original royal Cédulas, Real Ordenes, and Ordenanzas of their contextual setting, only reproducing their final, normative, section that instructed what should happen next. The Recopilaciones thus stated, for example, that Indigenous communities should be granted a certain jurisdiction, that royal officers should respond to a judicial inquiry at the end of their term in office (residencia), or that all those travelling to the Indies should receive license from the Casa de Contratación. Although these instructions may appear as “legislative,” in the sense that they created a new norm, contemporaries knew that Recopilaciones were books summarizing (and logically arranging) precedents. They collected royal decisions, that is, judicial renditions of how existing rules were to be applied to particular situations. They too were practical tools meant to facilitate access

23  Castillo de Bobadilla, J., Política para corregidores y señores de vasallos en tiempo de paz y de guerra, Antwerp, 1704, book 2, chapter 10, Nos. 25 and 39, book 5, chapter 3, No. 51, book 3, chapter 8, Nos. 194–195 and book 1, chapter 5, Nos. 9–10 and Solórzano Pereira, J., Política Indiana, Madrid, 1648, book 2, chapter 6, No. 14.

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to legal information, not an independent normative source.24 This point was important, as the validity of the precedents the recompilations reproduced, for example, did not depend on their insertion in the Recopilación; instead, these precedents were valid because the original decision was, and only to the degree that such was the case. This explains why it was necessary to state on the margins, next to each “law,” the decision (or decisions) on which the summary was based. Jurists often criticized the recopilaciones for failing to reproduce the precedent correctly, for assembling together precedents that in reality were unrelated, or for neglecting to mention the facts that led to the decision. Given these concerns, during the early modern period, litigants and jurists who could cite the original royal decision rather than the recopilación, often did. Because royal and municipal enactments were not an independent normative source, but instead reflected norms contained elsewhere, it should not surprise us that, until the eighteenth century and despite royal insistence, their study was not part of the curriculum in Law faculties.25 Instead, jurists were trained in either Roman law or Canon Law and (sometimes) in both laws, a preparation that won the designation of utrumque ius meaning “the one and the other law.” The individuals involved in founding in 1763 the Real Academia de Práctica de Leyes de estos Reinos (Royal academy for the practice of the laws of these kingdoms) in Madrid hoped to amend this situation. They suggested that, in the future, jurists and lawyers should study royal rather than Roman law because it would prepare them better for practical work (which reformers associated with royal law) rather than theoretical debates (which they now associated with Roman and canon law).26 However, until the end of the Old Regime this proposition—that sought to center legal attention on royal decisions, not Roman and Canon, or even customary law—largely failed. 24  Herzog, T., “La Recopilación de Indias and its Discourse: the Spanish Monarchy, the Indies and the Seventeenth Century”, in Ius Commune 20 (1993), 143–163. Also see García Gallo, A., Estudios de historia del derecho indiano, Madrid, 1972, 55–93, Martiré, E., “Guión sobre el proceso recopilador de las leyes de Indias”, in Icaza Dufour, F., (ed.), Recopilación de leyes de los reinos de Indias. Estudios históricos jurídicos, Mexico, 1987, 27–41 and Muro Orejón, A., Estudio general del nuevo código de las leyes de Indias, Seville, 1979. 25  Peset Reig, M., “Derecho romano y derecho real en las universidades del siglo XVIII”, in Anuario de historia del derecho español 45 (1975), 273–340 and Alonso Romero, M.P., “Del ‘amor’ a las leyes patrias y su ‘verdadera inteligencia’: a propósito del trato con el derecho regio en la universidad de Salamanca durante los siglos modernos”, in Anuario de historia del derecho español 67 (1997), 529–549. 26  Olivencia Ruiz, M., “Las academias y el derecho”, in Reyes Cano, R. and Vila Vilar, E. (eds.), El mundo de las academias: del ayer al hoy. Actas del congreso internacional celebrado con motivo del CCL aniversario de la fundación de la Real Academia de Buenas Letras, Seville, 2003, 93–99.

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Legal Pluralism

Legal historians have long described the co-existence of multiple normative sources (customs, doctrine, Canon law, moral theology, and royal and municipal enactments) as “Legal Pluralism.”27 They explained that, although this normative amalgamation might seem fractured, even dysfunctional to us, contemporaries viewed it as coherent. Albeit often indicating to different solutions, according to early modern beliefs, these various sources were consistent with one another because by definition they reflected a unified legal order that was both divine (because emanating from God) and natural (because embodied in the nature of things). As happened with the Trinity, this order was various and it was one. The main task of medieval and early modern jurists was to guarantee that such would be the case. They were to ensure a perfect convergence between the various normative sources and demonstrate that they could work in harmony. Managing legal pluralism, however, was easier to imagine than implement. Some legal historians argue that, in practice, there was no convergence between the various sources and savvy actors could choose which to adopt according to their convenience and needs. This resulted in a messy situation, which, inherited from the Middle Ages, early modern reformers sought to remedy to a lesser or greater success. Identifying this interpretation as anachronistic, other researchers suggest, on the contrary, that the different legal sources were arranged by a clear order of preference. The Ordenamiento de Alcalá (1348) and the Leyes de Toro (1505) created such an order in Castile and Spanish America by establishing a hierarchy according to which royal orders would be at the top, followed by customs (fueros), and only then the Siete Partidas (doctrine). Yet, most research indicates that these instructions were mostly ignored, precisely because contemporaries did not believe that the king had power to make them. It is thus suggested instead that, if there was a hierarchy between the various legal sources at all, it was because each fulfilled a different task. Customs gave concrete solutions to specific problems, Ius Commune 27  Recently, some historians begun using the term “legal pluralism” to designate multiple jurisdictions. This use is vastly different from that of legal historians, for whom legal pluralism pointed instead to the persistence in Europe of a great variety of legal sources of different origins (Roman law, customs, Canon law and the like) that had to operate harmoniously. On multiple jurisdictions and how they were tied to early modern belief that humans were unequal see Clavero, B., Tantas personas como estados, Madrid, 1986. Criticizing how present-day historians use “legal pluralism” is Hespanha, A.M., “The Legal Patchwork of Empires”, in Rechtsgeschichte/Legal History 22 (2014), 303–314. The unification of the legal person is briefly described in Herzog, A Short History, 189–191.

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explained why they were adopted, when can they be applied, and what they meant, royal law was consulted because it contained an interpretation or a precedent, and Canon law and moral theology gave this amalgam an ethical dimension. In short, all these sources worked in harmony because the basic assumption was that they did. 7

A Spanish American Colonial Law?

Because some of its sources were local, some royal, some pan-Christian, and some European-wide, Spanish American colonial law did not differ dramatically from other contemporary European systems. Neither was it colonial in some meaningful way. As António Manuel Hespanha has forcefully demonstrated, the idea that there was a law particular to the Spanish colonies, a law most historians have identified as “Derecho Indiano,” was born out of particular historiographical and political ambitions. Rather than reflecting early modern conditions, it was an intellectual construction that obeyed twentieth-century concerns.28 Seemingly, historians involved in proposing and advancing this construction sought to identify a particularly Spanish mode of colonialism, with the aim of proving Spanish exceptionalism. While these historians imagined Hispanidad, early modern actors lived in a world that was profoundly cosmopolitan and had a strong universal vocation. As far as these actors were concerned, rather than “colonial,” their law was “municipal.”29 It was but a local variant of a system that was perhaps Castilian, perhaps Spanish, perhaps pan-Christian, perhaps Pan-European, but certainly not Indian.30 Of course, the particular circumstances of the Americas presented new challenges, which required applying old debates and ancient categories to new questions. One example were discussions regarding the status of Native Americans. Were they rational human beings? Were they similar to European peasants? Should they be treated as personae miserabiles? As minors? As neophytes? Did 28  Hespanha, A.M., “O ‘Direito de Índias’ no contexto da historiografia das colonizações ibéricas”, in Duve, T. (ed.), Actas del XIX Congreso del Instituto Internacional de Historia del Derecho Indiano (Berlín 2016), Madrid, 2017, vol. 1, 43–83. 29  Solórzano Pereira, Política Indiana, used the expression “municipal” law in the subtitle (“Política indiana sacada en lengua castellana de los dos tomos del derecho i gobierno municipal de las Indias Occidentales”). In the audiencia of Quito, magistrates equally referred to the Recopilación de Indias as the ley municipal. 30  It is commonplace among historians to assert that “Castilian” rather than “Spanish” law was applied in Spanish America. There were many indications that such might have been the case, but also many others that would point to the contrary conclusion.

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being a native depend on genealogy? Place of birth? Communal belonging? Could those born Indian change their nature and acquire a new status?31 Although these debates were new, they were also incredibly old. They required the application of existing rules to a new populations and new circumstances. And, although this process of application generated new ideas, new concepts and perhaps new conclusions, contemporaries viewed them as dialoguing with the past, not the future. At times, the colonial circumstances required taking new elements—the encounter with new populations such as native Americans—into account. On others, they allowed existing rules to take full expression. This was what happened, for example, with discussions regarding the right to land. On both sides of the ocean this right depended on possession. In Europe, however, litigants concentrated on proving the existence of rights by recalling memory and by arguing that, because they acted as possessors, they must be recognized as such. In the Americas, however, the same theories were mostly applied not to conserve but to obtain new lands. Here, acting as a possessor was a means not to demonstrate what one already had, but what he or she meant to achieve. How this happened requires a longer explanation, which I give elsewhere. Suffice to state that the colonial situation exasperated certain trends and stressed certain aspects, which the law already included, but which did not find full expression in Europe.32 Early modern Spanish American scholars were keenly aware of this complexity. Solórzano Pereira had trained as a jurist in the University of Salamanca and then served as a magistrate in Lima. In 1648, he authored Política Indiana, which compiled, systematized, and explained the legal solutions that colonial 31  Duve, T., “La condición jurídica del indio y su consideración como persona miserabilis en el Derecho indiano”, in Losano, M. (ed.), Un giudice e due leggi. Pluralismo normativo e conflitti agrari in Sud America, Milan, 2004, 3–33; also Duve, T. “Derecho canónico y la alteridad indígena: los indios como neófitos”, in Oesterreicher, W. and Schmidt-Riese, R. (eds.), Esplendores y miserias de la evangelización de América. Antecedentes europeos y alteridad indígena, Berlin, 2010, 73–94, Herzog, T., “Indiani e cowboys: il ruolo dell’indigeno nel diritto e nell’immaginario ispano-coloniale”, in Mazzacane, A. (ed.), Oltremare. Diritto e istituzione dal colonialismo all’età postcoloniale, Naples, 2006, 9–44 and Herzog, T., “Can You Tell a Spaniard When You See One? ‘Us’ and ‘Them’ in the Early Modern Iberian Atlantic”, in Cardim, P., et al. (eds.), Polycentric Monarchies. How did Early Modern Spain and Portugal Achieve and Maintain a Global Hegemony? Eastbourne, 2012, 147–161. Some of these questions were explored in Van Deusen, M.E., Global Indios. The Indigenous Struggle for Justice in Sixteenth-Century Spain, Durham, NC, 2015. Also see Herzog, T., “The Appropriation of Native Status: Forming and Reforming Insiders and Outsiders in the Spanish Colonial World”, in Rechtsgeschichte—Legal History 22 (2014), 140–149. 32  See Herzog, Frontiers of Possession.

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practice introduced.33 Erudite yet practical, Solórzano harbored to demonstrate that the solutions he described were inspired by pan-European discussions. To achieve this fit, he referenced no less than 30,000 works written by over 3,000 authors. As far as he was concerned, the practical knowledge that he had accumulated in the Americas deserved recording, but this knowledge was but an extension as well as a concretization of much wider legal debates. If we followed this road, if we read Spanish American colonial law in a wider context, we would obtain important insights. It would enable us, for example, to re-examine the aim and consequences of the royal order that recognized the legal validity of Indigenous customs in colonial Spanish America.34 Historians have long lauded Spaniards for this recognition, yet, most failed to reflect on why it was given and what it produced. Customs, we already know, formed part (and were indeed the most important part) of early modern European law. Whether local, or general, applied to all, or only to a restricted group of people, they were so central to the normative order and their validity so obvious, that there was no need to recognize them formally. The move to authorize Indigenous customary law was therefore legally unnecessary, as they would be valid regardless. A question therefore imposes: Why did the kings proceed to declare these customs valid? Historical records demonstrate that recognition did not seek nor guaranteed continuity. Paradoxically, what it did was to enabled Spaniards to dramatically intervene in how Indigenous customary law operated.35 Spanish recognition transformed a pre-Columbian territorial law into a personal law and it subjected its functioning to Spanish scrutiny. The result was an Indigenous law that, according to scholars, would have surprised most natives.36

33  Solórzano initially published his work in Latin in a much longer version (De Indiarum iure, 1629–1639). 34  Recopilación de Indias, Book 2, Title 1, law 4. Also see Díaz Rementería, “La costumbre indígena”, 193–196, Manzano Manzano, “Las leyes y costumbres indígenas” and González de San Segundo, M.A., “El elemento indígena en la formación del derecho indiano”, in González de San Segundo, M.A., El mestizaje jurídico: el derecho indiano de los indígenas (estudios de historia del derecho), Madrid, 1995, 1–54. 35  Herzog, T., “Indiani e cowboys”. 36  Borah, W.W., Justice by Insurance. The General Indian Court of Colonial Mexico and the Legal Aides of the Half-Real, Berkeley, 1983, 3–4. Also see 35 and 40–54 and Herzog, T., “Colonial law and ‘Native Customs’: Indigenous Land Rights in Colonial Spanish America”, in The Americas 69 (2013), 303–321.

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Reconstructing the Law

If identifying what was particular to early modern Spanish American law is difficult, even more so is to ascertain what this law included. To understand what theft was and how it was punished, for example, it would be necessary to observe customs, know what the various doctors of Roman law instructed, what Canon law and moral theology mandated, and what the king’s officials usually did. However, even a perfect synthesis of what these very diverse sources ordered, would be insufficient, as each source could indicate to a multiplicity of solutions. Customs could contradict one another, as could royal decisions, and jurists rarely agreed on anything. Those implementing the law were thus called to form their own opinion as to which source to follow, and how to harmonize the various possibilities. And, regardless of how they did this juggling, at the end, they would ultimately have to impart justice, not law.37 This mandate—to prefer justice to legality—was so imperative that it was legitimate for judges to ignore the law and instead render a decision “in consciousness.”38 Jurists considered such decisions made in consciousness “arbitrary” in a good sense, because they gave judges the freedom to do as they should.39 Because actors rarely explicitly cited or referenced the normative sources they used and because, during this period, sentences were seldom explained or justified, deducing from the result (the judicial decision) its rational is often impossible. Trial records, in short, contain a story about what witnesses said and what the judge decided, but they are absurdly opaque. While they clarify how some social actors responded to challenges, they say very little about the law. Because the task of discovering what the law actually mandated or how it was used was so overwhelming, most historians focus on public law and most describe institutions rather than people, royal decisions rather than customs or doctrines. By proceeding in this way, many scholars produce a history that is both anachronistic and provincial. It is anachronistic because it centers on the king rather than the law; it is provincial because it takes for granted Spanish American exceptionalism.

37  On these issues, see Herzog, Upholding Justice. 38  On the daily functioning of the administration of justice in colonial Spanish America see Herzog, Upholding Justice. For a doctrinal description of the penal process in Castile see Alonso Romero, El Proceso Penal. 39  Meccarelli, M., Arbitrium. Un aspetto sistematico degli ordinamenti giuridici in età di diritto comune, Milan, 1998.

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Miceli, P., “El derecho consuetudinario en Castilla. Una crítica a la matriz romántica de las interpretaciones sobre la costumbre”, in Hispania: Revista española de historia 63 (2003), 9–28. Murillo Velarde, P., Curso de derecho canónico hispano e indiano, Michoacán, 2004, 4 vols. [Madrid, 1791]. Muro Orejón, A., Estudio general del nuevo código de las leyes de Indias, Seville, 1979. Olivencia Ruiz, M., “Las academias y el derecho”, in Reyes Cano, R. and Vila Vilar, E. (eds.), El mundo de las academias: del ayer al hoy. Actas del congreso internacional celebrado con motivo del CCL aniversario de la fundación de la Real Academia de Buenas Letras, Seville, 2003, 93–102. Ots Capdequi, J.M., Historia del derecho español en América y del derecho indiano, Madrid, 1967. Pagden, A., “The School of Salamanca”, Klosko, G. (ed), The Oxford Handbook of the History of Political Philosophy, Oxford, 2011, 246–257. Pampillo Baliño, J.P., “El corpus iuris canonici: su importancia e influencia en la tradición jurídica occidental”, International Studies on Law and Education 19 (2015), 65–72. Peset Reig, M., “Derecho romano y derecho real en las universidades del siglo XVIII”, in Anuario de historia del derecho español 45 (1975), 273–340. Ramos Núñez, C., “Ius Commune y derecho real en la práctica forense de Manuel Lorenzo de Vidaurre”, in González Vales, L.E. (ed.), XIII congreso del Instituto Internacional de Historia del Derecho Indiano: Actas y estudios, San Juan de Puerto Rico, 2003, vol. 1, 403–430. Sánchez Bella, I., de la Hera, A., and Díaz Rementeria, C., Historia del derecho indiano, Madrid, 1992. Solórzano Pereira, J., Politica Indiana, Madrid, 1648. Tau Anzoátegui, V., “La doctrina de los autores como fuente del derecho castellanoindiano”, in Revista de Historia del derecho 17 (1989), 169–285. Tau Anzoátegui, V., El poder de la costumbre. Estudios sobre el Derecho Consuetudinario en América hispana hasta la emancipación, Buenos Aires, 2001. Tau Anzoátegui, V., “La ley ‘se obedece pero no se cumple.’ En torno a la suplicación de las leyes en el derecho indiano”, in Tau Anzoátegui, V., La ley en América hispana del descubrimiento a la emancipación, Buenos Aires, 1992, 69–143. Torrent Ruiz, A.J., “La recepción del derecho justinianeo en España en la baja edad media (siglos XII–XV). Un capítulo en la historia del derecho europeo”, in Ridrom: Revista internacional de derecho romano 10 (2013), 26–119. Ullman, W., The Church and the Law in the Earlier Middle Ages: Selected Essays, London, 1975. Vallejo Fernández, J., Ruda equidad, ley consumada. Concepción de la potestad normativa (1250–1350), Madrid, 1992.

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Van Deusen, M.E., Global Indios. The Indigenous Struggle for Justice in Sixteenth-Century Spain, Durham, NC, 2015. Winroth, A., The Making of Gratian’s Decretum, Cambridge, 2000. Wood, A., The Memory of the People. Custom and Popular Senses of the Past in Early Modern England, Cambridge, 2013.

chapter 5

Natural Law and Natural Right in the Spanish Scholasticism Merio Scattola ✝ 1

What Is Spanish Scholasticism?

First of all, we should define the meaning of the two concepts and ideas we will be using in this article: 1. Spanish Scholasticism and 2. natural law and natural right(s). Beginning with Spanish Scholasticism, we take it to stand for an intellectual tradition either according to its contents or according to its forms. This means that if we look at the contents—like the history of political and legal ideas frequently does—, we deal with a plurality of ideological notions, like papalism, conciliarism, republicanism, monarchism, absolutism and so on, which defended particular interests within a society or commonwealth. In this sense the Spanish Scholasticism was described in four different ways or with four different contents: (1) as a legal tradition, (2) as a philosophical current, (3) as a modern economic thought and (4) as a theological renewal.1 As to the forms of this intellectual tradition, we are bound to describe the political, legal or theological thought taking into account the ways and the means of communication that the authors applied in their intellectual activity, for example as writers, teachers, polemists or apologists. In the former case, we consider “what they said”; in the latter, “how they said it”. When describing the Early Modern Political Thought in this formal or epistemic way, we find that the authors of that period did not use the same code of communication all over Europe but that it was distributed in various circles that used different languages. These circles or communities were twofold: (1) the four academic faculties provided the codes and references for the discussion. If we think of natural law, the faculty of arts or philosophy referred mainly to the Nicomachean Ethics of Aristoteles, to Cicero or the Stoic tradition. Jurisprudence in turn argued with the Corpus iuris civilis, while theology took 1  Tellkamp, J.A., “Über den Zusammenhang von Freiheit und Sklaverei bei Vitoria und Soto”, in Kaufmann, M. and Schnepf, R. (eds.), Politische Metaphysik. Die Entstehung moderner Rechtskonzeptionen in der Spanischen Scholastik, Frankfurt am Main, 2007, 155–175, here 157–158.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_007

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its materials from the Church Fathers, Isidore of Seville, Petrus Lombardus or Thomas Aquinas. Of course, natural law was not treated in the faculty of medicine. Within these three main currents, there were also local traditions with varieties of languages and codes of their own. Thus, Catholic and Lutheran divinities proposed two different versions of theological natural law which constituted distinct and closed circles or schools. Spanish Scholasticism can be considered an example of such a school. Epistemologically, each of those circles can be defined through explicit or implicit means. Explicit means are all those that contain an evident acknowledgment that the speakers or writers are part of the same community of discourse. The most important among these means is the direct quotation, which can either be horizontal or vertical, either direct or indirect, as well as either active or passive. In this respect, every community of discourse is at the same time a community of quotation. Implicit means correspond to the code or language shared by the community. In the age of print such distinctive code contains mainly a set of literary conventions and literary genres, that is, a set of rules of communication. The consequence of this is that each European community of discourse can be defined in early modern times through the particular literary genres it developed and applied. So far, a community of discourse has been described only through either the question “how” or through its scientific code. Nevertheless, it possesses also a “social depth”, meaning that the language of a particular community corresponds to an agent, a place and an addressee of the communication. Thus, connected to a “how” we find always also a “who”, a “where” and a “for whom”. It is important to underscore that Spanish Scholasticism can be described recurring to this pattern. Its agents were always or mostly theologians or canonists with important duties in the administration of the kingdom: they were counsellors, ecclesiastical judges, confessors of the king etc. In this respect, their activities took place between the academic and the confessional chair. The place of their activity (i.e. “where”) was clearly the university, where they educated personnel for the administration of the Iberian kingdoms and of the viceroyalties. Taking a closer look at the “how”, we can distinguish three different concentric circles or communities. The starting point for the Spanish discussion on natural law was the University of Salamanca, and more specifically Francisco de Vitoria, who returned there in 1526 and soon gathered around him a number of renowned colleagues and students like Domingo de Soto, Martín de Azpilcueta, Melchor Cano, Alfonso de Castro, Bartolomé de Carranza, Diego de Covarrubias y Leyva, Pedro de Sotomayor among others. This group of people established a relatively closed circle which is often called the “School

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of Salamanca”; it identified itself with the academic practice and the literary genre of the relectio, which in fact was practiced only within this intellectual community and did not have any significant diffusion outside Salamanca.2 In the second half of the 16th century its interpretative method—that is, the commentary of the Summa theologiae—and its basic tenets spread to many universities of the Iberian Peninsula, e.g. Alcalá de Henares, Valladolid, Coimbra, Evora, and also to the American viceroyalties (Mexico, Lima, 1551, Universidad Santo Tomás de Aquino, Santo Domingo 1558). The academic efforts advanced in Spain and Portugal include authors such as Domingo Báñez, Luis de León, Juan de la Peña, Bartolomé de Medina (Salamanca), Luis de Molina (Evora), Manoel Soarez (Coimbra), Gabriel Vázquez (Alcalá), Luis López, Enrique Henríquez, Pedro de Ledesma, Juan de Salas and also Francisco Suárez.3 One of the distinctive tools was the Tractatus de iustitia et iure, initially introduced by Domingo de Soto (1553) and repeated in a variety of forms during the entire 16th and 17th century. The label of this second, broader circle is “Spanish Scholasticism” or perhaps, even better in a proper sense, Iberian Scholasticism. In this second phase, moral theology developed new methods of academic teaching and became the mainstay of Catholic theology in the 17th century, which comprehends the third and largest circle or intellectual community that includes, among others, Roberto Bellarmino, Gregorio de Valencia (Ingolstadt), Gregory Sayer, Leonardus Lessius, Paul Laymann and quite generally it involved all European and non-European Catholic countries. The textbooks of moral theology, which followed more or less faithfully the order of the Summa theologiae, were the literary instrument of this tradition that can be called “early modern Scholasticism”. From the above we can think of the Catholic theological doctrine on natural law as three concentric circles that grew from their center and which became larger and larger. The smallest is the School of Salamanca, which is embraced by the Spanish Scholasticism, and which finally grew into the early modern Scholasticism. 1.1 Natural Law in Early Modern Times: A Shared Heritage According to the model of the three concentric circles, the one doctrine of natural law, which developed in the School of Salamanca and more generally

2  Brufau Prats, J., La Escuela de Salamanca ante el descubrimiento de América, Salamanca, 1989. 3  Pereña, L., “Estudio preliminar. La intervención de España en América”, in Juan de la Peña, De bello contra insulanos. Intervención de España en America. Escuela Española de la Paz. Segunda generación 1560–1585. Testigos y Fuentes, in Pereña, L. et al. (eds.), Madrid, 1982, 19–134. On the idea of a second generation see ibid. 93–104.

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in Spanish or Iberian Scholasticism was also adopted by the moral theology of the 17th century and, generally, by early modern Scholastics, which means that its influence lasted until the second half of the 18th century. Additionally, this long, three-stepped tradition can be examined under the point of view of its epistemic features and in this sense it represented the “ancient natural law” that was challenged from the middle of the 17th century onwards by a “new model of natural law” advanced by Thomas Hobbes, Samuel Pufendorf, Richard Cumberland, or Christian Thomasius thus formally paving the way for a new academic discipline, the ius naturae et gentium, that soon developed into the leading science of the 18th century. Of course, Spanish and early modern Scholasticism continued its own course and remained widely independent from this new tradition of modern natural law, which was explicitly rejected as a product of the Protestant heresy. Therefore, two different lines or traditions of natural law co-existed side by side without interfering with one another for about one hundred years and they merged only in the second half of the 18th century when Catholic theology recognized the methodologic validity of Protestant natural law and adopted its scientific principles.4 The ancient model of natural law can be characterized if we look at its basic epistemic components, that is, if we take into account how it understood human knowledge and when we relate it to its corresponding modern notions. We should, thus, continue with a brief characterization of the modern notion of natural law, which was supported by a significant number of authors who introduced based on basic methodological considerations.5 From its very beginning modern natural law conceived itself as a system and it was understood to be a concept constituted by a set of propositions linked to each other in a 4  Finetti, G.F., De principiis iuris naturae et gentium adversus Hobbesium, Pufendorfium, Thomasium, Wolfium et alios, libri XII, vol. 1, Venice, 1764. See also Scattola, M., “Die Geburt des katholischen Natur- und Völkerrechts aus dem Geist des Protestantismus im 19. Jahrhundert”, in Cancik, P. et al. (eds.), Konfession und Recht. Auf der Suche nach konfessionell geprägten Denkmustern und Argumentationsstrategien in Recht und Rechtswissenschaft des 19. und 20. Jahrhunderts, Frankfurt, 2009, 95–120. 5  Pufendorf, S., Eris Scandica, qua adversus libros de iure naturali et gentium obiecta diluuntur, Frankfurt/Main, 1686; Coccejus, S., Disputatio iuridica inauguralis de principio iuris naturalis unico, vero, et adaequato, quam in illustri hac Viadrina, praeside domino Henrico Coccejo iurisconsulto, serenissimi ac potentissimi electoris Brandenburgici consiliario, eidemque ab aulae electoralis consiliis, nec non facultatis iuridicae in alma Viadrina ordinario et professore primario, antea summi consilii status electoralis Palatini et collegii revisorii assessore, in academia Heidelbergensi Decretalium, Pandectarum et iuris gentium professore publico ordinario, domino parente pio et aeterno cultu prosequendo, ad diem XXI. Decembris anno MDCIC., publice ventilandam subiicit Samuel Coccejus, Frankfurt/Oder, 1699, 36, 4°.

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strongly deductive way, i.e., that the inferior consequence had to be included in the superior premise and that it had to be extracted from it flawlessly. All propositions of a system had therefore to be subsumed under a first principle, a principle, which encompassed all of them in an implicit way. Thus, modern natural law can be depicted epistemologically as a triangle construed by the following three concepts: principle, system and method. A principle is a system in its highest implicit form; a system is a principle that has been explicated with all its consequences; method is the twofold way of explicating a principle into its system or of implicating a system into its first propositions.6 Compared with this pattern, ancient natural law has exactly opposite features. Firstly, it excludes the idea of a single first proposition and, instead of it, argued based on a plurality of premises, which are all true to the same degree and which must be combined in a way that allows them to reveal their truth. Secondly, a system should not be conceived as a deductive pyramid, but it rather grows per viam specificationis, which implies that every inferior premise adds a determination that is not already included in the superior levels, but it is, insofar it is a new and subordinate principle, taken from outside the already existing propositions. Of course, no new addition or specification should contradict a superior proposition. Thirdly, method is mainly understood as “order”, that is, as the right disposition or distribution of all pieces of human knowledge handed down by tradition. In this sense method is conceived mainly as a topological operation, producing in our case a topic of natural law. These three features shaped together a consistent model for ancient natural law, which therefore operated with a dialectical and topological understanding of human knowledge that was diametrically opposite to the modern deductive and systematical understanding. Besides these three basic epistemic elements, there are other issues that characterize ancient natural law in the Spanish Scholasticism. The first principles or premises, which we said to be plural, have always to be conceived as innate or quasi innate ideas that are immediately present in the human mind or heart since its creation. In some cases human beings only need to get a look into their heart in order to know whether an action is good or bad. This implies first of all that natural law is common to the whole humankind perpetually, everywhere and independently from Christian Revelation. There is therefore a shared set of rules that is valid also for pagan populations and that allows 6  Scattola, M., “Models in History of Natural Law”, in Ius commune. Zeitschrift für Europäische Rechtsgeschichte 28 (2001), 91–159; Scattola, M., “Principium oder principia? Die Diskussion über den Rechtsgrundsatz im 16. und 17. Jahrhundert”, in Jahrbuch für Recht und Ethik. Annual Review of Law and Ethics 12 (2004), 3–26.

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for universal forms of moral and legal exchange among themselves as well as between them and Christian peoples such as, for instance, in the cases of marriage, property, contracts, punishment of crimes, trade and war. All of this further implies that human existence on earth happens on two different spheres, which enjoy a certain degree of independence from one another. On the one hand, human nature is thought of as autonomous and it can attain earthily happiness or virtue, which generates a perfect moral, legal and political order even in absence of Christian revelation. Grace adds a new kind of perfection that deals with supernatural life and it completes the practice of merely human virtues, like temperance, prudence, courage and justice.7 On the other hand, natural law does not embrace only rules, commands and prohibitions that refer to the merely human world—as for instance preservation and education of the offspring or respect of human life—, but it also prescribes all human duty toward the divinity and it has therefore also a religious aspect. The fact that the first principles are innate ideas has important consequences on the understanding of natural law as a part of human knowledge. It implies that human experience is open to transcendence, that the fundamental bases of morality and jurisprudence are not produced or invented by human beings alone, but that they are given to them by God. This must necessarily lead to the conclusion that only theology can appreciate natural law in all its width and depth, whereas philosophy and jurisprudence deal only with its somehow external effects or applications.8 Seen within the history of salvation, natural law shows a peculiar story. It was given as a set of innate ideas to the first human beings, but original sin cancelled its immediate evidence, so that a part of it regarding God and his worship went completely lost, whereas the part referring to human duties became darker and were no longer easily understandable. In order to restore the original validity of natural law, God repeated it in the history of salvation a first time with the Decalogue, which is therefore the best summary of all commands of natural law. Of course, the Ten Commandments were given in a particular moment and to a particular people and the validity of their historical formulation was consequently limited in time and space. The Gospel had the same meaning and the same function as the Decalogue and as the first innate 7  Thomas Aquinas, Summa theologiae II–II q. 31 a. 3 c.: “[…] Gratia et virtus imitantur naturae ordinem, qui est ex divina sapientia institutus”. 8  This was the reason for the polemics between Lutheran theologians and Samuel Pufendorf in the second half of the 17th century. Indeed, the former defended the parts of ancient natural law, whereas the latter was one of the first representatives of a new model.

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normative ideas, thus representing the third iteration of natural law. In fact, its two “greatest commandments”: “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind” and “Thou shalt love thy neighbour as thyself” comprehend all the rules of the first and of the second table of the Decalogue and they are almost a summary of natural law.9 Since they are immediately present in the human mind, all the prescriptions of natural law are directly valid and do not require any further human approval or endorsement through civil law. Murder would be always prohibited even though no human legislation had declared it a crime, since its condemnation was promulgated in the very act of creation. Of course, the rules of natural law remain very general and need to be specified by a legislator when they are confronted with the various circumstances of human life; in any case, no new specification can contradict the content of superior premises, because the natural law lays the foundation for every other moral and legal order. Since its parts suffered to some degree on account of the Original Sin, natural law has to have different levels of clarity and validity in itself. Although man fell from Grace, some commandments nonetheless remained clear and could be immediately grasped, as it is the case of the second table. Therefore, those commandments belong to natural law in the proper meaning of the word; yet other commandments require the consideration of particular circumstances or a more thorough or indirect argumentation and in consequence they belong to a different kind of natural law which is called “law of nations” or, more accurately, “right of nation” (ius gentium). It might best be thought of as a natural law on an inferior level. In any case, such “right of nations” should not be confused with modern international law, that is, that branch of public law that regulates the relationships among commonwealths, mainly because ius gentium in the Roman and generally in the ancient tradition was understood as part of private law.10 In fact it encompasses all matters, private and public, generally referring to the preservation and propagation of human life, like marriage, family, property, boundaries, and trade. 1.2 Particular Features of Spanish Scholasticism This ancient model of natural law is not an exclusive property of Catholic theology, for it has a shared heritage common to all Christian confessions in early modern times. It was developed in Catholic theology and in Spanish 9  Matth. chapt. 22, verss. 37–39. See Luc. chapt. 22, vers. 27; Marc. chapt. 12, verss. 30–31. 10  See Justinian, Corpus Iuris Civilis, vol. 1, Institutiones, II, 1, Mommsen, T. (ed.), Berlin, 1884, 10.

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Scholasticism mainly based on Thomas Aquinas, but we find it also in Luther’s theology, for instance in the Theological Commonplaces of Philip Melanchthon; Calvinists like Iohannes Althusius or the British Puritans often summarised and repeated its main features. In any case, ancient natural law can be conceived of as a logical genus that contains a number of species. Spanish Scholasticism was one of these species, which could be identified by further distinguishing elements. In this case the “formal” features are of the highest importance, since the most distinctive varieties within the common genus were originated more by such formal or epistemic elements than by an ideological point of view. The School of Salamanca started with an original shift introduced by Francisco de Vitoria who abandoned the commentary of Petrus Lombardus’s Sentences in his theological lectures replacing it with the commentary of Aquinas’s Summa theologiae.11 Early modern Spanish Scholasticism was mainly a continuous activity of commenting and improving Thomistic theology. By focussing on the Summa four issues that did not appear in other traditions were introduced into the doctrine of natural law and they can be considered as specific features of this community of discourse: 1. the distinction between law (lex) and right (ius), 2. the presence of an eternal law, 3. the emphasis on topics taken from the law of nations and 4. the importance of dominium that links the notions of law and right. The first of these four features consists in the fact that law is being regarded as a genus, whereas right is a species of that genus.12 The name “right” (ius) can actually be understood in two different ways. In a first sense it means the same as “law” (lex). And in this way Isidore of Seville, recorded in the first distinction Gratian’s Decree,13 said in the fifth book of his Etymologies that “right” is a general name, whereas “law” is a

11  Other contemporaries Dominicans who introduced Thomas Aquinas into the discussion were, for instance, Caietanus and Lancelotto Politi. 12  Scattola, M., “Naturrecht als Rechtstheorie: Die Systematisierung der res scholastica in der Naturrechtslehre des Domingo de Soto”, in Grunert, F. and Seelmann, K. (eds.), Die Ordnung der Praxis. Neue Studien zur Spanischen Spätscholastik, Tübingen, 2001, 27–36; see also Perkams, M., “Lex naturalis vel ius naturale—Philosophisch-theologische Traditionen des Naturrechtsdenkens im 12. und 13. Jahrhundert”, in Fidora, A. et al. (eds.), Lex und Jus. Lex and Ius. Beiträge zur Begründung des Rechts in der Philosophie des Mittelalters und der Frühen Neuzeit, Stuttgart, 2010, 106–112. 13  Gratianus, Corpus Iuris Canonici, dist. 1, can. 2–3, Friedberg, A. (ed.), Leipzig, 1879, col. 1.

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species of “right”.14 But in the other way “right” is understood as the object of justice, that is, as equity that justice establishes in things.15 While Isidore refers to the Roman legal tradition, discussed below, Soto and other authors of early modern Scholasticism referred to a concept of law that, through Thomas Aquinas, went back to Augustin, Cicero and ultimately to the Stoic philosophy mostly because the “divine mind” of ancient thought had been transformed into the divine reason of Christian theology.16 The same distinction is true of the definition of justice and right, when asking whether justice (iustitia) should be derived from ius (right) or whether, the other way round, ius comes from iustitia. Each meaning produces quite different effects, because in the former case something is good (iustum) because it is rightful (ius), that is, because it is commanded. In the latter case we should, on the contrary, assume that a command is rightful because it is good for some reason.17 To resolve this quandry Domingo de Soto replied that both explanations are correct, but that they must be considered as a sequence or hierarchy. In the latter sense ius is the object of justice, the measure that jurisprudence finds in things and that precedes it, because the object of justice implies a certain power or faculty over it. Yet at the same time something is intrinsically good because an efficient cause has produced or determined it this way. In this sense the order of justice must be prior to a single right.18 This notion is expressed by the word “law”, which Cicero conceived for naming the universal rule of justice and equity, from which each single right derives.19 Analogously Aristotle attributed a twofold meaning to justice, on the one hand as a general virtue operating in all human actions, that is, as the law of human goodness, “the whole of virtue”, and, on the other hand, as a particular ability of finding what is rightful.20 Taken in this sense, natural right acquires the same meaning as natural law, as was the case of John Driedo of Turnhout (1480?–1535) who separated right as 14  Isidore of Seville, Etymologiarum libri XX, V, 3, 1 (Patrologia Latina vol. 82), Paris, 1878, col. 199. 15  Soto, D., De iure et iustitia libri decem, lib. I, Salamanca, 1553, 6A. See also Suárez, F., De legibus seu legislatore Deo. Tractatus de legibus, utriusque fori hominibus utilis, in decem libros dividitur, quorum quinque primos in hoc tomo reperies, Opera Omnia vol. 5, Paris, 1856, 5B. 16  Scattola, “Naturrecht als Rechtstheorie”, 30. 17  Suárez, De legibus, 5B. 18  Soto, De iure et iustitia, 191B–193A. 19  Cicero, De re publica. De legibus, Keyes, C.W. (ed.), Cambridge, MA, 1928, 316–318 and 382– 384; See also Suárez, De legibus, 5B. 20  Aristoteles, Nicomachean Ethics 1130a 15–17, Rackham, H. (ed.), Cambridge, MA, 1934, 260. See also Soto, De iure et iustitia 1, 192A.

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law from right as faculty, concentrating only on the former which he called ius naturale.21 We must therefore distinguish two levels in the explanation of justice. First, there must be a rule that governs all human actions that gives them a particular order, and this rule must be called “law”. Secondly, the intrinsic order it introduces in human things is right in a proper sense: it is not always accessible in the same way and must be discovered by exercising the virtue of justice and the ability of jurisprudence. The existence of a law refers immediately to the action of a lawgiver as its efficient cause, who is also the true principle for classifying all different kinds of law. Actually, all of them must comply with four qualities: they must be reasonable, aim at the commonwealth, be publicly known and be promulgated by a rightful authority. The first three elements are unchangeable, while only the fourth one can vary, meaning that laws can differ from one another on account of their lawgiver. From this, we can distinguish four different kinds of law: the eternal law by which God rules over the whole creation, the natural law that acts in human beings only by determination of nature and which is expressed in innate ideas, the human law that is formulated by historical lawgivers and the divine law manifested through Revelation.22 This doctrine of law and right produced two important consequences for a general understanding of moral theology. In the first place, from the very definition of justice it was immediately clear that an complete treatment of it should comprehend two distinct parts: the first had to explain the questions related to law and to the general order of the human world, the second had to deal with the different bodies of right that operate in the realm human action. Thus understood, the structure of the Treatise on Justice and Right derived directly from the definition of its objects.23 The two parts of the treatise as well as the four kinds of law are hierarchically distributed since it is evident that, on the one hand, law is prior to right and, on the other, that a law, as derived from God is superior to any law given by a human legislator.24 In fact, all the rules of an inferior level must be coherent with those of a superior level and they cannot contradict them. This hierarchy manifests itself immediately in the disciplines that treat these arguments, making evident the superiority of theology over jurisprudence and philosophy. Only theology can deal properly with the sphere of the law, whereas jurisprudence remains confined to the domain of right in its strict meaning. 21  Driedo of Turnhout, De libertate Christiana libri tres, Leuven, 1540/1548, fol. 33vA–34vB. 22  Soto, De iure et iustitia, 22A; Thomas Aquinas, Summa theologiae I–II q. 91 a. 1–4. 23  Soto, De iure et iustitia, 191A. 24  Suárez, De legibus, IX–X.

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At the same time, it is also clear that only theology can explain arguments and questions concerned with eternal and divine law. But in doing so theology at the same time reveals the true reason for each single human law and for each particular right, all of which happens from the perspective of eternal salvation and which can answer the legal questions in the most complete way.25 This union of the religious, legal and ethical spheres corresponds exactly to the program of Catholic moral theology developed in the three aforementioned stages of the School of Salamanca, Spanish Scholasticism and early modern Scholasticism. The second main topic in natural law doctrines of the Spanish Scholasticism was a direct consequence of the pattern of laws developed by Thomistic Scholasticism. The four kinds of law are hierarchically related and they must be consistent with one another, which implies that a new and inferior rule cannot contradict the commands of any superior one. Consequently, all laws must concomitantly cohere with the highest and first law, that is, the rule that God originally imposed on the whole universe and which is called eternal law and is the same as divine reason.26 The relationship between the four kinds of law that Soto mentions is shaped by two pivotal elements. Firstly, the specifications introduced by an inferior rule are not to be included in the superior, they rather obtain “by way of determination”.27 This means that we cannot predict what an inferior law might prescribe even if we had a precise knowledge of the content of all superior norms, since each new law adds, explicitly or implicitly, something different that was not already present in the superior rules. Secondly, eternal law itself has a constitution of its own, which differs from all other laws, but as natural, human and divine law, it is immediately present thus operating in the world. If we imagine the border that separates the divine from the human, the three kinds of law are obviously part of human affairs and, in fact, they are expressed in human ways: innate ideas, words and visions. In contrast, the eternal law clearly stays on the other side of that border. It is, of course, immediately 25  Soto, De iure et iustitia, 5B; Molina, L. de, De iustitia tomus primus, complectens tractatum primum, et ex secundo disputationes CCLI usque ad ultimas voluntates inclusive, Venice, 1594, col. 1; Suárez, De legibus, X–XI. 26  Thomas Aquinas, Summa theologiae I–II q. 93 a. 1; Soto, De iure et iustitia, 22B–24A; Lang, M. et al., Disputationes de legibus, de anima, de causis, de praedicamentis, Dillingen, 1595, fol. B2v–3r; Carbone da Costacciaro, L., Tractatus de legibus amplissimus, in quo omnium divinarum humanarumque legum, hoc est legis universae, aeternae, naturalis, humanae, ecclesiasticae, civilis, municipalis, consuetudinis et divinae, tum veteris tum novae, fundamenta, caussae, proprietates, effectusque tractantur, Venice, 1599, 148–150. 27  Soto, De iure et iustitia, 41A.

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present to God, but it is completely out of reach for all human beings. We cannot perceive it with our intellectual powers, that is, with thoughts, words or visions; nevertheless, we must postulate its existence, because otherwise the world would completely lack order and it would be a sheer product of contingency. Theologians of the Spanish Scholasticism expressed this aspect of the eternal law saying that it differs from all other kinds of law since it is their common source and root. In fact, all the latter “participate” in it; they are done and determined, whereas eternal law is the doing and determining element.28 The species of these laws do not differ from each other in the same way. The eternal law differs from the other three in that it is their fount and origin; in any case it is not brought about but it rather is efficient; it is not what is impacted but rather what impacts; finally it does not participate in something else, but is rather the light in which the other [laws] participate. The remaining [laws] differ from each other in that the natural law is an impression that was brought about together with the creation of nature; the human law is a rule established by man by means of a faculty of divine origin; the divine law, however, is a light embued in man, which Jeremy calls the law that is written in the hearts.29 This explanation leads to an unexpected and paradoxical conclusion. Since the eternal law is above and beyond human understanding it is for us completely void of content and it can never be represented in human words, although it was promulgated in God as Word or as the second person of the Trinity.30 We cannot say what belongs to it and what does not, what is, according to it, right or wrong; this is only possible when speaking of natural, human or divine law. Nevertheless, eternal law is the origin of those three kinds of law and it is, therefore, their principle of truth in the sense that a prescription of natural or civil law can only be right when it complies with norms contained in the eternal law. Given the fact that the latter is for us empty, we must conclude that only the three inferior kinds of law allow to attribute content to the eternal law; this happens based on a process that knows no premises, which has no 28  Soto, De iure et iustitia, 21B–22B; also Soto, D., De legibus (Ms. Ottob. lat. n. 782). I. Comentarios al tratado de la ley. I. Tratado de la ley en general (Summa Theologica, 1–2, QQ. 90–97), F. Puy and L. Núñez (eds.), Granada, 1965 60–62. See also Puy, F. and Núñez, L., “Estudio introductorio”, ibid., XLIV–XLV; Carro, V., Domingo de Soto y su doctrina jurídica, Madrid, 1943, 103–135; Ramos-Lissón, D., La ley según Domingo de Soto: Estudio teológicojurídico, Pamplona, 1976, 75–90. 29  Soto, De iure et iustitia, 22A–B (trans. J.A. Tellkamp). 30  Suárez, De legibus, 62.

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given criteria for judgement, but which discovers that something is good by means of the recognition of what is called an irradiation or self-evidence of truth. This, in turn, has two important effects. Firstly, human beings are called upon to collaborate in order to identify the content of eternal law and of divine reason. Secondly, the order of the world must be to some extent obscure and it cannot be described only from a theoretical point of view, yet it is discovered while human beings act and define the criteria for virtue and good action.31 The third main topic present in Spanish Scholasticism regards the law of nations. Since its origins in Salamanca it was concerned with the creation of a new branch of law in order to regulate the relationships among different nations. For sure, the law of nations was conceived by Roman jurisprudence and in the medieval tradition of ius commune it designated a domain that governed the relationships between Roman citizens and foreigners (peregrini).32 It comprehended the rules of an edict put forward by the praetor peregrinus which were valid for both Roman and non-Roman people, i.e., independently of their citizenships, and it therefore contained all rights valid for all human beings as such, that is, insofar as they are legitimate bearers of human reason. Gaius (110?–180?), who gave one of the first definitions, wrote in this sense that the law of nations was “the set of rules constituted by natural reason for all and observed by all nations alike”.33 As a necessary consequence, such laws of nations comprehended both private and public institutions and they have been transmitted in two separate branches of knowledge. Historians of the late Republican era (Sallust) or the Early Imperial times (Livy) gave an account of the ius feciale, that is, the sacral law the Roman applied in times of war. Jurisprudence was, on the contrary, concerned only with private institutions and it did not develop anything comparable to modern international law in the sense that it did not acknowledge a legal domain, understood as ius gentium publicum, explicitly dedicated to the relationships among commonwealths.34 In fact, Ulpian’s famous classification conceived the law of nations as a part of private law. 31  Scattola, M., “Bellum, dominium, ordo. Das Thema des gerechten Krieges in der Theologie des Domingo de Soto”, in Brieskorn, N. and Riedenauer, M. (eds.), Suche nach Frieden: Politische Ethik in der Frühen Neuzeit I, Stuttgart, 2000, 129–134; also Scattola, M., “Guerra giusta e ordine della giustizia nella dottrina di Domingo de Soto”, in Scattola, M. (ed.), Figure della guerra: La riflessione su pace, conflitto e giustizia tra Medioevo e prima età moderna, Milan, 2003, 103–110. 32  Poste, E., “Commentary”, in Gaius, Institutiones or Institutes of Roman Law, Poste, E. (ed.), Oxford, 1904, 3–4. 33  Gaius, Institutiones, 1; see also Scattola, M., Das Naturrecht vor dem Naturrecht. Zur Geschichte des ‘ius naturae’ im sechzehnten Jahrhundert, Tübingen, 1999, 110–124. 34  Kaser, M., Ius gentium, Cologne, 1993, 10–14.

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Medieval theology dealt with the law of nations from another perspective asking extensively about its epistemic connections with natural law: whether they are the same or two different kinds of law, whether one depends on the other or whether they are grasped with the same kind of knowledge.35 But, as far as its contents are concerned, theology came to the same conclusions as jurisprudence and it conceived the law of nations as a set of rational rules that are not immediately evident in the human soul in the form of innate ideas, but that they require further reasoning in order to be clearly understood. Hence, if the basic right to self-defense is a natural right, for it is instinctively grasped by every living creature, the right of property appears to require further arguments that would justify it; therefore, it belongs to the law of nations. In any case the latter mostly contains legal institutions of the private sphere. In the 16th century ius gentium publicum was rooted in natural law and its development lasted about a hundred years, i.e., from 1526 to 1625. To precise, this process began with Francisco Vitoria, who started his teaching in Salamanca in 1526, and its first general exposition is to be found in the Three Books on the Right of War and Peace published by Hugo Grotius (1583–1645) in 1625. Important contributions in this long process were given by authors of the Spanish Scholasticism, such as precisely Vitoria, who treated the question of the American Conquest and some important topics concerned with the law of nations in three Relections: De temperantia, De Indis and De iure belli. Some of his disciples and friends resumed and discussed the same problems set forth by Vitoria, yet taking two different directions. In a first and more theoretical sense they answered the question formulated in the question 57 of the Secunda Secundae:36 What is the law of nations, more accurately ‘right of nation’, and how does it differ from natural law? Juan de Salas recognized this as a very difficult question, which had already been answered in many different ways: “About this topic, as many heads, so many opinions”.37 Soto, however, gave the first published exposition of the problem: following Thomas Aquinas,38 he separated natural law in an absolute sense from natural law considered under particular conditions calling the former natural law in a proper sense and the latter law of nations.39 It is, in fact, a product of human reason applied to certain premises, which are identical for all human beings. 35  On the comparison between legal and theological law of nations see Molina, De iustitia, col. 15–16. 36  Thomas Aquinas, Summa theologiae II–II q. 57 a. 3. 37  Salas, J., Tractatus de legibus in Primam Secundae sancti Thomae, Lyon, 1611, 35B. 38  Thomas Aquinas, Summa theologiae II–II q. 57 a. 3. 39  Soto, De iure et iustitia, 196a–198B.

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Since human rationality is essentially the same in everyone and the general circumstances it applies to are the same, discursive reasoning within the law of nations always has to come to the same conclusions, which are therefore universal. If this is the internal constitution of law of nations, it has necessarily to be based on a hypothetical agreement of all human beings; therefore it can be understood as a set of rights rationally acknowledged by all people all over the world at all time. Diego de Covarrubias explained further the conditions, under which the law of nations operates. They correspond to the state of fallen mankind after losing its original harmony thus requiring coercing rules and punishments. He also discussed extensively the forms of consent that originated within the law of nations and the necessity to establish property or political power among human communities and hence distinguishing those forms of dominium created by natural law from those produced by the law of nations.40 Pedro de Aragón amended Soto’s theory stating that the law of nations is not part of natural law, it rather has to be part of positive law since its legislator is human rationality or, as it were, the whole of mankind.41 Also Miguel Bartolomé Salón, while comparing different definitions given by theologians and lawyers, contended against Soto that the law of nations does not belong to natural law, and similar arguments against jurisprudence were suggested in a more extensive way few years later by Domingo Báñez.42 Luis de Molina suggested a definition quite akin to the legal understanding until Juan de Salas systematized the range of options setting forth four possible solutions, including their advantages and disadvantages.43 The theory of just war traditionally was considered as pertaining to the law of nations, to which the Spanish Scholasticism of the 16th century gave important contributions. After the Relection on the Right of War of Francisco de Vitoria, a number of publications discussed extensively the same topic reassessing the theory of just war as formulated by Thomas Aquinas in Summa theologiae Secunda Secundae quaestio 40.44 Its range would be broadened in order to solve problems not originally foreseen, most importantly solving some

40  Covarrubias, D., Regulae Peccatum, De regulis iuris, Libro Sexto relectio, in Covarrubias, D., Opera omnia, tomus primus, Venice, 1554, 577A–B. 41  Aragón, P., In Secundam Secundae divi Thomae Doctoris Angelici commentaria. De iustitia et iure, Salamanca, 1590, 10A–14A. 42  Salón, M.B., Controversiae de iustitia et iure atque de contractibus et commerciis humanis licitis, ac illicitis, vol. 1, Venice 1591, 17b–21a; Báñez, D., De iure et iustitia decisiones, Salamanca, 1594, 19A–B. 43  Salas, Tractatus de legibus, 1611, 35. 44  Thomas Aquinas, Summa theologiae II–II q. 40.

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urgent cases of conscience, as for instance whether a subordinate should obey obviously wrong or inhuman commands given by a superior. Such questions in natural law had been already introduced by Adriaan Florisz, who became pope Hadrian VI (1522–1523), whose influence can be found both in confessor handbooks45 and in theological commentaries, such as those of Bartolomé de Medina46 and Gabriel Vázquez.47 For obvious reasons, the doctrine of just war was extensively treated in treatises dealing with the Secunda Secundae. Domingo de Soto explained his doctrine of just war while discussing robbery and exploring the conditions for the legitimate use of violence within a human community.48 Diego de Covarrubias dedicated three long paragraphs of his Relection on the rule ‘Sin’ to clarify the multiple relationships between just war and property, both in a private and public sense.49 Melchor Cano,50 Domingo de Soto,51 Domingo Báñez,52 Gabriel Vázquez,53 Luis de Molina54 and Francisco Suárez55 dealt extensively with just war theories commenting on Question 40 of the Secunda Secundae enriching it with new arguments in order to solve its intrinsic problems and offering answer to questions that arose in different contexts such as the American conquest, the Reformation or new diplomatic relationships among European commonwealths. In the case of Luis de Molina and Francisco Suárez the discussion on this topic grew to such an extent as to form autonomous treatises about all aspects of a theory of just war. This doctrine was at the same time an important argument in confessor handbooks, another literary genre widely present in the Catholic theology of the 16th century and which applied the conclusions of research to the various cases of conscience that emerged in the practice of penitence. Extensive 45  Cajetan, Summula de peccatis, Salamanca, 1525, fol. 15va–22rb; Córdoba, A., [Quaestionarium theologicum] Opera, Venice, 1569, 188B–191B. 46  Medina, B., Expositio in Primam Secundae Angelici Doctoris divi Thomae Aquinatis, Venice, 1578, 177B–170A. 47  Vázquez, G., Commentariorum ac disputationum in Primam Secundae Summae theologiae sancti Thomae Aquinatis tomus primus, Venice, 1599, 355B–356B. 48  Soto, De iure et iustitia, 429A–431B. 49  Covarrubias, Regulae Peccatum, 564B–579B. 50  Cano, M., “Quaestio 40 De bello”, in Vitoria, F. de, Relectio de iure belli o paz dinámica. Escuela Española de la Paz. Primera generación 1526–1560, L. Pereña et al. (eds.), Madrid, 1981, 323–342. 51  Soto, D., “Quaestio 40 de bello”, in Vitoria, Relectio de iure belli, 299–321. 52  Báñez, D., Scholastica commentaria in Secundam Secundae Angelici Doctoris sancti Thomae. Quibus, quae ad fidem, spem et charitatem spectant, clarissime explicantur, vol. 3, Douai 1615, 520B–549A. 53  Vázquez, In Primam Secundae, 350A–362B. 54  Molina, De iustitia, col. 406–495. 55  Suárez, De legibus, 737A–763B.

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treatments of moral questions from the point of view of natural law and which were related to warfare, law of nations and diplomatic relations can be found under headings of bellum, defensio, delegatus, dominium, miles, pirata, proditio, repressaliae, seditio or tyrannis. This is most notable and common in handbooks of the 16th century as, for instance, those of Silvestro Mazzolini,56 Tommaso de Vio Cajetan,57 Bartolomeo Fumo58 or Sebastiano Medici.59 The deep interest in the law of nations was of course mainly due to the moral and legal problems that arose in the Spanish kingdom with the Conquest of America. Treatises that dealt with it were mostly theological and legal in nature since it was necessary to determine the arguments—if there were any—that would justify the domination over the new lands and which determined how it should be implemented. Both the School of Salamanca and authors of the Spanish Scholasticism in general produced a great amount of writings—many of which remain unpublished—concerned with the Conquest of America, most famously during the controversy in Valladolid (1550–1551) between Juan Ginés de Sepúlveda60 and Bartolomé de las Casas,61 in which thinkers such as Bartolomé de Carranza, Melchor Cano, Domingo de Soto and Diego de Covarrubias y Leyva were directly involved to shed light on those issues in reviews, assessments, lectures and relections. To be sure, the discussion on the bases of natural law regarding the Conquest of America lasted almost the whole 16th century. It began with Juan López de Palacios Rubios62 and Matías de Paz63 and it involved the most representative authors from the most prestigious Iberian universities until the end of the century. Shortly after the Junta of Valladolid, Alfonso de Castro (1495–1558), Domingo de Santo Tomás (1499–1570), Pedro de Sotomayor and Juan de Matienzo (1520–1579) discussed this question, the same as, in the following 56  Mazzolini, S., Sylvestrinae summae, quae Summa summarum merito nuncupatur, pars prima, Antwerp, 1569. 57  See Cajetan, Summula. 58  Fumo, B., Summa aurea armilla nuncupata, Venice, 1587. 59  Medici, S., Summa peccatorum capitalium, Florence, 1579, 302–314. 60  The article by Francisco Castilla Urbano (pages 222–251) in this volume deals in extenso with this topic. Sepúlveda, J.G. de, Demócrates Segundo, in Coroleu Lletget, A. (ed.), Obras completas, vol. 3, Pozoblanco, 1997. 61  Las Casas made his point clear in various writings; on the specific tone of the debate see the summary written by Soto, “Sumario” in Brufau Prats, J. (ed.), Soto, D., Relecciones y opúsculos I, Salamanca, 1995, 203–233. 62  López de Palacios Rubios, J., De las islas del mar océano (Libellus de insulis oceanis), Castañeda Delgado et al. (eds.), Pamplona, 2013. 63  Paz, M. de, “De dominio regum Hispaniae super Indos”, in Archivum Fratrum Praedicatorum 3 (1933), 137–177.

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years, Juan de la Peña (1564–1565/1982), Juan de Guevara (1518–1600), Mancio de Corpus Christi (1507?–1576), Luis de León, Bartolomé de Medina, Domingo Báñez, Luis de Molina, Pedro Barbosa (1540?–1606?), Manuel Soares da Ribeira (1520?–1590?), Francisco de Toledo Herrera (1532–1596), Francisco Suárez, Juan de Salas, Tomás de Mercado (1523?–1575) and José de Acosta (1539–1600).64 Iberian Scholasticism, then, reached a highly sophisticated knowledge on questions pertaining to the law of nations as well as to the doctrines on dominium and just war, all of which are reflected in works of the early 17th century by Juan de Salas or Francisco Suárez. Nevertheless, it was not from this tradition that the still deficient theory of a public law of nations emerged. Although Catholic theologians were frequently quoted as authorities, the public law of nations, which Hugo Grotius fully developed in his Three Books on the Right of War and Peace,65 was mostly a product of the philosophical tradition and of a community of philosophical discourse, reinforced by arguments taken from jurisprudence, as we can see in Jean Bodin66 and Alberico Gentili,67 two jurists with strong historical ties to Hugo Grotius. There are two reasons for the indifference of Catholic theology shown on this issue. On one side, neither jurisprudence nor theology offered sufficient sources for reconstructing a collection of laws or customs among nations, and only history possessed such a set of knowledge. Therefore, a public law of nations could be dealt with only on the basis of ancient history, namely on how the Romans established it. On the other side, early modern Scholasticism developed broadly into moral theology and it was mainly concerned with the consequences of moral and legal actions regarding the salvation of the soul. But in this sense it focused more on the individual aspects of morality and it therefore had no further interest in the public sphere, which was important only insofar as it affected the internal life. 1.3 Theology and Jurisprudence The four elements previously discussed contributed to shape a particular understanding of justice insofar as it emerges within an order of rights that are always based upon a superior foundation and dependent on superior supervision, thus allowing to formulate a particular law. A truly theological and Catholic answer was thus given to a question that was inherent to the definition of justice from its very beginning. The traditional definition of justice, as it 64  See for instance Pereña, L., “Glosas de interpretacion”, in Peña, J. de la, De bello contra insulanos. Intervención de España en America. Escuela Española de la Paz. Segunda generación 1560–1585. Posición de la Corona, Pereña, L. et al. (eds.), Madrid, 1982, 148–330. 65  Grotius, H., De iure belli ac pacis, Paris, 1625. 66  Bodin, J., De republica libri sex, Paris, 1586. 67  Gentili, A., De iure belli libri III, Hannover, 1598.

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was given for instance by Aristotle or by the legal tradition, stated that justice is a particular virtue that is determined by its object. Justice is the knowledge of what is just, what is right or what is proportional to the thing itself. Thus, the definition of justice has to start with what is right. Consequently, justice is the only virtue that goes beyond the agent, his or her dispositions and intentions. Thus defined the foundation of an independent domain of legal knowledge was laid, concerned only with what is right, i.e., with the right or just measure present in the things themselves. At the same time its recognition requires a specific ability or technique, particularly the sphere or domain of jurisprudence, which establishes only what is right (ius), conceiving it as the source of the universal legal order, and defining law as a particular manifestation of a right.68 Thomistic theology and Spanish Scholasticism introduced a higher level of law, which precedes all manifestations of right and which has to found it. The reference to law permits therefore to understand a right, or the just measure in things, as a consequence of a (moral) law that existed before the world was created and that does not come from it, but that rather has its origin in God being thus theological in nature. In this sense, each singular right must be interpreted in the light of the law it has generated and, since every law is part of the plan conceived by God, this specific relation between right and law considers all legal actions in the light of theology that are relevant for the salvation of the soul. Therefore, rightful actions always become theologically relevant actions. Authors of the Spanish Scholasticism would at this point enquire whether a law obliges in the inner court of conscience as well and whether it is relevant for confession. If a right is seen from this internal point of view, it leads to two important consequences. Firstly, it becomes clear that theology has a superior normative authority if compared with jurisprudence and it can therefore lead to a perfect doctrine of natural law and natural rights. In this sense Spanish authors did not cease to assert in their works the superiority of theology over jurisprudence.69 Secondly, since theologians have a superior knowledge of this matter, the decision about cases involving natural law should be reserved to them taking into account different stages of ecclesiastical jurisprudence ranging from confession to canonical courts. The Catholic variety of natural law is intimately linked with the government of Christian souls, and indirectly of Christian society, by the way of theology and religious wisdom. 68  Such is the definition of law in the Corpus iuris civilis. 69  This is the case in the writings of Soto, Molina or Suárez.

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In the 17th century, moral theology unified the legal order and theological argumentation, which was designed to be a part of theology dealing with all questions related to human agency in this world and assumed the existence of natural law. It remained the most distinctive teaching of Catholic and Spanish theology throughout the 17th century and it offered the most sophisticated theological tool for the government of society. As seen, the most impressive form of argumentation in moral theology can be found in the doctrine of just war, which was commonly debated within other disciplines as well. In the end, a major difference between jurisprudence and theology has to be underscored. The former stated that a war is just when it complied with three requirements: the reason for waging war had to be rightful, the authority had to be legitimate and the enemies , as a matter of warfare, had to treated justly. Theology, however, added a fourth condition in that the intention of the fighter had to be honest. If the war had other aims than justice, it had to be unjust and its agents were guilty before God, although they were not necessarily guilty before human justice. Thus, theology claimed to give a final judgement about cases that fall within natural law since it had a complete knowledge of human justice as well as of the conditions that were necessary for the salvation of the individual soul and for the government of the commonwealth. Bibliography Sources

Finetti, G.F., De principiis iuris naturae et gentium adversus Hobbesium, Pufendorfium, Thomasium, Wolfium et alios, libri XII, vol. 1, Venice, 1764. Pufendorf, S., Eris Scandica, qua adversus libros de iure naturali et gentium obiecta diluuntur, Frankfurt, 1686. Vitoria, F. de, Relectio de iure belli o paz dinámica. Escuela Española de la Paz. Primera generación 1526–1560, Pereña, L. et al. (eds.), Madrid, 1981.



Secondary Literature

Brufau Prats, J., La Escuela de Salamanca ante el descubrimiento de América, Salamanca, 1989. Pereña, L., “Estudio preliminar. La intervención de España en América”, in Pereña, L. et al. (eds.), Juan de la Peña, De bello contra insulanos. Intervención de España en America. Escuela Española de la Paz. Segunda generación 1560–1585. Testigos y Fuentes, vol. 1, Madrid, 1982, 19–134.

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Scattola, M., “Die Geburt des katholischen Natur- und Völkerrechts aus dem Geist des Protestantismus im 19. Jahrhundert”, in Cancik, P. et al. (eds.), Konfession und Recht. Auf der Suche nach konfessionell geprägten Denkmustern und Argumentationsstrategien in Recht und Rechtswissenschaft des 19. und 20. Jahrhunderts, Frankfurt, 2009, 95–120. Scattola, M., “Models in History of Natural Law”, in Ius commune. Zeitschrift für Europäische Rechtsgeschichte 28 (2001), 91–159. Scattola, M., “Principium oder principia? Die Diskussion über den Rechtsgrundsatz im 16. und 17. Jahrhundert”, in Jahrbuch für Recht und Ethik. Annual Review of Law and Ethics 12 (2004), 3–26. Tellkamp, J.A., “Über den Zusammenhang von Freiheit und Sklaverei bei Vitoria und Soto”, in Kaufmann, M. and Schnepf, R. (eds.), Politische Metaphysik. Die Entstehung moderner Rechtskonzeptionen in der Spanischen Scholastik, Frankfurt, 2007, 155–175.

chapter 6

Dominion Rights: Their Development and Meaning in the History of Human Rights Virpi Mäkinen 1 Introduction The importance of the sixteenth-century Spanish neo-Thomists has been crucial in the development of natural rights (ius naturale) and, later on, to the emergence of human rights in Western political theories.1 Though there are many relevant representatives of neo-Thomist philosophy, this chapter concentrates on three eminent figures from the early centuries of the Salamanca School. Two of them belonged to the Dominican order: Francisco de Vitoria (1483–1546), founder of the Salamanca School, and his pupil, Domingo de Soto (1495–1560). The third, Luis de Molina (1535–1600), represented the Jesuit theology and, in his work De iustitia et iure, offered the first Jesuit theory of rights. These three Spanish theologians influenced rights discourse in at least three crucial ways. First, they reformulated the Aristotelian-Thomistic concept of ius naturale in light of the Gersonian-Summenhartian ideas of natural rights2 as a theory of inalienable natural and dominion rights in Western political thought. 1  The question of the early history and origins of the concept human rights is an ongoing debate among modern scholars. We still do not have an adequate account of the origin and early development of human rights; the content, nature and justification of human rights are also still being debated today as well. See, e.g. Frohnen, B. and Grasso, K.L. (eds.), Rethinking Rights: Historical, Political, and Philosophical Perspectives, Columbia/London, 2009; Douzinas, K., The End of Human Rights, Oxford, 2009; Slotte, P. and Halme-Tuomisaari, M. (eds.), Revisiting the Origins of Human Rights, Cambridge, 2015. 2  By the Gersonian-Summenhartian tradition, I refer to a certain similar conceptual continuation concerning the definition of the notion of ius and dominium to be found between Jean Gerson and Conrad Summenhart. It is well known that Gerson’s works served as an immediate source for Summenhart. This was due to his conscious efforts to systematise Gerson’s language into a coherent whole in his main work Septipartitum opus de contractibus pro foro conscientiae atque theologico (1500). The most obvious similarities are based on the general definition of a right as a power or faculty to act or to do something in accordance with the right reason. Another similarity between Gerson and Summenhart is their emphasis on liberty. Thus, they both treated rights in the context of moral theology and spoke about natural rights as moral rights. It should be noted, however, that Summenhart’s interpretations may not always be fully in line with Gerson’s own thoughts.

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Second, they acted as mediators between late-medieval and pre-modern Continental political thinkers, such as Hugo Grotius (1583–1645) and Samuel Pufenford (1632–1694).3 Third, the specific historical situations and events of their own times (such as the Conquest and the Age of Discovery) compelled them to discuss and solve such political issues as a just war, the justification for conquest and evangelisation of infidels, all of which influenced their understanding of the notion of rights. Francisco de Vitoria discusses his theory of rights and dominium in Commentary on Aquinas’s Secunda secundae, which, under the Dominican School, formed a text that functioned much as Lombard’s Sentences did during the first Scholasticism.4 Vitoria also discusses the subject in Relectio de Indis.5 Domingo de Soto deals with the doctrine of rights and dominion in De iustitia et iure libri decem, first published in Salamanca in 1533–1534 and re-edited in 1556–1567.6 Likewise, Luis de Molina discusses the subject in De iustitia et iure (1593).7 Despite the prior existence of a literary genre of De iustitia et iure, these 3  It is important to note that, despite the fact that early modern politicians hardly ever referred to earlier studies, especially medieval authors (which they perhaps did not know or viewed as uninteresting), there are many resemblances between early modern and late-medieval ideas on rights. Modern studies focusing on the development of rights discourse from the medieval to the early modern period have shown the continuities between these two traditions. This is, however, a subject that needs to be further studied. For such studies, see, e.g. Tierney, B., The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625, Atlanta, Georgia, 1997, 255–72; Brett, A., Liberty, Right and Nature: Individual Rights in Later Scholastic Thought, Cambridge, 1997, 122–137; Tellkamp, J.A. “Ius est idem quod dominium: Conrado Summenhart, Francisco de Vitoria y la conquista de América”, in Veritas 54 (2009), 34–51. See also Pagden, A. and Lawrance, J., “Introduction”, Francisco de Vitoria, Political Writings, id. (trans.), Cambridge, 1991, xiii–xxviii. 4  Vitoria lectured twice on Aquinas’s Secunda secundae and his Commentary documents the second course of lectures in the years 1534–1537. Vitoria, F. de, De justitia, in Comentarios a la secunda secundae de Santo Tomás, vol. 3, Beltrán de Heredia, V. (ed.), Madrid, 1934. For Vitoria’s theory of natural and dominion rights, see Brett, Liberty, Right and Nature, 134–137; Tellkamp, “Ius est idem quod dominium”, 34–51; Añaños Meza, M.C., “La doctrina de los bienes communes de Francisco de Vitoria como fundamentación del dominio en el Nuevo Mundo”, in Persona y Derecho 68 (2013), 103–137. 5  Vitoria, F. de, De indis et de iure belli relectiones, Nys, E. and Bate, J. (ed. and trans.), Buffalo, 1995. 6  Soto, D. de, De iustitia et iure libri decem, 5 vols., Madrid 1967 (facsimile of Salamanca, 1556). The re-edited work was largely used (reprinted twenty-seven times) during the sixteenth century throughout Europe. For Soto’s theory of rights and dominium, see Brufau Prats, J., El pensamiento político de Domingo de Soto y su concepción del poder, Salamanca, 1960; Brett, Liberty, Right and Nature, 137–164. 7  Molina, L. de, De iustitia et iure tractatus, vol. I, Venice, 1611. The work consists of three volumes, which were published in 1593, 1597 and 1600. For Molina’s theory of rights and dominium, see Tellkamp, J.A., “Rights and Dominium”, in Kaufmann, M. and Aichele, A. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, 125–145.

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two works were composed in different ways: whereas Soto follows Aquinas’s questions De justitia in the Summa theologiae, Molina differentiates himself both from Aquinas and Soto by criticising the latter.8 This chapter focuses on three main themes concerning the theories of natural and dominion rights in the works of the above-mentioned theologians: (1) the definition of dominion rights and their relation to natural rights, (2) the main criteria for having dominion rights over something, and (3) the legitimation of dominion rights. The conclusion concisely summarises the importance of dominion rights in the history of human rights. Since the teaching of natural and dominion rights by these Spanish neo-scholastics cannot be fully understood without reference to their late medieval heritage, the chapter briefly reviews the history of rights in late medieval sources. 2

Right, Law, and Dominion in Late Medieval Sources

Modern scholars often mention two traditions when speaking about the history of rights: the Thomist-rationalist natural law tradition and the nominalistvoluntarist natural rights tradition. The former tradition has been seen as representative of the objective (also called passive) tradition of rights, while the latter has typically been viewed as representative of the subjective (also called active) tradition of rights.9 Recent studies have maintained that the Spanish neo-Thomist teachings on rights represented a combination of both these traditions and that each individual author contributed to the subject in his own personal fashion.10 8   See Tellkamp, “Rights and dominion”, 132–133. 9   For more on these traditions, see Brett, Liberty, rights and nature, 1–6; Tierney, B., “Historical Roots of Modern Rights: Before Locke and After”, in Frohnen and Grasso, Rethinking rights, 34–57; Nederman, C.J., “Rights”, in Marenbon, J. (ed.), The Oxford Handbook of Medieval Philosophy, Oxford, 2012, 643–660. 10  Especially concerning Vitoria, see Tierney, The idea of natural rights, 265; Deckers, D., Gerechtigkeit und Recht: Eine historisch-kritische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (1483–1546), Freiburg, 1991, 191–193, 220; Brett, Liberty, right and nature, 130–131, where she also criticises Deckers’s interpretation, who sees subjective rights and ideas on modernity in Vitoria’s theory. For Vitoria’s rights theory as more or less subjective theory, see Tellkamp, “Ius est idem quod dominium”; Mäkinen, V., “Dominion Rights of the Aboriginals in Francisco de Vitoria’s De indis”, in Cunliffe, J. and Erreygers, G. (eds.), Inherited Wealth, Justice and Equality, London/New York, 2013, 16–38. For scholars who see Vitoria more as a representative figure of a traditional Thomistic teaching of dominium, see Cortest, L., The Disfigured Face: Traditional Natural Law and Its Encounter with Modernity, New York, 2008, 23, where he refers to Tierney’s (The idea of natural rights) studies.

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It is necessary here to discuss two significant concepts more specifically: ius (right) and dominium (dominion). The notion of ius had several connotations in medieval sources. A right (ius) was understood as something that law (lex) or justice (iustitia) granted to an individual under the objectively understood law of nature (lex naturalis: a right pertaining to an order that exists and is valid independently of each subject). Beginning from the ancient philosophical tradition as well as Roman legal texts, the notion of ius (in the meaning of law) was understood as ‘what is just’ (id quod iustum est).11 Modern scholars have chosen to call this tradition the ‘objective right’ (or law) tradition. In Summa theologiae 2a2ae, Thomas Aquinas also provides a central definition for ius in accordance with its objective meaning within the context of rectitudo. For him, a right is any act, forbearance or other thing that is just.12 According to Aquinas, law (lex) is also ‘in a certain sense the rationale of right (ius)’.13 In the objective tradition, natural law (ius naturale) was understood as being merely preceptive because of its precepts and prohibitions. However, natural law not only regulated human affairs but also left areas open to free human choice. From the twelfth century onwards, canon lawyers and theologians began to recognise the notion of ius naturale as referring to a type of subjective power or ability inherent in individuals together with the tradition of permissive natural law. According to this notion, humans were understood to have the natural right to act as they saw fit, provided such actions did not exceed the range of actions permitted by law. The idea of permissive natural law called attention to the intrinsic nature of law itself and was further developed within the voluntarist tradition.14 For example, the Franciscan theologian John Duns Scotus (d. 1308) argues that not even the Ten Commandments (i.e. precepts of natural law) impose an obligation on human beings; rather, they should be left to the liberty of the will.15 These changes in language enabled 11   Examples of the sources representing an objective tradition include Aristotle’s Nicomachean Ethics, V.7 (1134b18–1135a14) and the Roman jurist Ulpian’s (d. 228) definition of justice as “the constant and perpetual will to give each one his due”, which was a common phrase among medieval jurists and theologians. See D.1.1.1opr.: “Iustitia est constans et perpetua voluntas ius suum cuique tribuere”. 12  Thomas Aquinas, Summa theologiae, II–II q. 57 a. 1: “Iustum dicitur aliquid, quasi habens rectitudinem iustitiae, ad quod terminatur actio iustitiae […] et hoc quidem est ius”. 13  See Thomas Aquinas, Summa theologiae II–II q. 57 a. 1. 14  On the idea and history of permissive natural law, see Tierney, B., Liberty and Law: The Idea of Permissive Natural Law, 1100–1800, Washington, DC, 2014. 15  Scotus, J.D., Quaestiones in quartum librum sententiarum in Joannis Duns Scotus, Paris, 1891, 4.15.2, (18:266). Scotus’s Commentary on the Sentences IV.15 was a model for early Spanish neo-Thomists, especially for Vitoria. See Brett, Liberty, right and nature, 124–125, 131, in which she focuses especially on the divisions within dominium.

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the development of a new theory of natural rights. Together with the development of permissive natural law from the early thirteenth century onwards, some canon lawyers and theologians began to conceive of the notion of ius as belonging to the individual in accordance with the novel sense of right, that is, as something one has or owns (ius suum) and by which one can claim something as his or her right.16 The background for such an understanding also had to do with the overall tendency towards individualisation in late medieval thought. In theology and moral philosophy, this new discourse was seen in the voluntarist psychological tradition that highlighted human will (voluntas) as a source of both free choice and individual agency. In particular, the Franciscan theologians of the late-thirteenth and early fourteenth centuries developed a new kind of psychology in which the soul became an important feature in determining individuality and individual existence.17 Since the Franciscans of the time saw human will as the centre of the subjective personality, this gave rise to a fundamental question: What is meant by the Latin term ius when it is associated with an individual person? The answer was to predicate ius upon the natural faculty (facultas) or power (potestas) belonging to each individual that causes her or him to act rightly. Among modern scholars, this new understanding of ius is also termed the ‘subjective sense’ of right. It should, however, be noted that natural rights developed alongside the ‘old’ natural law teachings, not totally distinct from or in opposition to them—and this development concerned the Spanish neo-Thomists as well.18 As Dominican theologians, Vitoria and Soto naturally operated within the Aristotelian-Thomistic tradition. However, they also used sources that belonged to the nominalist-voluntarist tradition and were thus familiar with the subjective rights theories. Their main sources that belonged to this tradition were the works of the French theologian and conciliarist Jean Gerson (1363–1429) and the German theologian Conrad Summenhart (c. 1450–1502). This so-called Gersonian-Summenhartian tradition of rights had its background especially in the arguments of the Franciscan theologian William of Ockham (1285–1347), who made significant modifications to the late medieval, 16  The notion ius suum was already known in Roman law, for example in the construction utitur iure suo (“uses one’s right”). For the early development of individual rights from the Middle Ages to the early modern period, see Tierney, The idea of natural rights; Brett, Liberty, right and nature. 17  See Nederman, C.J., “Individual Autonomy”, in Pasnau, R. (ed.), The Cambridge History of Medieval Philosophy, vol. II, Cambridge, 2010, 551–564. 18  Tierney, The Idea of Natural Rights 8; Brett, A., “Human Rights and the Thomist Tradition”, in Slotte, P. and Halme-Tuomisaari, M. (eds.), Revisiting the Origins of Human Rights, Cambridge, 2015, 82–101.

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subjectively understood notion of rights.19 When stating that a right was a licit power of action, Ockham was emphasising moral agency in the language of rights: to have a right meant that one was an agent with a legitimate or licit sphere of action.20 According to the definition, potestas refers to an innate human rational power to act in accordance with right reason (recta ratio). The word licita refers to what is permissible in accordance with right reason, that is, what is legitimate in accordance with the law.21 Ockham’s definition was important for the development of rights: from this time forward, a right was understood as a normative and natural power to do something—even toward oneself—not prohibited by law. Thus, natural rights were understood as an independent license for action, in which the individual and his or her choices were sovereign.22 Following Ockham, Jean Gerson defines a right (in its strictest meaning) as “a proximate faculty or power appropriate to someone according to the dictate of right reason”.23 For both authors, recta ratio was central in the elucidation of law, and, therefore, individual rights stemmed from the law that governs 19  Ockham’s language of rights can be taken to represent a divide in late medieval rights discourse. See, e.g. Brett, Liberty, right and nature, 51–62; Mäkinen, V., “Moral Psychological Aspects in William of Ockham’s Ideas on Natural Rights”, in American Catholic Philosophical Quarterly 86 (2012), 507–525; Varkemaa, J., Conrad Summenhart’s Theory of Individual Rights, Leiden/Boston, 2012. Tierney (The idea of natural rights, 118) considers Ockham’s usage of “right” as a kind of derivation from earlier literature and especially from canonist sources. 20  William of Ockham, Opus nonaginta dierum, in Guillelmus de Ockham Opera Politica, ed. Offler, H.S., vol. 1, Manchester 1963, 304: “[…] Ius utendi est potestas licita utendi re extrinseca qua quis sine culpa sua et absque causa rationabili privari non debet invitus; et si privatus fuerit, privantem poterit in iudicio convenire”. 21  For more on Ockham’s terminology, see Robinson, J., William of Ockham’s Early Theory of Property Rights in Context, Leiden/Boston, 2013, 114–120, 161–174 and Mäkinen, “Moral Psychological Aspects on Natural Rights”. 22  For Ockham’s definition of rights in general, see Tierney, The Idea of Natural Rights, 27–42, 93–103, 170–194; Brett, Liberty, right and nature, 50–68; McGrade, A.S., The Political Thought of William of Ockham: Personal and Institutional Principles, Cambridge, 2002, 173–196. 23  Gerson, J., De vita spirituali animae, in Glorieux , P. (ed.), Jean Gerson, Oeuvres complètes, vol. III, Paris 1965, lectio 3, 26: “Jus est facultas seu potestas propinqua conveniens alicui secundum dictamen rectae rationis”. In De potestate ecclesiastica (1416–17), Gerson replaces “the dictate of right reason” with “the dictate of primary justice”, but he deals with them synonymously: both can be assimilated into the concept of law. See Gerson, J., De potestate ecclesiastica et de origine iuris et legum, in Opera omnia, vol. 2, Antwerp, 1706 (reprint. 1987), consideratio 13, 250. For more on Gerson’s teaching of rights, see Varkemaa, Conrad Summenhart’s Theory of Individual Rights, 44–55; Brett, Liberty, right and nature, 76–87.

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individuals.24 This strict definition of right only concerned human beings and their moral and political practices, since “right reason belongs only to rational creatures”.25 Gerson also articulates a general sense of the notion of ius: a right is a created active power by which all creatures have the right to actualise their natural faculties of action. For example, the sun has the right to shine and birds the right to fly.26 For him, this kind of general natural right belongs not only to rational beings but to every creature.27 Conrad Summenhart systematised the Ockhamist-Gersonian language of rights and, as already mentioned, it was he who introduced this language to the Spanish neo-Thomists. Summenhart describes the earlier tradition of ius as follows: “In another sense ‘right’ means the same as ‘power’ in the sense it is taken when we speak of a father having a right over his son, a king over his subjects and men having a right in their things and possessions and sometime even in persons, as with slaves”.28 Summenhart felt the definition does not contain any hierarchical dimensions. Therefore, a slave could also have a potestas right with respect to his master in the same way that his master had such a right over him. What is important for later developments is that Summenhart’s theory of rights is based on liberty (libertas). He recognises a human being’s natural right to liberty, with liberty representing freedom of action or selfmastery in human society.29 This was a novel interpretation and one that the Spanish neo-scholastics felt the need to consider further. Summenhart also

24  Brett, Liberty, right and nature, 81. 25  Gerson, De vita spirituali animae, 26: “Recta ratio consequenter et participative solum convenit rationalibus creaturis”. 26  According to Gerson, the origin of any faculty can be traced back to divine law. Gerson, De vita spirituali animae, 27. 27  The roots for such an interpretation lie in the Roman jurist Ulpian’s (c. 70–228) definition of natural law as “the law which nature taught all animals”. See Institutiones 1.2pr: “Ius naturale est quod omnia animalia docuit”. 28  Summenhart, C., Septipertitum opus de contractibus pro foro conscientiae atque theologico, Hagenau, 1500, q. 1, A6r. Translation in Varkemaa, Conrad Summenhart’s Theory of Individual Rights, 66. For Summenhart’s theory of rights and dominium, see ibid. 65–248. 29  For Summenhart, liberty was “a species of right, and a free person has this right over himself, namely, of acting as he likes […] unless it be prohibited by force or law”. See Summenhart, Opus septipartitum, q. 1, A8v: “Similiter libertas est quedam species iuris et illud ius habet liber in seipsam scilicet agenda quod libet … nisi quod vi aut iure prohibetur”. For Summenhart’s idea of liberty, see Varkemaa, Conrad Summenhart’s Theory of Individual Rights, 87–90. It should, however, be noted that for Summenhart, rights are not liberties; liberty is a species of right. For more on this notion, see Brett, Liberty, right, and nature, 34, 42.

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built upon Gerson’s broader definition of right and extended rights to animals, which Gerson did not accept.30 Together with the notion of ius, another important concept developed with respect to rights: the notion of dominium. Similar to the concept of ius, dominium also had several connotations; for example, it could refer to a specific superiority and to property. The scholastics differentiated further between original or/and natural dominion as well as between natural and civil dominion. From the early thirteenth century onwards, jurists and theologians began to define dominium (in its broadest sense) as equivalent to ius (in its subjective meaning, as the licit power of faculty belonging to an individual in relation to another thing or person).31 Thus, we can speak about right-as-dominion, or dominion right. In the theology of penance, dominium was also used within the context of restitution as “covering all juridical relations in which injury (violation of right) could be done to an individual”. Restitution reconstituted an individual in his/her own right; it did not pertain to something that was viewed as objectively right. This distinction is important to note for the purposes of our discussion of rights, since the Spanish neo-Thomists also discussed dominion rights within the context of restitution by inserting a subjective sense of right into Aquinas’s treatment of justice. In this way, dominion rights become the objective of commutative justice.32 Furthermore, since the context was restitution, they discussed dominion rights after the division of dominion (e.g. as property rights or jurisdictional rights). 3

The Definition of Dominion Rights

In his commentary on Aquinas’s Summa theologiae, 2a2ae, question 62,33 Francisco de Vitoria defines the notion of ius within the lines of Thomism and the Gersonian-Summenhartian tradition. Referring to Summenhart, Vitoria 30  See Varkemaa, J., “Can Animals Have Rights? Conrad Summenhart and Francisco de Vitoria at the Margins of Rights Language”, Mäkinen, V. et al. (eds.), Rights at the Margins: Historical, Philosophical, and Legal Perspectives, Leiden, 2020 (forthcoming). 31  For this development in general, see Tuck, R., Natural Rights Theories: Their Origin and Development, Cambridge, 1979; for its development in Thomist tradition more particularly, see Brett, “Human Rights and the Thomist tradition”, 82–101. 32  Brett, “Human rights and the Thomist tradition”, 90: “Restitution was a demand in conscience: if an individual sinned in taking something from another that was not his own, he was bound in conscience to restore it before he could receive absolution for his sin”. 33  Aquinas’s Summa theologiae II–II questions 57–79 in on right and justice, was an important source for all the authors of the Salamanca School. Whereas the early Spanish neoThomists, such as Vitoria, followed the order of the questions, later authors, such as Soto,

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states that “a right is a power or faculty pertaining to an individual according to the laws”.34 He also takes for granted Aquinas’s idea of that law provides the grounds for rights and refers to the idea of permissive natural law when describing the notion of rights by stating: “[…] So we use the word when we speak for we say, ‘I have not a right’ to do this that it is not permitted to me or again, ‘I have a right, that is, it is permitted’”.35 Vitoria also distinguishes between different meanings of dominium: first, as certain eminence and superiority; second, as property; and third (in its most expansive mode), as equivalent to the notion of ius.36 According to Vitoria, the first two modes are not equivalent to a right because the notion of rights is a broader category than dominion when understood in these ways.37 In accordance with the most expansive mode (that is, equivalent to rights), dominion is a faculty for using (facultas utendi) a thing in accordance with the law.38 What is important for our discussion of rights is that this kind of dominion belongs to all rational beings over all things for the supporting of life by natural right (ius naturale);39 it is a God-given right and necessary for existence, changed the order and also created new questions to be discussed. See Brett, Liberty, right and nature, 140. 34  Francisco de Vitoria, De justitia, vol. 3, q. 62, a. 1, n. 5, 64: “Et ideo de diffinitione quid rei notandum est quod Conradus, qui fecit tractatum illum nobilem De contractibus, q. 1 ponit late diffinitionem illius nominis ‘jus’. Et licet ponat dua diffinitiones, nihilominus coincidunt in unam. Dicit ergo quod jus est potestas vel facultas conveniens alicui secundum leges, id est, est facultas data, v.g. mihi a lege ad quamcumque rem opus sit”. See also Summenhart, De contractibus, tr. 1, q. 1 in principio, in which he refers to several sources, such as to Antonino and Jean Gerson. For Vitoria’s teaching on rights and dominium, see Brett, Liberty, right and nature, 124–137. 35  Vitoria, De justitia, q. 62, a. 1, n. 5, 64. Here Vitoria refers to Aquinas, Summa theologiae I–II q. 57, a. 1. 36  Vitoria, De justitia, q. 62, a. 1, n. 6–8, 66–7. 37  Vitoria, De justitia, q. 62, a. 1, n. 6–7, 65–6. 38  Vitoria, De justitia, q. 62, a. 1, n. 8, 67: “Tertio modo capitur dominium largius prout dicit facultatem quamdam ad utendum re aliqua secundum iura, etc., sicut diffint Conradus q. 1 De contractibus [tr. 1], ubi dicit quod dominium est facultas utendi re secundum jura vel leges rationabiliter institutas. Et isto modo, si sic diffiniatur large capiendo, idem erit jus et dominium”. Ibid., n. 9, 68: “Item, patet etiam ex diffinitione dominii, quia est facultas utendi re secundum leges […]”. 39  Vitoria, De justitia, q. 62, a. 1, n. 12–13, 72–73: “Item, confirmatur ex diffinitione juris et dominii, quae est facultas utendi re; sed homo potest uti illis: ergo habet jus in illas…. Item, confirmatur hoc totum, quia hoc est per se notum, quod numquam aliquis dubitavit quin liceat hominibus uti rebus temporalibus ad sustentandum seipsos; ergo habent jus et dominium super omnes illas […]. Dico quod iure naturali, quia est per se notam et a nullo unquam dubitatem, quia nulla fuit nec est gens tam barbara quae non credat esse licitum homini uti rebus: ergo est dominus illarum. Item, de jure naturali est quod homo conservett se in esse”.

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and thus it is a right inseparable from human life.40 This dominion right could also be called a natural right of self-preservation.41 Nevertheless, Vitoria understands dominion in its broadest sense as “the (unqualified) subjective right”; subjective right simpliciter. By this he means, as Annabel Brett explains it, that “it [dominium as equivalent with ius] belongs to everyone rather than its being one among a set of rights belonging separately to each individual”.42 Like Vitoria, Soto also understands rights in accordance with earlier Gersonian-Summenhartian lines of thought and with respect to the Aristotelian-Thomistic emphasis, but he still modifies and criticises such an understanding. Differing from Vitoria, Soto considers two levels of right: one that concerns all creatures and another that applies only to rational beings. The first level of right, which Soto calls primary natural right, involves the natural activity of all creatures including human beings. In this sense, natural right is a faculty (i.e. the genus of power or potency to act) that is determined by action, that is, by a natural inclination to do something for one’s own good, as dictated by natural law.43 For Soto, this so-called primary natural right is the right of self-preservation (or conservation), which all creatures, not only rational ones (as Vitoria states), have as their very essence. Soto also defines another level of right concerning only rational human beings, one which includes all species of dominia. Referring to the Thomist idea that only human beings are rational creatures with reason and freedom of the will and have dominion over their actions (i.e. primary dominion), Soto argues that human ability is sui iuris, that is to say, it has dominium over itself. From this basis stem liberty rights. The notion of primary dominion also means that 40  Vitoria, De justitia, q. 62, a. 1, n. 9, 68: “Item, patet etiam ex diffinitione dominii, quia est facultas utendi re secundum leges, et tamen licet Deo uti rebus ut voluerit; nec potest carere illo dominio, nec potest eo privare se, ita quod nos non possumus non esse sui”. 41  However, the meaning of self-preservation is not clear in his theory of dominion. On the one hand, Vitoria differentiates human beings from animals by stating that ius naturale guides a human being to preserve her/his life. On the other hand, he seems to think, within the Aristotelian-Thomistic tradition, that a natural right not only concerns the necessities of self-preservation but that human beings also possess the freedom to use other creatures as they so desire. 42  Brett, Liberty, right and nature, 130–131. 43  Soto, De iustitia et iure, III, q. 1, a. 3 in corp.; Book IV, q. 1, a. 1 in corp. See also Brett, Liberty, right and nature, 153–154, where she compares Soto’s slightly different definitions of right, as stated in Book III and Book IV of De iustitia et iure. The main difference is this: in Book III, Soto argues that the act of self-conservation is a natural right, whereas in Book IV he states that a right is only the genus of the potency to act, not the act itself. Referring to Miguel de Palacios, Soto’s pupil, who suggested that both definitions are “right”, Brett concludes that “a right per se (i.e. not in re or in personam) is a legitimate ability or power, faculty, for an action”.

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a human being has the right to use other things to sustain his or her life. We will return to these two modes of dominion later on when discussing the criteria for possessing dominion rights. For Soto, dominium and ius are not exactly the same, however. He explains the difference by saying that, a “right is the same as the just thing” and “it is the object of justice”, “but dominion is the faculty of a master in his slaves or in those things which he uses at his own will, and for his own conveniens”.44 Thus, for Soto dominion does not signify any right or power whatsoever; it is only a species of licit subjective power. Hence, right is equivalent with dominion only in this particular and primary sense of right. Soto himself states that he is not following here the earlier tradition. He explains the difference as follows: he does not derive the notion of facultas from fas (for the meaning of right), as Gerson and his followers had; rather, he derives it from facilitas (in the meaning of facility).45 For Soto, power can refer to any ability, licit or illicit, but faculty is restricted only to licit ability. Luis de Molina was the first Jesuit to write a treatise on justice and rights. Compared to Vitoria and Soto, Molina’s ideas on dominion rights put an emphasis more on human liberty. However, in De iustitia et iure Molina also continues in the Thomist as well as Gersonian-Summenhartian traditions. Molina defines the notion of right in several senses. In one sense, a right signifies what is licit insofar as it is consistent with right reason and law.46 In its narrowest sense, a right then signifies justice.47 In its broadest sense, a right has do with ‘a faculty to do or have something or to maintain it or to behave in any way such that if it is hindered without legitimate reason an injury is done to the person who has it’. Molina continues the definition by stating that, “[w]hen we say […] that someone has a right to something, we do not mean that anything is owed to him, but that he has a faculty to it, whose contravention would cause him injury”.48 Molina’s subjective notion of rights is based on his understanding of 44  Soto, D. de, De iustitia et iure, Book IV, q. 1, a. 1 in corp: “Ius nam idem est quod iustum. Est enim obiectum iustitiae […] dominium autem facultas est domini servos vel in res quibus suo arbitratu, ob suumque commodum utitur”. Translation in Brett, Liberty, right and nature, 149. 45  Soto, De iustitia et iure, IV, q. 1, a. 1 in corp.: “Etenim facultas non a fas, sed a facile derivatur: ut sit quasi facilitas”. See also See Brett, Liberty, right and nature, 150. 46  Molina, De iustitia et iure, vol. I, part 1, a. 2, col. 6a–b. For more on Molina’s definition of right, see also Tellkamp, “Rights and Dominium”, 136–137. 47  Molina, De iustitia et iure, vol. I, part 1, a. 2, col. 6b: “Ius autem est dictum, quia justum est”; Ibid., col. 5d: “Animadvertendum est, vocabulum, ius, aequivocum esse”. 48  Molina, De iustitia et iure, vol. I, part 2 (dist. 1.1). For more on Molina’s definition of rights, see Tellkamp, “Rights and Dominium”, 115; Kaufmann, M., “Subjektive Rechte als Grenzen der Rechtssetzung bei Luis de Molina”, in Bunge, K. et al. (eds.), Kontroversen um das

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the right of a natural (or legal) person. He even states that a slave can have ius qua homo, but he also asserts the right to enslave another human being.49 In contrast to most of his predecessors as well as to Soto, Molina does not treat dominium as a species of the genus of right. Thus, for him dominion is a necessary, but not a sufficient, condition for the justification of rights.50 Molina does not treat the relationship between dominion and right as equivalent, because if the relationship is taken to be formally and essentially equivalent, then metaphysical terminology cannot be translated into the language of morality without a loss of meaning.51 As with previous thinkers, Molina too gives several meanings for the notion of dominion: it can refer to both property and political power and is a matter of voluntary consent with both of them.52 4

Criteria for Possessing Dominion Rights

The questions—to whom do dominion rights belong and on what basis— came to have important practical consequences after the discovery of the New World, especially concerning questions about whether or not to recognise the rights of the Native Americans and how best to legitimise colonisation. Already previously, the long period of the crusades, from the twelfth century to the end of the thirteenth century, had raised discussions about whether to recognise the rights of infidels. Theologians like Giles of Rome (1243–1316) and Richard Fitzralph (1300–1360) had argued for grace-founded dominion and claimed that infidels and sinners could have no rightful dominion; therefore, they could not be bearers of rights. When responding to these questions and concerns, the Spanish neo-Thomists developed the idea of dominion rights under the law of nations (ius gentium). According to Vitoria, Soto and Molina, dominion both as the proper faculty and right of a person involves human rationality and agency. Only human beings are rational creatures, because they are created in the image of God (imago Recht: Beiträge zur Rechtsbegründung von Vitoria bis Suárez, Stuttgart/Bad-Cannstadtt, 2013, 291–311; Stefan Schweighöfer, “Luis de Molinas Theorie der Gerechtigkeit und ihre Auswirkungen auf das Recht”, ibid., 311–340. 49  See Aichele, A. and Kaufmann, M., “Introduction”, in id. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, xxx–xxxiii. 50  Molina, De iustitia et iure, vol. I, part 2, a. 3, col. 31b: “In ea pro genere ponitur ius, quod dominium et pleraque alia iura complectitur”. See also Aichele and Kaufmann, “Introduction”, xxxiii; Tellkamp, “Rights and Dominium”, 139. 51  For more on this notion, see Tellkamp, “Rights and Dominium”, 140. 52  Aichele and Kaufmann, “Introduction”, xxxiii.

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Dei) within the naturally given properties of the intellect and free will. Thus, only human beings have proper faculties to relate corporeal and incorporeal things.53 In addition (in Vitoria’s wording), dominion gives people the ability ‘to argue and give reasons, express claims regarding the exterior things as long as they do not contradict natural or positive laws’.54 Molina puts it as follows: freedom of the will is also the necessary precondition for dominion because “it enables significant use of praise and blame applying to human actions”.55 Following Aquinas, all of the above Spanish neo-Thomists understand primary or internal dominion as an ability to direct one’s own actions toward an end in accordance with the Aristotelian idea of teleology and natural inclination within the universe. Hence, dominion can be understood as referring to the self-mastery that all human beings have over their own actions (dominium suorum actuum) and over themselves (dominium sui).56 This idea forms the basis for human freedom: only human beings act voluntarily, whereas other animals act out of necessity.57 But what is important for our purposes, and where the Spanish authors differ from Aquinas, is that they integrate dominion rights with the subjective process of human action. For Aquinas, the issue was not a question of right.58 It should also be noted that Molina (as well as Vitoria and Soto) believes that God exercises proper dominion over the body and that the existence of human beings is the ultimate dominus of all created things.59 Therefore, a human being should not be allowed to destroy his or her body, for example by committing suicide.60 Nevertheless, for him a human being maintains a certain dominion in the sense of having liberty over his or her body and life. 53  Soto, De iustitia et iure, Book IV, q. 1, a. 1: “Solis illis qui intellectu et libero arbitrio vigent, conuenit dominandi ratio: illisquem adeom solis habere rerum dominium”. 54  Vitoria, De indis, I, 6, 225: “Sed homo est imago Dei per naturam, scilicet per potentiam rationales”. 55  See, e.g. Molina, De iustitia et iure, col. 84a: “Per suum arbitrium dominium habent suorum actuum, dum pro suo arbitratu eos eliciunt, eisque utuntur: sic etiam per idem arbitrium capacia sunt dominii aliarum rerum, quatenus eo ipso, quod illarum sunt domini, eis tanquam suis uti possunt pro arbitrator: dominium namque ad usum, liberamque dispositionem rei, cuius quis est dominus ordinatur”. For Molina’s teaching on liberty, see Tellkamp, “Rights and Dominium”, 142–143. 56  Soto, De iustitia et iure, Book IV, q. 1, a. 1. 57  Brett, Liberty, right and nature, 129. 58  Ibid. 59  See, e.g. Molina, De iustitia et iure, vol. 4, part III, a. 1, col. 510a: “Homo non est dominus propriae vitae, ac membrorum, sicut est dominus pecuniae, et caeterorum bonorum exteriorum, quae ad ipsam spectant, ac possidet”. See also Tellkamp, “Rights and Dominium”, 146. 60  Molina, De iustitia et iure, vol. 4, part III, a. 1, col. 51c.

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Following Summenhart, Molina states that interfering with someone’s physical integrity can only be justified when such an action does not contradict the norms of right reason and when there is just cause for it.61 Thus, one question concerning liberty widely debated among Spanish neo-Thomists was that of slavery: Is it legitimate for human beings to establish the relationship of dominium proprietatis over one another? The scholars refer both to the Aristotelian idea of natural slaves62 and to sources that disagreed with this idea, such as the content of natural law defined by Gratian in the Decretum: “Natural law is the common law to all peoples, in that it is everywhere held by instinct of nature, not by any enactment: as, for instance, […] the one liberty of all”.63 Whereas Aristotle’s notion was taken as an argument for slavery, natural law excludes the idea of subjection. As his main reference, Molina, who discusses slavery at length, focuses on the law of nations (ius gentium), according to which slavery “has been introduced against nature”.64 Despite the fact that every human being is essentially free and that natural freedom excludes unjust subjection, Molina argues in favour of slavery by referring to certain objective and empirical differences among people, such as social status. As with proprietary rights in general, slavery originated as well in the individual legislation of the various nations. As we will see later on, ius gentium was viewed as being related merely to positive law rather than to natural law. For Molina, it is, however, necessary that slavery be based on positive law, since natural law is too flexible to allow for culturally different forms of dominium proprietatis, a category to which slavery belonged.65 5

Natural Dominion and Self-Preservation

Vitoria and Soto believe that dominion over external things follows from primary dominion (that is, the right of self-preservation). Aquinas calls this kind 61  Molina, De iustitia et iure, vol. 4, part III, a. 1, col. 512d. 62  See Aristotle’s Politica, 1254b16–21. 63  Decretum 1, c. 7, “Ius naturale est commune omnium nationum eo quod ubique instinctu naturae non constitutione aliqua habetur, […] omnium una libertas”. 64  Molina, De iustitia et iure, vol. I, part II, a. 4, col. 12a: “Iure naturali omnes homines nascituros fuisse liberos […]. Etiam additur his iuribus, servitutem esse contra naturam de iure gentium introductam”. Soto also argues for slavery and refers both to natural law and to the law of nations. See Soto, De iustitia et iure, book IV, q. 2, a. 2, concl. 65  Molina, De iustitia et iure, vol. 1, part II, a. 4, col. 11b: “Iure naturali omnes homines nascituros fuisse liberos. […] Etiam additur his iuribus servitutem esse contra naturam de iure gentium introductam”. For more on Molina’s ideas of slavery, see Tellkamp, “Rights and Dominium”, 145–146; M. Kaufmann, “Slavery”.

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of dominion dominium naturale, which he understands as the power to use (potest uti) exterior goods for the sustenance of life. In Aquinas’s view, natural dominion does not give any prima facie rights over things.66 Unlike Aquinas, Gerson believes that natural dominion is a certain right closely related to self-preservation.67 For him, this kind of natural dominion is common to all people, and it includes the power over creation (the birds, the air) as well as the power for liberty. After the fall, Gerson argues, natural dominion was not totally destroyed since, if man had lost all of his/her God-given natural rights through sin, he/she would simply have been annihilated.68 He refers to natural dominion as self-preservation, “a right to nourish the body” (ius nutriendi corpus), and he maintains that natural rights to subsistence are inalienable and necessary for the existence of human beings.69 Vitoria, Soto and Molina all follow this teaching, with some modifications. From the internal and end-driven necessity of dominion as self-preservation follows the idea that human beings subsequently have dominion over all other created things. However, Vitoria does not term this dominion dominium naturale. He argues as follows: Whatsoever a human being was then dominus of all things in the law of nature, because whosoever could use any object he liked and even abuse it according to one’s pleasure, as long as he liked and even abuse it according to his or her pleasure, as long as he did not harm other human beings or oneself.70

66  See Aquinas, Summa theologiae II–II q. 66, a. 1 c. 67  Gerson, De vita spirituali animae, lectio 3, 145: “Erit igitur naturale dominium donum Dei quo creature jus habet immediate a Deo assumere res alias inferiores in sui usum et conservationem […]. Hoc modo habuit Adam dominium super volucres coeli et pisces maris […]. Ad hoc dominium spectare postest dominium libertatis […]”. The idea of selfpreservation as a natural, inalienable right had already been discussed by Henry of Ghent and Godfrey of Fontaines in their Quodlibet disputations in the 1280s. See Mäkinen, V., Property Rights in the Late Medieval Discussion on Franciscan Poverty, Leuven, 2001, 105– 139. The Spanish neo-Thomists were also familiar with the discussion. 68  Gerson, De vita spirituali animae, lectio 3, 146–150, where he also states that no one is such a sinner as to have no dominion that can be called natural. 69  Gerson, De vita spirituali animae, lectio 3, 156: “[…] Dicimus titulum naturalem ad quem consequitur jus nutriendi corpus sic quod in ejus necessitate omnia sibi sint ad hoc communia”. 70  Vitoria, De justitia, q. 62, a. 1, n. 16.

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Vitoria understands this kind of dominion as the natural right to use external things in order to preserve one’s existence.71 Soto also speaks of the natural right of preservation along the same lines: each human being has the right to safeguard his or her own existence and thus to pursue his/her proper good, thereby conforming to the eternal law of God.72 He also refers to the natural dominion that human beings have not only over the fruits of the earth, but also over all other things existing under “the vault of heaven”.73 Molina argues that natural dominion is only for the sake of use, and that such use is only possible for creatures who can recognise an end for that use. Only rational beings are conscious of an end as an end, and thus able to have dominion.74 Concerning the definition of rationality, Vitoria points out that one does not have to use his or her reason actively in order to be a rational being.75 Thus, he maintains that a child or a madman can also have dominion. Furthermore, a child can also have dominion because it does not exist for another’s use, like animals, only for its own sake—which is important in order to become a rights-bearing person.76 Molina also maintains that dominion can be possessed either in a passive or an active manner, and that infants as passive rational beings can have dominion, but that animals cannot. One important reason given for the fact that only human beings can possess dominion rights is that they can be victims of an injury (iniuria). The notion of iniuria does not refer to physical injury, but rather to injury in the moral sense of being ‘wronged’. According to Vitoria, any attempt to deprive a human being of his natural rights constitutes an injury. Animals cannot suffer injury since not only do they lack rights, but they also are passive objects in “the realm of justice”.77 Following the Thomist interpretation of the natural law principle, “[e]ach must preserve its proper being. For all things desire to preserve 71  See Brett, Liberty, right and nature, 130. 72  Soto, De iustitia et iure, Book I, q. 4, a. 2 in corp.: “Mox quia primum naturalium bonorum est esse, inde statim cadit particularius aliud principium, quod est, Esse proprium cuique conservandum est. Omnia enim appetunt se conservare”. 73  Soto, De iustitia et iure, Book IV, q. 1, a. 1 in corp.: “Homo dominium habet naturale, non solum in omnes terrae fructus, verum etiam quodam pacto in elementa coelestesque orbes”. 74  Molina, De iustitia et iure, IV, q. 1, a. 1. See also Tellkamp, “Rights and Dominium”, 134. 75  See Vitoria, De indis, 1.23, 231, where he also refers to Aristotle’s words that “nature makes nothing incomplete and nothing in vain”. See Aristotle, Politica 1253a8. 76  See Vitoria, De indis, 1.21, 231. 77  Vitoria, De indis, 1.20, 230, where he also states that “to deprive a wolf or a lion of its prey is no injury against the beast in question, any more than to shut out the sun’s light by drawing the blinds is an injustice against the sun”. According to Vitoria, it is also lawful to kill animals with impunity, even for pleasure. See also Varkemaa, “Can Animals Have Rights?”.

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themselves”, Vitoria maintains that wild animals cannot have dominion over their own bodies and that, therefore, they cannot have rights over other things either. Consequently, human beings can kill animals; in doing so, they do not cause any injury to animals, but only to the animal’s possessor.78 Soto also clarifies that wild animals cannot have dominion since they cannot suffer injury and are not capable of seeking justice or happiness.79 However, as we have already seen, Summenhart understands dominion (in its most expansive form) within the context of animals and other created things as well. Thus, following the Summenhartian line of thought on the “metaphorical language of right”, Soto states that animals also have rights but that they are not equal to a human being’s rights.80 In On divine foreknowledge, Molina also argues that animals possess a trace of freedom, which, according to him, constitutes “[an] innate trace of dominion over their own actions”. Since in the Thomist tradition, to have dominion over one’s own actions involved free will, it seems that Molina is arguing against the traditional understanding that animals are merely the objects of dominion rather than subjects of dominion.81 In his later work, De iustitia et iure, Molina, however, uses this same example as an argument for the opposite viewpoint: irrational animals cannot have dominion over another thing.82 6

Dominion Rights and the Law of Nations

One main and important difference between late-medieval scholastic and Spanish neo-scholastic rights discourse is the centrality of the notion of ius gentium, the law of nations, in the discourse of the Spanish authors. In this 78  See Brett, “Human rights”, 40. 79  Soto, De iustitia et iure, Book IV, q. 1, a. 1: “[…] Brutae autem animantes uti neutiquam possunt: ergo nequem nullum habere dominium. Brute autem animam nequem iustitiae capaces sunt, nequem iniuriae, nequem quam non cognoscunt felicitates […]. Cuius ratio est, quod cum non sint libera, non sunt sui iuris”. Vitoria argues similarly in De indis, 1.4, 247–8. 80  Soto, De iustitia et iure, IV, q. 1, a. 1, ad. 1. For Soto’s position on animals, see Brett, Liberty, right and nature, 159. It should be noted that the Spanish scholastics (like Soto) misread Summenhart, so that Gerson would have dominion within the context of animals. 81  For more on this notion and Molina’s position on animals in dominium, see Brett, “Human rights”, 46–47, where she also states that, “Instead of animal agency functioning as the antithesis of human agency, as it does for the Thomists, animal agency itself becomes a case of the para-human”. 82  Molina, De iustitia et iure, trac. 2, disp. 3, n. 6. See also Brett, Liberty, right and nature, 47; Tellkamp, “Rights and Dominium”, 134.

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notion, modern scholars have seen the historical roots of international law covering relations between sovereign states.83 This also has crucial consequences with respect to the development of human rights. The notion of ius gentium was adapted for medieval and early modern usage from ancient legal and philosophical thought, where it was seen as one source of law in relation to natural law and civil law. The interpretation of ius gentium varied especially in Roman legal sources. The two notions, ius naturale and ius gentium, were often used synonymously, as in the following sentence: “natural law is called the law of nations”.84 Sometimes ius gentium was understood as an independent classification of law alongside natural law and civil law, as in the following citation from the Digesta: “Natural law is what nature has taught all animals, for this law is proper not only to the human race but to all animals […] what natural reason has established among all peoples […] is called the law of nations”.85 In this system, civil law concerns the law proper with respect to a particular people. There are also texts that distinguish the natural law from the law of nations: “By natural law all men were born free […] but slavery came in from the law of nations”.86 Because of the different variations in the meaning of ius gentium, the notion was not clear enough for Vitoria. He refers to it less often than Molina, for example. However, it seems that for Vitoria, the law of nations pertains more to custom and therefore to positive law than to natural law. This is because the rules under the law of nations were often based on ‘pacts and agreements’ and on universal custom (examples of such notions under the law of nations are private property and the right to travel and trade). Since the law of nations also consists of rules to which all nations adhere and which have a certain moral foundation, Vitoria considers it to be based more or less directly on natural law. In his lectures, De postestate civile, he describes ius gentium as a 83  See, e.g. Brown Scott, J., The Spanish Origin of International Law: Francisco de Vitoria and His Law of Nations, Oxford, 1934. More recent studies have refined Brown Scott’s study by maintaining that the ius gentium was closely related to the institution of property and contracts. See Koskenniemi, M., “Empire and International Law: The Real Spanish Contribution”, in University of Toronto Law Journal 61 (2011), 1–36; Pagden, A., The Burdens of Empire: 1539 to the Present, Cambridge, 2015; Decock, W., Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650), Leiden/Boston, 2013. 84  See Institutiones 2.1.1.; 2.1.11. For the interpretation of ius gentium by ancient and medieval authors, see also Tierney, The idea of natural rights, 136–137. For the notion of ius gentium in Spanish neo-scholasticism, see Brett, A., Changes of State: Nature and the Limits of the City in Early Modern Natural Law, Princeton/Oxford, 2011, 75–89. 85  Digesta 1.1.1.3. 86  Institutiones 1.5 pr. We have already seen that Molina refers to this text when arguing for slavery.

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set of precepts enacted by the power of “the whole world, which is in a sense a commonwealth”.87 Nevertheless, Vitoria does not explicitly differentiate between ius naturale and ius gentium and, as Martti Koskenniemi describes it, he “is frustratingly unclear about its legal nature”.88 However, Vitoria’s manner of using the law of nations in the case of Indians is clear enough: he argues that their case should be discussed according to a law that governs everyone (i.e. all humans whether they are Christians or infidels) and is universally applicable.89 He often refers to the law of nations as such a law. Molina uses the notion of ius gentium more precisely than does Vitoria, and the notion has an important place in his theory of rights. According to Molina, ius gentium can be distinguished from natural law since “it does not consist of precepts and prohibitions but only certain concessions or powers or permissions to do or not do something not only with impunity but also justly and honourably”. Thus, there is a close relationship between justice and the law of nations. Both concern that part of the rational agent which allows for a natural distinction between what is good and just. In other words, Molina refers here to the conscientia as the law imprinted on the ‘hearts’ of rational human beings. For him, conscience is connected with the right will (rectitude voluntatis) done for its own sake.90 The definitions of ius gentium is developed further by later neo-Thomists, such as Fernando Vázquez de Menchaca (1512–1569). Dominion rights were seen as part of the law of nations (in its secondary meaning) and thus regulated by right.91 7

Conclusion: Dominion Rights in the Development of Human Rights

In their theories of natural and dominion rights, Francisco de Vitoria, Domingo de Soto and Luis de Molina continued the subjective rights discourse that they had inherited from late-medieval Gersonian-Summenhartian tradition within 87  Vitoria, F. de, Relectio de potestate civili, in Urdanoz, T. (ed.), Obras de Francisco de Vitoria, Madrid, 1960, 3–4. 88  Koskenniemi, M., “Colonization of the ‘indies’: The Origin of International Law?”, in Gamarra, Y. (ed.), La idea de la América en el pensamiento ius internacionalista del siglo XXI, Zaragoza, 2010, 50. 89  See Vitoria, De indis, ed. Urdanoz, 222. 90  Molina, De iustitia et iure, vol. 1, part I, a. 1, col. 4d. For Molina’s definition and use of the notion of ius gentium, see Tellkamp, “Rights and Dominium”, 135; Brett, Changes of state, 77, 84–86. 91  For more on this idea, see Brett, Liberty, right and nature, 165–204.

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the philosophical school of Thomistic natural law. Despite the fact that they had slightly different interpretations of right and dominion, in general they understood ius as a legitimate subjective activity for doing something that was connected to dominium and libertas. They assigned different meanings to the notion of dominium. For all of them, though, dominium in its strictest sense referred to a certain superiority (i.e. dominium iurisdictionis) and to property (i.e. dominium proprietatis). For Vitoria and Soto, in its broadest sense, dominion was equivalent to right. In contrast, Molina did not equate dominion with right at all. Each of these theologians understood dominion rights as features of human nature, and only rational human beings with an intellect and free will could, strictly speaking, possess dominion rights. According to them, only rational beings were both aware of having rights and morally capable of using them. Dominion rights were thus moral rights and not conventional rights, such as legal or political rights. All of the studied authors connected dominion rights to human liberty by maintaining the Thomistic idea of primary dominion, which every human being has over her/his own body and limbs, life and actions—and is thus sui iuris and capable of bearing rights. However, strictly speaking they thought that God is the ultimate dominus of all creatures; therefore, altering the integrity of one’s own body in any way or committing suicide were prohibited. Both violate a sense of justice with respect to oneself and God. Despite the fact that every human being has dominion over his/her own life and body, Molina in particular found justification for exercising dominion over other human beings, i.e. for slavery. He based his argument on the law of nation (ius gentium), which he treated as positive law, as well as on empirical differences, such as social status. Vitoria, for his part, referred to ius gentium, the law of nations that governs all humans (whether they were Christians or infidels) when defending the natural and dominion rights of Indians against the Spanish conquistadores. Nevertheless, it should be noted that dominion rights were not human rights in a modern sense: their theoretical conceptualisation as well as the moral and political imagination behind them were very different from ours. However, without the development of natural and dominion rights by late-medieval and Spanish neo-Thomists scholastics we could not have human rights. This is the meaning of dominion rights in the history of human rights.

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Brufau Prats, J., El pensamento politico de Domingo de Soto y su concepción del poder, Salamanca, 1960. Cortest, L., The Disfigured Face: Traditional Natural Law and Its Encounter with Modernity, New York, 2008. Deckers, D., Gerechtigkeit und Recht: Eine historisch-kritische Untersuchung der Gerechtigkeitslehre des Francisco de Vitoria (1483–1546), Freiburg, 1991. Decock, W., Theologians and Contract Law: The Moral Transformation of the Ius Commune (ca. 1500–1650), Leiden/Boston, 2013. Douzinas, K., The End of Human Rights, Oxford, 2009. Frohnen, B. and Grasso, K.L. (eds.), Rethinking Rights: Historical, Political, and Philosophical Perspectives, London, 2009. Haakonssen, K. (ed.), A Culture of Rights: The Bill of Rights in Philosophy, Politics and Law in 1791 and 1991, Cambridge, 1996. Kaufmann, M., “Subjektive Rechte als Grenzen der Rechtssetzung bei Luis de Molina”, in K. Bunge et al. (eds.), Kontroversen um das Recht: Beiträge zur Rechtsbegründung von Vitoria bis Suárez, Stuttgart/Bad-Cannstadtt, 2013, 291–311. Kaufmann, M., “Slavery between Law, Morality and Economy”, in Aichele, A. and Kaufmann, M. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, 183–225. Koskenniemi, M., “Colonization of the ‘Indies’: The Origin of International Law?”, in Gamarra, Y. (ed.), La idea de la América en el pensamiento ius internacionalista del siglo XXI, Zaragoza, 2010, 43–63. Koskenniemi, M., “Empire and International Law: The Real Spanish Contribution”, in University of Toronto Law Journal 61 (2011), 1–36. Mäkinen, V., Property Rights in the Late Medieval Discussion on Franciscan Poverty, Leuven, 2001. Mäkinen, V., “Moral Psychological Aspects in William of Ockham’s Theory of Natural Rights”, in American Catholic Philosophical Quarterly 86 (2012), 507–525. Mäkinen, V., “Dominion Rights of the Aboriginals in Francisco de Vitoria’s De indis”, in Cunliffe, J. and Erreygers, G. (eds.), Inherited Wealth, Justice and Equality, London/ New York, 2013, 16–38. McGrade, A.S., The Political Thought of William of Ockham: Personal and Institutional Principles, Cambridge, 2002. Nederman, C.J., “Individual Autonomy”, in Pasnau, R. (ed.), The Cambridge History of Medieval Philosophy, vol. 2, Cambridge, 2010, 551–64. Nederman, C.J., “Rights”, in Marenbon, J. (ed.), The Oxford Handbook of Medieval Philosophy, Oxford, 2012, 643–660. Pagden, A., The Burdens of Empire: 1539 to the Present, Cambridge, 2015. Robinson, J., William of Ockham’s Early Theory of Property Rights in Context, Leiden/ Boston, 2013.

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Rothbard, M.N., Economic Thought Before Adam Smith: An Austrian Perspective on the History of Economic Thought, vol. 1, Auburn, 2006. Schweighöfer, S., “Luis de Molinas Theorie der Gerechtigkeit und ihre Auswirkungen auf das Recht”, in Bunge, K. et al. (eds.), Kontroversen um das Recht: Beiträge zur Rechtsbegründung von Vitoria bis Suárez, Stuttgart/Bad Cannstatt, 2013, 311–339. Scott, J.B., The Spanish Origins of International Law: Francisco de Vitoria and His Law of Nations, Oxford, 1934. Tellkamp, J.A., “Ius est idem quod dominium: Conrado Summenhart, Francisco de Vitoria y la conquista de América”, in Veritas 54 (2009), 34–51. Tellkamp, J.A., “Rights and Dominium”, in Kaufmann, M. and Aichele, A. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, 125–145. Tierney, B., The Idea of Natural Rights: Studies on Natural Rights, Natural Law and Church Law 1150–1625, Atlanta, 1997. Tierney, B., “Historical Roots of Modern Rights: Before Locke and After”, in Frohnen, B. and Grasso, K.L. (eds.), Rethinking Rights: Historical, Political, and Philosophical Perspectives, London, 2009, 34–57. Tierney, B., Liberty and Law: The Idea of Permissive Natural Law, 1100–1800, Washington, DC, 2014. Tuck, R., Natural Rights Theories: Their Origin and Development, Cambridge, 1979. Varkemaa, J., Conrad Summenhart’s Theory of Individual Rights, Leiden/Boston, 2012. Varkemaa, J., “Can Animals Have Rights? Conrad Summenhart and Francisco de Vitoria at the Margins of Rights Language”, in Mäkinen, V. et al. (eds.), Rights at the Margins: Historical, Philosophical, and Legal Perspectives, Leiden, 2020 (forthcoming).

chapter 7

Princes and Prices: Regulating the Grain Market in Scholastic Economic Thought Wim Decock 1 Introduction As the Cambridge historian Sir John Elliott famously noted, Castile began its imperial career “with a distinctly unhealthy agrarian system”.1 With Ferdinand and Isabella favoring the wool trade over grain production, arable farming soon started to suffer from neglect only to be confirmed in its unhappy position as the “Cinderella of the Castilian economy” in the course of the sixteenth century.2 The plight of the grain farmers was already aggravated in 1502, when serious harvest failures led the government to import foreign grain and regulate the grain market by introducing the tasa del trigo, a maximum price for grain. The fixed price for grain was adopted again by Charles V in 1539 and became permanent as of 1558 in large parts of Spain. The deleterious effects of these price-fixing policies haunted Spanish agriculture for more than a century.3 Peasants saw their profit margins reduced while their debts accumulated, since lack of investment in irrigation technology left them with no choice but to break new soil, which had to be acquired by selling rents (censo).4 A succession of bad harvests easily resulted in default on those debts, leaving poor peasants dispossessed from their lands by creditors from the towns.5 By the beginning of the seventeenth century, agriculture was in a state of decay, worsened by continuous depradations committed by licentious soldiers. 1  Elliott, J.H., Imperial Spain 1469–1716, London, 2002, 120 and 295–298. 2  Elliott, Imperial Spain, 119. 3  Del Vigo Gutiérrez, A., Economía y ética en el siglo XVI. Estudio comparativo entro los Padres de la Reforma y la Teología española, Madrid, 2006, 183. 4  Elliott, Imperial Spain, 189. On the origins of rente contracts (census) in late medieval and early modern private agricultural finance, see Munro, J.H., “Rentes and the European Financial Revolution”, in Caprio, G. (ed.), Handbook of Key Global Financial Markets, Institutions and Infrastructure, Oxford, 2013, vol. 1, 236–237. The sixteenth-century debate among canon lawyers and theologians on the compatibility of the rentes with the interest prohibition is discussed in Schnapper, B., Les rentes au XVIe siècle. Histoire d’un instrument de crédit, Paris, 1957. 5  Elliott, Imperial Spain, 294–295. On the problem of peasant debt in early modern Spain, see also Casey, J., Early Modern Spain. A Social History, London/New York, 1999, 58–59.

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Against this background, it is not surprising to find that price-fixing and the regulation of the grain market became the subject of a protracted debate among scholastic theologians in early modern Spain. As is widely known, the Spanish scholastics responded to some of the most pressing social, political and economic needs of their time.6 Their sharp analysis of trade, commerce and finance has even earned them the title of “fathers of modern economic analysis” in the work of historians of economic thought such as the late Joseph Alois Schumpeter (1883–1950), Murray Newton Rothbard (1926–1995) and Marjorie Grice-Hutchinson (1908–2003).7 Scholastics agreed that government intervention in the market, especially through price controls, can be justified on certain grounds.8 The right of the prince to introduce legal prices for the sake of the public good was rarely questioned.9 However, less unanimity existed as to the relationship between the legal price (pretium legitimum) and the ordinary market price (pretium naturale), the conveniency of fixing the price of grain, and the bindingness in conscience of laws punishing peasants who violated the maximum prizes. An additional issue that gave rise to debate among the scholastics was whether clerics’ jurisdictional privileges meant that they could ignore price controls. The latter debate goes beyond the scope of this article, but it mattered, indeed, if only because the clergy played an important role in the collection and distribution of grain and bread, not in the least because of the tithe-system.10 This chapter will concentrate on two opposing views on the issue of pricefixing in the work of Tomás de Mercado (c. 1520–1575) and Luis de Molina 6   Specht, R., “Die Spanische Spätscholastik im Kontext ihrer Zeit”, in Grunert, F. and Seelmann, K. (eds.), Die Ordnung der Praxis. Neue Studien zur spanischen Spätscholastik, Tübingen, 2001, 3–17. Barrientos García, J., Un siglo de moral económica en Salamanca (1526–1629), vol. 1., Francisco de Vitoria y Domingo de Soto, Salamanca, 1985. 7   For references to further literature, see Decock, W., “Spanish Scholastics on Money and Credit: Economic, Legal and Political Aspects”, in Ernst, W. and Fox, D. (eds.), Money in the Western Legal Tradition: Middle Ages to Bretton Woods, Oxford, 2016, 267–283. 8   Gordley, J., Philosophical Origins of Modern Contract Doctrine, Oxford, Clarendon, 1991, 98; Chafuen, A.A., Faith and Liberty. The Economic Thought of the Late Scholastics, Lanham, 2003, 140; Langholm, O.I., “Monopoly and Market Irregularities in Medieval Economic Thought: Traditions and Texts to AD 1500”, in Journal of the History of Economic Thought 28 (2006), 395. On the scholastic doctrine of just pricing more generally, see Gómez Camacho, F., Economía y filosofía moral: la formación del pensamiento económico europeo en la Escolástica española, Madrid, 1998, 141–212 and Monsalve, F., “Scholastic Just Price Versus Current Market Price. Is it Merely a Matter of Labelling?”, in The European Journal of the History of Economic Thought 21 (2014), 4–20. 9   De Roover, R., “Scholastic Economics: Survival and Lasting Influence from the Sixteenth Century to Adam Smith”, in The Quarterly Journal of Economics 69 (1955), 186. 10  Casey, Early Modern Spain. A Social History, 56.

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(1535–1600), respectively, two major representatives of Iberian scholastic economic thought in the second half of the sixteenth century, the period in which the debate on maximum prices for grain reached a peak.11 Though usually remembered as an advocate of free markets, Mercado developed a remarkable plea in favor of price controls in the grain market in his influential Suma de tratos y contratos (Seville, 1571), the extended version of a treatise on business contracts that came out two years before at Salamanca.12 Mercado shared an outspoken preference for legally fixed prices with Juan de Medina (1489–1545) and with Domingo de Soto (1494–1560).13 Their almost unconditional endorsement of legal prices contrasts with the much more critical attitude towards price regulation that can be read in Luis de Molina’s De iustitia et iure, first published at Cuenca in 1593.14 Molina’s rejection of the public regulation of the grain market was inspired by Martín de Azpilcueta (also known as Dr Navarrus, 1492–1586) and became popular with other Jesuits in the first half of the seventeenth century.

11  Lagares Calvo, M.J., “Seis incógnitas y algunas respuestas sobre la vida de Fray Tomás de Mercado”, in Iberian Journal of the History of Economic Thought 3 (2016), 68–77. Dozens of other sources could be analyzed, of course, but Mercado’s and Molina’s voices have been particularly influential in the debate. For an overview of other sources in Spanish and Latin that contain more or less extended discussions of price regulation, see Del Vigo Gutiérrez, A., “Las tasas y las Pragmáticas reales en los moralistas españoles del Siglo de Oro”, in El Burgense 22 (1981), 427–470, and Barrientos García, J., Repertorio de moral económica (1536–1670). La Escuela de Salamanca y su proyección, Pamplona, 2011. 12  A facsimile of the 1569-edition Tratos y contratos de mercaderes y tratantes was published in 2015 by the University of Salamanca, including introductory articles by Francisco Gómez Camacho, Antonio-Miguel Bernal and Margarita Becedas González. The use of the Seville 1571-edition proved nevertheless to be mandatory here, since the first edition did not contain the third book on the Pragmática del trigo. Therefore, the text used for this contribution is the Madrid 1977-edition by Nicolás Sánchez-Albornoz, available online at http://www.cervantesvirtual.com/nd/ark:/59851/bmc1c1t9 (last consulted on 15 October 2016). Unfortunately, the third book of the Suma de tratos y contratos is lacking in the Madrid 1975 edition by Restituto Sierra Bravo. 13  Popescu, O., Studies in the History of Latin American Economic Thought, New York, 1997, 39–40. 14  Decock, W., “Luis de Molina: De iustitia et iure (1593–1609)”, in Dauchy, S. et al. (eds.), The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Heidelberg/New York, 2016, 129–131, including references to further literature.

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Tomás de Mercado: The Case for Market Regulation

2.1 King Philip II’s Pragmática del trigo Starting point for Mercado’s discussion were the definitive establishment of a maximum price for grain in March 1558 by virtue of Philip II’s so-called Pragmática del trigo and the subsequent amendments of that regulation, especially in 1567 and 1568.15 The geographical scope of the regulation was limited. Big parts of the northern provinces along the Cantabrian coastline, Catalonia and Valencia were exempted from the regulation, because it was important to provide incentives to grain traders to sell in those regions.16 But where the Pragmática applied, it was accompanied by severe sanctions—even if historical evidence reveals that, in practice, the maximum legal price was observed in barely half of the grain transactions.17 The Pragmática did not only provide for punishment in the external court, for instance exile, but also threatened offenders with the damnation of the soul and spiritual sanctions in the court of conscience.18 That was one of the main reasons why theologians such as Mercado felt competent to discuss the interpretation of the Pragmática in the first place. The theoretical framework that they used to assess the maximum grain prize established by Philip II was the theory of just pricing, which guaranteed fairness in exchange. Therefore, the next paragraph will briefly discuss some of Mercado’s general ideas about just pricing, particularly regarding the just legal price. 2.2 The Primacy of the Legal Price Mercado analyzed the economic value of goods in terms that are not wholly at variance with modern economic theories about market value—notably because he rehearses the traditional scholastic view that economic value corresponds to human need and not to the ontological value of things.19 There is 15  The Pragmática del trigo was included in the Nueva Recopilación, lib. 5, tit. 25 (De la tassa del pan). 16  Casey, Early Modern Spain. A Social History, 56–57. 17  García Sanz, A., “El contexto económico del pensamiento escolástico: el floricimiento del capital mercantil en la España del siglo XVI”, in Gómez Camacho, F. and Robledo, R. (eds.), El pensamiento económico en la Escuela de Salamanca: Una visión multidisciplinar, Salamanca, 1998, 27. 18   Nueva Recopilación, Madrid, 1745, vol. 1, lib. 5, tit. 25, l. 4, nr. 7, 832. See García Sanz, “El contexto económico del pensamiento escolástico”, 26. 19  For a more extended analysis of scholastic price theory and its roots in Aristotelian philosophy about need and Saint Augustine’s distinction between the economic and the ontological order (De civitate Dei, lib. 11, c. 16), see Chafuen, Faith and Liberty. The Economic

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a fundamental difference, however, between Mercado’s approach and liberal economic theory. In Mercado’s view, prices are not the outcome of a mechanical weighing of impersonal market forces. Prices are set by men, and in Mercado’s view, it pertains foremostly to the office of the prince to give all things that men need their right value.20 Nature created things, but did not attach any objective value to the goods of this world, leaving that task up to the political authorities instead.21 This is entirely reasonable, according to Mercado, since political power is a divine gift to mankind to provide for the wellbeing of the commonwealth. The authorities decide what is necessary for good governance according to particular circumstances. Through their regulatory power, political authorities have the task of filling the gaps left by nature, whose vicar they are (la potestad pública es su vicario). The establishment of just prices is just one such gap that needs to be filled out by the commonwealth. In Mercado’s eyes, a regulation laid down by the secular authorities is a gift from Heaven (viene del Cielo) inasmuch as it takes the place of natural law. Once it has been established by the political authorities, then, the observation of the legal price is a dictate of reason, obligatory by nature itself rather than positive laws.22 In traditional scholastic fashion, Mercado distinguishes between the legal and the natural just price. Yet, he mostly uses the term “accidental price” (precio accidental) instead of “natural price”. The accidental price was “introduced by time and the people”, “by the populace without head”.23 The tone of Mercado’s reference to the accidental price could have been more deferential. Mercado clearly prefers the legal price to the accidental price, since it is established by the commonwealth as a whole through the government. On that account, the force and virtue of the legal price are superior to the Thought of the Late Scholastics. On Mercado’s price theory, in particular, see Popescu, Studies in the History of Latin American Economic Thought, especially chapter 3. 20  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “[…] Es su oficio apreciar y dar valor a todas las cosas que sirven a la vida humana, las cuales de suyo no tienen […]”. 21  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Pues si la naturaleza no tasa cuánto han de valer, cuántos reales, cuántos ducados, a quién más conforme a razón pertenecerá proveer esto, siendo tan necesario, que a la república, cuyo oficio es suplir con sus ordenaciones lo que la naturaleza falta, porque la potestad pública es su vicario, dada divinalmente a las gentes para que con ella ordenen lo que a su buen gobierno, conforme al tiempo, fuere más cómodo”. 22  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Demás de esto, certísimo es que todos están obligados a vender cada cosa por lo que vale. Esto es un dictamen natural de la razón, que, sin doctor ninguno ni ley positiva, lo enseña a todas las naciones”. 23  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Demás de esto, basta el vulgo sin cabeza apreciar cualquier mercadería de tal manera que obliga a guardarlo—que es el precio accidental que el tiempo y el pueblo introduce—y es necesario en conciencia vender come al presente valiere en público […]”.

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accidental price.24 Through price controls, the authorities can better guarantee the observation of the natural dictate of commutative justice. It is the best way to make sure that equilibrium is preserved in contractual exchange.25 Especially the price of goods that are necessary for human life, such as grain and meat, are subject to regulation, but that must not prevent the authorities from fixing the prices of other goods, too, even if they are luxuries, although that proves to be difficult.26 In practice, princes delegate the task of setting prices to magistrates and bureaucrats. That does not mean that it is beneath the dignity of the prince to regulate prices. On the contrary, price-fixing is the expression of royal dignity and office.27 Therefore, princes never delegate the task of determining the legal price to private people or merchants, contrary to what certain wicked businessmen in the New World contend. 2.3 Economic and Cultural Protectionism Mercado’s praise of the legal price might sound surprising. In reality, it fits neatly with his broader plea for market interventionism, precisely in the chapter in which he deals with the legal price. Fixing prices is only one of three major interventionist policies that Mercado advocates for the sake of the common good, besides trade restrictions and legal monopolies. Mercado grants large regulatory powers to the public authorities because he sees a major conflict of interest between merchants and the state. The vicious desire of merchants is

24  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Cuánto mejor bastará la república, en quien reside toda la potestad y autoridad de todos los vecinos, y cuán más proprio suyo será poner precios a las cosas y cuán más obligará a todos, por exentos alias sean, el que ella pusiere. Y así es cierto que el legal es de mayor fuerza y virtud y ata a todos en un punto señalado un cierto término, del cual adelante no se pueda nadie extender”. 25  On equality in exchange in scholastic contract law, see Gordley, J., “Equality in Exchange”, in California Law Review 69 (1981), 1587–1656, and Decock, W., Theologians and Contract Law. The Moral Transformation of the Ius commune (ca. 1500–1650), Leiden/Boston, 2013, 507–604. 26  The distinction between goods necessary for life and luxuries is a constituent part of early modern scholastic economic thought, see Langholm, O.I., The Legacy of Scholasticism in Economic Thought. Antecedents of Choice and Power, Cambridge, 1998, 93. But the degree to which theologians and jurists wished to take this distinction as the basis for the treatment of certain questions or not varied; see Van Houdt, T., “The Economics of Art in Early Modern Times: Some Humanist and Scholastic Approaches”, in History of Political Economy 31 (1998), 314–320. 27  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Así vemos que la misma majestad real se baja muchas veces a poner precio en cosas muy bajas, aunque no es bajar ni abatirse, sino ejercitar su dignidad y oficio […]”.

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to buy low and sell high, while the commonwealth wants traders to sell as low as possible for the sake of the public good.28 Mercado is even more suspicious of foreign merchants. Their natural desire will be to promote the interests of their own country, not those of Spain, thus Mercado.29 That is perfectly normal, as Spanish merchants abroad do the same. Moreover, foreign merchants bring foreign customs, rituals and beliefs with them. It is only normal that they wish to persuade Spanish natives to adopt their culture. Since the people are capricious and eager for new things, foreign custom infiltrates their minds very easily, corrupting local culture, damaging societal ties and destroying national wealth. Even if foreign culture is not detrimental to local interests, it still fits its land of origin much better than Spain. Therefore, the government should have the power to expel foreigners, raise national barriers and restrict trade. As a substitute to foreign traders, Mercado recommends public authorities to appoint a handful of merchants responsible for importing and exporting goods.30 They should be paid a moderate salary by the public treasure, just like state officials. Peru and New Spain, in particular, would benefit a lot from adopting such a protectionist policy, since foreign traders now plunder the silver and gold mines, destroying the local economy. Moreover, merchants enrich themselves without improving the common good. Even if it will never happen, Mercado cynically remarks, the ideal would be to have state officials trading 28  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “El deseo del mercader es el universal de todos, aunque, como dice San Agustín, es, con toda su generalidad, vicioso, conviene a saber: querer mercar barato y vender caro. […] El intento y deseo de la república es, al contrario, que se venda lo más barato que se pudiere, porque le pertenece promover toda la utilidad y provecho a los vecinos”. 29  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Mas, si son de fuera, mayormente de otro reinos, es admitirlos destruir y disipar toda su prosperidad y meter unos públicos despojadores de su riqueza y abundancia y aun unos labradores o sembradores de abusos y vicios, porque todo hombre desea naturalmente honrar y ennoblecer su patria y procurar de pasar a ella todo el bien y tesoro que a esta pueda coger y despojar; y lo mismo hacen los de aquí cuando están allá. Demás de esto, como se aman y agradan tanto las costumbres, usos, ritos y trajes en cada uno se cría, en cualquier parte que va las quiere injerir y plantar y las predica y persuade, y, como el vulgo es tan antojadizo y novelero, al momento las imite y recibe; las cuales muchas veces son de suyo dañosas y corruptas, y, si no lo son, a lo menos no convienen a esta tierra como a la suya”. 30  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Negocio sería, si alguna ciudad lo hiciese—negocioso y trabajoso, yo lo confieso, mas sería juntamente tan provechoso que el gran provecho fuese paga y recompensa del poco trabajo—dar a dos o cuatro la misma república el dinero con que traigan lo necesario, señalándoles por su factoría un tanto, y no dandoles el caudal, sino que ellos lo pusiesen, concederles una moderada ganancia que fuese a todos leve y facíl”.

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the precious metals, who are paid a salary that covers the cost of their trade and allows them to make a moderate profit.31 That would be advantageous to the public treasury in Spain and to the overseas economies. 2.4 Limits to Political Discretion From the above it is obvious that Mercado is in favor of strong government intervention in the economy. True to the spirit of scholastic political philosophy, he nevertheless remains loyal to the proposition that with power comes responsibility. The prince should keep in mind that not everything that lies in his power is at the same time expedient. Mercado adduces Saint Paul’s admonishment to Church leaders that the power they received should be used in the interest of the faithful—a warning that equally applies to secular princes.32 Prices should not be fixed in an arbitrary way, but after careful consideration of several circumstances. By the same token, while Mercado acknowledges that state-appointed merchants and sale monopolies can be useful for the republic, he also warns against abusive practices. When the state seeks to control trading in a particular good, it should proceed carefully. For example, government stores are legitimate, but the prince should appoint his officials to run those stores. He should not try to sell the right to run such a store to a private individual.33 If the prince nevertheless takes the unwise decision to sell a legal monopoly to a private merchant, he should at least fix the price to prevent the people from being exploited. The circumstances that should inform the prince’s calculation of the just legal price include the average costs and risks that farmers incur in producing the goods, the expenses that merchants ordinarily make in trading goods, the scarcity or abundance of the good, the relationship between supply and demand, the level of cash money. Producers and traders should also be allowed

31  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Mas, esto dado, yo lo digo muy de veras, bien entiendo no se hará, ni aun de burlas, porque ya no hay Catones, Censorinos ni Escipiones, ni Régulos, ni Camilos en los regimientos celosos de su república, que procuren con solicitud y trabajo su acrecentamiento, sino, cuando mucho, el que viniere a la mano y se ofreciere”. 32  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Lo que digo de la república se entiende también de su príncipe y cabeza, los cuales deben siempre tener en la memoria la sentencia de San Pablo hablando de la potestad que Cristo le había dado en su Iglesia. Dice: no la recibimos para dañar y disipar, sino para aprovechar a los fieles y edificarlos”. 33  Mercado, Suma de tratos y contratos, lib. 2, c. 6: “Especialmente se debe advertir que, cuando quisiere por buenos respectos traer de fuera y vender alguna mercaduría, no venda ni de en ninguna manera a ningún particular este privilegio—porque son gran perdición para el pueblo estos estancos—sino ponga sus oficiales que lo tengan y ejerciten”.

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to make a moderate gain.34 Once a legal price has been established on the basis of all these factors, it should be modified regularly in accordance with changing circumstances of scarcity and abundance, supply and demand, and market liquidity.35 It is of great importance, indeed, that legal prices are not kept the same forever. They must be continually adapted according to time and circumstances. That is one of the main reasons why God delegated the power of economic governance to the public authorities in the first place.36 If he had decided to provide the details of price-fixing in the Gospel, there would have been a perpetual need for new divine revelations to update the Gospel. That may have happened for a brief period of time, namely when God guided Moses out of Egypt and regularly appeared to him to provide details on the policy to follow, but that mode of divine governance could not be perpetuated. It would be unbecoming His divine majesty and disturb the stability of the flock’s expectations. 2.5 Costs and the Condition of Merchants While Mercado defended the idea that the legal price should reflect the costs and risks incurred by the farmers and traders, it is important to specify that he would only recognize compensation for the average such expenses that merchants and producers ordinarily incur. In this regard, his standpoint cannot be regarded as a full endorsement of the modern, so-called “cost of production theory of value”. Mercado rather endorses the view that economic value is principally determined by utility. Contrary to the so-called cost theory of value, the “utility theory of value” determines the economic value of goods exclusively on the basis of their capacity to satisfy human need, without taking 34  Mercado, Suma de tratos y contratos, lib. 2, c. 7: “Débese considerar lo que a ellos les cuesta, las costas que hacen en traerlo, el riesgo a que lo exponen, por mar o por tierra, el tiempo que tienen ocupado en ello su dinero hasta que se saca; ya junto esto, añadiendo un moderado interés, se hallará y pondrá el precio justo”. 35  Mercado, Suma de tratos y contratos, lib. 2, c. 7: “Puesto el precio, para aumentarlo o disminuirlo basta, o debe bastar, una de tres circunstancias o todas ellas, conviene a saber: si hay ahora muchas más mercaderías o muchas menos que cuando se apreciaron; si hay muchos o pocos compradores; o más o menos dineros y se suelen vender de contado”. 36  Mercado, Suma de tratos y contratos, lib. 2, c. 7: “Una de las razones porque Dios comete el hacer leyes para el gobierno temporal de las gentes a los regimientos, príncipes y reyes y no las puso en su evangelio, es entender cuán necesario es se vayan, a modo de hablar, variando cada día. Y si Él por sí nos gobernara, no por ministros, fueran menester por momentos nuevas revelaciones y mudanzas en sus Escrituras y revocar y continuar aquella gobernación tan breve can que rigió su pueblo en el desierto, revelando por instantes a Moisés lo que se había de hacer según los casos ocurrían—cosa que ni entonces duró, ni ahora ya convenía a la majestad divina, ni tampoco a la firmeza y estabilidad de sus fieles, sino que lo cometa, como comete, a algunos de ellos”.

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into account the costs of the producer or trader. Traditionally, scholastic economic thought is considered to be the cradle of the so-called “utility theory of value”, even if the opposite view also circulated among the scholastics, mainly due to the persistent influence of John Duns Scotus’ ideas about economic value (d. 1308).37 Even the most liberal scholastic theologians, however, such as Leonardus Lessius (1554–1623), continued to make reference to the average costs of the merchants as one of the factors that must be taken into account in determining the just price of a good.38 Therefore, the aforementioned economic theories—highly indebted as they are to modern debate between Marxists and capitalists—do not entirely fit the scholastic sources.39 In the scholastic texts, the debate seemed to have centered more on the question whether only the ordinary costs incurred by the average merchant, or also the specific expenses made by an individual merchant should be taken into account for the establishment of the just price. In this regard, Mercado holds the firm opinion that individual costs do not matter for the calculation of the legal price. Extraordinary individual expenses also do not provide a justification for deviating from the legal price. In his exegesis of the Pragmática, Mercado admits that the king and the judge must account for the multiple costs that the majority (la mayor parte) of producers and merchants incur. They should also allow the farmers and corn traders to make a moderate profit.40 But if the individual costs of a particular farmer or trader exceed those average costs, the legal price nevertheless applies, meaning that those particular

37  Noonan, J.T., The Scholastic Analysis of Usury, Cambridge, MA, 1957, 86–87. A good illustration of the coexistence of both paradigms in early modern scholastic economic thought is offered by D’Emic, M., “Market Liberalism and Antiliberalism in Spanish Late Scholastic Treatises (1541–1547)”, in Journal of Markets and Morality 15 (2012), 161–177. 38  Decock, W. and De Sutter, N. (eds.), Lessius On Sale, Securities and Insurance, Grand Rapids, MI, 2016, xliii–xlv. Therefore, it is difficult to accept the statement that Lessius, or, other scholastics, for that matter, “attacked the cost of production theory of value, pointing to market demand as the determinant of price, regardless of a merchant’s expenses”, as in Rothbard, M., Economic Thought Before Adam Smith. An Austrian Perspective on the History of Economic Thought, Cheltenham, 1999, vol. 1, 123. 39  Kirshner, J. (ed.), Business, Banking and Economic Thought in Late Medieval and Early Modern Europe: Selected Studies, Chicago, 1974, 15–16; Langholm, O.I., Price and Value in the Aristotelian Tradition. A Study in Scholastic Economic Sources, Oslo, 1979, 75–79. 40  Mercado, Suma de tratos y contratos, lib. 3, c. 2: “Por lo cual, dado que en esta pragmática del trigo el rey pretendió tasar de tal manera el pan que ganasen los labradores o los que en trigo tratan, y también el juez, tasando el pan cocido, pretenda, como debe pretender, conceder algún interés al que amasa, considera prudentemente solos aquellos costos y gastos que por la mayor parte suele tener el trigo amasado o en grano”.

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persons will make a loss.41 Mercado is very formal about this. Since the average cost has already been included in the legal price, in individual transactions merchants cannot charge a surplus because the process of importing a good has been more burdensome and expensive than usual.42 This is the condition of merchants: just as today they can lose by making more expenses than usual, tomorrow they can make profits by lowering their costs in comparison with their competitors.43 Merchants must accept their exposure to losses.44 2.6 Moral Bindingness of Legal Prices A major concern for Mercado in the discussion on maximum grain prices was to rebuke the misconception that legal prices are not binding in conscience. In fact, Mercado added a book on the legal grain price to the second edition of his treatise on commerce and contracts with the very aim to combat the pernicious ideas on the issue circulated in the Declaración de la pragmática del trigo cuanto al foro interior del almo, probably composed by Mexía, a Spanish jurist of whom little is known.45 In this work, minor violations of the legal price are said not to constitute sin. Mercado, however, insisted that human laws regulating purely secular affairs fully bind in conscience if they are just and necessary for good governance, regardless of whether they embody principles of divine or natural law, or if the violation is small or big.46 Examples include export bans on weapons, laws against abandoning property, or maximum prices. Nobody 41  Mercado, Suma de tratos y contratos, lib. 3, c. 2: “Fuera de lo cual, si a alguno por algún caso particular o accidental, le costo más caro o costeo mucho más, no per esto se invalida la tasa de la ciudad, ni dejará de estar el tal vendedor obligado a guardarla, aunque pierda en ello […]”. 42  Mercado, Suma de tratos y contratos, lib. 3, c. 5: “Cerca de esta materia es de advertir que el justo valor no se ha de reglar por lo que costo al que vende, cuando ya está tasado, sino por lo que al presente se vende”. 43  Mercado, Suma de tratos y contratos, lib. 3, c. 7: “Es ilicitísimo pasar las tasas de la ropa o bastimentos o por haber costado más caros al vendedor o por ganar poco guardándolas. […] Si ahora perdía, en otro tiempo o en otra venta que hiciese ganaría”. 44  Mercado, Suma de tratos y contratos, lib. 3, c. 5: “Demás de esto, si con el costo lícitamente se puede tener cuenta y se pudiese siempre vender por lo que a cada uno cuesta, nunca el mercader estaría obligado a perder, pues siempre puede—según éste afirma—sanear su principal. Lo cual es falso, que muchas veces, según mostramos, no sólo es necesario perder, pero está obligado a perder vendiendo […]”. 45  For the attribution of the work to Mexia, see de Dios, S., El poder del monarca en la obra de los juristas castellanos (1480–1680), Cuenca, 2014, 416–417. 46  Mercado, Suma de tratos y contratos, lib. 3, c. 9: “Esta obediencia legal no solamente se ha de tener a la ley humana cuando contiene y encierra en sí algún precepto natural o divino, sino también cuando manda alguna cosa meramente seglar y profana. Si es necesaria al gobierno del pueblo, obliga en conciencia”.

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would have offended God by selling grain above the legal grain price before it was fixed.47 But now that a legal price has been established for the sake of the public good, it is binding in conscience, even if the legal price did not enact a principle of divine or natural law. If regulating the market is necessary for the tranquillity and the peace of the kingdom (estado tranquilo y quieto del reino), then the prince not only has the authority to impose maximum prices, he is even under an obligation to do so, on pain of sin.48 At the end of his exposition on the legitimacy of the Pragmática del trigo, Mercado developed a short theory about the unity of the law of the land and the law of conscience which is typical of what has been called the “anti-penalist” current in scholastic political thought.49 As the name indicates, “antipenalism” reacts against the proposition that some laws are merely of a civil or penal nature, viz. their violation does not constitute a sin in the court of conscience.50 Mercado shared the “anti-penalist” stance with many theologians of his day, especially Francisco de Vitoria, Alfonso de Castro and Juan de Medina. For the sake of the tranquillity of the republic, they argued that crime and sin are inseparable, thus contributing to the internalization of positive law. In explicating the bindingness of the price controls, Mercado insisted that all just laws, whether preceptive or penal, are actually imperative in nature. The difference between purely preceptive laws, on the one hand, and penal laws, on the other, does not depend on the varying degree to which they bind conscience. According to Mercado, the real distinction between penal and purely preceptive laws is that penal laws are mainly addressed to the judge, whereas laws that do not impose sanctions are principally directed to the citizens.51 Both types of law are binding in conscience, however, as long as they are just. Violating a just 47  Mercado, Suma de tratos y contratos, lib. 3, c. 9: “Ejemplo claro de esto tenemos en esta tasa del trigo que explicamos, que, antes que se pusiese, ninguna ofensa de Dios era vender a doce reales; mas no dejará de errar el rey que, pudiendo proveer con la pragmática el bien universal de sus reinos […]”. 48  Mercado, Suma de tratos y contratos, lib. 3, c. 9: “Y aun a las veces son estas tales tan necesarias al estado tranquilo y quieto del reino que no solamente tiene autoridad para mandarlas sino también obligación, y pecaría en no mandarlas, según la necesidad común las pide”. 49  Del Vigo Gutiérrez, Economía y ética en el siglo XVI, 581, 584–585, 589. 50  Daniel, W., The Purely Penal Law Theory in the Spanish Theologians From Vitoria to Suarez, Rome, 1968. 51  Mercado, Suma de tratos y contratos, lib. 3, c. 10: “Todas las leyes son realmente preceptivas e imperatrices, mas unas veces mandan a los jueces que castiguen algunos delitos, otras a todos los sujetos lo que han de hacer y evitar. Así con razón se llaman unas preceptivas, do se manda o prohíbe alguna operación nuestra, otras penales, do solamente se manda a los jueces castigar algunos delitos, expresandoles la pena que han de ejecutar”.

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law does not only constitute a crime, but also a sin that will be venial or mortal according to the gravity of the matter.52 Therefore, Mercado urged priests to be very strict to merchants who maintained in confession that they had good reasons to ignore the legal price. 3

Luis de Molina: The Case for Market Liberalism

3.1 A Portuguese Case in the Making Molina recounts how, by chance, he was informed about a controversy surrounding the regulation of grain prices in Portugal.53 The controversy must have taken place somewhere between 1568, the year in which Molina joined the University of Evora, and 1578, when Cardinal Henry (Dom Henrique) acceded to the Crown.54 An unknown man had submitted a report to Cardinal Henry in which he warned against the evil consequences of establishing a legal price for grain. Upon consultation of the Senate, Cardinal Henry received expert opinions in favor of a maximum grain price. According to Molina, those expert reports fell into his hands by chance, urging him to react against them. However, the arrival of the news may have been less of a surprise than Molina suggests.55 In any event, Molina tries to present himself as a distant observer of the case, whose age and long experience (experientia) nevertheless tell him to 52  Mercado, Suma de tratos y contratos, lib. 3, c. 10: “Todas las leyes […] siendo justas, obligan en conciencia a su observancia, más o menos, esto es o debajo de mortal o venial, según la gravedad y peso de su materia y conforme a la necesidad que hay de guardarse […]”. 53  Molina, L. de, De iustitia et iure, vol. 2, De contractibus, Mainz, 1602, tract. 2, disp. 365, col. 473, litt. c–d. (The edition used for this article is available online at http://opac plus.bsb-muenchen.de/title/BV012467312/ft/bsb10497094?page=1—last consulted 15 October 2016). 54  Molina expressly mentions that Cardinal Henry was not yet crowned as a king at the time of the controversy. In 1578 Cardinal Henry became the last Portuguese king before the annexation of Portugal by Spain in 1580. In order to prevent the annexation from happening, King Henry had famously tried, but without result, to obtain papal dispensation by Pope Gregory XIII to marry so that he could produce an heir and prevent Portugal from falling into the hands of King Philip II, see MacKay, R., The Baker Who Pretended to Be King of Portugal, Chicago/London, 2012, 43–44. 55  Cardinal Henry had founded the University of Evora in 1559 and was very close to the Jesuits, to whom he had entrusted the University, see Kaufmann, M. and Aichele, A. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, xv. Therefore, it is not improbable that Cardinal Henry and Molina, Evora’s “star professor of theology and philosophy” (see MacGregor, K.R., Luis de Molina. The Life and Theology of the Founder of Middle Knowledge, Grand Rapids, MI, 2015), got to know each other personally during Molina’s period as a professor in Evora from 1568 through 1583.

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intervene and demonstrate that price controls are not a good way of promoting the common good.56 He wants to enlighten the government on the detrimental effects of regulating the grain market, considering the negative impact of maximum prizes not merely on the material wellbeing of the people, but especially on the salvation of souls. 3.2 The Primacy of “the Nature of Things” To fully understand Molina’s critique of the proposal to introduce maximum prices for grain, it is necessary to take into account the absence, in his opponents’ proposal, of any framework for the imposition of price controls in times of grain shortage. More precisely, the proposal does not make regulation of the grain market conditional upon establishing a legal price that respects the limits of the natural price. For Molina, that is a grave error, since the natural price is hierarchically superior to the legal price, meaning that the legal price must always reflect the nature of things and remain within the boundaries of the natural price.57 The legal price can oblige grain famers to sell at the pious or lowest natural price, but it should not go below that. Molina’s emphasis on the limits imposed upon positive legislation by natural law is apparent from the mere frequency with which the term “on the basis of the nature of things” (ex natura rerum) occurs in disputation 365, namely at least ten times. The ultimate yardstick by which just legal prices of grain are to be evaluated is the value which grain would naturally receive in times of shortage based on the nature of things, that is if you let the market forces play freely. Molina insists that the evaluation of the case should take place from the point of view of the nature of things (ex naturis ipsis rerum). As a result, theologians and moral philosophers specializing in natural law rather than positive lawyers should have the last word in the discussion on price-fixing.58

56  Molina, De iustitia et iure, tract. 2, dis. 365, col. 473: “Et, cum longa multorum annorum experientia, ego quoque minime eas taxas expedire iudicarem, ductus potius gravissimis animarum periculis, quae deprehendebam, quam commodis aut incommodis temporalibus, eis rationibus respondere curavi, si forte lucem aliquam regimini bonoque publico afferre possem, opemque ferre, ut taxae illae deinceps non fierent […]”. 57  For a full account of Molina’s doctrine of just pricing, see Luis de Molina, La teoría del justo precio, edited, translated and introduced by F. Gómez Camacho, Valladolid, 2011 (reproduction of the Madrid 1981 edition), 9–100. 58  Molina, De iustitia et iure, tract. 2, dis. 365, col. 476, lit. e: “Illud vero admonuerim, rem hanc iudicandam non esse ex iuris humani dispositione […] sed ex naturis ipsis rerum esse iudicandam. Quo fit, ut examen ac decisio rei huius ad theologos potius, philosophosque morales spectet, quam ad iurisperitos”.

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3.3 The Public Good in Practice: Rent-Seeking The ultimate justification for setting the price of grain, even below the natural just price, is the notion that the common good of the state (bonum commune reipublicae) prevails over particular interests. The losses incurred by the farmers are offset by the gains for society as a whole, since price controls allow for the protection of poor consumers. Molina, however, is not convinced by this argument. He does not deny that the public interest is superior to that of individuals. But he doubts whether, in practice, the public good is served by setting the price of grain in the first place. Experience and empirical observation have rendered the Jesuit theologian from Evora suspicious about what really happens when the prince sets prices. The farmers, who are often poor themselves and who have produced the grain through their painstaking labour, are the ones who get poorer, while the price controls are of no avail to other poor citizens. Instead, the real benefits of low grain prices go to the Portuguese King, who can buy large quantities of grain, for instance for the supply of the naval forces, at much cheaper prices.59 The king also benefits from the fixed grain price in that it allows him to win the favor of the wealthy and powerful by giving them the means to buy cheaply from poor farmers only for them to resell the grain at a profit. Members of the government, magistrates and judges, in particular—viz. people who are not poor at all, as Molina emphasizes—force poor farmers to sell them huge quantities of grain at the legal price only to distribute that grain to their rich friends and family or to set up businesses to resell the grain elsewhere at a much higher price.60 In other words, Molina describes the negative effects of price controls in terms of what modern economists would conceive of as cronyism and rent-seeking behavior. Even followers of Mercado’s viewpoint were not blind to that argument. For example, Miguel de Palacios, a student of Domingo de Soto, defended legal grain prices without failing to denounce the abuse of power by regulators keen to favor their own interest under the cover of promoting the common good.61 Molina, however, pushed this insight to its radical conclusion. 59  Molina, De iustitia et iure, tract. 2, dis. 365, col. 477, lit. e: “Praesertim cum rex in hoc Lusitaniae Regno usurpare sibi illo pretio soleat triticum ad classes praeparandas, et ad pleraque alia, et concedere soleat magnatibus et potentibus facultates ut, dominis tritici etiam invitis, magnatibus pretio taxato vendatur”. 60  Molina, De iustitia et iure, tract. 2, dis. 365, col. 478, lit. a: “Et praesertim cum iudices, caeterisque ministri publici, qui non solent esse adeo pauperes non solum sibi sed et consanguineis atque amicis, quin et aliis, qui illud ad lucrum alio transportent, inita cum illis societate, accipere soleant triticum pretio taxato, invitis illius dominis, ut interim abusus alios ac vexationes quae tritici dominis fiunt, omittam”. 61   Miguel de Palacios, Praxis theologica de contractibus et restitutionibus, Salamanca, 1585, lib. 2, 56: “Et profitentes se velle consulere publico bono, illud evertunt.” For scant

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3.4 Limits to Public Wealth Redistribution Molina does not only fear the negative consequences of regulating prices in practice. On a more fundamental level, he doubts whether the protection of the common good is truly at stake when the prince intervenes in the grain market. According to Molina, the common good of the republic is not threatened by the increase in grain prices following bad harvests or a temporary shortage of supply. In their essence (in esse), the state and the public good remain unscathed by rising grain prices. What is affected by the rise in prices is the relative wealth distribution within the state: some people lose, other people gain from the fluctuations in the grain price.62 The parts that make up the republic are being reshuffled, but, as a whole, society remains as prosperous as it was before. It is irrelevant to the public good, considered in its entirety, whether this or that part becomes richer or poorer. That is just a matter of good or bad luck, depending on the wheel of fortune (ad fortunae aleam spectat).63 While every part of the republic has the right to move up the social ladder, no step on that ladder is acquired definitively by one specific part. Every part has the right to strive for and to acquire a better life, but no part can lay exclusive claim on a specific social rank. People can both win and lose. Making profits and climbing the social ladder is justified, precisely because they are not possible without risk. In many regards, the republic resembles the traditional conception of the nature of the partnership contract (societas): the partners can either win or lose; it is their exposure to risk and good luck (alea/fortuna), precisely, that justifies their profits.64 biographical notes on Palacios, see Brett, A., “The Good Man and the Good Citizen. Miguel de Palacios and an Aristotelian Question in the Spanish Second Scholastic”, in Grunert, F. and Seelmann, K. (eds.), Die Ordnung der Praxis. Neue Studien zur spanischen Spätscholastik, Tübingen, 2001, 246. 62  Molina, De iustitia et iure, tract. 2, dis. 365, col. 477, lit. b: “Caeterum, quando sine re aliqua potest respublica, in esse reipublicae, salva consistere, solumque defectu rei illius sit variatio in partibus reipublicae penes hoc, quod quaedam fiunt ditiores et potentiores, aliae vero in divitiis et potentia decrescunt, cum tamen partes omnes, in esse membrorum reipublicae, salvae maneant, tunc res illa necessaria non dicitur ad commune reipublicae bonum, quoniam bonum reipublicae integrum manet quoad omnes suas partes, tametsi partes variationem aliquam patiantur quoad divitias et potentiam”. 63  Molina, De iustitia et iure, tract. 2, dis. 365, col. 477, lit. c: “Reipublicae autem bono parum refert, quod partes, quae antea ditiores erant, pauperiores reddantur, modo aliae in eadem republica crescant in divitiis et potentia. Imo vero hoc ad fortunae aleam spectat, omnesque reipublicae partes ius habent conscendendi ad gradum superiorem, si cuiusque sors id tulerit, neque cuiquam certus quidam gradus debetur, quin descendere et conscendere possit”. 64  It should be noted, though, that in the early modern scholastic tradition, the idea that the aleatoric element is of the essence of the partnership contract gradually disappears,

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According to Molina’s analysis, urging farmers to sell grain below the natural just price is tantamount to imposing a public obligation to give alms. As a rule, however, public authorities cannot force their citizens to be charitable. Neither can the prince take the money from the rich to redistribute it among the poor. “As the prince cannot steal the fortunes rightfully acquired by the richest merchants to redistribute them to the poor”, Molina explains,65 “so he cannot compel vendors to sell goods at a lower price than they are valued by virtue of nature, all circumstances considered.” If he imposes charity, the prince exceeds his power. In the case of the grain market, where more often than not the farmers are actually the poor people, price controls would run into an additional absurdity. It would not make any sense to constrain the poor to give alms to the rich, but this occurs when the legal price is decreased below the natural just price. Historical evidence suggests, indeed, that the wealth redistribution effected by the legal grain price turned out to be in favor of the rich. Under pressure to pay rents and debts to rich creditors, peasants were obliged to sell their grain immediately to the rich at the low legal price after harvesting in the summer season, only to be obliged to purchase the grain back for sowing in autumn on the black market and at an inflated price.66 Admittedly, in exceptional circumstances the prince is allowed to impose a duty of almsgiving on his citizens, according to Molina, for instance in a situation of extreme necessity, where people risk dying unless they receive aid. Even in that extraordinary case the prince cannot, however, put the burden of charity on the shoulders of just one particular group of people, for instance the grain sellers. In a situation of extreme necessity, every citizen will have to contribute according to his means.67 If extreme necessity touches only a part of the population, the burden of alleviating those people should be shared collectively. In all other situations, no group of citizens, not even among the rich, can be compelled by the government to practice charity. Having said that, it since moral theologians are obliged to justify the so-called “triple contract”, where the investor is safe from making losses, see Decock, W., “In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus”, in Van Hofstraeten, B. and Decock, W. (eds.), Companies and Company Law in Late Medieval and Early Modern Europe, Leuven/ Paris/Bristol, 2016, 74. 65  Molina, De iustitia et iure, tract. 2, dis. 365, col. 477, lit. d: “Quemadmodum auferre non potest a ditissimis mercatoribus, qui iusto titulo suas compararunt divitias, ut illas pauperibus tribuat, sic etiam neque cogere possit, ut res minori pretio vendantur, quam ex natura rei, spectatis circumstantiis concurrentibus, valeant”. 66  Casey, Early Modern Spain. A Social History, 56. 67  Molina, De iustitia et iure, tract. 2, dis. 365, col. 478, lit. b: “Neque tunc soli domini tritici essent cogendi subvenire pauperibus, sed cogendi simul essent alii divites contribuere eleemosynam, ut respublica tota aeque, proportione quadam, gravaretur”.

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is important to remember that theologians such as Molina did emphasize the moral duty to give alms and practice charity on an individual basis.68 The rich are under a moral obligation to give to the poor out of their superfluous goods, in particular, even if, in the sixth of his satirical Lettres Provinciales, Blaise Pascal would later quote the Jesuit theologian Gabriel Vasquez (1549–1604) saying that it is difficult to find superfluous goods among seculars, even in the case of kings.69 3.5 Changing Circumstances and Regional Arbitrage Apart from the more fundamental objections against price-fixing in the grain market, Molina also mentions practical obstacles to the establishment of effective price controls. Those empirical obstacles derive from perpetually changing circumstances and the diversity of places within the Portuguese realm. Even if the government wants to make the effort of fixing a price within the limits of the natural just price in order to comply with principles of natural law and justice, it is an almost impossible task to constantly monitor the market and adapt the legal prices to changed circumstances of demand and supply in the market. For legal prices have to be adapted according to new circumstances, indeed, if they want to be in accordance with natural justice. Even if, as a rule, legislators should not change laws constantly, since this is very harmful to the community, legal prices are an exception to this rule.70 But experience teaches that senators and other governors barely have the time to follow the evolution of the market, busy as they are doing other things.71 As a consequence, even if they have the intention of respecting the natural price, they will end up treating market participants unfairly and punishing sellers unjustly because their response to developments in the market comes either too late or too soon. In this manner, the prince’s soul will permanently be imperilled, and he will be liable to make massive amounts of restitution for the violation of commutative justice. 68  Deuringer, K., Probleme der Caritas in der Schule von Salamanca, Freiburg, 1959. 69  de Montalte, L. (B. Pascal), Les provinciales, Cologne 1657, Paris, 6th letter (10 April 1656), 2. 70  Molina, De iustitia et iure, tract. 2, dis. 365, col. 479, lit. b: “Licet enim in aliis legibus frequens mutatio noxia sit, in taxa tamen frumenti, quoniam pretium aequale esse debet merci, ut lex iniusta non sit, toties sub reatu culpae lethalis, onerisque restituendi, mutari debet lex, quoties mutatio circumstantiarum, quae frequentissimae esse solet, id postulaverit”. 71  Molina, De iustitia et iure, tract. 2, dis. 365, col. 480, lit. e: “Ut probatum est, necesse est variari legem mutatis circumstantiis in decursu anni. Id autem difficile fit, senatoribus circa alia occupatis, neque id attendentibus, multisque prius iniustitia legis opprimuntur, et quod deterius est, iniuste postea puniuntur, quamd id fiat, ut experientia ipsa testatur”.

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Apart from the ever-changing market circumstances, a policy of fixing the grain price will be difficult to implement because of major regional differences within the Portuguese kingdom, especially considering the privileged status of Lisbon. As a matter of fact, to give local and international traders incentives to import grain in Lisbon, royal dispositions had not only resisted maximum prices for grain in Lisbon, but also waived the levy of any customs duties on grain imports in that city.72 Protecting consumers in Evora or on the countryside against high grain prices will not have the desired effect, then, since it is impossible to generalize maximum prices across the whole of Portugal. Therefore, even if you impose a maximum price in Evora, merchants will exploit the regional differences and resort to price arbitrage strategies. They will ignore the regulations and offer grain sellers in Evora and poor farmers in the countryside much higher prices than the legal prices that apply there. Merchants will then ship the grain to Lisbon to sell at still higher prices. Farmers nor merchants will be able to resist the temptation to make profits by violating the maximum prices, falling prey to the lust of making more money.73 By the same token, the price regulations do not apply to foreign merchants. Consequently, foreign merchants will also offer much higher prices to the local farmers than is allowed, only to transport the grain to Lisbon or other European grain markets and sell it even dearer.74 3.6 Obligation to Obey but No Duty to Make Restitution On the basis of the preceding argumentation, Molina rejects the bill to regulate the grain market. In his view, regulating the grain market in Portugal would not only be inexpedient. The legal price would also be inequitable. Should the Portuguese administration nevertheless decide to impose a legal price below the natural grain price, he warns that grain sellers will not be liable to make restitution of profits made in excess of that legal price, since they do not violate the natural law principle of equilibrium in exchange. Commutative justice is observed as long as grain is sold within the limits of the natural price. Farmers who ignore the legal price are nevertheless violating their duty to obey the 72  Freire Costa, L., Lains, P. and Münch Miranda, S., An Economic History of Portugal, 1143– 2010, Cambridge, 2016, 87–88. 73  Molina, De iustitia et iure, tract. 2, dis. 365, col. 480, lit. a–b. 74  Molina, De iustitia et iure, tract. 2, dis. 365, cols. 480–481, lit. e–a: “Quoniam alienigenis taxa non imponitur, taxa vero naturalibus solis imposita, in causa est, ut exteri multo magis in pretio ascendant, spolientque Lusitaniam pecunia. […]. Cum Olyssiponensibus et exteris non sit pretium lege taxatum, id in causa est, quod caeteri non se contineant, sed vendant ultra pretium lege taxatum, praesertim mercatoribus Olyssiponensibus offerentibus ultra pretium lege taxatum”.

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prince (peccant contra obedientiam principis), according to Molina.75 In other words, he admits that his analysis results in a tension between the divergent duties a Christian citizen will experience as a matter of natural law and positive law, respectively. This is the tension that the Dominican theologians tried to avoid at all costs, even at the price of subjecting the forum of conscience to the dictates of the state. Molina adopts a strategy opposite to that of Vitoria, Soto and Mercado. He urges the prince to follow the advice of the theologians, threatening the public authorities that their policies will otherwise not be backed up by theological authority. Moreover, he is not afraid to suggest that the theologians are much better informed about the reality on the ground than administrators, urging the senators to listen to the confessors and theology professors who are consulted on a daily basis about the moral duty to respect price regulations.76 They will soon find out that their attempts to tinker with prices only result in the creation of black markets and risks for the spiritual salvation of the population, since legal prices tempt numerous people into fraud, corruption and favoritism. Since the political order must not only improve the material wellbeing of the people, but also be conducive to attaining the supernatural ends of life, the prince should take the spiritual good and the salvation of souls seriously and refrain from interfering with the grain market.77

75  Molina, De iustitia et iure, tract. 2, dis. 365, col. 478, lit. c: “Esto in principe esset potestas ad condendam eam legem in publicum bonum, lexque illa vim obligandi haberet, nihilominus transgressores illius, quamvis peccarent, ad nullam tamen restitutionem tenerentur. Ratio autem est, quoniam ea lex non constitueret iustum commutativum, quod in aequalitate quoad valorem inter rem et pretium consistit, sed solum licite praeciperet frumentum eo pretio vendi in commune bonum, quare transgredientes eam legem peccarent quidem contra obedientiam principis et forte contra caritatem patriae ac proximorum, posita praesertim ea lege, non tamen contra iustitiam, et idcirco ad restitutionem non tenerentur”. 76  Molina, De iustitia et iure, tract. 2, dis. 365, col. 480, lit. c: “Non, inquam, hoc dicant senatores, sed potius credant confessariis, theologiaeque professoribus, qui quotidie hac de re consultuntur”. 77  Molina, De iustitia et iure, tract. 2, dis. 365, col. 479, lit. d: “Ad legislatorem (praesertim Christianum) spectare, attendere non solum ad commoda aut incommoda temporalia, quae ex lege sua sequuntur, sed etiam ad spiritualia subditorum. Cum enim finis ipsius politicus ordinetur ulterius ad supernaturalem finem vitae aeternae, sane attendere debet ad spirituale bonum, salutemque animarum […]”.

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4 Conclusion The primary texts by Mercado and Molina analyzed in this chapter provide proof of the contradictory attitude to price-fixing in early modern scholastic economic thought. They are witnesses to the co-existence of both liberal and anti-liberal views of the market in the tradition of thinking about morality, law and economics in the School of Salamanca.78 The texts examined in this contribution are also a vivid example of the practical engagement of the early modern scholastics with the real social, economic and political challenges of their time. Since Mercado is often remembered as a father of modern liberal market theory, his staunch defense of price controls, especially in the grain market, might come as a surprise. It neatly fits, however, into his broader advocacy of state intervention in the economy and the protectionist tendencies expressed at the beginning of his chapter on the legal price. At the same time, the socalled “traditionalism” of Tomás de Mercado should not make us overlook the acuteness of his analysis of the market.79 Even if it would not be appropriate to describe his views on economic value in terms of either the utility or the cost theory of value, he subscribed to the liberal view, shared by most modern economists, that individual costs do not determine the just price of a good. If a merchant runs into more expenses than his competitors, than he is either to blame himself or his back luck. In any case, he cannot charge a higher price than the legal price by virtue of those personal circumstances. That is the condition of merchants. Having said that, average costs, risks and expenses must be reflected in the legal just price, according to Mercado. The thrust, however, of Mercado’s analysis was to demonstrate that statutory grain prices established by the Spanish kings were not just civil measures to protect the public good. The Pragmáticas del trigo are not merely enforceable in the external courts. They are also binding in conscience. That is the fundamental difference in view between Mercado and Molina from a theological political perspective. Molina anticipated modern liberal economic theories on rent-seeking, fraud and corruption ensuing from illiberal market policies.80 He is undoubtedly one of the fathers of the neo-liberal critique about the bad consequences of government interference in the market, regardless of the noble motives of 78  Compare the conclusions by D’Emic, M.T., Justice in the Marketplace in Early Modern Spain. Saravia, Villalón and the Religious Origins of Economic Analysis, Lanham, 2014. 79  Casey, Early Modern Spain. A Social History, 71. 80  Baeck, L., “Monnaie, prix et développement en Espagne, 1550–1650”, in Blanc, J. and Desmedt, L. (eds.), Les Pensées monétaires dans l’histoire, Paris, 2014, 715.

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the regulators. For example, in an effort to protect consumers against rising grain prices, especially in times of dearth, princes actually created a new class of poor people, namely the ordinary farmers.81 Molina was unhappy with the negative economic effects of maximum prices. He expressed even more concern about the spiritual perils to which price-fixing exposed powerful people, tempted as they were to favor their own interests and those of their friends and relatives with the promotion of the public good as an excuse. Justice in the marketplace was disturbed rather than fostered by granting the royal administration the right to regulate grain prices by virtue of the prince’s office to protect the poor and weak. Molina’s defense of the natural just price over the legal just price betrays a barely hidden distrust of regulators and an attempt to limit their arbitrary powers that it is consistent with Molina’s overall liberal political and economic philosophy.82 He does not want economic governance that disrespects the “nature of things” to be binding in conscience. Much more than in the work of Mercado, natural law permeates arguments about justice in the marketplace in Molina’s De iustitia et iure, functioning as a shield against political absolutism. The controversy on the morality and legality of price regulation in the grain market did not come to a halt after Mercado’s and Molina’s thoughtful yet diverging evaluations of the matter. This was due at least as much to persisting ideological differences as to the continuing alteration of price regulations by princes and legislators. For example, Melchor de Soria (1558–1643) severely criticized Molina’s liberal line of thought in his Tratado de la justificación y conveniencia de la tassa del pan, a treatise published in 1627, supplemented six years later by an Adición, containing a defense of the statutory grain price in Spain. At the same time, Soria rejected a new Pragmática for the regulation of the grain market enacted by King Philip III in 1619 on the grounds that it discriminated between rich land owners and poor farmers.83 Pedro de Navarra (1555–1620) became another famous follower of Mercado’s viewpoints about the need for government intervention in the grain market.84 On the opposite end of the spectrum, many Jesuit theologians, such as Pedro de Oñate 81  Historians have confirmed this unhappy truth in the case of sixteenth-century Spanish agriculture, see Del Vigo Gutiérrez, Economía y ética en el siglo XVI, 183. 82  Schüssler, R., “The Economic Thought of Luis de Molina”, in Kaufmann and Aichele (eds.), A Companion to Luis de Molina, 257–288. 83  Gómez Camacho, Economía y filosofía moral, 198. See also Gómez-Calero Valdés, P., “Melchor de Soria y Vera”, in Sánchez Lissén, R. (ed.), Economía y economistas andaluces (Siglos XVI al XX), Madrid, 2013, 113–126, including references to further literature. 84  Paradinas Fuentes, J.L., Humanismo y economía. El pensamiento socioeconómico de Pedro de Valencia, Huelva, 2014, 164–199.

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(1568–1646), followed the liberal, anti-interventionist, natural law-based analysis developed by Luis de Molina. Others followed a middle course, such as Juan de Lugo (1583–1660). Lugo admitted that the question of price-fixing was a question for politicians rather than theologians to debate (magis ad politicos spectat quam ad theologos), if only there had not been such a controversy about the bindingness or otherwise of statutory grain prices in conscience.85 He did not exclude the possibility that a legal price was just even if it went beyond the boundaries of the natural just price.86 But that proposition did not refrain him from drawing up, in Molinistic fashion, a detailed list of sinful practices that ensued from the futile attempts by the prince to regulate the grain market. Bibliography Sources

de Montalte, L. (B. Pascal), Les provinciales, Cologne, 1657. Lugo, J. de, Disputationes de iustitia et iure, Lyon, 1642. Mercado, T. de, Suma de tratos y contratos, N. Sánchez-Albornoz (ed.), Madrid, 1977. Molina, L. de, De iustitia et iure, vol. 2: De contractibus, Mainz, 1602. Palacios, M. de, Praxis theologica de contractibus et restitutionibus, Salamanca, 1585.



Secondary Literature

Baeck, L., “Monnaie, prix et développement en Espagne, 1550–1650”, in J. Blanc and L. Desmedt (eds.), Les Pensées monétaires dans l’histoire, Paris, 2014, 703–742. Barrientos García, J., Un siglo de moral económica en Salamanca (1526–1629), 1. Francisco de Vitoria y Domingo de Soto, Salamanca, 1985. Barrientos García, J., Repertorio de moral económica (1536–1670). La Escuela de Salamanca y su proyección, Pamplona, 2011. Brett, A., “The Good Man and the Good Citizen. Miguel de Palacios and an Aristotelian Question in the Spanish Second Scholastic”, in Grunert, F. and Seelmann, K. (eds.), Die Ordnung der Praxis. Neue Studien zur spanischen Spätscholastik, Tübingen, 2001, 245–268. Casey, J., Early Modern Spain. A Social History, London/New York, 1999.

85  Juan de Lugo, Disputationes de iustitia et iure, Lyon 1642, tom. 2, disp. 26, sect. 4, nr. 50, 314 and sect. 5, nr. 52, 315. 86  Monsalve, F., “Economics and Ethics. Juan de Lugo’s Theory of the Just Price, or the Responsibility of Living in Society”, in History of Political Economy 42 (2010), 495–519, here 514.

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Chafuen, A.A., Faith and Liberty. The Economic Thought of the Late Scholastics, Lanham, 2003. Daniel, W., The Purely Penal Law Theory in the Spanish Theologians From Vitoria to Suarez, Rome, 1968. Decock, W., Theologians and Contract Law. The Moral Transformation of the Ius commune (ca. 1500–1650), Leiden/Boston, 2013. Decock, W., “In Defense of Commercial Capitalism: Lessius, Partnerships and the Contractus Trinus”, in Van Hofstraeten, B. and Decock, W. (eds.), Companies and Company Law in Late Medieval and Early Modern Europe, Leuven/Paris/Bristol, 2016, 55–90. Decock, W. and De Sutter, N. (eds.), Lessius On Sale, Securities and Insurance, Grand Rapids, MI, 2016. Decock, W., “Luis de Molina: De iustitia et iure (1593–1609)”, in Dauchy, S. et al. (eds.), The Formation and Transmission of Western Legal Culture. 150 Books that Made the Law in the Age of Printing, Heidelberg/New York, 2016, 129–131. Decock, W., “Spanish Scholastics on Money and Credit: Economic, Legal and Political Aspects”, in Ernst, W. and Fox, D. (eds.), Money in the Western Legal Tradition: Middle Ages to Bretton Woods, Oxford, 2016, 267–283. Del Vigo Gutiérrez, A., “Las tasas y las Pragmáticas reales en los moralistas españoles del Siglo de Oro”, in El Burgense 22 (1981), 427–470. Del Vigo Gutiérrez, A., Economía y ética en el siglo XVI. Estudio comparativo entro los Padres de la Reforma y la Teología española, Madrid, 2006. D’Emic, M.T., “Market Liberalism and Antiliberalism in Spanish Late Scholastic Treatises (1541–1547)”, in Journal of Markets and Morality 15 (2012), 161–177. D’Emic, M.T., Justice in the Marketplace in Early Modern Spain. Saravia, Villalón and the Religious Origins of Economic Analysis, Lanham, 2014. De Roover, R., “Scholastic Economics: Survival and Lasting Influence from the Sixteenth Century to Adam Smith”, in The Quarterly Journal of Economics 69 (1955), 161–190. Deuringer, K., Probleme der Caritas in der Schule von Salamanca, Freiburg, 1959. Dios, S., El poder del monarca en la obra de los juristas castellanos (1480–1680), Cuenca, 2014. Elliott, J.H., Imperial Spain 1469–1716, London, 2002. Freire Costa, L., Lains, and Münch Miranda, S., An Economic History of Portugal, 1143– 2010, Cambridge, 2016. García Sanz, A., “El contexto económico del pensamiento escolástico: el floricimiento del capital mercantil en la España del siglo XVI”, in Gómez Camacho, F. and Robledo, R. (eds.), El pensamiento económico en la Escuela de Salamanca: Una visión multidisciplinar, Salamanca, 1998, 17–42. Gómez-Calero Valdés, P., “Melchor de Soria y Vera”, in Sánchez Lissén, R. (ed.), Economía y economistas andaluces (Siglos XVI al XX), Madrid, 2013, 113–126.

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Gómez Camacho, F., Economía y filosofía moral: la formación del pensamiento económico europeo en la Escolástica española, Madrid, 1998. Gordley, J., “Equality in Exchange”, in California Law Review 69 (1981), 1587–1656. Gordley, J., Philosophical Origins of Modern Contract Doctrine, Oxford, Clarendon, 1991. Kirshner, J. (ed.), Business, Banking and Economic Thought in Late Medieval and Early Modern Europe: Selected Studies, Chicago, 1974. Lagares Calvo, M.J., “Seis incógnitas y algunas respuestas sobre la vida de Fray Tomás de Mercado”, in Iberian Journal of the History of Economic Thought 3 (2016), 68–77. Langholm, O.I., Price and Value in the Aristotelian Tradition. A Study in Scholastic Economic Sources, Oslo, 1979. Langholm, O.I., The Legacy of Scholasticism in Economic Thought. Antecedents of Choice and Power, Cambridge, 1998. Langholm, O.I., “Monopoly and Market Irregularities in Medieval Economic Thought: Traditions and Texts to AD 1500”, in Journal of the History of Economic Thought 28 (2006), 395–411. MacGregor, K.R., Luis de Molina. The Life and Theology of the Founder of Middle Knowledge, Grand Rapids, MI, 2015. MacKay, R., The Baker Who Pretended to Be King of Portugal, Chicago/London, 2012. Monsalve, F., “Scholastic Just Price Versus Current Market Price. Is it Merely a Matter of Labelling?”, in The European Journal of the History of Economic Thought 21 (2014), 4–20. Munro, J.H., “Rentes and the European Financial Revolution”, in Caprio, G. (ed.), Handbook of Key Global Financial Markets, Institutions and Infrastructure, Oxford, 2013, vol. 1, 235–249. Noonan, J.T., The Scholastic Analysis of Usury, Cambridge, MA, 1957. Paradinas Fuentes, J.L., Humanismo y economía. El pensamiento socioeconómico de Pedro de Valencia, Huelva, 2014. Popescu, O., Studies in the History of Latin American Economic Thought, New York, 1997. Rothbard, M., Economic Thought Before Adam Smith. An Austrian Perspective on the History of Economic Thought, Cheltenham, 1999, vol. 1. Schnapper, B., Les rentes au XVIe siècle. Histoire d’un instrument de crédit, Paris, 1957. Schüssler, R., “The Economic Thought of Luis de Molina”, in Kaufmann, M. and Aichele, A. (eds.), A Companion to Luis de Molina, Leiden/Boston, 2014, 257–288. Specht, R., “Die Spanische Spätscholastik im Kontext ihrer Zeit”, in Grunert, F. and Seelmann, K. (eds.), Die Ordnung der Praxis. Neue Studien zur spanischen Spätscholastik, Tübingen, 2001, 3–17. Van Houdt, T., “The Economics of Art in Early Modern Times: Some Humanist and Scholastic Approaches”, in History of Political Economy 31 (1998), 303–331.

part 3 Ethics and Politics of the Conquest and Colonization

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chapter 8

Conquista and the Just War Christian Schäfer 1

Introduction: The Just War Theory in the Age of the Conquista

When in 1550 and 1551, Juan Ginés de Sepúlveda and Bartolomé de Las Casas famously quarreled over the justification of the Spanish conquest of the New World before the Royal and Supreme Council of the Indies at Valladolid, their arguments mostly repeated and reflected a longstanding tradition of the academic discussion of the just war theory. These arguments had been received, collected, expanded and transferred to the specific case of the Conquista during the preceding two generations of Spanish philosophers, theologians and experts in both laws.1 Particularly Sepúlveda seems to have given hardly more than a brief sketch of the main tenets that were on the table in the 16th century in the debate of Valladolid, referring to the four key arguments he had assembled and learnedly demonstrated in his ambitiously written dialogue Democrates Secundus or On the just causes for a war (at the indios).2 Las Casas, on the other hand, extensively responded to each one of Sepúlveda’s arguments in his own defense, reassessing, modifying or refuting their validity

1  I refer to the term “Conquista” in a narrow sense, that is, as an expression for the military expansion of the Spaniards in the Americas (in contrast to the Portuguese expansion in Brazil and the Spanish expansion to India or the Philippines, for example). As military expansion and colonization are not the same, and non-military expansions do not fit the focal meaning of “conquest”, I furthermore limit my considerations to the 16th and the beginning 17th century as the peak period of the Spanish military conquest (somewhat disregarding the fact that the term “conquista” by decree of king Philip II was officially abandoned in 1573). Similarly, when speaking about “just war”, I refer to it sometimes non-terminologically, and sometimes terminologically in the sense of “the scholarly debate about the criteria for a just war”, depending on the context. I also use the expressions ‘colonists’ and ‘colonization’ non-terminologically, since the American territories occupied by the Spaniards were legally ‘provinces’ (overseas districts) of Castille and Leon, not ‘colonies’; see Fernández Herrero, B., La utopía de América. Teoría—leyes—experimentos, Barcelona, 1992, 166–169. 2  In his summary of the dispute, Domingo de Soto refers to Sepúlveda’s exposition as concise, brief and learned. The title of Sepúlveda’s dialogue varies from manuscript to manuscript; whereas a prior version, which he probably intended for publication and had submitted to obtain the royal “privilege” for it, conserves the addition “at the indios” (apud indos), the later versions do not have it anymore.

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according to his interpretation of these main tenets that opposed and challenged Sepúlveda’s position in almost every respect. The arguments in question predominantly referred to the justification for engaging in war (or ius ad bellum).3 Others focused on the various elements and prerequisites for declaring war (once confirmed in its justification) and on the rightful procedure and moral rules in a state of war (ius in bello). In the Summa theologiae II–II q. 4 art. 1, Thomas Aquinas had provided the locus classicus for these arguments when he devised three preconditions for a just war: it must be led with a rightful intention, by a legitimate authority, and for just causes—a triad that has its antecedents in Augustine and, ultimately, in Cicero.4 For almost every theorist, the first and most important consideration belongs to the justification for engaging in war, before the requirements for declaring it and the manner in which it is waged are defined. If the ius ad bellum thus seems to be the central idea and even the basis for all further deliberations on validly declaring and waging a war, conversely, infractions of the ius in bello can seriously damage the justification of a war legitimately begun and declared, even to the point of nullifying this justification and legitimacy (see below section 4.)—a point frequently raised by the opponents of the Spanish conquest and colonization of the New World in view of the brutality of the conquerors and the uncontrollability of the colonists. Likewise, according to the same theorists, a serious failure in the correct way to declare war could jeopardize the justification for engaging in war, which, along with the aforementioned invalidating force of infractions of the ius in bello, is another point that the just war theory of the 16th and 17th century adopts from medieval political thought. 3  It should be noted that the polemology of the time used the word “war”, bellum, in a broad sense covering almost every armed conflict: all kinds of warfare, feuds, vendettas between clans or gangs, street battles between town districts, even duels and “spiritual wars” as the antagonism between “the law in my members” and “the law of my mind” of Romans 7:23. But contrary to what has been said about it, these different acceptations of bellum were not used as coequal and the word had a clear focal meaning (namely, an armed conflict, fought out in downright battles and/or sieges, between political communities or populations of considerable size): see also infra 3 on the concept of the necessary autarchy of a political community present in the definition of “war”; but it was only from the 18th century onward that the term bellum was narrowed down to this focal meaning which the word “war” conveys nowadays; see Scattola, M., “Krieg und Erfahrung. Über den Kriegsgedanken im Horizont frühneuzeitlichen Wissens”, in Justenhoven, H.-G. and Stüben, J. (eds.): Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik, Stuttgart, 2006, 45–47. 4  Keller, A., “Cicero: Just war in Classical Antiquity”, in Justenhoven, H.-G. and Barbieri Jr., W.A. (eds.), From Just War to Modern Peace Ethics, Berlin/Boston, 2012, 9–29 and Kany, R., “Augustine’s theology of peace and the beginning of Christian just war theory”, in Justenhoven, H.-G. and Barbieri Jr, W.A. (eds.), From Just War to Modern Peace Ethics, 36–44.

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To portray the just war theory in the Spanish theorists of the Conquista, I shall therefore firstly present the “why-component” of the problem, i.e. the possible reasons for the justification of war they discussed, before I turn to the “how-component”, i.e. the debate about the valid manner of declaring it, the problem of legitimate authority and the criteria for morality in a state of war. It should be noted that the debate over the just titles for a war in the 16th and 17th century was intricate, highly technical in its philosophical and theological aspects, and multiramified in its different lines of argumentation. The following outline cannot possibly trace all the important positions of this knotty centennial discussion. A synopsis of the catchiest points of view must suffice and yield the hope that they will provide an informative basis for the just war theory in the age of the Conquista. Note well: the theory, in its actual implementation, could, and very often did, differ notably from what the just war theory discussed and endorsed, and most theorists were very well aware of the fact that the truths they found, the moral prescripts they stipulated and the legislations they initiated were widely disregarded by those who were to implement them. But this was usually beyond their power and, as Sepúlveda put it, the discussion was not about solving the conquerors’ excessive violence, but about the nature of the war in the New World insofar as it concerned the legitimacy of its causes and the justice of the crown of Spain.5 2

Ius ad bellum: Four Disputed Arguments for the Justification for Engaging in War in the New World

On the part of the “why-component”, the basic arguments in question are conspicuously varied in kind. Some are taken from theological considerations, others derived from Roman Law, others again from Aristotle and (or) Scholastic philosophy. In the following, I shall give a short draft of the most significant of these and name their foremost proponents and adversaries in the context of 16th and 17th century Spanish thought, taking Sepúlveda’s provocative, yet serviceably systematic, if not always convincing account of these arguments as a basis and rough guideline. It should go without mentioning that at the foundation of all these considerations, a teleological element is at work that corresponds to a shaping ideal of ius post bellum: whatever the valid reason for engaging in war might be, it has to obey the principle that the state of affairs 5  Sepúlveda, J.G. de, Democrates Secundus, in Coroleu Lletget, A. (ed.), Obras completas, vol. 3, Pozoblanco, 1997, 61.

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resulting from victory is more just or more humane (and not only politically or economically more desirable) than the one before (see also below section 3). 2.1 Barbarian Status and Natural Slavery Perhaps the most confrontational argument, and obviously the one responsible for Sepúlveda’s failure to obtain the king’s “privilege” for the publication of his Second Democrates-dialogue, as well as the subsequent condemnation of his tenets in the course of history, was the argument taken from the first (and seventh) book of Aristotle’s Politics concerning the status of “natural slaves” (natura servi) applied to certain peoples and then transferred to the American Indians. According to Aristotle, certain people(s) lack intelligence to such a degree that they are not in the condition to lead their lives autonomously, which results in moral failure of different kinds and in the inability to govern themselves reasonably. Not that they were completely incapable of moral reasoning, but according to Aristotle’s text they were deficient in reasoning to the extent that justifies a comparison with incapable children. Not wild animals, these Aristotelian barbarians have a rational capacity and do not depend on unconscious instincts as wild animals do. But while they cannot wholly depend on their instincts, they are not in the condition to substitute these biological instincts by practical reasoning, either. They are rather, as it were, like domestic animals, which Aristotle sees as “nobler” beings than wild animals, but which are not able to live without the guidance of intelligent beings who provide for and rule over them. In short, such barbarians are in need of guidance from others, who by supplying their superior capacity for reasoning can fill in the blank left open by the barbarians’ defective rational abilities. Going back practically to the first decade after the discovery of the New World, this Aristotelian doctrine of the barbarian and the natural slave had been applied to the native people(s) of the newly discovered territories. The argument is, then, as follows: The American Indians are barbarians of the kind because of their intellectual shortcomings and so must be considered slaves by nature. Slaves by nature are such human beings that are unable to live their lives as human beings should (i.e. virtuously, independent due to their rational capacities and autonomous to a reasonable degree) and therefore, in order to live their lives humanely and virtuously, depend on the rational guidance of other, more intelligent and autonomous human beings, as, for example, the Spaniards. How exactly to bring about this guidance and its manner of political implementation is a much disputed matter for those theorists who defend this Aristotelian doctrine: John Mair, Juan de Quevedo, the first bishop on the American continent, and the elegantly writing humanist Juan Ginés

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de Sepúlveda, among others.6 Very few of them would have thought of “servitude” as “slavery” in the ancient sense of the word (as Aristotle did) and of the “slave” as mancipium, i.e. as another man’s (legal) property, although this concept is seriously discussed, too.7 Most Spanish theorists of the time might had thought of a kind of servitude comparable to the one the encomienda system had already established in the conquered territories—of the system as it was actually conducted, that is: the original idea of the encomienda in the Indies did entail a concept of service, including even elements of feudal bondage (legally, the indios were leuds of the Spanish crown), but not necessarily of servitude in the fashion that the wording of Aristotle’s Politics would suggest.8 The connection between the concept of natural slavery and the just war theory consisted in the consideration that war could be waged legitimately in order to establish a natural order between intellectually superior and intellectually (and morally) inferior human beings once contact between the two had been made, and in the conviction that the justification of this war would reside in the moral obligation to impose this natural order politically. Moreover, the legitimacy of this criterion for engaging in war was that, in its outcome, both parties would have a great advantage: The barbarians, because they would be ruled according to their slavish nature, and moreover would receive the benefit of new cultural achievements and development (as the use 6  John Mair taught at Paris in the first two decades of the 16th century and might have been the first one to pronounce this opinion in his Commentary on the Sentences of Peter Lombard (dating from 1519), but in different forms in his lectures arguably also as early as in 1510; since quite a number of Spanish philosophers and theologians studied with him in Paris, he seems to have had a strong influence on many Spanish thinkers of the first part of the 16th century. That Juan de Quevedo advocated the Aristotelian doctrine before the Spanish King in 1519, we know from Las Casas (see Historia de las Indias III, 144, ed. Millares Carlo Vol. 3, 343). In some very few cases, Spanish theorists suggested that the Aristotelian doctrine made it necessary to “humanize” the indios, thus alleging that they might not yet be entirely human: Juan de Acosta reports that this was the opinion of the Jesuit Bartolomé Hernández; see Acosta, J. de, De procuranda indorum salute, Pereña, L. et al. (ed.), Corpus Hispanorum de Pace, vol. 1, Madrid, 1984, 646; also Castilla Urbano, F., El pensamiento de Juan Ginés de Sepúlveda, Vida activa, humanismo y guerra en el Renacimiento, Madrid, 2013, 176. 7  See Castilla Urbano, El pensamiento de Juan Ginés de Sepúlveda, 174–176 and Schäfer, C., “La Política de Aristóteles y el Aristotelismo político del siglo XVI”, in Ideas y Valores 119 (2002), 109–135. Note also that the concept of “slavery” is not unequivocal: since the seminal work of Tennenbaum, F., Slave and citizen, New York, 1947 it rightly has been reiterated that “slavery” can mean very different things in the context of North American and Latin American political reality, or when applied to native Americans or Africans, etc.; see on this point also Andrés-Gallego, J., La esclavitud en la América española, Madrid, 2005, 241–289. 8  See Fernández Herrero, La utopía de América, 189–193.

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of iron and the wheel, the acquisition of the alphabet, literature and the acceptance of Christian faith); the conquerors and colonists, because of the labour rendered by the native barbarians. Theorists who defended this anticipated “white man’s burden”-theory, were at pains to demonstrate the barbarity of the native people of the New World, to point out their moral depravation, and to show how this corresponded with Aristotle’s doctrine of the barbarian and the natural slave. In most cases, these attempts went hand in hand with the more literal reading of Aristotelian texts favoured by humanists over the scholastic reading with its (at least, alleged) tendency to subordinate the wording to the meaning of the text. Among the opponents of the philosophers who defended the Aristotelian doctrine on barbarism and natural slavery figured, among others, Francisco de Vitoria, Bartolomé de Las Casas, Juan de Zumárraga, Diego de Covarrubias, Domingo de Soto, and virtually the entire range of Dominican theorists in the 16th century, beginning with Antonio de Montesinos’s inciting sermons against the mistreatment of the Indians in 1511, and thinkers like Francisco Suárez and—arguably—Juan de Solórzano Pereira in the 17th century.9 Their arguments aim not so much at a critique of Aristotle’s doctrine on slavery (Aristotle remains the pivotal authority for the participants in the just war debate— although sporadically there were curiously “protestantoide” attempts in Second Scholasticism to discredit Aristotle as an authority on moral issues10), but rather at questioning and reassessing the concept of “barbarian” which it presupposed.11 More often than not, and contrasting the humanist reading of Aristotle, these tenets rested on an interpretation ad sensum of Aristotle’s text. From theologians like Las Casas to jurists like Solórzano Pereira, and early ethnographers like José de Acosta, these Spanish intellectuals were keen to show that the word “barbarian” had very different meanings, ranging from culturally advanced but foreign people(s) that had never been in touch with European culture (like the Japanese or Chinese), to people(s) who, though mostly analphabets and transgressors of the rational precepts of natural law, have customs, 9  See the famous Sermones de adviento in Las Casas, B. de, Historia de las Indias III, 3–5, Millares Carlo, A. (ed.), vol. 2, Mexico, 1965, 438–448. 10  The question about whether Aristotle and other ancient philosophers burned in hell or were saved, because through natural reason they attained a correct knowledge of God and lived according to it, was a long disputed matter and surfaced frequently in 16th century Spain; see Sepúlveda’s reaction to any such attempt, in Sepúlveda, Democrates Secundus, 78–80; Epistolario, Letter 115 to Perdo Serrano of May 10th, 1554 in Sepúlveda, J.G. de, Epistolario, in García Pinilla, I.J. and Solana Pujalte, J. (eds.), Obras Completas, vol. 9,2, Pozoblanco, 2007, 332–340. 11  See Castañeda, F., El indio entre el bárbaro y el cristiano. Ensayos sobre filosofía de la Conquista en Las Casas, Sepúlveda y Acosta, Bogotá, 2002.

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arts and norms of social and religious behavior (as the Incas and Aztecs), to sylvan stone-age savages who lead a life without institutions and show no signs of civilization.12 Solórzano Pereira’s De Indiarum iure, for one, voices this typology in the version given by Acosta (whom he praises as indorum propugnator acerrimus) and even concedes that the barbarians of the third type correspond to what would normally be considered a natural slave, but on this basis, and drawing on Domingo Báñez, Luis de Molina and Francisco Suárez, also explicitly criticizes Sepúlveda’s interpretation of Aristotle and the political and moral consequences it entails.13 Las Casas, by comparison, in his Apologia refines the pattern and defines four possible meanings of “barbarian”, adding the definition of the barbarian as the pagan to the three traditional types, which he calls “Aristotelian types”: Many indios, he maintains, can be called barbarians only according to the fourth definition.14 Most, if not all these typifications do not pretend to refute Aristotle’s reasoning, but rather tend towards denying the actual existence of wholly “Aristotelian-type” barbarians. Other thinkers, like Diego de Covarrubias, insist on the contradictions of assuming the existence of such natural slaves with the idea of the just war: if there were human beings that due to their barbarian status could not rule themselves and were unable to live in an ordered society, how could one declare war on them (maintaining the principle that war can only be declared on political entities like states)? If, on the other hand, these aborigines of the New World lived in politically organized societies of the kind that can regularly be declared war upon, how can they be barbarians of the utterly cultureless and uncivilized type? In any case, war is an affair among equals; a conflict between unequals (as between adults and children, masters and slaves) does not conveniently qualify as war. Moreover, if the barbarians accepted the rule of the culturally more advanced Spaniards, there was no need for a just war against them. But if they put resistance against the Spaniards, how could they be slaves by nature, since everything does what it does according to what it is by nature, and a slave by nature would naturally accept the rule of a superior?15 For some theorists, like Domingo de Soto, the Aristotelian argument for natural slavery in the Politics is thwarted by Aristotle’s doctrine on political friendship from the Nicomachean Ethics, which could be 12  Acosta, De procuranda indorum salute, vol. 1, 60–68. 13  See Solórzano Pereira, J. de, De Indiarum iure, Baciero, C. et al. (eds.), vol. 2, Madrid, 1999, 228–230 and 330–332. 14  Las Casas, B. de, Apologia, Abril Castelló, V. et al. (eds.), Valladolid 2000, 39–44. 15  Covarrubias, D. de, De iustitia belli adversus Indos, in Justenhoven, H.-G. and Stüben, J. (eds.), Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik, Stuttgart, 2006, 184–190.

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interpreted as a theory of putting the benefit of the servant over the master’s economic advantage.16 On the whole, most theorists followed the principle of Roman Law (philosophically echoed by Thomas Aquinas in In primum Sententiarum) which states that human beings are essentially free,17 that Natural Law accounts for that essential status, that slavery has been introduced by the ius gentium,18 or law of nations, as it were, which is subordinate to Natural Law, and that this makes the case for natural slavery as a legitimate reason for a just war a very tenuous matter.19 At the threshold of the 17th century Francisco Suárez voiced the upshot of these considerations in his De iustitia et iure, stating that it is thoroughly implausible to assume that, in certain regions of the world, entire peoples should have originated that display a complete lack of the essentially human disposition to be free, as “natural slaves” would do.20 There was yet another point that made most of those trained in Scholastic philosophy oppose the idea of reducing people to slavery in order to save their souls and to introduce them to a more civilized way of life, or to abrogate their negative freedom in order to render their positive freedom possible. For this concept seems to imply a rather un-aristotelian, even gnostic, theory of man: as if the corporeal and social life of persons were separable from their intellectual and moral life to an extent which made the former negligible and 16  See Poncela González, A., “Domingo de Soto: análisis antropológico de la facultad del dominio”, in Anuario filosófico 45 (2012), 365. 17  Thomas Aquinas, In IV Sent., dist. 36 q. 1 art. 1; see also Brett, S.F., Slavery and the Catholic Tradition, New York/Berlin, 1994, 66–78. 18  The law of nations corresponds to a set of norms and convictions that are observed habitually and from time immemorial by all or most nations in any aspects that concern relations between them (as a matter of fact, it is thought to be coeval with the existence of nations and states). It is not a catalogue of positive statutes or written laws, very much like Natural Law, which is a body of norms (if this is the right expression), or rather normative insights that derive from more fundamental insights in human rational nature: “a quasimedium between natural law and the positive law of individual states”, as Suárez put it; see Doyle, J.P., “Francisco Suárez: On Preaching the Gospel to People like the American Indians”, in Fordham International Law Journal 15 (1991), 879–951, here 902. Thus, the difference between Natural Law and the ius gentium—at least as far as the present question is concerned—is that the latter (at least in its acceptation of ius gentium inter se, which differs from the ius gentium intra se) is an international law, i.e. between nations (or states or any other autarkic political body), whereas the former is a supranational law that concerns every rational animal. 19  See for the theory of Domingo de Soto and Tomás de Mercado on this particular point, Beuchot, M., La querella de la Conquista. Una polémica del siglo XVI, Mexico/Madrid, 2nd ed. 1997, 43–46 and 121–122, respectively. 20  See Doyle, “Francisco Suárez”, 889–890, with all the pertinent quotations and loci.

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disposable in order to concentrate on the latter.21 This anthropological uneasiness was echoed also in the English theorists of the British colonization in the 17th century when they referred to the “divines of Salamanca” and their discussions concerning the indios and whether it was the appropriate procedure to “set their soules at liberty when we have brought their bodies to slaverie”.22 2.2 Offenses against Natural Law It was a matter of great dispute especially among Spanish theologians whether customary idolatry, cannibalism, incestuous relationships and human sacrifice were sufficient causes for a just war. In the case of the American Indians, the latter two were usually diagnosed to be the consequence of the former. All these were held to be offenses against Natural Law. This was more obvious in the case of cannibalism and human sacrifice, but also the idolatry of the indios neglected the insight of natural reason that there is only one god. Through right reason, pagans before the advent of Christ had understood and acknowledged that there was only one god (which is also what the Apostle Paul says in Romans 1:19–20 and in Acts 17:22–31), and this shows that every human being, through the use of natural reason, is able to recognize the truth of monotheism and act according to it. In the eyes of theorists like Sepúlveda and Motolinía, it was a question of cultural duty as well as of Christian charity to put the Indians off these infringements of Natural Law, even if by military intervention. In some cases, this line of argument was linked to the barbarian status of the Indians and was thought to underscore their rational incapacity to exercise deliberative reason and to live according to it. As Sepúlveda put it: if Christian charity and a natural sense of humaneness require that you help anyone, even a stranger, who in the darkness of night goes astray and heads toward a yawning abyss, even if you had to haul him off by force, how much more would they require that you help anyone, even foreign people, who in the darkness of their mind go astray from Natural Law, even if you had to use military force?23 The opposite side, featuring prominent theorists like de Vitoria and Las Casas and following the teaching of Aquinas, argued that no nation could be compelled to follow the precepts of either natural or divine law and that even if the aborigines of the New World transgressed the precepts of Natural Law, 21  See Schäfer, C., “‘Freedom’ oder ‘Liberty’? Der freie Mensch in der (spät)scholastischen Deutung von Aristoteles’ De anima”, in Kaufmann, M. and Schnepf, R. (eds.), Politische Metaphysik. Die Entstehung moderner Rechtskonzeptionen in der Spanischen Spätscholastik, Frankfurt 2007, 85–105. 22  Fitzmaurice, A., Sovereignty, Property and Empire, 1500–2000, Cambridge, 2014, 69–70. 23  Sepúlveda, Democrates Secundus, 88.

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this was not reason enough for declaring war on them. The same was true for their infidelity, as de Vitoria states, drawing on Cajetan and his authoritative interpretation of Thomas Aquinas. Of course, not all theorists would share Las Casas’s view that the practice of the customary holocaust of defenseless victims yielded a positive interpretation, namely, that the indigenous people of the Americas had such a fervent love, veneration and high esteem for the divine that they were readily disposed to offer them even those things that were most valuable to them, such as their own lives and that of their children.24 And certainly very few followed Las Casas’s opinion that cannibalism, incest and idolatry could not be criticized by anyone who, as the defenders of Aristotelian doctrines on barbarianism and the like, held classical antiquity in high esteem, where all this was common practice.25 Again, Sepúlveda would offer the contrarian argument: although it was an act highly agreeable to God to offer one’s heart to him, the immolation of human beings by ripping out their hearts was a grotesque misinterpretation of this act and just another proof of the utterly barbaric nature and lack of rational abilities of even the most civilized of the Indians, as was the practice of cannibalism.26 Moreover, for all his classical allusions when referring to the nature and customs of the indios, Sepúlveda was always eager to show that the people of classical antiquity were so infinitely superior that, even in their most grievous faults, they did not allow for any sort of comparison with the people of the New World—even disregarding the fact that the ancient philosophers rightly conceived of a speculative monotheism and had disavowed idolatry, which showed that human beings properly endowed with natural reason could detect the precepts of Natural Law and follow them.27 Hence, the idolatry of the barbarians showed either that they were not properly endowed with reason (and, therefore, slaves by nature), or that they were infringers of Natural Law and therefore had to be punished. Yet, it was above all the “second generation” of the School of Salamanca from the 1560s onward—with thinkers like Pedro de Sotomayor, Bartolomé de Medina, Juan de la Peña and Domingo Báñez—that progressively (if many a time critically of its excesses as the ones mentioned above) would follow the path of Las Casas and defend his stance on the question of offenses against Natural Law and, even more so, on whether or how to punish them, a point

24  Las Casas, Apologia, 234–239. 25  Traboulay, D.M., Columbus and Las Casas. The Conquest and Christianization of America, 1492–1566, Lanham/London 1994, 170–174. 26  Sepúlveda, Democrates Secundus, 68. 27  Sepúlveda, Democrates Secundus, 75–82.

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that would also strongly concern the debate over the third argument for just war, namely humanitarian intervention.28 2.3 Humanitarian Intervention The theory of legitimate military intervention in order to save and defend innocent lives presents a more obvious case than the two mentioned so far, and accordingly, this is the one argument where many theorists of the era seem to come to an agreement, be it that they see such a military action as a vindicative or a punitive war against those who threaten the lives of the defenseless innocent in need for help. Thus is the opinion of Francisco de Vitoria, Domingo de Soto, Sepúlveda, Diego de Covarrubias or Francisco Suárez, to name just a few, who all draw, to a different extent, on Aquinas’s theory of humanitarian intervention.29 In the 16th century, this argument concerned, above all, the practice of human sacrifice and related customs like the “flower wars” of the Aztecs (actually a bellicose “harvesting” of human oblations) with their high numbers of innocent victims. Since a defensive war led with the intention of reconquering a realm unjustly occupied by an enemy or averting an aggression or serious injustice on part of the indios could not come into consideration for the legitimateness of the Conquista, many theories centered on the idea of a substitutional defense and vengeance for those people who were militarily not strong enough to act in self-defense.30 Yet, interventionism had its opponents. Las Casas, for one, who otherwise accepted the principle that Christian charity required that every human being was obligated to come to the assistance of those in need and under the threat of death, claimed that a military intervention of the sort that the Spanish 28  Abril Castelló, V., “Bartolomé de las Casas y la segunda generación de la Escuela de Salamanca (Documentos inéditos para una revisión del legado filosófico-jurídico lascasiano)”, in Revista de filosofía 6 (1983), 11–14. 29  Vitoria, F. de, De indis, Hernández Martín, R. (ed.), Relecciones jurídicas y teológicas, Salamanca, 2017, vol. 2, 688–690; Vitoria, F. de, Fragmentum Relectionis de Temperantia, in Hernández Martín, R. (ed.), Relecciones jurídicas y teológicas, vol. 2, 702–738; Soto, D. de, De iustitia et iure, V q. 3 art. 5, Lyon, 1564, 153–154; Sepúlveda, Democrates Secundus, 60; 85–86; 102; Covarrubias, De iustitia belli adversus Indos, 208–210; Suárez, F., De fide, in Opera omnia, vol. 12, Paris, 1858, 743. See also Beestermöller, G., “Thomas Aquinas and humanitarian intervention”, in Justenhoven, H.-G. and Barbieri Jr., W.A. (eds.), From Just War to Modern Peace Ethics, Berlin/Boston 2012, 71–98. 30  To name just a few examples: Benavente, T. de, Carta al emperador, Pérez Fernández, I. (ed.), Fray Toribio Motolinía OFM frente a fray Bartolomé de Las Casas OP: estudio y edición crítica de la carta de Motolinía al emperador, Salamanca, 1989, 112 and 130; Vitoria, De indis, 690 sq., who, however, makes it clear that a lawful humanitarian intervention cannot become a legitimate conquest without an additional justification, a point that is found in many, if not most theorists who seem to favour interventionism in their theories of just warfare.

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conquerors practiced was tantamount to “driving out demons by Beelzebul” and, in accordance with his gloomy description of the atrocities of the Spanish conquest on the Antilles, even maintained that the practice of human sacrifice on a grand scale and the immolation of innocents had to be regarded the lesser evil by comparison. Instead, following Cajetan, he advocated a peaceful intervention through “gentle persuasion” by evangelization and education,31 and quite a number of other authors would follow him in this point to different degrees.32 2.4 Religious and Cultural Exchange Another point of almost general agreement was that the conquest should secure the preaching of the gospel in the New World. Or rather, agreement was virtually unanimous that the facilitation of the unimpeded exchange of religious ideas, as well as the enabling of trade relations, corresponded to Natural Law and its conception of the communitas orbis in certain respects. As far as trade and commerce are concerned, the pertaining considerations offered a welcome opportunity for most authors to distinguish them from the raids and exploitation of the indigenous people by the conquerors, a point which in turn concerns the ius in bello.33 Nonetheless, freedom of movement and trade were looked upon by some theorists as a just title for a defensive war against those who hampered this freedom—at least, de Vitoria (as well as many of his followers like Alonso de la Veracruz and the jurist Fernando Vázquez de Menchaca, who had a notable influence on Grotius and other disseminators of the idea of international law) argued that the Spaniards should be given the same rights to free exchange of material (and cultural) goods in the territories discovered by them that the Indian nations conceded to each other before and after the discoveries.34 Not surprisingly, views differed on exactly how much

31  See, e.g., Las Casas, Apologia, 28; 92–93; 169–171 et passim. 32  See for example Zumárraga, J. de, Segundo parecer sobre la esclavitud, Herrejón Peredo, C. (ed.), Textos políticos en la Nueva España, Mexico, 1984, 182, and some of the representatives of the “second generation” of the Salmantine School named above. 33  Such is the case, for example, of Mercado, T. de, Suma de tratos y contratos II, 2, SánchezAlbornoz, N. (ed.), Madrid, 1977, 64–65. 34  See Vitoria, De indis, 658–676; see Beuchot, M., La querella de la conquista, Mexico, 1997, 101–102. Interesting by way of comparison is the fact that the British colonists of Virginia in the 17th century took up this legitimate title as the predominant justification of their American endeavor, conceived as a sort of impassive coexistence with the Indians in a resource-rich borderland: to colonize “by discoverie, and trade of merchants, where all temporall meanes are used for defense, and security, but not for offence, or crueltie”; see Fitzmaurice, Sovereignty, Property and Empire, 70.

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military backing, if any, the exercise of these rights required. And then there were always those who strongly opposed the idea of such a freedom of trade.35 A point of major disagreement, in contrast, was whether military action was permissible for the protection of missionaries among newly discovered peoples, and if so, to what extent. There was a tradition, stemming from John Duns Scotus, Gabriel Biel and John Mair, that argued in favour of coercing infidels by force to accept the Christian faith, and these arguments were looked upon by many as authoritative. In turn, those theologians who in the 16th century advocated an evangelization of the indigenous peoples in the fashion of the apostles and the primitive church without military protection faced a major setback when in 1521 the experiment of a peaceful mission in Cumaná, the first Spanish settlement on the American continent, resulted in the destruction of the missions and casualties among the missionaries by the hand of the Indians of the region.36 In the face of facts like these and other considerations many, like Vasco de Quiroga and notably Luis de Molina, discussed whether that the times of peaceful evangelization were long over and whether the spreading of the faith had to follow military and political expansion, not vice versa.37 Distinguished jurists like Juan López de Palacios Rubios, the editor of the text of the famous “requerimiento” (on which see infra 3), backed this view. In their eyes, anyone who made the profession of the gospel impossible could be justly warred upon. And since Aristotle had authoritatively stated in the fifth book of his Metaphysics, that things that were very hard to achieve could be counted as impossible, and things being as they were in the New World, this view was applicable to the case of the indios. On the opposite side, Las Casas, following Montesinos and in accordance with many other Dominican thinkers (but also the Augustinian Alonso de la Vera Cruz, for instance), proposed the same principle of peaceful intervention through careful persuasion by evangelization and education that Las Casas had already advocated in the question of humanitarian intervention. For him and his supporters, the military operations of the Spanish conquerors flagrantly contravened and even baffled the dissemination of the Christian faith.38

35  See Covarrubias, De iustitia belli adversus Indos, 210. 36  Sepúlveda explicitly used this as an argument in Democrates Secundus, 93–94; for similar failed experiments in the early 16th century see Carrasco, P., and Céspedes, G., Historia de América Latina I: América indígena/La conquista, Madrid, 1985, 337–338. 37  At least throughout his Información en derecho, see Beuchot, La querella de la conquista, 75–78. See also Molina, De iustitia et iure, tract. II disp. 107,5, Mainz, 1614, 433. 38  See Beuchot, La querella de la conquista, 48–49; 64–65; 93–94.

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Legitimate Authority

On the part of the “how-component” of a just war, the issues of legitimate authority and of the ethics in waging war were the most contentious. A just war has to be declared by a legitimate authority, the consensus on this point is unanimous among the Spanish theorists of the time. Yet, there was a diversity of interpretations about what exactly the term “legitimate authority” implied. The highly controversial debate on this point does not so much concern the problem of who had to be considered as such an authority—it is the legitimate representative (government or prince) of a political entity, more precisely of a state, a republic, realm, empire or kingdom. It rather has to do with the Aristotelian idea of the essential autarchy of these political entities, which could not preserve this autarchy if they had not the right to armed resistance, and with the conception of the ruler as representative of the state in Augustine and in Roman Law.39 The problem was to identify whether such an authority could declare a just war on peoples like the indios of the New World or confer on others the right to subdue and conquer them. The protagonists of the debate—de Vitoria, Sepúlveda, Las Casas—concentrated on the question whether the legitimacy of such a war could rely on the authority of the emperor (given that at the time the Spanish king Charles I was also emperor Charles V of the Holy Roman Empire) or the pope. Many of these problems converged on the discussion about the content and practice of the so-called requerimiento. Since 1513, Spanish conquerors by law had to read out an official charter of appropriation which, by alluding to the right of the pope to empower the Spanish king to control and to convert the people of the New World, instructed the Indians to submit peacefully (hence “requerimiento”, which means “demand” or “admonition”). The Indians were given time to deliberate, but also were advised that if they refused to comply, the Spaniards would consider themselves entitled to force them into submission.40 Though the requerimiento was thought to be an essential component of the correct way to declare war and should help to prevent jeopardizing the justification for engaging in war, the effeteness and shortcomings of the requerimiento practice were blatant and repeatedly denounced even by thinkers at odds with each other like Bartolomé de Las Casas and Gonzalo Fernández de Oviedo.41 39  See for example Melchor Cano, De bello, 146–148. 40  See Fernández Herrero, La utopía de América, 212–216. 41  Sepúlveda, in turn, refers some of his considerations on the legitimacy of the conquest directly to the wording of the requerimiento; see Sepúlveda, Democrates Secundus, 61–62.

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3.1 Imperial Authority Following the teachings of de Vitoria’s Relectiones de Indis (who, in turn draws on Thomas Aquinas, Summa theologiae I q. 92 a. 1 and q. 96 a. 4), most theorists discarded the idea that the emperor is master of the whole world and that even peoples that never belonged to the Roman Empire had to accept him as their superior overlord, which would allow him to wage or commission others to wage war against them if they did not voluntarily submit to him. De Vitoria adduces several reasons for that. The first draws directly on Thomas Aquinas who states that as far as Natural Law is concerned, the emperor cannot be lord of the world since men are naturally born free of political rule and only submitted to the dominion of their fathers (or husbands, as the case may be). All other forms of dominion are not by Natural Law, but historically introduced by human law. Similarly, as regards Divine Law: there never were princes considered as masters of the world before the advent of Christ, although kings, like Saul and David in the Old Testament, received their kingship from God. Obviously, God never conferred political dominion over the whole world to anyone (which in turn is what the devil can offer: Luke 4:5–7), and although it is true that the Romans received their imperial power in compliance with God’s providence, as both Augustine and Thomas Aquinas affirm, this does not prove that the Romans held their empire by divine institution and that God conferred universal power over all nations to them. And finally, the third reason shows that no human law can determine the global range of imperial power, since this would presuppose the enactment of a respective law, i.e. that everyone has to obey the emperor. But there is no such law, and, what is more, there could never be any such law, since the enactment of this law would presuppose a global jurisdiction on part of the lawgiver and the global jurisdiction in turn would presuppose the enactment of this law.42 Vitoria’s tenets were elaborated on by others like Alonso de la Vera Cruz and Diego de Covarrubias, who affirmed that according to Natural Law power is bestowed on a ruler through a form of social contract (as indicated in the lex regia de imperio of the Roman Law), but that this is impossible in the case of a global ruler since there has never been such an official bestowment of universal power on any person by all mankind.43 Sepúlveda and his followers, on the other hand, seemed to hold that Augustine and the tradition of Roman Law proved that imperial power meant just that: a claim to universal power which amounted to an entitlement in political affairs even in those territories that did not belong de facto to the imperial realm and consequently concerning 42  Vitoria, De Indis, 658–586. 43  Covarrubias, Regulae ‘Peccatum’ relectio, pars II, § 9, num. 5, Lyon, 1560, 228.

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those who are not his subjects. From their point of view, the historical development of imperial power, providence and the divine institution of that power converged to the point of forging a sustainable argument. 3.2 Papal Authority A relatively small group of theologians maintained that given that all power stems from God, the Roman pontiff as the vicar of Christ holds the universal plenitude of power also in temporal matters and that the power of the emperor and all other political rulers was subdelegated through the pope. From this, these authors deduced, as de Vitoria distastefully put it, “that the pope, as temporal lord, was freely empowered to make the kings of Spain princes of the barbarians”, and “if the barbarians refuse to recognize the pope’s temporal dominion over them, he is at any rate empowered on this ground to declare war on them and impose princes on them”.44 In the same line described by de Vitoria, Sepúlveda’s theory of just war reiterates a further traditional argument, which portends to the reasons for protecting missionaries among newly discovered peoples: the papal decisions that entrusted the evangelization of the New World to the kings of Spain (especially pope Alexander VI’s bull Inter cetera from 1493 and the Treaty of Tordesillas from 1494) presupposed that the Roman pontiff could authorize, or even command temporal princes to safeguard the proclamation of the gospel among the barbarians, even if by military force.45 Vitoria, partly inspired by John Mair’s teachings on this point, disproves all this on the ground that, though God’s dominion over the world can be proven by natural reason, no such compelling proof can be given for the historical fact that this power has been delegated to the pope and that the pope can freely dispose of it. Therefore, the barbarians cannot be expected to accept the papal dominion over their lands and reigns, de Vitoria states, adducing the authority of testimonies by Pope Innocent IV, Thomas Aquinas and Cajetan.46 Most theorists would produce similar arguments. 4 The ius in bello: Moral Standards and Rightful Intention A just war must be waged with a rightful intention, which means that the aspired result is conspicuously preferable to the morally inacceptable situation before the war. Ultimately, the aim of war has to be stable peace (as the 44  Vitoria, De Indis, 588; see Beuchot, La querella de la conquista, 29–33. 45  Sepúlveda, Democrates Secundus, 74; 89–92; 100–101, et passim. 46  Vitoria, De indis, 606–610.

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foundation of justice), as Augustine declared and many theorists repeated.47 Anything that jeopardizes this ideal of creating, keeping or restoring a just state of affairs invalidates the legitimacy of the war. This is also the case when it is this ideal that is mainly sought after, but additional intentions beyond the rightful intention obfuscate its rightfulness. Considerations on what has to be considered the “lesser evil” in these situations and whether the “lesser evil” can actually take the place of a good in moral considerations (since the “synderesis rule” as the formal principle of all ethical considerations explicitly states that it is good that is to be chosen and that evil is to be avoided, as Aquinas has it e.g. Summa theologiae I–II q. 94 a. 2) was a millennial issue and a matter of ongoing dispute: the lesser evil has the strength of the good (minus malum vicem habet boni), Sepúlveda declared drawing on Aristotle.48 But also the manner and method of warfare require compliance with certain standards, and this, too, was related to the problem of collateral, originally unintended results and the question of lesser evils. These standards are determined by the legal and ethical considerations on the validity and the moral rules in a state of war, the ius in bello or debitus bellandi modus, the due manner of waging war. A war may be declared by a legitimate authority with just cause and rightful intention and nevertheless forfeit its justness by seriously infringing these moral standards—and agreement on these standards was almost uncontroversial and practically commonplace (some of them also make an appearance in literature, e.g., in Shakespeare’s Henry V., act 3 scene 6)—although this agreement often would crumble when it came to determine certain historical facts as (even barely) meeting these standards or not. The standards concerned moral actions of all kinds: robbery, rape, looting, extortion, violence against non-combatants, defenseless enemies or peace envoys etc., were disallowed on the whole or at any rate to a certain degree when practiced with high frequency. As a rule, theorists were realistic enough to admit that moral transgressions of this kind regrettably were common in warfare and that not every soldier could be thoroughly controlled. The dissoluteness and intemperance of soldiers was proverbial since the times of Aristotle.49 However, a war in which infringements of these moral standards amounted to a daily occurrence, formed as part of a vindicative agenda, was encouraged or systematically condoned by commanders and princes, or in any other aspect belonged to the programmatic intentions of the belligerent party, was 47  E.g. Augustine, Epistola 189, 57, 6 (PL 33), 856. 48  Sepúlveda, Democrates Secundus, 57; 97; see also Aristotle, Nicomachean Ethics 1129 b 8 and 1132 b 22. 49  See Aristotle, Politics 1269 b 19–31.

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condemned and no longer looked upon as a just war, regardless of the legitimacy of its cause, authority or the validity of its original intention. Two things, then, have to be established: firstly, the factual moral atrocities of a war cannot annihilate the justness of the war’s cause or the war’s legitimacy per se, since, as Sepúlveda states when pondering these, “we here do not dispute about the moderation or nefariousness of soldiers and commanders, but about the nature of this war insofar it concerns the justice of the prince of Spain and his ministers”;50 secondly, the same Sepúlveda in the same paragraph of his work identifies another very interesting argument that rests upon the idea of moral standards more or less casuistically defined in the discussions of the Spanish conquest, and this argument was shared, in one way or another, by many, if not all theologians and philosophers of the time: an armed campaign that constantly infringes these standards and openly displays indifference or even disdain on the part of the political and military leaders towards any such standards would lose the character of a “war” and should rather be termed “raid” or “assault”.51 In the just war theory of Second Scholasticism, “war” is a normative concept (and exigently may mirror quality standards from medieval chivalry and a theory of the honestas rei militaris, the integrity of belligerence), no less than “justice”, and the ius in bello, as well as partly the considerations on legitimate authority, more often than not called the normative force of “war” into question, whereas the “justice” aspect was more specifically determined by the consideration of just causes, rightful intention, objectives, and the like. 5 Conclusion The debate over the just war and the Conquista was heated, entangled, highly sophisticated, analytical and systematic in both its historical and philosophical deliberations (and in its reflections on how and to what extent historical facts and philosophical reasons were liable to influence or even to invalidate each other) as well as, in most cases, incredibly erudite, even to the point of seeming insipidly dry, merely notional or contrived. On the other hand, it showed a serious humanitarian, and a deep theological and pastoral concern. Like its model of the High Scholasticism of centuries past it was unpretentious and did not make any claims to innovations but was incredibly resourceful and successful in applying the realist worldview of Aristotelian philosophy 50  Sepúlveda, Democrates Secundus, 61. 51  See also Sepúlveda’s Democrates Secundus, 61–62.

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to dramatically new historical contexts and practical challenges. Thus, it also proved to be a stress test for the systematical question of the universalizability, or at least the globalizability, of the main tenets of Aristotelian ethics and its Christian interpretation. As far as method is concerned, the arguments of the debate rested on a firm scholastic groundwork and the integrated techniques and expertise of Renaissance education. Its protagonists and opinion formers were scholars, most of them professors, jurists, churchmen and humanists, but the debate also was animated and passionate among politicians, soldiers, colonists and almost every other population group in Spain and in the newly discovered and colonized territories.52 It even preoccupied the monarch and the royal Court to the extent that former generations of historians terminologically suggested a “duda Indiana”, an “Indian qualm” of the crown with regards to the legitimacy of the Conquista and colonization of the New World. Many of the arguments and the views advanced by the learned experts were not necessarily exclusive property of their exponents, though their works prove them to be highly original and independent thinkers, but rather “in the air” and the fruit of a common academic and spiritual culture. Due to this, identical or similar arguments and lines of thought surprisingly often developed independently from each other. Therefore, it seems questionable to insist on dependencies between certain thinkers, though this may seem inviting in the case of those whose writings epitomize a certain stance in the debate and display a line of thought to a certain completeness, as for example de Vitoria, Las Casas, and Sepúlveda. But many, if not most of Las Casas’s views are found in thinkers like Zumárraga, who writes his Segundo Parecer without knowledge of the former’s work; in Mexico Motolinía presents many of Sepúlveda’s thoughts in his Carta al Emperador from 1555, but Sepúlveda’s respective writings, his Democrates Secundus and its Apologia, were either not given the permission to be published (the former) and could be known only through the summaries of his enemies at the Dispute of Valladolid, or their exportation to the Indies was prohibited (the latter). Many thinkers of the era show striking similarities in their tenets with de Vitoria’s main arguments, though writing before him or at the same time at distant places53—disregarding the fact that his Relectiones were not published until the 1570s and before that circulated only in a 52  See Sepúlveda’s pertinent remarks in Democrates Secundus, 39. 53  Beuchot, La querella de la conquista, gives a whole series of such prominent arguments by various authors that, though in striking accordance among themselves, do not seem to admit for a construction of historical filiations or dependencies, or at least not to call for them, e.g. on 75–76, 89, 92–94, etc.

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l­imited number of handwritten copies among the Dominicans in Spain (although it must be admitted that the exchange of thoughts through such circulations of manuscripts or, perhaps, peciae, limited as their number must have been, could be astonishingly swift, mainly within a religious order and between universities). Lastly, the considerations of the Spanish theorists on the legitimacy of the conquests in the New World are not always explicitly referring to these conquests. Whereas Las Casas, de Vitoria and Sepúlveda, to name only these three again, expressly write on the war in the New World, very little of the many things Suárez has to say about war and barbarians is specifically attributed to the Conquista and the indios. Still, in most cases it was clear from any serious just war theory of the era what its deliberations meant for the Spanish conquest in America. Such is the case of Melchor Cano, who, writing in his De bello in a very general way on the just war, makes it clear that, according to his reasoning, the only undisputable legitimate cause for any military campaign was the defense against or punishment of experienced injustice. And since no such injustice was ever suffered by the Spaniards before the beginning of their conquests, it is abundantly clear what that means for his stance towards the Conquista—although he also ponders the possibility that at least a military safeguard for missionaries in countries whose people have formally asked for the Christian faith could be in place.54 Thus, the debate on the legitimacy of the Conquista must be looked upon as an astounding chapter of the history of political theory, moral philosophy and practical theology, and it displays the intellectual potential of all three to its best. Last, but not least this scholarly debate with its extensive range of influence has its merits in its historical uniqueness, too, as the historian Hugh Thomas aptly put it in his monumental The Conquest of Mexico: “The arguments seem today remote and dry. Yet no other European empire, neither the Roman, the French, nor the British, entered upon such discussions about the purposes of their expansion”.55

54  Cano, De bello, 150. 55  Thomas, H., The Conquest of Mexico, London, 1993, xii.

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Bibliography Sources

Acosta, J. de, De procuranda indorum salute, Pereña, L. et al. (ed.), Corpus Hispanorum de Pace, vols. 23 and 24, Madrid, 1984 and 1987. Benavente, T. de, Carta al emperador, Pérez Fernández, I. (ed.), Fray Toribio Motolinía OFM frente a fray Bartolomé de Las Casas OP: estudio y edición crítica de la carta de Motolinía al emperador, Salamanca, 1989, 111–135. Cano, M., Quaestio XL ‘De bello’, in Justenhoven, H.-G. and Stüben, J. (eds.), Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik, Stuttgart, 2006, 144–173. Covarrubias y Leyva, D. de, De iustitia belli adversus Indos, in Justenhoven, H.-G. and Stüben, J. (eds.), Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik, Stuttgart, 2006, 174–212. Covarrubias y Leyva, D. de, Regulae ‘Peccatum’ de regulis iuris, libri VI., relectio, Lyon, 1560. Las Casas, B. de, Apologia, Abril Castelló, V. et al. (eds.), Valladolid, 2000. Las Casas, B. de, Historia de las Indias, Millares Carlo, A. (ed.), Mexico 2nd ed. 1965. Mercado, T. de, Suma de tratos y contratos, Sánchez-Albornoz, N. (ed.), Madrid, 1977. Molina, L. de, De iustitia et iure, Mainz, 1614. Quiroga, V. de, Información en derecho, Herrejón Peredo, C. (ed.), Mexico, 1985. Quiroga, V. de, La utopía en América, Serrano Gassent, P. (ed.), Madrid, 2002. Sepúlveda, J.G. de, Democrates Secundus, Coroleu Lletget, A. (ed.), Obras Completas, vol. 3, Pozoblanco, 1997, 39–134. Sepúlveda, J.G. de, Epistolario, García Pinilla, I.J. and Solana Pujalte, J. (eds.), Obras Completas, vol. 9,2, Pozoblanco, 2007. Solórzano Pereira, J. de, De Indiarum iure (Liber II: De acquisitione Indiarum), Baciero, C. et al. (eds.), Madrid, 1999. Soto, D. de, De iustitia et iure, Lyon, 1564. Suárez, F., Opera omnia, Berton, C. (ed.), Paris, 1856–1878. Vio, Th. de (Cajetanus), Commentaria in Summam theologicam Angelici Doctoris S. Thomae Aquinatis, vol. 1, Prosper, H. (ed.), Lyra, 1892. Vitoria, F. de, De indis, Hernández Martín, R. (ed.), Relecciones jurídicas y teológicas, Salamanca, 2017, vol. 2, 483–739. Vitoria, F. de, Political Writings, Pagden, A. (ed.) and Lawrance, J. (trans.), Cambridge, 1991. Zumárraga, J. de, Segundo parecer sobre la esclavitud, Herrejón Peredo, C. (ed.), Textos políticos en la Nueva España, Mexico, 1984, 173–183.

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Secondary Literature

Abril Castelló, V., “Bartolomé de las Casas y la segunda generación de la Escuela de Salamanca (Documentos inéditos para una revisión del legado filosófico-jurídico lascasiano)”, in Revista de filosofía 6 (1983), 5–19. Andrés-Gallego, J., La esclavitud en la América española, Madrid, 2005. Beestermöller, G., “Thomas Aquinas and humanitarian intervention”, in Justenhoven, H.-G. and Barbieri Jr., W.A. (eds.), From Just War to Modern Peace Ethics, Berlin/Boston, 2012, 71–98. Beuchot, M., La querella de la Conquista. Una polémica del siglo XVI, Mexico/Madrid, 2nd ed. 1997. Brett, S.F., Slavery and the Catholic Tradition, New York/Berlin, 1994. Carrasco, P. and Céspedes, G., Historia de América Latina I: América indígena/La conquista, Madrid, 1985. Castañeda, F., El indio entre el bárbaro y el cristiano. Ensayos sobre filosofía de la Conquista en Las Casas, Sepúlveda y Acosta, Bogotá, 2002. Castilla Urbano, F., El pensamiento de Juan Ginés de Sepúlveda. Vida activa, humanismo y guerra en el Renacimiento, Madrid, 2013. Doyle, J.P., “Francisco Suárez: On Preaching the Gospel to People like the American Indians”, in Fordham International Law Journal 15 (1991), 879–951. Fernández Herrero, B., La utopia de América. Teoría—leyes—experimentos, Barcelona, 1992. Fitzmaurice, A., Sovereignty, Property and Empire, 1500–2000, Cambridge, 2014. Kany, R., “Augustine’s theology of peace and the beginning of Christian just war theory”, in in Justenhoven, H.-G. and Barbieri Jr., W.A. (eds.), From Just War to Modern Peace Ethics, Berlin/Boston, 2012, 31–44. Keller, A., “Cicero: Just war in Classical Antiquity”, in Justenhoven, H.-G. and W.A. Barbieri Jr., W.A. (eds.), From Just War to Modern Peace Ethics, Berlin/Boston, 2012, 9–29. Poncela González, A., “Domingo de Soto: análisis antropológico de la facultad del dominio”, in Anuario filosófico 45 (2012), 343–366. Scattola, M., “Krieg und Erfahrung. Über den Kriegsgedanken im Horizont frühneuzeitlichen Wissens”, in Justenhoven, H.-G. and Stüben, J. (eds.): Kann Krieg erlaubt sein? Eine Quellensammlung zur politischen Ethik der Spanischen Spätscholastik, Stuttgart, 2006, 11–53. Schäfer, C., “‘Freedom’ oder ‘Liberty’? Der freie Mensch in der (spät)scholastischen Deutung von Aristoteles’ De anima”, in Kaufmann, M. and Schnepf, R. (eds.), Politische Metaphysik. Die Entstehung moderner Rechtskonzeptionen in der Spanischen Spätscholastik, Frankfurt, 2007, 85–105.

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Schäfer, C., “La Política de Aristóteles y el Aristotelismo político del siglo XVI”, in Ideas y Valores 119 (2002), 109–135. Tennenbaum, F., Slave and citizen, New York, 1947. Thomas, H., The Conquest of Mexico, London, 1993. Traboulay, D.M., Columbus and Las Casas. The Conquest and Christianization of America, 1492–1566, Lanham/London, 1994.

chapter 9

The Debate of Valladolid (1550–1551): Background, Discussions, and Results of the Debate between Juan Ginés de Sepúlveda and Bartolomé de las Casas Francisco Castilla Urbano 1 Background The Valladolid debate (1550–1551) had as its main protagonists the Dominican Bartolomé de las Casas, bishop of Chiapas, and the humanist Juan Ginés de Sepúlveda, royal chronicler to the emperor Charles V.1 The debate was the culmination of a personal, ideological, and political confrontation, the cause of which can be ascribed to the promulgation of the New Laws of the Indies (1542) inspired by Las Casas. Among other reforms, the New Laws ordered the disappearance of the encomiendas, which caused the displeasure of many an encomendero in the New World. After generating a huge conflict that led even to the murder of the viceroy of Peru, Blasco Núñez Vela, the Spanish crown revoked the new legislation on the encomiendas,2 although their decline would prove to be unstoppable until their official disappearance in the eighteenth century. At court, supporters of the encomenderos found in Sepúlveda a defender of their ideas. At the request of the president of the Council of the Indies, the cardinal and archbishop of Seville García de Loaysa3 (who never cared much for 1  Translated by Carlos Diego Arenas Pacheco. 2  Las Casas, B. de, Apologia, in Losada, Á. (ed.), Obras completas, vol. 9, Madrid, 1988, 52. See Pérez Fernández, I., “Las ‘leyes nuevas de Indias’ nunca fueron revocadas (Contra lo que se ha dicho durante más de cuatro siglos)”, in Communio 31 (1998), 117–40. 3  Sepúlveda, J.G. de, “Proposiciones temerarias, escandalosas y heréticas que notó el doctor Sepúlveda en el libro de la conquista de Indias, que fray Bartolomé de las Casas, obispo que fue de Chiapa, hizo imprimir ‘sin licencia’ en Sevilla, año de 1552, cuyo título comiença: Aquí se contiene una disputa o controversia”, in Fabié, A.M. (ed.), Vida y escritos de Don Fray Bartolomé de las Casas, obispo de Chiapa, vol. 71, Colección de documentos inéditos para la historia de España, Madrid, 1879, 336.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_011

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the Indians),4 Sepúlveda wrote in 15475 his Democrates alter sive de justis belli causis apud Indos dialogus (The Second Democrates, or a dialogue on the just causes of war with the Indians), where he employed his ideas on just war developed in several of his previous works, and which found their culmination in his dialogue Democrates primus sive de convenientia disciplinae militaris cum Christiana religione dialogus (The First Democrates, or a dialogue on the conformity of military training with Christian religion, Rome, 1535). After writing his Democrates alter, Sepúlveda needed to secure a publishing license from the Council of Castile. He finally requested it with the approval of Fernando Guevara, Fray Diego de Vitoria (brother of Francisco de Vitoria), and Álvaro Moscoso, but “certain persons of authority from the Council of the Indies intervened, saying that, although the book was very good, it was not convenient for it to be printed at the time”.5 The publication was therefore delayed not by the intervention of Las Casas, who at that time was in the Indies, but because within the Council of the Indies itself (and perhaps in other instances of government as well) there existed voices opposed to the extolling of conquerors and encomenderos. Las Casas tells us that Sepúlveda sent his work to the Council of Trent and that the Council disregarded it.6 A letter written by the comendador mayor Juan de Zúñiga and Avellaneda to Charles V, dated September 27, 1545, tells us of the disagreement between the Council of Castile and that of the Indies.7 The emperor ordered that Sepúlveda’s dialogue be attentively read and given authorization to be printed it if no impediment was found,8 and so it was turned over “again to the licenciado Francisco de Montalvo, who also approved of it”.9 The opposition of Las Casas, recently arrived from the Indies in 1547, led the Council of Castile to request from the universities of Salamanca and Alcalá their opinion on the printing of the dialogue. From then on, the opposition against Sepúlveda continued to grow uninterruptedly: the Provincial Chapter of the Dominicans in Andalusia, held at 4  Hanke, L., La lucha por la justicia en la conquista de América, Madrid, 1988, 234, 236, 238, 248 y 334. 5   Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 336: “[…] Se interpusieron ciertas personas de autoridad del Consejo de Indias, diziendo: que aunque el libro fuese muy bueno no convenia por entónces se imprimiese”. 6  Las Casas, B. de, Apologia, Abril Castelló, V. et al. (eds.), Valladolid 2000, 631. 7  Losada, Juan Ginés de Sepúlveda a través de su “Epistolario” y nuevos documentos, 631. 8   Beltrán de Heredia, V., Cartulario de la Universidad de Salamanca (1218–1600), vol. 3, Salamanca, 2001, 325–326 (cédula from March 20, 1547). 9   Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 337.

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the convent of San Pablo de Córdoba, debated on the issue of just war and other matters discussed in the Democrates alter.10 Las Casas, who had not read the book, took upon himself to refute the contents of the dialogue during a meeting with Sepúlveda held at the University of Alcalá de Henares based on a summary in Spanish (presumably a draft version of Sepúlveda’s Apología).11 The University rejected the printing of the dialogue because “his doctrine fully proves what it tries to prove, but since it is not sufficiently reliable it is not convenient that said book be printed and disseminated”.12 At the University of Salamanca, a faculty meeting held on November 16, 1547 elected Juan Puebla, Pedro Suárez, Antonio de Aguilera, Diego de Covarrubias, Francisco Sancho, Gregorio Gallo, Juan Gil de la Nava, and Melchor Cano to judge the book— in July 16, 1548 the committee ultimately voiced its opposition against its publication.13 Sepúlveda complained that the committee’s response was made in the name of the University itself and not in the individual names of the eight commissioned professors;14 he knew, in addition, that their rejection had to do with “the matter of the war against the savages [barbarici]” and with his Aristotelian theory of natural slavery.15 Sepúlveda considered the response from the universities insufficient and unfounded,16 and blamed the opposition of “violent, unbridled, and envious men, who stubbornly put their appetite before justice and the truth, and consider a merit to loudly oppose the achievements of others and to discredit their merits”.17 According to Sepúlveda, the leading role behind said group of “envious” men corresponded undoubtedly to “the trickery and deception of their most cheating general, who stirred up and led his troops to treachery with deceit and ploys, the same troops with whose help I fancied myself a sure winner”18—namely, Las Casas. 10  Sepúlveda, Epistolario, carta 69 de Martín Oliván, 1 agosto 1548, 177. 11  Las Casas, Obras completas, 9. Apologia, 53. 12  Gómez de Castro, De las hazañas de Francisco Jiménez de Cisneros, Madrid, 1984, 553: “La doctrina prueba plenamente lo que intenta, pero como no es suficientemente segura, no es conveniente que dicho libro se imprima y se divulgue”. 13  “Actas de la Universidad de Salamanca acerca de un libro de Sepúlveda”, in Peña, J. de la, De bello contra insulanos. Intervención de España en América, vol. 1, Pereña, L. et al. (eds.), Madrid, 1982, 500. 14  Sepúlveda, Epistolario, letter 82 to Melchor Cano, July 15, 1549, 238. 15  Ibid., letter 74 to Melchor Cano, December 26, 1548, 190 y 197, and letter 82, July 15, 1549, 239. 16  “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 337. 17  Sepúlveda, Epistolario, letter 71 to Alonso Guajardo, October 31, 1548, 182. 18  Ibid., letter 72 to Martín Oliván, November 1, [1548], 184: “[…] Las mañas y engaños del general más tramposo, que soliviantó y empujó a la traición con engaños y tretas a las tropas con cuyo concurso yo me creía seguro vencedor”.

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Dispirited by not being able to publish his Democrates alter, Sepúlveda continued to exert pressure not only on the Council of Castile but also on prince Philip, requesting that they might assemble “a more upstanding tribunal” with members of the Council (whose president until 1547, the archbishop of Seville Fernando de Valdés, had praised the book),19 alongside other theologians from Salamanca and Alcalá. However, the emperor Charles V decided to resort to the Council of the Indies, which was to meet with representatives from the other Councils and with four theologians to form the now famous Junta de Valladolid. Before this meeting took place, however, and in his eagerness to obtain authorization to publish the Democrates secundus, Sepúlveda authored several apologetical texts.20 One of them, the Apología pro libro de justis belli causis was published in Rome on May 1, 1550. It is more than likely that the idea of sending his Apología (a scholastic summa on the issue of just war) to its friend, the auditor of the Apostolic Tribunal of the Roman Rota, Antonio Agustín, was suggested to Sepúlveda by his enemy Melchor Cano.21 Undoubtedly, Sepúlveda wished to naysay those who denied he possessed any knowledge of theology, something that he took not only as a personal insult but as an invective that greatly undermined the credibility of the Democrates alter.22 After the difficulties he experienced in his meetings with theologians from Alcalá and Salamanca, Sepúlveda intended to make the content of his Apología more accessible to those unfamiliar with humanist literature or to those who simply rejected it.23 Hence, in his text he makes continual references to Augustine and other Church Fathers, mentioning Thomas Aquinas and canon law occasionally, a feature that made the Apología more attractive to a scholastic audience than a dialogue like the Democrates, full of pagan references. Nevertheless, the Apología did not have a long public life: Las Casas tells us that copies of the book “were ordered to be collected throughout Castile”,24 and Sepúlveda himself was required by the Council of the Indies to deliver the volumes he had in his possession.25 Not even six months had passed since its 19  Ibid., 184–5; also see letter 82 to Melchor Cano, July 15, 1549, 242, and Apologia, 219–20. 20  Ibid., letter 86 to prince Philip, September 23, 1549, 252; see letter 82 to Melchor Cano, July 15, 1549, 240. 21  Castilla Urbano, El pensamiento de Juan Ginés de Sepúlveda: vida activa, humanismo y guerra en el Renacimiento, Madrid, 2013, 185. 22  Sepúlveda, Epistolario, letters 52 (128), 73 (187), 74 (198 and 201), 76 (206–7), 81 (223), 82 (242), and 92 (261). 23  Sepúlveda, Apologia, 194. 24  Preface to the Sumario in Soto, D. de, Relecciones y opúsculos, vol. 1, Brufau Prats, J. (ed.), De dominio, Salamanca, 1995, 201. 25  Sepúlveda, Epistolario, 265 (letter 94 to Antoine Perrenot de Granvela, 3 August, 1550).

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publication when a cédula dated October 19, 1550 ordered the return of the copies that had been sent to Peru.26 2

The Debate: First Session

The first session of the Junta de Valladolid was convened on behalf of the emperor by the kings of Bohemia, regents of Castile at the time. According to their letter to Domingo de Soto dated July 7, 1550, he was summoned to “join the others in this city by the day of our Lady in August of this year”, and after Soto’s first refusal to join the Junta, he was summoned again on August 4, 1550.27 Therefore, the debate must have begun on August 15, 1550 and lasted until September according to a letter by the regents dated January 16, 1551.28 The second session was scheduled for January 20 of the following year, but it would end up starting on April 15, 1551.29 It seems that Soto again tried to refuse to attend, and on February 13, 1551 a further summons was sent to him to reconvene “by mid-April”.30 Fifteen theologians and jurists integrated the Junta: the President of the Council of the Indies, Luis Hurtado de Mendoza, Marquis of Mondéjar, and his councilors Gutierre Velázquez de Lugo, Gregorio López, Francisco Tello de Sandoval, Hernán Pérez de la Source, Gracián de Briviesca, and Gonzalo Pérez de Ribadeneira, in addition to doctor Anaya and licenciado Mercado, both from the Council of Castile; licenciado Pedrosa, from the Council of Orders (Consejo de las Órdenes), and the bishop of Ciudad Rodrigo, Pedro Ponce de León, together with the four theologians Bartolomé de Carranza, Domingo de Soto, and Melchor Cano, Dominicans, and the Franciscan Bernardino de Arévalo.31 The latter, wounded by the attack of a defrocked friar,32 was delayed, reducing the number of participants in the Junta to fourteen, which is the number of 26  Andrés Marcos, T., Los imperialismos de Juan Ginés de Sepúlveda en su “Democrates Alter”, Madrid, 1947, 68–69. 27  The two letters can be found in Beltrán de Heredia, V., Domingo de Soto. Estudio biográfico documentado, Salamanca, 1960, 645. 28  Beltrán de Heredia, Domingo de Soto, 648. 29  Beltrán de Heredia, Domingo de Soto, 648: “Es bien se difiera la dicha determinación para mediado el mes de abril deste año, así como había de ser para veinte deste” (Valladolid, January 16, 1551). 30  Beltrán de Heredia, Domingo de Soto, 649. 31  Pérez de Tudela Bueso, “Estudio crítico preliminar”, in Obras escogidas de fray Bartolomé de Las Casas. I. Historia de las Indias, Pérez de Tudela Bueso, J. (ed.), Madrid, 1958, CLXVIII. 32  Sepúlveda, Epistolario, 269 (letter 95 to Martín Oliván, October 1, 1551).

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participants that Las Casas reported.33 The licenciado Pedro de la Gasca joined the Junta in 1551. The election of the Council of the Indies over that of Castile as the basis for the Junta suggests that the crown did not select groups but specific individuals to conform the committee. Nevertheless, Sepúlveda confessed that he was “frightened” when he learned of the three Dominican theologians who would participate in the Junta, “because nowhere in Spain could you name more avid opponents” to the justice of the conquest;34 he demanded that they be replaced by more impartial judges or, at least, to appoint other candidates. Sepúlveda even presented himself as a viable candidate, but all he obtained from his self-postulation was to be invited to publicly debate his theses against Las Casas.35 The distinction between theologians and jurists, the people who formed the basis of the royal bureaucracy, was important to the debaters: Vitoria and his disciples claimed that the solution to the Indian moral question was a work for theologians only, since the moral problems posed by the conquest of the new territories concerned conquerors and encomenderos in their conscience and spirit and they had tremendous importance for the spiritual salvation of the Indians.36 Sepúlveda replied to this that the American question was a public affair, and therefore its solution corresponded to governors and jurists.37 At the end of the Junta, Sepúlveda noted how the votes of the jurists were mostly in favor of his theses, while the theologians were not so prone to support his ideas. Although Las Casas and Sepúlveda became the main characters of the meeting, it would be a mistake to reduce the debate to a merely personal affair, since it is possible that their participation was not even planned from the beginning. More importantly, a large number of people, institutions, laws, decisions, and aspirations of a political, religious, social, and economic nature had long been involved in the American question. Despite the importance of the question, the two contenders acted as if only their “reputation and good name” were at 33  Proemio al Sumario in Soto, Relecciones y opúsculos I, 201. 34  Sepúlveda, Epistolario, 260–261 (letter 92 to Antoine Perrenot de Granvelle, bishop of Arras, July 8, 1550). 35  Sepúlveda, Epistolario, 266 (letter 94 to Antoine Perrenot de Granvelle, August 3 1550); in his “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 337, Sepúlveda says that the “fiscal del Consejo real [de Castilla]” was who opposed the naming of the members of the Junta and who proposed to summon other candidates. 36  Vitoria, F. de, Relectio de Indis, Pereña, L. and. Pérez-Prendes, J.M. (eds.), Madrid, 1967, 11. 37  Sepúlveda, J.G. de, Demócrates segundo o de las justas causas de la guerra contra los indios, Losada, Á. (ed.), Madrid, 1984, 80.

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stake.38 On the one hand, Sepúlveda emphasized his reputation as a cultured man guided by his pretension to obtain a printing permit for his book, while Las Casas participated in the debate as if his moral ascendancy could be jeopardized by a second defeat after the partial abrogation of the New Laws he sponsored. On the other hand, Las Casas saw the Democrates alter as an attack against the New Laws, even “without making the slightest reference to them”.39 Differences in Sepúlveda and Las Casas’ formative backgrounds, methods, and purposes could have also added to their mutual resentment. Las Casas, for whom the debate was clearly of existential importance, was self-taught, and his readings of philosophers and theologians were not always well assimilated.40 The Dominican friar tended to give more importance to experience than to theory; he had lived for many years in the New World, and after renouncing the encomienda he had received while a chaplain in Cuba, he adopted as his lifelong objective the liberation and evangelization of the Indians.41 To succeed in his goal, he did not hesitate to resort to all kinds of means, including exaggerating the reports of the facts he denounced, hiding the defects of the Indians or maximizing their virtues, and misinterpreting quotes and references to authorities.42 In contrast, Sepúlveda had been trained at the universities of Alcalá and Bologna under the guidance of prestigious professors and patrons of the highest rank (nobles, cardinals, popes, emperors, and kings); as an Aristotelian humanist, he dealt with the most diverse questions from a theoretical point of view. His treatment of the Indian problem disregarded consulting first-hand reports from America (he never travelled to the new territories himself), and was completely based on a deductive application of general ideas to specific cases.43 One of the documents arising from the debate that is of extreme importance to learn about the proceedings of the Junta is the Sumario compiled by Domingo de Soto after the first presentations by the two contenders. The 38  Sepúlveda, Epistolario, 268 (letter 95 to Martín Oliván, October 1, 1551). 39  Las Casas, Apologia, 53. 40  Losada, Juan Ginés de Sepúlveda a través de su “Epistolario” y nuevos documentos, 27; Hernández, B., Bartolomé de las Casas, Madrid, 2015, 42. 41  Pagden, A., “Ius et Factum: Text and Experience in the Writings of Bartolomé de las Casas”, in Greenblatt, S. (ed.), New World Encounters, Berkeley/Los Angeles/Oxford, 1993, 85–100. 42  Alvira, R., and Cruz Prados, A., “The Controversy between Las Casas and Sepúlveda at Valladolid”, in White, K. (ed.), Hispanic Philosophy in the Age of Discovery, Washington, 1997, 92; Forte Monge, J.M., “La Brevísima de Bartolomé de las Casas: destrucción de Indias y construcción de lo inaudito”, in Castilla Urbano, F. (ed.), Visiones de la conquista y la colonización de las Américas, Alcalá, 2015, 25–40. 43  Castilla Urbano, F., El pensamiento de Juan Ginés de Sepúlveda, 15–28; Muñoz Machado, S., Sepúlveda, cronista del Emperador, Barcelona, 2012.

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short summary of the first debate contains not only the arguments adduced by Sepúlveda and Las Casas, but it is also intended to present them with the neutrality that the Junta demanded of Soto.44 Despite this initial intention, Soto himself acknowledges that in his summary “it is not possible to make as much justice to the señor Doctor [Sepúlveda] as to the bishop of Chiapas [Las Casas]”, because Sepúlveda “did not read from his book, but summed up orally the central points of his arguments” in a single session, which is why, “as for the authorities from holy Scripture, he did not bring up all of them as are contained in his book, but only two or three”.45 While the humanist explained only his main theses in a single day, Las Casas, who did not attend Sepúlveda’s exposition, read his Apología for five days.46 In his reading, Las Casas not only responded to what Sepúlveda had argued for in his presentation, but also made reference “to all that said Doctor has written and to all of his opinions that can be opposed”.47 It is important to remember that the Apología read by Las Casas and summarized by Soto does not correspond to the contents of the Apología or the Historia Apologética “as we know them and have been edited; but it [the first Apología] does match with the argumentative matters that correspond to these texts before being revised and incorporated into them”.48 In fact, as we shall see, Las Casas introduced substantial changes in some of the issues discussed in the Junta as he developed them in his (second) Apología. The fact that the debate consisted of texts orally “presented or read by Sepúlveda and Las Casas” does not obviate that both rivals approached the debate differently and that Soto’s summary is a faithful report of their discussion (after all, neither Sepúlveda nor Las Casas objected to it).49 In his Sumario, Soto tells us that the Junta was summoned for the general purpose of discussing and constituting the form and laws by which our Holy Catholic Faith can be preached and proclaimed in that New World God has uncovered for us, as are most adequate to His holy service; and examining in what form those peoples [the Americans] might be subjected to the

44  Soto, Relecciones y opúsculos I. Sumario, 203–204. 45  Soto, Relecciones y opúsculos I. Sumario, 204. 46  Preface to Soto’s Sumario, Relecciones y opúsculos I, 201. 47  Soto, Relecciones y opúsculos I. Sumario, 205. 48  Losada, Á., “Observaciones sobre ‘la Apologia’ de fray Bartolomé de las Casas (Respuesta a una consulta)”, in Cuadernos americanos 212 (1977), 153. 49  Zavala, S., “Aspectos formales de la controversia entre Sepúlveda y Las Casas, en Valladolid, a mediados del siglo XVI”, in Cuadernos americanos 212 (1977), 151.

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Majesty of the Emperor, our Lord, without injury to his royal conscience, according to the Bull of Alexander.50 However, this initial “institutional” purpose was not fulfilled and was replaced by a much more concrete goal, which was none other than discussing the legitimacy of waging war against the Indians to evangelize them more easily. Sepúlveda was obviously in favor of justifying the war, and in his presentation before the Junta he used the four arguments he had already developed in his Democrates alter and in his Apología:51 The said señor Doctor then briefly supported his case with four arguments. First, because of the seriousness of the crimes of those people, especially because of idolatry and other sins committed against nature. Second, because of the roughness of their minds, they are by nature slavish and barbaric people and are forced to serve those of a more elevated genius such as the Spaniards. Third, because of faith, because their subjection is expedient for its preaching and proclamation. Fourth, because of the injuries they inflict against each other, killing men to sacrifice them and some to eat them.52 All these assertions were discussed and rejected by Las Casas throughout his own intervention, which takes over the rest of the Sumario and covers more than twenty-five pages, compared to the one page that Sepúlveda’s arguments occupy in Brufau Prats’ edition. Sepúlveda’s constant ironies against the dialectical excesses of his rival are thus understandable (Soto himself points out their rhetorical discrepancies more than once).53 3

The Debate: The Arguments

Sepúlveda’s first argument, namely the sins against natural law and the idolatry of the Indians, is completely rejected by Las Casas, who denied the validity of the authorities and examples adduced by Sepúlveda. Las Casas also argues that 50  Soto, Relecciones y opúsculos I. Sumario, 204. 51  Sepúlveda, Democrates alter, 19, 37, 61, and 64. Summary in 83–84; Sepúlveda, Apologia, 197–203. 52  Soto, Relecciones y opúsculos I. Sumario, 205. 53  Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 338, 339, 350–351; Objeciones del doctor Sepúlveda a los de la Congregación, Preface, 308. Also Soto, Relecciones y opúsculos I. Sumario, 204, 206, 218, 221, 226, 232 y 233.

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the Church and its ministers have no jurisdiction to extirpate and punish idolatrous practices and even the sins against nature committed by non-Christians. Las Casas underscores the limits of both ecclesiastical and civil jurisdiction in his second Apología, where the Dominican expanded both the number of arguments exposed before the Junta and their explanation.54 In both Soto’s Sumario in his own Apología we can read that Las Casas main objection to Sepúlveda’s first argument is that any violent attempt to compel the Indians to renounce their religious practices and accept Christianity is contrary to Church teaching. Las Casas’ objection is not, however, entirely in accordance with Sepúlveda’s intention. What the humanist wanted was not so much to violently compel the Indians to adopt the Christian faith as to solely eliminate idolatry and facilitate preaching. Force, therefore, would not lead directly to conversion in Sepúlveda’s model, but would only curb idolatry and sins against nature in so far as it made evangelization possible. That is not to say that Sepúlveda was not in favor of the use of violence, but it invalidates many of the accusations against his claims. In addition, Las Casas leaves aside that the idolatry and purported sins against natural law to which Sepúlveda refers were not carried out only by individuals and condemned by the rest of the Indians and their laws, but were rather allegedly committed by most of Indian society as “sins they do not consider sins, nor there is a law that forbids them”.55 That is to say, what Sepúlveda proposes to eradicate by means of war, no other alternative being available, is what he considers the legality of practices against human nature. Sepúlveda’s second argument, i.e. the slavish nature of the Indians, rested upon Aristotle’s theory of natural slavery. Although it is impossible to imagine that a cultured audience such as the members of the Junta de Valladolid ignored the origin of said theory, Sepúlveda did not name the Greek philosopher or mention his most radical idea of the slave as an instrument of his master either on his presentation to the Junta or in his own Apología, but merely affirmed the natural subordination of the Indians because of their purported lack of intelligence.56 This weak formulation of the theory allowed Sepúlveda to distinguish between the servant by nature discussed in his writings and the Aristotelian slave by nature, which made it possible for him to argue that the former has the possibility of learning the customs and cultural norms of his masters. Las Casas, who replied to this argument at the end of his exposition, 54  Las Casas, Apologia, 126–359. 55  Soto, Relecciones y opúsculos I. Sumario, 218. See also Sepúlveda, Democrates alter, 58; Sepúlveda, Apologia, 201. 56  Sepúlveda, Apologia, 197.

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insisted that Sepúlveda was talking about the Aristotelian slave by nature. In his attempt to refute that the Indians are slaves by nature, the Dominican downplayed the concept of “barbarian” and provided a very narrow definition of it. According to Soto’s Sumario, the Dominican maintained that “there are three kinds or lineages of barbarians”: firstly, those who are barbarians in an improper sense, that is, because of the “strangeness” of their opinions or customs, but not because of their lack of “social order [policía], or prudence to govern themselves”; secondly, those that lack writing but not kingdoms and rulers; finally, The third species of barbarians are those who, by their perverse customs and rudeness of intellect [ingenio] and brutal inclinations, are like wild beasts that live on the fields without cities, or houses, without social order [policía], without laws, without rites, or dealings de iure gentium; but they go about palantes, as it is said in Latin, which means stealing and inflicting violence, as the Goths and the Alans did at the beginning, and now it is said that in Asia the Arabs and those that in Africa we call Alarabs do. And of them we could understand what Aristoteles says, that, as it is licit to hunt down beasts, so it is lawful to make war against them, to defend us from the ones that harm us, to try and reduce them to human social order [policía].57 To these categories of “barbarians” Las Casas added a fourth one that appears both in the later published version of the Apología and in his Apologética Historia: the barbarians as non-Christians,58 who are subdivided into two groups, those who have no knowledge of Christianity and those who persecute it.59 Aside from the addition of this fourth category, Las Casas introduced no important changes to his discussion on barbarism after his presentation before the Junta. In the paragraph quoted above, Las Casas admitted the existence of both ancient and contemporaneous groups of barbarians of the third category; in his Apología, however, this category only included isolated individuals: The third class of barbarians, taking this term in its proper and strict sense, is that of those men who, because of their impious and dreadful character or because of the aridity of the region they inhabit, are cruel, 57  Soto, Relecciones y opúsculos I. Sumario, 231–232. 58  Las Casas, Apologia, 119. 59  Las Casas, B. de, Apologética Historia Sumaria, in Abril Castelló, V. et al. (eds.), Obras completas, vol. 8, Madrid, 1992, 1583–1590.

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ferocious, foolish, uneducated, alien to reason; they are not governed according to the laws or any legislation [derecho], they cultivate no friendships, they have no politically organized state or city; what is more, they lack a prince, laws, and institutions. These people do not contract marriage conforming to certain rites; finally, they have no form of civilized commerce: they do not sell or buy, they do not give or take in rent, they make no contracts, deposits, loans, commodates. Finally, none of the contracts of the law of nations mentioned in the Digest is in use among them. Moreover, they go about scattered from one place to another, inhabiting mountains and forests, contenting themselves with their women as only domestic and wild animals do.60 Although the bishop of Chiapas did not hesitate resorting to the somewhat debatable example of “the inhabitants of that country once called Barbaria”, he recognized, following Aristotle, that individuals of these characteristics “are rare anywhere in the world and few in number if they are compared to the rest of humanity”.61 He denied, then, the possibility that there were groups with those traits: “It would be impossible to find anywhere in the world an entire race, a nation, a region, a province that were foolish and unwise, and that the largest part of which lacked sufficient natural knowledge and ability to rule and govern itself”.62 The reason is clear: a large number of people with said properties would be against the logic of divine action, which makes an imperfect creation unthinkable: “it befits divine providence and goodness for nature to always and in most cases produce the best and perfect things, and rarely and exceptionally the imperfect and awful ones”.63 With this assumption, Las Casas was in a position to reject that Indians found themselves in this category of barbarism, both because it is unfit for any organized society and because it is prevented by the general tendency of nature as created by God. None of the two aforementioned arguments appeared in the Sumario, so it must be assumed that the bishop’s argument in Valladolid was less convincing than that later reproduced in the Apología. Sepúlveda argued for considering the Indians as barbarians, but not on the terms of the categories proposed by the Dominican. Sepúlveda did not deny that Indians had use of reason, but he considered they had it in a lesser degree, 60  Las Casas, Apologia, 89. 61  Aristotle, Nicomachean Ethics, 1145 a 32 and Las Casas, Apologia, 91 and 95. 62  Las Casas, Apologia, 97. 63  Las Casas, Apologia, 93. See also Pagden, A., The Fall of Natural Man. The American Indian and the Origins of the Comparative Ethnology, Cambridge, 1982, 134.

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to the same extent that he depicted Spaniards as exercising reason of a higher kind. The same can be said of the rest of the features of civilization that the Bishop argues barbarians sensu stricto lack (houses, cities, political and religious institutions, a certain degree of coexistence with external groups, commercial exchanges, and so on). Sepúlveda, again, did not deny the presence of those aspects of civilization among the Indians, but he reduces them to almost instinctual manifestations and mere adaptive responses. Even in the case of Mexicans, who were considered the most advanced of all the inhabitants of the New World, “the fact of their having houses and some rational way of public life and the trading to which natural necessity induces, what does it prove but that they are not bears or monkeys completely devoid of reason?”64 In conclusion, both authors adopted completely different concepts of barbarism. Las Casas’ Apología, turning the stricto sensu barbarians into beings that only possess human appearance but no reason, not only reduces their existence to something exceptional, but also avoids their identification with a specific human group. In contrast, Las Casas’ argument in the Sumario is much weaker: he only denies that the Indians possess those characteristics, not that barbarian human groups might exist elsewhere. Sepúlveda, in contrast, made barbarism a more general concept that included even organized societies. In addition to denying the diversity of Indian societies in the Americas, the humanist also devalued societal and cultural features that Indians shared with Europeans. Las Casas, in rejecting that barbarism could be predicated of the Indians, recognized that they had developed complex civilizations different from the European, and even seemed to affirm the existence of a diversity of cultures in the Americas, even if he ultimately was not able to distinguish between the different Indian societies and cultures. Sepúlveda, guided by a paradigm of cultural and ontological inequality, considered Indians as barbarians because he only admitted the European as a legitimate civilization.65 Las Casas questioned the dichotomy between barbarism and civilization, and even called the Spaniards barbaric for their violent behavior in the New World.66 He thus separated the notion of justice from that of civilization. Sepúlveda, for his part, linked them, and thus saw all Indians as transgressors of a natural law that was much more demanding than that defended by the Dominican.67 64  Sepúlveda, Democrates alter, 36–37. 65   Bataillon, M., “Las Casas face à la pensée d’Aristote sur l’esclavage”, in Actes du XVIe Colloque international de Tours: ‘Platon et Aristote à la Renaissance’, Paris, 1976, 412. 66  Las Casas, Apologia, 85. 67  Brunstetter, D.R. and Zartner, D., “Just War against Barbarians: Revisiting the Valladolid Debates between Sepúlveda and Las Casas”, in Political Studies 59 (2011), 739.

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Sepúlveda’s third argument for justifying war against the Indians was the facilitation of preaching. Las Casas is opposed to it in principle because he considers that the introduction of violence to control the Indians vitiates any subsequent relationship they might have with the Christian faith. Far from facilitating evangelization, their subjection through violence would make conversion either difficult, because of the rejection violence would provoke, or feigned, if the Indians accepted Christianity out of fear. For Las Casas, in addition, faith could not be demonstrated through natural reason, and so it would be contrary to Christianity to recur to warfare for evangelizing purposes.68 Sepúlveda, on the contrary, considered the preaching of Christianity to be an inalienable natural right.69 This option was shared by practically all his contemporaries: Vitoria,70 Carranza,71 Covarrubias,72 etc.73 Soto, breaking for once with the neutrality that was demanded of him, could not resist indicating in the Sumario that Las Casas confused waging war to protect the right to preach, “which is the opinion of many Doctores”, with the right to force Indians to listen to the preacher, “which is not very clear”.74 The bishop never changed his opinion on this matter. Sepúlveda’s fourth argument was to stop human sacrifices and protect innocent victims. This argument for justifying war was perhaps the most compelling since the protection of innocents was considered to trump any noninterventionist reticence, independently of any particular school of thought. It is almost ironic that, despite being the argument to which Sepúlveda devoted less space both in his Democrates alter and in his Apología,75 it is the one which best resisted any criticism. It has to be noted that the problem posed by human sacrifice was not so much the legitimacy of the right to protect the innocent, which could hardly be questioned, as the limits of that right and the measures that could legitimately be used to protect innocents. To this fourth argument, Las Casas responded that when sacrifices of innocents are performed, it is necessary to meditate on the advisability of recurring to warfare, “lest, in view of preventing the death of a few innocents, we sacrifice an innumerable multitude 68  Soto, Relecciones y opúsculos I. Sumario, 221. 69  Sepúlveda, Apologia, 203. 70  Vitoria, De indis, 87. 71  Pereña Vicente, L., Misión de España en América 1540–1560. Madrid, 1956, 41. 72  Covarrubias y Leyva, D. de, Textos jurídico-políticos, Fraga Iribarne, M. (ed.) and Rico Seco, A. (trans.), Madrid, 1957, 91. 73  Carro, V., La teología y los teólogos-juristas españoles en la conquista de América, Madrid, 1944, vol. 2, 233–303. 74  Soto, Relecciones y opúsculos I. Sumario, 227. 75  Sepúlveda, Demócrates segundo, 61; Sepúlveda, Apologia, 202.

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of men who did not even deserve it”.76 That is, Las Casas argues, based on the principle of choosing the lesser of two evils, that the sacrifice of a minority of innocents is always preferable to war massacres.77 To this main objection Las Casas added another one in the Sumario, namely that Indians performed sacrifices in ignorance of their error, and yet some more in the Apología, namely the hatred towards the Christian religion that would ensue from such a war, the performance of human sacrifices as being practiced in just a handful of societies in the New World, and the practice of cannibalism only by Indian princes or priests and not by the populace at large.78 However, the question remained: what to do regarding the sacrifice of innocents? The Dominican’s response appealed again to the lesser evil argument: war provokes a greater number of victims than human sacrifices, which is why he concluded “that when it is a matter of resorting to war for a cause of this kind, it is preferable that a few innocents be oppressed or suffer unjust death”.79 He also excused sacrifices and the alleged acts of anthropophagy arguing that they could be a practice carried out “with those condemned to death for their crimes, or those captured in a just war, or those who had died a natural death”—in that case, the performers of such acts would not be causing evil to an innocent, but only to themselves.80 Some of Las Casas’ objections were criticized by Sepúlveda in the eleventh of the twelve “Objections” that he presented against the Dominican’s exposition before the Junta; Sepúlveda seemed not to take the rest of his objections seriously, such as the sacrifice of already deceased people. The humanist did not agree with the argument of the lesser evil because, according to his reasoning, there would have been many more sacrificial victims than war casualties in all the years of conquest: according to his calculations, at the rate of twenty thousand human sacrifices per year “multiplied by thirty years since we conquered and removed this sacrifice, there would have already been six hundred thousand [dead]”, while, during the war of conquest, “I believe not that more people died than they sacrificed in a year”.81 Sepúlveda accepted no excuse for the sacrifices either, since even non-barbarian gentiles considered them abominable, nor did he concede that the damage potentially caused by wars

76  Las Casas, Apologia, 369. 77  Soto, Relecciones y opúsculos I. Sumario, 228. 78  Las Casas, Apologia, 369–70. 79  Las Casas, Apologia, 371 and 461–463. See also Soto, Relecciones y opúsculos I. Sumario, 228. 80  Las Casas, Apologia, 417. 81  Sepúlveda, “Objeciones del doctor Sepúlveda a los señores de la Congregación”, Eleventh Objection, 315.

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could excuse the real evil of human sacrifice. He also rejected Las Casas’ appeal to the ignorance of the Indians to excuse them.82 Las Casas, for his part, objected to the number of sacrifices calculated by Sepúlveda, saying that “not even fifty [sacrifices were performed] each year, because if it were so, we would not have found the infinite number of people we did”.83 This last point evidently contradicts the demographic catastrophe that he reported in his Brevísima relación de la destrucción de las Indias, written in 1542. The bishop also rejected the rest of the objections presented by Sepúlveda: non-barbarian gentiles could perhaps condemn human sacrifices, but the ignorance of the Indians makes their crime excusable (and, of course, there were many civilizations, including the Romans, who practiced human sacrifice). Las Casas could not excuse the death of innocents in war either, because, given the social circumstances in the New World, war could never be justified. Finally, he insists that it is the error of the Indians’ belief, by confusing their multiple gods with the one true God, that led them to practice human sacrifice.84 In short, despite all their arguments, the dispute between the two contenders left the question unresolved: irrespective of whether the sacrificed victims were many or few, of what their social condition was, and independently of whether such practice was due to the error or ignorance of the sacrificers, could it be allowed to be practiced at all? It cannot be denied that Sepúlveda’s approach, like much of his entire argument, seems more concerned with justifying war than with saving innocents—but it is also difficult to ignore the innocent victims of human sacrifice, for whose dire fate Las Casas found no solution, frightened as he was of any means that could lead to violence. After copies of Soto’s Sumario were distributed to all members of the Junta, Sepúlveda collected twelve objections against his thesis presented by Las Casas, to which he responded “in three folios”, which were also delivered to the committee. In this text, introduced by a short prologue, Sepúlveda stressed again that the war against the Indians as he advocated for it was not a “war to kill and destroy them”, but “to subject them and take idolatry and evil rites away from them, and remove the impediments to evangelical preaching”.85 In addition, Sepúlveda rejected the concept of the barbarian that Las Casas had applied to the Indians, which would not allow to consider “that they are slaves by nature 82  Sepúlveda, “Objeciones del doctor Sepúlveda a los señores de la Congregación”, 315–316. 83  Las Casas, “Estas son las réplicas que el obispo de Chiapa hace”, Eleventh Reply, 333. 84  Las Casas, “Estas son las réplicas que el obispo de Chiapa hace”, 334–336. 85   Sepúlveda, “Objeciones del doctor Sepúlveda a los señores de la Congregación”, First Objection, 309; see the Ninth Objection, 314.

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and that, for this reason, war could be waged”.86 To avoid any mention of the slaves’ ‘natural obedience’ owed “to the prudent and humane” Spaniards, and, in a manner consistent with what he had maintained in the Democrates alter and in the Apología,87 to avoid mentioning the Aristotelian theory of natural slavery he concluded “that by barbarians we understand (as Saint Thomas, I, Politicorum says, in its first lectio) those who do not live according to natural reason and have bad customs publicly approved among them”.88 Perhaps the most relevant aspect of Sepúlvedas Objeciones, in addition to what has already been seen, is what he affirms in his twelfth objection. Revealing a contradiction that seems to haunt Las Casas’ argument, Sepúlveda says that the discussion has been reduced to a merely procedural question: namely, whether, on the one hand, Europeans should first preach to the Indians and then train them in the faith and baptize them as subjects of the crown or, on the other hand, as Sepúlveda believes that it is clear from the Alexandrine Bulls, if it is the case “that the barbarians should first be subject to the kings of Castile and then have the Gospel be preached to them”. He argues that is it not paradoxical to accept that converts to Christianity will fall under Castilian domination “for the protection of the faith and in order for them not to leave it and fall into heresy”, which would justify waging war if the Indians disrespected the faith, and to argue at the same time that it is not possible to wage war “so that they might not prevent the preaching or the conversion of those who believe, and to remove idolatry and bad rites?”89 Guided by his principles of peaceful preaching, the bishop of Chiapas could not escape the questioning of his proposals without modifying what seemed to be unessential to them; he thus ended up proposing revolutionary political ideas, which ultimately implied the right of the Indians to exercise sovereignty over themselves and their territories. Perhaps for this reason, after replying to Sepúlveda’s counterarguments in a much less emotional way before the Junta de Valladolid,90 he rectified and redrafted his réplica in view of its publication in 1552 without notifying the committee of its modifications: 86  Soto, Relecciones y opúsculos I, 231. 87  Sepúlveda, Democrates alter, 35 et seq.; Sepúlveda, Apologia, 197. 88  Sepúlveda, “Objeciones del doctor Sepúlveda a los señores de la Congregación”, Eighth Objection, 314. 89  Sepúlveda, “Objeciones del doctor Sepúlveda a los señores de la Congregación”, Twelfth Objection, 316. 90  Las Casas, B. de, Tratado de Indias y el doctor Sepúlveda, in Jiménez Fernández, M. (ed.), Sources for the Colonial History of Venezuela, Caracas, 1962, 251, and Appendix XVII in Las Casas, B. de, De regia potestate or right of self-determination, Pereña, L. et al. (eds.), Madrid, 1984, 296–319.

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And in the case that after becoming Christians they did not want to receive and obey the supreme lord [the Spanish king] (which the Indians, mainly the common people, would never do, because they are by nature very humble, meek, and obedient), it does not follow that we can wage war against them (like Doctor Sepúlveda says) while they remained in the faith and in the observation of justice. The reason being, because one must always have regard to the end and final cause by which the supreme and universal lord is presented to them, which is their good and benefit, so as not to turn such supreme lordship into pernicious damage and destruction to them. Because if so happened, we must not doubt, since that moment such lordship would be completely unjust, tyrannical, and iniquitous, more directed to the own interest and advantage of the lord than to the common good and benefit of the subjects. Which, by natural reason and by all human and divine laws, is hated and abhorred. And in this sense, I understand and declare and limit the tenth proposition of my thirty propositions, where I say that the kings and lords and communities of those territories of the Indies are obliged to recognize as sovereign lords, monarchs, and emperors the kings of Castile.91 That the Indians accepted Christian faith did not imply their submission to the political rule of the Spanish monarchs. With Las Casas’ claim that Indians had the right to decide who could govern them, the Valladolid debate entered the domain of contemporaneous political theory, questioning the political authority of Charles V over the Indies and their inhabitants and defending the Indians’ right to political dominance without subordinating it to the Spanish crown.92 4

From the Second Session to the “Proposiciones temerarias”

After Sepúlveda’s presentation of his Objections, the members of the Junta were granted a period of six or seven months to give their opinions. After the first session, all opinions seemed to be against Sepúlveda: “my adversaries made continual reference to this previous verdict [of the Universities]”, and 91  Las Casas, “Estas son las réplicas que el obispo de Chiapa hace”, Twelfth Reply, 342. 92  See Abril Castelló, V., “La bipolarización Sepúlveda-Las Casas y sus consecuencias: la revolución de la duodécima réplica”, in Ramos, S. (eds.), Francisco de Vitoria y la Escuela de Salamanca. La ética en la conquista de América, Madrid, 1984, 229–288, and ibid., “Las Casas contra Vitoria, 1550–1552. La revolución de la duodécima réplica, causas y consecuencias”, in Revista de Indias 47 (1987), 83–101.

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although his supporters appealed to his Apología and to the Roman authorities who had approved of it, “the tricky discourse of the theologians who were against me kept acquiring more strength in the Junta of judges, and confused the younger jurists”.93 This seems to be confirmed also by a memorandum dated 1551, most likely prepared for the use of the second session of the Junta, in which Sepúlveda and Las Casas’ proposals were summarized in twelve points and doubts were raised about the consequences that some of them would bring about. In point nine, for instance, the rejection against the humanist’s justification of war seems to be taken for granted: “We presuppose that neither war nor the subjection of the Indians should precede admonition and preaching, as many have agreed […]”.94 After the second session of the Junta, Sepúlveda “found that the Bishop of Chiapas, either alone or with a companion [acompañado], had replied to his answer in twenty-one folios”. Did Sepúlveda mean that Las Casas was aided by a member of the Junta, or by someone else? Nothing is known about this matter, but the fact that Sepúlveda suggests that others offered their support to Las Casas is significant. Despite this, Sepúlveda, in the absence of new arguments against him, did not deem it necessary to respond. What really caught his attention was “that those gentlemen had paid so little attention to the replies that few or none of them read them”.95 In those circumstances, the Franciscan Bernardino de Arévalo intervened in the discussion, at last recovered from the injuries that had prevented him from attending the first session. Sepúlveda considered him so favorable to his position and capable of convincing those who had been defeated by “my theologian adversaries” that he took the opportunity to address the Junta again, this time using another one of his writings written during the controversy, his so-called “Postreros apuntamientos que dio Sepúlveda en la congregación”.96 In his text he raised two fundamental questions: first, implicitly recognizing the dominance of the Dominicans in their opposition to his ideas and his own feeling of defeat, he asked for the opportunity to dispute with the theologians once more “to propose three or four arguments that confirm my opinion and have those very reverend fathers who have opposed me answer me”; secondly, he insisted on interpreting the Alexandrine Bulls as decrees “that give faculty to the Catholic Kings of Spain and their successors and exhort them so that they conquer 93  Sepúlveda, Epistolario, 268 and 269 (letter 95 to Martín Oliván, October 1, 1551). 94  Las Casas, Tratado de Indias y el doctor Sepúlveda, 146. 95  Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 338. 96  Sepúlveda, Epistolario, 269 (letter 95 to Martin Oliván, October 1, 1551).

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the Indies by first subjecting those barbarians and then reducing them to the Christian religion”.97 5

Results of the Debate

As the opinions of the members of the Junta are lost or simply have not been found (if they were even transcribed in their entirety),98 only the statements by the two contenders remain. Las Casas claimed the upper hand because the Junta considered that the “‘conquests’ were iniquitous, illicit and unjust”,99 and as such they should be prohibited, although he admitted that nothing had been decided on the question of the repartimientos or encomiendas. Sepúlveda also declared himself the winner of the debate,100 because most of the jurists, although not all the theologians, had agreed with some or even with of all the four arguments presented in his Democrates alter.101 Despite the latter’s alleged victory, the consequences of the debate were in the end not satisfactory for him: as we have already mentioned, copies of his Apología were confiscated, and did not live to his Democrates alter in print; it was not even included in the 1780 edition of his works prepared by the Royal Academy of History.102 It was only in Menéndez Pelayo’s edition from 1892 that it would finally be published. Moreover, while some of prince Philip’s tutors were awarded important ecclesiastical positions (Juan Martínez Silíceo was chosen to become archbishop of Toledo and Honorato Juan was appointed bishop of Osma), Sepúlveda was relegated to lesser offices.103 Finally, although he always criticized the excessively aggressive treatment of the Indians104 and continued to do so after the Junta,

97  “Postreros apuntamientos que dio Sepúlveda en la congregación. Miércoles XII de abril 1551”, in Las Casas, Tratado de Indias y el doctor Sepúlveda, 29. 98  Manzano Manzano, La incorporación de las Indias a la Corona de Castilla, 187, reproduces the document dated July 13, 1557 addressed to Melchor Cano, which only seems to lack its justification. 99  Las Casas, Apologia, 55. 100  Sepúlveda, 267–71 (Epistolario, letter 95 to Martín Oliván, October 1, 1551). 101  Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 338. See also Castilla Urbano, El pensamiento de Juan Ginés de Sepúlveda, 208. 102  Gil Fernández, L., “Una labor de equipo: la editio matritensis de Juan Ginés de Sepúlveda”, in ibid., Estudios de Humanismo y tradición clásica, Madrid, 1984, 157. 103  Bell, A.F.G., Juan Ginés de Sepúlveda, Oxford, 1925, 46. 104  Sepúlveda, Democrates alter, 28–9 and 123–4; Sepúlveda, Apologia, 194.

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he is still regarded in our days as a defender of the enslavement of Indians and of their political and economic exploitation.105 Las Casas, in contrast, published eight works between 1552 and 1553, for which he might have subsequently obtained a special publishing license or a partial or total printing privilege, since they had been first printed without authorization.106 Among them was a treatise that included the discussions of the debate, titled “Aquí se contiene una disputa o controversia …”. Around 1553 and 1554, after knowing about Las Casas’ treatise, Sepúlveda felt obliged to respond with his “Proposiciones temerarias, escandalosas y heréticas que notó el doctor Sepúlveda en el libro de la conquista de las Indias que Fray Bartolomé de las Casas … hizo imprimir en Sevilla”, in which he gave his own viewpoint on what happened after their debates. While informing Chancellor Antonio Perrenot de Granvela, bishop of Arras, about the book, Sepúlveda alluded to the Dominican’s mistake in opposing the conquest, who by me and by other theologians and canonists who wrote after me has been refuted and rejected [convencido y reprobado], thinking it regretful that we have declared false the opinion with which he and the others who preached it thought they were to be feared [temidos] by the kings.107 In the same letter to the bishop of Arras, Sepúlveda warned of the dangers that the publishing of Las Casas’ books would bring to the crown, because besides “falsely” declaring “the infamy of the Spanish kings and nation’s tyranny and robbery, some Christian prince could be moved by it and get involved in the conquest of the Indies, saying that he as a good Christian wanted to resist as an injustice and tyranny”.108 Sepúlveda anticipated thus what would become the black legend, for which Las Casas’ writings were of the utmost importance.109 105  Sepúlveda, Epistolario, 296 (letter 101 to Francisco Argote [May 1552]) and 332–340 (letter 115 to Pedro Serrano, May 10, 1554); Sepúlveda, J.G. de, Obras completas, vol. 11, in Rivero García, L. and Pietschmann, H. (introd. and ed.), Del Nuevo Mundo, Pozoblanco, 2005, 59; Sepúlveda, J. Ginés de, Obras completas, vol. 4, Pérez-Prendes, J.M. and García Pinilla, I.J. (ed. and trans.), Acerca de la monarquía, Pozoblanco, 2001, 91; Sepúlveda, “Proposiciones temerarias, escandalosas y heréticas que notó el Doctor Sepúlveda”, 351. 106  Pérez Fernández, I., “Los tratados del padre Las Casas impresos en 1552–1553, fueron impresos ‘con privilegio’”, in Studium. Revista de Filosofía y Teología 39 (1989), 59. 107  Sepúlveda, Epistolario, 324 (letter 113 to Antoine Perrenot de Granvela, 15 March, 1554). 108  Sepúlveda, Epistolario, 325 (letter 113 to Antoine Perrenot de Granvela, 15 March 1554). 109  Castilla Urbano, F., “Argumentos hispanos para la construcción de la ‘leyenda negra’ (siglos XVI–XVII)”, in Villaverde Rico, M.J. and Castilla Urbano, F. (eds.), La sombra de la leyenda negra, Madrid, 2016, 101–139.

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He proposed, therefore, that the Council of the Inquisition should examine Las Casas and his writings on the basis of his “Proposiciones temerarias”— something that never took place. It is easy to see how the conquerors could find Sepúlveda’s proposal attractive, as Las Casas himself pointed out.110 His “Aristotelian humanism was used to rationalize the colonizers’ appetite for cheap and plentiful supply of Indian labor”.111 In fact, the Cabildo de Mexico, the richest and most important city in the New World, ordered in 1554 “to send [Sepúlveda] some things from this land, up to two hundred pesos of gold in jewels and clothing”, an order that left no room for doubt about who considered his writings beneficial.112 Although there is no evidence that the donations ever reached Sepúlveda or if he even accepted them, he was forced to defend himself when some of his enemies spread the rumor that, “having been hired and given a salary, [he] had made it [the book] to provide [his] services as a writer for money and agreed to be paid five or six thousand ducats”.113 This payment was construed as a salary paid by the encomenderos for the defense of their interests, but, in truth, Sepúlveda had written the Democrates alter ten years before, and ever since his Gonsalus (1523) he had been proposing similar arguments. The Junta de Valladolid did not put an end to the ideological debate between supporters of Sepúlveda and Las Casas, and their followers continued to defend their masters for several centuries.114 In addition, the discussion gave rise to a large body of secondary literature that is still relevant in our days.115 The same cannot be said about the effectiveness of the results of the Junta, which was initially favorable to Las Casas—in fact, his proposals were accepted only to the extent that they were useful to the crown and only for the time before 110  Las Casas, Apologia, 53. 111  Phelan, J.L., “El imperio cristiano de Las Casas, el imperio español de Sepúlveda y el imperio milenario de Mendieta”, in Revista de Occidente 141 (1974), 308–309. 112  See Hanke, L., La lucha por la justicia en la conquista de América, 374; and ibid., Estudios sobre fray Bartolomé de las Casas y sobre la lucha por la justicia en la conquista española de América, Caracas, 1968, 149; ibid., La humanidad es una. Estudio acerca de la querella que sobre la capacidad intelectual y religiosa de los indígenas americanos sostuvieron en 1550 B. de las Casas y Juan Ginés de Sepúlveda, Avendaño-Inestrillas, J. and Sepúlveda de Baranda, M., (trans.), México, 1985, 152. 113  Sepúlveda, Epistolario, 305 (letter 104 to Pedro Serrano [of 1552]). 114  Zavala, S., “Los títulos de posesión a las Indias Occidentales”, in Sobretiro de la Memoria de El Colegio Nacional 6 (1970), 184–204. 115  Hernández, B., “Lecturas jesuitas de Bartolomé de las Casas. Recepciones e interpretaciones del siglo XVI al siglo XIX”, in Coello de la Rosa, A. et al. (eds.), Los jesuitas en imperios de ultramar: Siglos XVI–XX, Madrid, 2012, 257–282 and ibid., “Vidas y obras de Bartolomé de las Casas en autores dominicos de la época moderna”, in Alabrús Iglesias, R.M. (ed.), La memoria escrita de los dominicos, Barcelona, 2012, 123–145.

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their abrogation. Las Casas’ criticisms and those of his followers attempted to curb, limit, and even put an end to the power of conquerors and encomenderos, which was an objective that not only coincided with royal interests but was also impossible to achieve without increasing monarchical authority. This obviously does not render Las Casas the official spokesperson to the crown, but it allows us to nuance (and perhaps reject) the image of two diametrically opposing factions, one of which, namely Sepúlveda, “was associated with power, while the other [Las Casas] saw governmental spheres most of the time as an obstacle to the realization of his apostolic projects”.116 We must therefore abandon any explanation that construes Sepúlveda’s ideas as an expression of royal and encomendero interests, or even as the voice of preachers opposed to Las Casas, given that their opposition to the bishop of Chiapas did not necessarily translate as agreement between these groups.117 We cannot understand the results of the Valladolid debate if we do not interpret the intervention of the crown as that of a power that struggled to maintain its preeminence and defend its (almost limitless) interests in the Indies. The complex interplay of elections, alliances, supports, and decisions that took place before, during, and after the summoning of the Valladolid Junta could have been very diverse, but what the monarchy pursued above all was maintaining its predominance. For the crown to maintain control of the New World as an authority that oversaw conquerors and encomenderos, the triumph of the Dominican’s proposals was of utmost importance.118 This was the effect of a very lengthy process, and even if the royal authority had to abrogate some of its New Laws, it never abandoned its goal of predominance. The cédula of May 22, 1549 to the Audiencia del Perú still spoke of “conquests”, even though it ordered to avoid any military confrontation with the Indians.119 Shortly before the Junta de Valladolid was assembled, the Audiencia itself was ordered to suspend any operations of conquest and discovery pending the decision of the Junta.120 Scarcely six months after the conclusion of the Junta, on November 19, 1551 the Audiencia was ordered not to authorize any discovery or conquest without receiving prior authorization from Madrid. In a letter from the Council of the 116  Joblin, S.J., “Significado histórico de la disputa de Sepúlveda con Las Casas”, in Actas del Congreso Internacional sobre el V Centenario del nacimiento del Dr. Juan Ginés de Sepúlveda celebrado en Pozoblanco, del 13 al 16 de febrero de 1991, Córdoba, 1993, 239. 117  Fernández Buey, F., “La controversia entre Ginés de Sepúlveda y Bartolomé de las Casas. Una revisión”, in Boletín americanista 42–43 (1992), 344. 118  Pietschmann, H., “Introducción histórica”, in Sepúlveda, Del Nuevo Mundo, XXXI. 119  Peña, J. de la, De bello contra insulanos. Intervención de España en América, vol. 2, Pereña, L. (ed.), Madrid, 1982, 129. 120  Peña, Provisión al Licenciado Gasca, April 16, 1550, 544–45.

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Indies to the king dated December 15, 1554, the conclusions of the Junta de Valladolid are mentioned for the first time in an official document: in the congregation that Your Majesty ordered to be assembled last year, that of 1550, in this city of Valladolid, composed of learned religious people, and in their discussions [consejos] the aforementioned conquests were considered dangerous to Your Majesty’s conscience for many reasons and arguments that were treated there and mainly because of the difficulty that there lay in excusing the damages and serious sins that are committed in such conquests.121 Public authorities did not entirely side with Las Casas, but they did support the proposals that subjected the authority over the conquests to the crown and to a ruling class that owed them its power over the New World. This obviously meant Sepúlveda’s defeat—but, above all, it implied the achievement of the crown’s objectives. Strictly speaking, there was no radical change in the policies that regulated discovery and conquest, since even prior to the New Laws and the Valladolid debate a pacifist tendency prevailed in public policy (which, nevertheless, did not necessarily translate into practice). Discoverers, colonizers, and conquistadors were urged by Spanish authorities to avoid confrontation with Indian populations; the forceful invasion of Indian territory was discouraged and the use of violence was expected to be reduced to the minimum requirements of self-defence.122 In the Ordenanzas by Juan de Ovando, president of the Council of the Indies (1573), the word “conquest” is abandoned and replaced by the term “pacification” (see article 29). This new term would ultimately occupy the spotlight in public discourse after the publication of the Ordenanzas. The replacement of a word by another might seem a bland exercise in nominalism, but although this did not suppose the complete banning of military incursions, it marked the end of a period characterized by conquest taken in a strict sense and the beginning of a period of colonial reorganization and urban expansion. The influence of the Valladolid debate on subsequent policy-making is not clear,123 but our study of the debate suggests that the crown, wishing to protect its attributions and privileges, took advantage of the discussion to 121  Las Casas, De regia potestate, 322. 122  Peña, De bello contra insulanos. Intervención de España en América, vol. 2, Cédula al Virrey del Perú, May 13, 1556 and October 30, 1568, 136. 123  Andújar, E., “Bartolomé de Las Casas and Juan Ginés de Sepúlveda: Moral Theology versus Political Philosophy”, in White, K. (ed.), Hispanic Philosophy in the Age of Discovery, Washington, 1997, 87.

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strengthen an ideology that supported its primacy over the Indies.124 One of the most important changes in official policy and discourse was the creation of audiencias and viceroyalties, which ensured that the ultimate political and spiritual authority over the war, a task that fell into the hands of the crown, having previously been the responsibility of the friars who accompanied the conquistadors.125 Spanish colonizers in the New World never constituted a homogeneous group, but the submission of the most important administrative powers to royal authority had as a consequence that the power of the Church and of the conquistadors, who until 1550 had almost unrestricted administrative privileges over the Indies, was radically reduced. All conflicts between colonists, the clergy, and representatives of the crown were from that point on mediated and resolved by the latter group. The Indians, although they were still a source of cheap labor for the Spaniards, would be gradually detached from their initial dependence on the colonizers and became direct tributaries (but not serfs) to the Spanish crown and subject to civil law like the rest of the crown’s subjects. The encomienda system lost its meaning and political power moved away from the hands of those who had attained it through violence. Nevertheless, the conquistadors would continue to maintain a high degree of social power for a long time.126 Although Las Casas’ proposals served to curb the power of the conquerors, the Church did not escape from the centralization of royal power. The religious orders that staged the first American experiences, chiefly the Franciscan and the Dominican orders, continued to act with a certain autonomy—they proved to be a nuisance to the conscience of many a colonizer and endangered the projects of economic exploitation that the crown craved. As Peter J. Blackwell writes, the missionaries, “like the encomenderos, turned out to be both a problem and a solution”. Their increasing intrusion into domains under royal jurisdiction was considered intolerable: From the 1560s Philip II’s government moved with some success to curb the religious orders’ autonomy and to replace them in parish work with priests from the secular hierarchy. Philip was helped in this by the fact 124  Deckers, D., “La justicia de la conquista de América. Consideraciones en torno a la cronología y a los protagonistas de una controversia del siglo XVI muy actual”, in IberoAmerikanisches Archiv 18 (1992), 346. 125  Peña, De bello contra insulanos. Intervención de España en América, vol. 2, Real Cédula sobre descubrimientos al Presidente de la Audiencia del Perú, May 22, 1549, 128. 126  Bakewell, P., “Conquest after conquest: the rise of Spanish domination in America”, in Kagan, R.L. and Parker, G. (eds.), Spain, Europe and the Atlantic World. Essays in Honour of John H. Elliott, Cambridge, 1995, 299.

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that his complaints about the regulars were those also of the Council of Trent. He welcomed the Council’s determination to subject the regulars to the episcopal hierarchy. The religious orders in America resisted stoutly. Many of their members long remained in parish work, but now without the freedom of action they had enjoyed in the early decades.127 State control over both native and European communities through the mediation of religion was further enhanced when the Inquisition was first established in America in 1569, despite the resistance of religious orders (especially the Jesuits).128 The Valladolid debate signaled the beginning of the end of the controversy over the conquest. Subsequent debates were rather isolated discussions that neither achieved the transcendence of the previous ones nor exerted the same influence. Bibliography Sources

Aristotle, Nicomachean Ethics, in Barnes, J. (ed.), The Complete Works of Aristotle. The Revised Oxford Translation, vol. 2, Princeton, 1984, 1729–1867. Cartulario de la Universidad de Salamanca (1218–1600), Beltrán de Heredia, V. (ed.), Salamanca, 1971, vol. 3. Covarrubias y Leyva, D. de, Textos jurídico-políticos, Fraga Iribarne, M. (ed.), Madrid, 1957. Las Casas, B. de, De regia potestate, Pereña, L. et al. (eds.), Madrid, 1984. Las Casas, B. de, Obras completas, 8. Apologética Historia Sumaria III, Abril Castelló, V. et al. (eds.), Madrid, 1992. Las Casas, B. de, Obras completas, 9. Apología, Losada, Á. (ed.), Madrid, 1988. Las Casas, B. de, Tratado de Indias y el doctor Sepúlveda, Jiménez Fernández, M. (ed.), Caracas, 1962. Las Casas, B. de, “Estas son las réplicas que el obispo de Chiapa hace contra las soluciones de las doce objeciones que el doctor Sepúlveda hizo contra el Sumario de la su dicha Apología”, in las Casas, B. de, Obras escogidas. V. Opúsculos, cartas y memoriales, Pérez de Tudela Bueso, J. (ed.), Madrid, 1958, 318–348. 127  Bakewell, “Conquest after conquest”, 302. 128  Pérez Villanueva, J. and Escandell Bonet, B. (eds.), Historia de la Inquisición en España y América. I. El conocimiento científico y el proceso histórico de la Institución (1478– 1834), Madrid, 2000; Blázquez Miguel, J., La Inquisición en América (1569–1820), Santo Domingo, 1994.

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Peña, J. de la, De bello contra insulanos. Intervención de España en América, 2 vols., Pereña, L. (ed.), Madrid, 1982. Sepúlveda, J.G. de, “Objeciones (Prólogo) del doctor Sepúlveda a los señores de la Congregación”, en las Casas, B. de Obras escogidas. V. Opúsculos, cartas y memoriales, Pérez de Tudela Bueso, J. (ed.), Madrid, 1958, 308–318. Sepúlveda, J.G. de, “Proposiciones temerarias, escandalosas y heréticas que notó el doctor Sepúlveda en el libro de la conquista de Indias, que fray Bartolomé de las Casas, obispo que fue de Chiapa, hizo imprimir ‘sin licencia’ en Sevilla, año de 1552, cuyo título comiença: Aquí se contiene una disputa o controversia”, Fabié, A.M. (ed.), Vida y escritos de Don Fray Bartolomé de las Casas, obispo de Chiapa, vol. 71 de Colección de documentos inéditos para la historia de España, Madrid, 1879, 335–361. Sepúlveda, J.G. de, Demócrates segundo o de las justas causas de la guerra contra los indios, Losada, Á. (ed.), Madrid, 1984. Sepúlveda, J.G. de, Demócrates Segundo, in Obras completas, vol. 3, Coroleu Lletget, A. (ed.), vol. 3, Pozoblanco, 1997. Sepúlveda, J.G. de, Apología en favor del libro sobre las justas causas de la guerra, in Obras completas, vol. 3, Moreno Hernández, A. (ed.), Pozoblanco, 1997. Sepúlveda, J.G. de, Acerca de la monarquía, in Obras completas, vol. 4, Pérez-Prendes, J.M. and García Pinilla, I.J. (eds.), Pozoblanco, 2001. Sepúlveda, J.G. de, Epistolario, in Obras Completas, vol. 9,2, García Pinilla, I.J. and Solana Pujalte, J. (eds.), Pozoblanco, 2007. Sepúlveda, J.G. de, Del Nuevo Mundo, in Obras completas, vol. 11, Rivero García, L. and Pietschmann, H. (intro. and ed.), Pozoblanco, 2005. Soto, D. de, Relecciones y opúsculos. I. Introducción general. De Dominio—Sumario— Fragmento: An liceat …, J. Brufau Prats (ed.), Salamanca, 1995. Vitoria, F. de, Relectio de indis, L. Pereña (ed.), Madrid, 1967.



Secondary Literature

Abril Castelló, V., “La bipolarización Sepúlveda-Las Casas y sus consecuencias: la revolución de la duodécima réplica”, in Ramos, D. et al. (eds.), Francisco de Vitoria y la Escuela de Salamanca. La ética en la conquista de América, Madrid, 1984, 229–288. Abril Castelló, V., “Las Casas contra Vitoria, 1550–1552. La revolución de la duodécima réplica, causas y consecuencias”, in Revista de Indias 47 (1987), 83–101. Alvira, R., and Cruz Prados, A., “The Controversy between Las Casas and Sepúlveda at Valladolid”, in White, K. (ed.), Hispanic Philosophy in the Age of Discovery, Washington, 1997, 88–110. Andrés Marcos, T., Los imperialismos de Juan Ginés de Sepúlveda en su “Democrates Alter”, Madrid, 1947.

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Andújar, E., “Bartolomé de Las Casas and Juan Ginés de Sepúlveda: Moral Theology versus Political Philosophy”, in White, K. (ed.), Hispanic Philosophy in the Age of Discovery, Washington, 1997, 69–87. Bakewell, P., “Conquest after conquest: the rise of Spanish domination in America”, in Kagan, R.L. and Parker, G. (eds.), Spain, Europe and the Atlantic World. Essays in Honour of John H. Elliott, Cambridge, 1995, 296–315. Bataillon, M., “Las Casas face a la pensée d’Aristote sur l’esclavage”, en Actes du XVIe Colloque international de Tours: ‘Platon et Aristote à la Renaissance’, Paris, 1976 (‘De Pétrarque à Descartes’, XXXII), 403–420. Bell, A.F.G., Juan Ginés de Sepúlveda, Oxford, 1925. Beltrán de Heredia, V., Domingo de Soto. Estudio biográfico documentado, Salamanca, 1960. Blázquez Miguel, J., La Inquisición en América (1569–1820), Santo Domingo, 1994. Brunstetter, D.R., and Zartner, D., “Just War against Barbarians: Revisiting the Valladolid Debates between Sepúlveda and Las Casas”, in Political Studies 59 (2011), 733–752. Carro, V.D., La teología y los teólogos-juristas españoles en la conquista de América, 2 vols., Madrid, 1944. Castilla Urbano, F., “Argumentos hispanos para la construcción de la ‘leyenda negra’ (siglos XVI–XVII)”, en Villaverde Rico, M.J. y Castilla Urbano, F. (eds.), La sombra de la leyenda negra, Madrid, 2016, 101–139. Castilla Urbano, F., El pensamiento de Juan Ginés de Sepúlveda: vida activa, humanismo y guerra en el Renacimiento, Madrid, 2013. Deckers, D., “La justicia de la conquista de América. Consideraciones en torno a la cronología ya los protagonistas de una controversia del siglo XVI muy actual”, in Ibero-Amerikanisches Archiv 18 (1992), 331–366. Fernández Buey, F., “La controversia entre Ginés de Sepúlveda y Bartolomé de las Casas. Una revisión”, in Boletín americanista 42–43 (1992), 301–347. Forte Monge, J.M., “La Brevísima de Bartolomé de las Casas: destrucción de Indias y construcción de lo inaudito”, en Castilla Urbano, F. (ed.), Visiones de la conquista y la colonización de las Américas, Alcalá, 2015, 25–40. Gil Fernández, L., “Una labor de equipo: la editio matritensis de Juan Ginés de Sepúlveda”, in Estudios de Humanismo y tradición clásica, Madrid, 1984, 127–62. Gómez de Castro, A., De las hazañas de Francisco Jiménez de Cisneros, Oroz Reta, J. (ed.), Madrid, 1984. Hanke, L., Estudios sobre fray Bartolomé de las Casas y sobre la lucha por la justicia en la conquista española de América, Caracas, 1968. Hanke, L., La humanidad es una. Estudio acerca de la querella que sobre la capacidad intelectual y religiosa de los indígenas americanos sostuvieron en 1550 B. de las Casas

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y Juan Ginés de Sepúlveda, Avendaño-Inestrillas, J. and Sepúlveda de Baranda, M. (trans.), Mexico, 1985. Hanke, L., La lucha por la justicia en la conquista de América, Madrid, 1988. Hernández, B., Bartolomé de las Casas, Madrid, 2015. Hernández, B., “Lecturas jesuitas de Bartolomé de las Casas. Recepciones e interpretaciones del siglo XVI al siglo XIX”, in A. Coello de la Rosa, J. Burrieza Sánchez y D. Moreno (eds.), Los jesuitas en imperios de ultramar: Siglos XVI–XX, Madrid, 2012, 257–282. Hernández, B., “Vidas y obras de Bartolomé de las Casas en autores dominicos de la época moderna”, en Alabrús Iglesias R.M. (ed.), La memoria escrita de los dominicos, Barcelona, 2012, 123–145. Joblin, S.J., “Significado histórico de la disputa de Sepúlveda con Las Casas”, in Actas del Congreso Internacional sobre el V Centenario del nacimiento del Dr. Juan Ginés de Sepúlveda. Celebrado en Pozoblanco, del 13 al 16 de febrero de 1991, Córdoba, 1993, 237–249. Losada, Á., Juan Ginés de Sepúlveda a través de su “Epistolario” y nuevos documentos, Madrid, 1973. Losada, Á., “Observaciones sobre ‘la Apología’ de fray Bartolomé de las Casas (Respuesta a una consulta)”, in Cuadernos americanos 212 (1977), 152–161. Manzano Manzano, J., La incorporación de las Indias a la Corona de Castilla, Madrid, 1948. Muñoz Machado, S., Sepúlveda, cronista del Emperador, Barcelona, 2012. Pagden, A., “Ius et Factum: Text and Experience in the Writings of Bartolomé de las Casas”, in Greenblatt, S. (ed.), New World Encounters, Berkeley/Los Angeles/London, 1993, 85–100. Pagden, A., The fall of natural man. The American Indian and the origins of the comparative ethnology, Cambridge, 1982. Pereña Vicente, L., Misión de España en América 1540–1560, Madrid, 1956. Pérez de Tudela Bueso, J., “Estudio crítico preliminar”, in Obras escogidas de fray Bartolomé de Las Casas, vol. 1, Historia de las Indias, Madrid, 1957, IX–CLXXXVIII. Pérez Fernández I., “Las ‘leyes nuevas de Indias’ nunca fueron revocadas (Contra lo que se ha dicho durante más de cuatro siglos)”, in Communio 31 (1998), 117–140. Pérez Fernández I., “Los tratados del padre Las Casas impresos en 1552–1553, fueron impresos ‘con privilegio’”, in Studium. Revista de Filosofía y Teología 39 (1989), 51–59. Pérez Villanueva, J. and Escandell Bonet, B., (eds.), Historia de la Inquisición en España y América, vol. 1, El conocimiento científico y el proceso histórico de la Institución (1478–1834), Madrid, 2000.

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Phelan, J.L., “El imperio cristiano de Las Casas, el imperio español de Sepúlveda y el imperio milenario de Mendieta”, in Revista de Occidente 141 (1974), 292–310. Zavala, S., “Aspectos formales de la controversia entre Sepúlveda y Las Casas, en Valladolid, a mediados del siglo XVI”, in Cuadernos americanos 212 (1977), 137–151. Zavala, S., “Los títulos de posesión a las Indias Occidentales”, in Sobretiro de la Memoria de El Colegio Nacional, tomo VI, números 2–3, años de 1967–1968, Mexico, 1970, 135–220.

chapter 10

Caramuel on the Right of Discovery Daniel Schwartz 1

The Late Scholastics and the Right of Discovery

The Spanish and Portuguese crowns made ample use of discovery titles to justify not only territorial expansion in the Americas and Asia but, in the case of the Portuguese, also to claim exclusive use of sea routes.1 In fact, Portuguese navigators considered the taking of the latitudes of newly discovered lands to be more effective at generating acquisition than occupation and possessiontaking ceremonies.2 The right of discovery has by no means disappeared from international law. In a landmark case in which the US and the Netherlands disputed the island of Palmas in present-day Indonesia, the US argued that it had a right to the island because it was ceded to the US by its original discoverer, Spain. The arbitrator, Judge Max Huber, did not dismiss the discovery argument. He argued that although discovery is not enough to establish sovereignty (“continuous display of state activity” is also requisite) it does establish an “inchoate” right to sovereignty.3 Famously, the Iberian Late Scholastic, theologians such as Francisco de Vitoria, Luis de Molina, and Francisco Suárez conducted a lively debate the justice of the conquest and settlement of the newly discovered territories in America. One could reasonably expect that the question of whether discovery generates rights would feature centrally in those debates. Interestingly (and disappointingly) however, it did not.

1  On the historical use of discovery arguments see Fitzmaurice, A. “Discovery, Conquest, and Occupation of Territory”, in Fassbender, B. and Peters, A. (eds.), Oxford Handbook of the History of International Law, Oxford, 2012, 840–861. On the Portuguese marked predilection for the justificatory use of discovery claims see Seed, P., Ceremonies of Possession in Europe’s Conquest of the New World 1492–1640, Cambridge, 1995, 100–107; on their application to discovered sea routes, Seed, Ceremonies of Possession, 132. The research on which this article is based was generously funded by a grant from the Halbert Center for Canadian Studies at the Hebrew University of Jerusalem. 2  Seed, Ceremonies of Possession, 101. 3  Scott, J.B., Hague Court Reports 2nd ed., New York, 1932, 83.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_012

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It is not that discovery was absent from these debates. In probably the best known and most influential of the works discussing the justice of the conquest, the Relection on the Indians, Francisco de Vitoria expressly contemplated and then dismissed the argument that Spain might have a right to these territories by virtue of the fact that Columbus discovered them on its behalf. He does not dismiss the argument on the basis that discovery cannot produce such a right, but rather, that the Americas were not, in the proper sense, discovered since the territories were already inhabited, and thus failed to qualify as terra nullius.4 In saying so, Vitoria implicitly concedes that—but does not explain how—the discovery of unoccupied territories may generate some form of right. Discoveries and findings that produce rights are, however, not confined to geographic ones. It is therefore worth examining whether Late Scholastic authors offered at least some explanation of the moral effects of non-geographic discovery. Historically, the most important affirmation of the rights of discovery is contained in Justinian’s legal code, the Institutiones. In the section (book II. tit. 1) devoted to “The division of things” there is a long and detailed list of all the ways by which a person may gain dominium over a thing, be it wild or domestic animals, woods, gems and pearls, mineral deposits, or newly formed islands in a river or the sea. The Institutiones state that some of these things become the property of an individual by the force of civil law and some by the force of the Law of Peoples, which is treated as identical with Natural Law. So, for example Section 18 states: “Precious stones, gems, and other things found upon the seashore become immediately, by natural law, the property of the finder”.5 The treatment in the Institutiones would subsequently provide the matrix for many Late Scholastic discussions on rights over things that do not have or have never had an owner. The Latin for discovery, inventio, covers finding or coming across things, as well as the meaning comprehended in contemporary usage of the verb “invention” as a productive, non-epistemic act. Under the rubric of inventio and under the influence of the Institutiones, the Late Scholastics discussed the question of the original acquisition of firewood, pastures, animals, and metals. Since they were also very interested in the acquisition by discovery of things whose owner is unknown or dead, they discussed the case of shipwrecks, buried treasures, and driftwood. Because they were 4  On this Fitzmaurice, A., Sovereignty, Property and Empire, 1500–2000, Cambridge, 2014, 45–46. 5  Justinian, Corpus iuris civilis, Krueger, P. and T. Mommsen (eds.), vol. 1, Berlin, 1928, II. 1. 18. at 11. “Item lapilli gemmae et cetera, quae in litore inveniuntur, iure naturali statim inventoris fiunt”. English translation from Collett Sandars, Th., Institutes of Justinian, London, 1922.

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moral theologians, they naturally placed their emphasis on moral questions such as: whether keeping a found object amounts to stealing, whether it must be given to the poor, or whether a duty exists to publicly announce the finding. They were also interested in cases in which discoveries or findings are made on another person’s land and whether the state has a right to limit or override its subjects’ discovery rights (for example if the state can demand half of any found treasure or assert property rights over gold mines). But, again, there is next to nothing on the reasons why discovery generate ownership. Given the characteristically careful and exhaustive nature of Late Scholastic inquiry, one would have expected that they would also have investigated the foundation of the right of discovery (geographic or other), namely why and how discovery can generate a right over the thing discovered. This type of discussion might have devolved organically from Aquinas’ brief excursus on discovery (Summa theologiae II–II q. 66 a. 5 ad 2) in which, while discussing exceptions to theft, he says that there are two kinds of discovered things, those that have or have had an owner, and those that have never had one. The former includes stones and gems found on the sea shore; these, he says, are given to the occupant (occupantis conceduntur). Aquinas gives no reason for this. Nor does Cajetan, typically an inquisitive commentator of Aquinas, see reason to elaborate. An important yet so far unexplored exception to this general disinterest was Juan Caramuel y Lobkowitz (1606–1682), a polymath and eclectic theologian known for the originality, thoroughness, and disciplinary breadth of his work covering music, grammar, poetry, mathematics, astronomy, architecture, physics, logic, metaphysics, political polemics, and, of course, theology and canon law. Born in Spain to a Czech mother and a Luxembourgian father, this Cistercian theologian spent most of his eventful life in Portugal, Belgium, the Netherlands, Bohemia, Moravia, Germany, Austria, and Italy.6 Caramuel examines the view that discovery generates dominium rights in his Theologiae Moralis published in Leuven 1645 with a first hurried draft published one year earlier in Cologne. This work is Caramuel’s first attempt at providing an account of his moral system. In it, on discovery generating ownership, he says: “Maybe those who assume much and examine little overwhelm you with testimonies and texts, but not with reasons, seeing the matter

6  On Caramuel’s life and works see Fleming, J., Defending Probabilism: The Moral Theology of Juan Caramuel, Washington, DC, 2006; Velarde Lombraña, J., Juan Caramuel, vida y obra, Oviedo, 1989; and Pastine, D., Juan Caramuel: Probabilismo ed encyclopedia, Florence, 1975.

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as not pressing but texts are not to be admitted if they are empty of reasons (si ratione vacui)”.7 Caramuel’s sweeping assertion is completely correct. One would look in vain through the Late Scholastic treatises covering modes of acquisition for any reasons supporting the claim that discovery produces rights (whether understood as including or excluding occupation). No explanation is given, for example, of why discovering precious stones in the sea gives the discoverer a dominium right under natural law to what has been discovered. This is true for the authors most cited in Late Scholastic treatments of discovery and finding (for example of treasure) such as Gabriel Vázquez, Pedro Navarra, Francisco Sarmiento, Leonardus Lessius, Luis de Molina, Jacob Platel, Pedro Aragón, Marcello Megalio, Antonino Diana, Cristoph Haunold, Domingo de Soto, Francisco Rebello, and, arguably the most prolific author on the rights of finders, Cardinal Juan de Lugo.8 As noted, it is not that these treatments are uninquisitive or superficial. Much to the contrary, they go into great detail on other subjects, such as rights over discovered treasure and minerals. But on this particular fundamental point—namely the way discovery can produce rights—there is next to nothing. It is no presumption for Caramuel to consider himself the first to contemplate the scenario that someone may ask why discovery generates rights and to maintain that this person is owed an explanation. While Caramuel became one of the authors cited in later treatments on discovery, particularly regarding metals and treasures, his theory on why

7  Caramuel, J., Theologiae Moralis, Louvain, 1645, lib. 2, d. 1 at 70, 264 (hereafter cited by page number and paragraph number). The discussion on acquisition by discovery is found in the TM, lib. 2 d. 1 at 70 and also, unchanged, in Caramuel, J., Theologia Intentionalis, Lyon, 1664, lib. II, d. 1 at 79. 8  Sarmiento, F., Interpretatione selectarum libri octo de ecclesiasticis reddibus liber uno, Antwerp, 1616, lib. 6 select. 10 at 363; Platelius, J., Synopsis totius cursus theologici accuratissima, Cologne, 1688, pars 3 c. 4 n. 8 at 441; Megali, M., Secunda Secundae partis institutionis peregrinae confessariorum et poenitentium, Modena, 1619, pars 2 c. 4 q. 2 at 144; Molina, L. de, Iustitia et Iure, Venice, 1614, lib. 1 tract. 2. d. 56 at 222–227; Lessius, L., Iustitia et iure, Louvain, 1605, lib. 2 ca5 dub. 12 at 49; Vázquez, G., De restitutione in Opuscula Moralia, Lyon, 1631, d. 5 sect. 4 dub. 3 at 95; Lugo, J. de, Disputationum de Iustitia et Iure, tomus primus, Venice, 1718., d. 6 c. 10 at 105; Haunold, C., Controversiarum de iustitia et iure, Ingolstadt, 1671., tract. 5 c. 1 at 400; Diana, A., “De Thesauris”, Alcolea, M. de (ed.), Coordinati seu omnium resolutiones morales, vol. 6, Venice, 1728., tract. 6 at 231–242; Soto, D. de, De iustitia et iure, Madrid, 1967 (facsimile of the 1557 edition)., lib. 5, q. 3 a. 3 ad 2 at 423; Navarra, P., De ablatorum restitutione in foro conscientiae, Lyon, 1593, vol. 2 lib. 4 c. 1 n. 54 at 371; Aragón, de, De iustitia et iure, Venice, 1595, q. 62 a. 5 at 175–178; Rebello, F., Opus de obligationibus iustitiae, religionis et caritatis, Lyon, 1608, lib. 1 q. 15 sect. 2 at 84.

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discovery produces ownership is almost entirely absent from these treatises.9 In what follows I provide an outline of Caramuel’s theory of the moral effects of discovery. 2

Discovery as Moral Production

For Caramuel dominium comes in different forms: there is dominium of property and dominium of jurisdiction.10 Jurisdiction is exercised by a republic over its subjects and by parents over their minor children. In what follows I shall only consider proprietary dominium or (for brevity, simply dominium). Caramuel begins his discussion of discovery noting that invention and occupation is a legitimate title for acquiring dominium is universally stated by all authors, who assert that precious crystals, gems, metal deposits, and live plants found on the shores of the sea or in sand dunes, in salt, or in the rocks, belong to the discoverer [inventor]. But what if you deny this title? How can you be convinced?11 His response to this challenge appeals to principles of ownership that stand at the foundation of his own moral system based on the principle that “just as every free cause acquires physical and natural dominium over the things that it has physically produced, [every free cause] acquires also moral dominium over things produced morally. Since discovery [inventio] is a moral production, discovery acquires moral dominium [for the inventor]”.12 Caramuel argues that gems, diamonds, islands, and other things yet to be discovered exist physically, but fail to do so “virtually” until discovered; that is, with respect to human beings, it is as if they are not truly existent. Once discovered they acquire what he calls a humanitus esse, translatable as a “human mode of being” or as “being insofar as humans are concerned”. Discovery transfers discovered things from a state lacking in human esse to a state in which they exist humanly; they possess human esse. 9   For example, there is much reliance on Caramuel in Gutiérrez de la Huerta, L., Tractatus de Thesauris, Naples, 1705, lib. 1 c. 19 at 125. Other instances of general reliance on Caramuel’s theory of discovery can be found in Pauwels, N., Theologia practica pars quinta, Louvain, 1717, 251 and Sebaldus a Sancto Cristophoro, Theologia Juridico-Canonico-Polemicomorales, vol. 2, Würzburg, 1740, 70–72. 10  Caramuel, Theologiae Moralis, 9, 60. 11  Caramuel, Theologiae Moralis, 70, 263. 12  Caramuel, Theologiae Moralis, 70, 264.

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Asserting that discovery is moral production has a double meaning. In one sense, it is a way of affirming that the non-physical production involved in discovery should be treated as analogous to physical production and should be attributed analogous moral effects. This is why Caramuel equates the moral production involved in discovery to a “virtual” production. The person who discovers something “virtually produces it, and hence has the same relation to it as if he had really produced it. Since had he really produced the thing he (the producer) would have physical dominium, in the case of moral production, he relates to it [se habet] as if he has the physical dominium”.13 The idea that a virtual x is “a not-x that should be treated as an x” recurs throughout the Theologia Moralis. Other examples from Caramuel is that of an adopted child. He or she is “virtually” the son or daughter of the adoptive parents in the sense that, for all intents and purposes, including for instance inheritance, he or she ought to be treated as their child.14 A similar example that Caramuel gives is that of a naturalized subject: someone not born in Spain, can be naturalized thereby becoming “virtually” Spanish. He is Spanish in what Caramuel calls a “moral way” insofar as he enjoys all the rights, privileges, and has all the duties of a Spanish subject born in Spain.15 This use of virtual is extended to moral beings (see below). So Caramuel says that a moral being [morale esse] “is not in truth and reality what is said to be, but according to the prudent estimation is treated as that which is said to be”.16 Applied to the case of discovery, to say that the discoverer morally produces what he discovered, means that although this is a form of non-physical production, the producer has the same rights over his discovery that a physical producer would have had. In a second sense, to declare discovery to be a moral production tells us something about the nature of the product. Caramuel says that discovery adds to the thing discovered a “moral” and “political” mode of being. Discovery does not morally produce in that which is said to be discovered a natural being [naturale esse]—which is presupposed—but a political

13  Caramuel, Theologiae Moralis, 70, 264. 14  Letter of November 8th, 1653 to Bona Spei in Bona Spei, Noctua Belgica ad Aquilam Germanicam, Louvain, 1657, unnumbered fol. 11 B. 15  Caramuel, Theologiae Moralis, 214, 950. 16  In Caramuel, J., Critica philosophica artium scholasticarum cursum exhibens, Vigevano, 1681, 383 n. 1857. Defined also in his letter to Bona Spei of November 8, 1653 in Bona Spei, Noctua Belgica, unnumbered fol. 11.

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and moral being [esse politicum et morale]. Before discovery, while it [the thing discovered] was among the class of natural things, it was not among the class of political things and things that the Republic can be served with [servientibus Republica].17 Caramuel does not define political being for us. Perhaps a “political” mode of being could be taken to signify that the discoverer endows the discovered thing with the capacity of being a resource for society? So, even while he does not produce the natural thing, he does produce it as a social or political resource. As concerns “moral beings” we are in firmer ground. Moral being falls roundly within the moral ontology developed by Francisco Suárez and other Late Scholastic authors. My ownership of something is neither a materially existing thing, nor a mere “being of reason” (such as chimeras or griffins). Like obligations and duties and rights, this ownership has some form of extra-mental reality. Therefore, ownership populates the metaphysical category of moral entities, the exact nature of which attracted much discussion among the Late Scholastics.18 Caramuel, then, is arguing that discovery is a form of non-physical production that should be treated for all moral purposes as a physical production. The thing discovered acquires by being discovered a human, political and moral mode of being. Are these three modes of being distinct from each other? What role do they play in Caramuel’s argument for the view that discovery generates dominium. For this argument to work it must be shown that discovery non-physically produces something other than dominium, and that it is this other thing that grounds the dominium. Otherwise, Caramuel would be arguing, absurdly, that because discovery produces dominium over the discovered thing, the discoverer acquires dominium over the dominium over the discovered thing. So, we need a non-physical product of discovery other than dominium for the argument to take off. The not-physical product that Caramuel must have in mind must be his humanitus esse, that is, the human mode of being that the discovered thing acquires by virtue of the discovery. If we discover a unicorn, it is not only that we now come to know that unicorns exist, but also make it the case that unicorns 17  Caramuel, Theologiae Moralis, 16, 86. 18  A useful summary of Suárez’s doctrine of moral entities, one that certainly stands in the background of Caramuel’s theory is Las Heras, J.H., “Del ente moral según Suárez”, in Homenaje a Zavier Xubiri, vol. 2, Madrid, 1970, 135–162. For ens moralis in Caramuel, see Knebel, S., Wille, Würfel und Wahrscheinlichkeit, Hamburg, 2000, 492–497.

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become susceptible of ownership. We can now buy, sell, and donate unicorns. Caramuel’s point may be that the bringing of the existence of x into public knowledge enables (but does not constitute) certain moral relations to x, such as its ownership. It remains unclear who human mode of being relates to the political mode of being that Caramuel identifies as another product of discovery. To recast, Caramuel’s argument could be construed as asserting that: (1) the discovery of a thing produces in the being discovered a non-physical mode of being (a human esse); (2) productive acts generate dominium, (3) therefore discovery generates dominium over the discovered thing. So far, we have discussed Caramuel on moral production. Since however, for Caramuel, moral production is structured analogously to physical production, we should gain a better grasp of why and how, for Caramuel, physically producing something makes me its owner. 3

Is “Physical” Production, Physical?

Caramuel tirelessly insists that the physical and the moral belong to two separate domains. While moral entities have a different mode of being than physical entities, the two domains are “analogous, parallel and in concord” (analogo, concordi, et paralleli).19 This means that there is a common set of principles that is capable of describing or explaining the dynamics inherent to both of these two domains. The analogy goes in one direction, the moral domain is analogous to the physical one, not vice-versa. Because of the primacy of the physical domain, understanding the way physical production generates dominium “is the basis and foundation of all moral conclusions”, which naturally include those bearing on moral proprietary dominium.20 The distinction between moral and physical dominium was standard in theological discussions before Caramuel. In these discussions “physical dominium” means in general the ability of a cause to produce or not to produce an effect.21 So, for example, God has physical dominium over something insofar as He can create it or refrain from doing so. 19  Caramuel, Theologiae Moralis, 17, 93. 20  Caramuel, Theologiae Moralis, 17, 93. 21  On the distinction between moral and physical dominium in Suárez see Brett, A., “Human Freedom and Jesuit Moral Theology”, in Skinner, Q. and Van Gelderen, M. (eds.), Free Persons and Free States: Freedom and the Construction of Europe, Cambridge, 2003, vol. 2, 15–16.

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Although Caramuel borrows extant terminology, his use of “physical dominium” has a very different meaning; indeed, it is unfortunately misleading that he calls this dominium “physical”. For him “physical dominium” is not a mere physical ability but a moral right. As Caramuel defines it, it is “a moral right derived from law to the existence of the thing which is said to be physically possessed”.22 So, for instance, for Caramuel, to freely plant a tree gives you physical property dominium in the sense that no one else is morally allowed to destroy the tree. Moreover, against the view of other Late Scholastics, Caramuel argued that physical dominium can be renounced or donated. By doing so physical dominium transmutes into moral dominium in the sense that the donee is to be treated as if he had really produced that which he did not. So, if two persons jointly physically produce something and one of them donates his share to the other, the latter acquires a moral dominium over that part in addition to the physical dominium that he already had over his own part.23 Caramuel anticipates the objection that his physical dominium is really moral and that therefore the separation—of which Caramuel painstakingly reminds his readers—between the physical and the moral domains collapses.24 He admits that physical dominium is in some way a moral dominium but rejects the implication of collapse. He argues that, although physical dominium is also moral it is moral merely in what we may call as subsidiary way. Let me present his answer in more detail. The objection is introduced when Caramuel discusses the physical dominium of human beings over their actions. Caramuel agrees—in line with traditional Catholic teaching— that we have ownership neither over our bodies nor over our souls. These are owned by God. However, we have a sort of usufruct over them that confers a true dominium over the fruits of our bodies and souls; such fruits include our actions and their physical products. One acquires physical dominium by producing something real or material and loses such dominium by physically destroying the thing produced. The objector argues: if dominium over our actions is, as Caramuel argues, derived from a contract of usufruct, then this dominium but must be moral, not physical. To this Caramuel replies that “morality” can be taken either in its strict sense or in a laxer one. In the strict sense “morality” is an “extrinsic denomination” derived from the public law. Extrinsic denomination, as described by John Doyle is “a designation of something, not from anything inherent in itself, but from some disposition, coordination, or relationship which 22  Caramuel, Theologiae Moralis, 17, 92. 23  Caramuel, Theologiae Moralis, 239, 955. 24  Caramuel, Theologiae Moralis, 27, 122.

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it has toward or with something else”, such as, for example, something “being located to the left of” something else.25 In the lax sense morality is a denomination with respect to a private law. Caramuel then notes that, as all agree, there is such thing as a “natural contract”, which he defines as a “pact that is not attributed or denied validity by any moral law”.26 Our bodies and souls are committed to us by a natural contract with God “yet [we do not have them] as subjects of the moral law”. Therefore, he concludes, we have a resultant moral dominium over our actions (and their products) in the non-strict sense. To mark this difference, namely that we do not have ownership of actions and products in the strict sense, we denominate this dominium “physical”. This argument clearly requires some unpacking. By appealing to “natural contracts” Caramuel is drawing our attention to the distinction in Roman law between legal and natural obligations. The latter arise from a consensual agreement and generate what the Roman jurists called “natural obligations”; these are obligations that need not be recognized, enforced, or denied by civil law. Caramuel presents the relation between moral obligations directly derived from the moral law and contractual obligations as analogous to the relation between obligations directly derived from the civil law and natural obligations.27 The presentation of morality strictly considered as essentially a relation to positive moral law is congruous with Caramuel’s generally Scotist approach. In its full sense, moral dominium is established directly by the moral law, for instance the moral law that says that if I discover something, I acquire property rights over it. A dominium that is moral in a merely subsidiary or derivative sense is not directly established by the moral law, but by a contract.28 By abiding to the contract I am not acting directly in the capacity of subject to the contents of the law, but as subject to the contents of a contract, a contract that may not be legally enforceable. While it is true that Caramuel’s denomination of the dominium rights derived from a usufruct contract as “physical” seems seriously misleading, it is also true that such a dominium right does differ in some sense from dominium rights that follow directly from the moral law. Perhaps Caramuel was forced by the overall structure of his moral theory to make an unfortunate terminological choice to mark this difference between these two types of dominium 25  Doyle, J.P., “Prolegomena to a Study of Extrinsic Denomination in the Work of Francis Suárez, S.J.”, in Doyle, J.P., Collected Studies on Francisco Suárez, S.J. (1548–1617), Salas, V.M. (ed.), Leuven, 2010, 123–160, 125. 26  Caramuel, Theologiae Moralis, 27, 122. 27  Bona Spei, Noctua Belgica 35, 105 and TM, 256, 1032 arguing against Vázquez. 28  On natural contracts and natural obligations see Lugo, Iustitia et Iure, d. 12 sect. 1. n. 2 at 2.

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rights, nevertheless the difference to which he draws our attention is not unintelligible. There is a sense in which, however, the use of “physical” and “moral” to differentiate between these forms of dominium does seem apt. Both physical and moral ownerships are moral ownerships, however the production and destruction of the former sort of ownership is exercised by physical operations, such as planting a tree or burning a house. By contrast, the production and destruction of moral ownership can be effected only by moral operations, that is, an operation that does not materially alter what is owned, such as, for Caramuel, donating, buying, or selling.29 4

Discovery vs. Occupation as Sources of Dominium

After declaring discovery a source of moral property rights, Caramuel turns to the difference between discovery and occupation. He wishes to clarify which of the two is the one that generates property rights. He notes that some authors treat discovery and occupation as one thing, while others treat them as distinct.30 Discovery [inventio] consists of an act of detection, whereas occupation is “the first act of possession by which the discoverer seizes that which has been discovered and appropriates it for himself”.31 The question is whether discovery in its restricted sense (detection) suffices for acquiring ownership or whether occupation is also necessary. In agreement with current international law, all of Caramuel’s contemporaries who pronounced on the matter, argued that discovery is insufficient; occupation is required for establishing property rights. Lugo, for example, asserts that while discovery suffices for dominium, the true discoverer of a thing is the one who first seizes it; hence if one person detects a gem but another person seizes it first, it belongs to the latter. For Lugo the discovery that generates property rights includes occupation.32 The same was argued by Hugo Grotius.33 29  Caramuel, Theologiae Moralis, 230, 919. 30  On the discussion between Grotius and Serafim de Freitas on whether discover includes occupation see Freitas, S. de, De iusto imperio lusitanorum asiatico, J. Zurita (trans.), Valladolid, 1925, ch. 3. sec. 14 at 44–5 and Vieira Brito, M., “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion over the Seas”, in Journal of the History of Ideas 64 (2003), 367. 31  Caramuel, Theologiae Moralis, 70, 265. 32  Lugo, Iustitia et Iure, d. 6 sect. 10 n. 97. 33  A “discovery is not to see things with the eyes, but to lay hold of it with the hands”, Grotius, H., Mare Liberum, Brown Scott, J. (ed.) and Magoffin, R.V.D. (trans.), New York, 1916, 11–2, attacking Portuguese territorial claims.

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A later author, Sebaldus a Sancto Cristophoro explained this by pointing out that only occupation undertaken with the deliberate aim of taking possession has moral effects. The act of seizure evinces this aim.34 Even within Caramuel’s theory of original acquisition, there is a plausible reason for attributing moral effectiveness to occupation rather than to invention. It is his principle that not every productive action generates dominium; the productive action must be free or deliberate. This requirement is posited in his general discussion of the rights generated by physical production. Caramuel declares that for a being to have proprietary dominium it has to (1) be a free cause (so that brutes and other necessary causes are excluded) (2) it has to be efficient, that is, must have an effect, and (3) something must, in the end, be produced in its entirety (or at least its form must).35 The physical proprietor is a “physically free person who produces a real and physical entity over which it is said to have ownership”.36 So the condition of liberty is stipulated as requisite for physical and therefore also moral dominium. As Caramuel himself notes the problem with discovery is that it is often not a free or deliberate action but rather fortuitous or accidental, whereas occupation is almost always deliberate. Caramuel replies that many discoveries and findings are obviously non-fortuitous: he gives the examples of searching for new islands and venturing into unknown regions, the divers’ retrieval of corals and gems from the bottom of the sea, or the industrious prospecting of metal veins or precious stones in mountains and deserts. Since, in these cases discovery is deliberate, these are not to be excluded from providing a true title of ownership. Caramuel goes on to qualify the premise that a productive act must be actually free in order for it to grant dominium. If actual freedom were required in every case, then many of cases of recognized ownership titles would have to be denied. He gives two examples: that of “many painters who, while drunk, draw the most beautiful images”, and that of “participants in conjugal union who conceive their children while half-asleep”.37 We should conclude that since these acts produce ownership (as in the case of the painter) and authority (as in the case of the parents), ownership does not require that the productive act exhibit deliberateness; it suffices that the agent is normally capable of deliberately doing that act. 34  Sancto Cristophoro, Theologia Juridico-Canonico-Polemico-morales, 64 n. 168; also Sancto Nicolae, B. a, Alphabetum morale seu Theologia Moralis, Cologne, 1739; “furtum”. 35  Caramuel, Theologiae Moralis, 15, 85. 36  Caramuel, Theologiae Moralis, 16, 85. 37  Caramuel, Theologiae Moralis, 71, 266.

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The example of the painter is somewhat implausible, figurative painting at any rate cannot generally be successfully accomplished (at least not very well) in a state of unconsciousness or torpor (though Toulouse-Lautrec might have disagreed). More problematic still is that Caramuel’s elimination of actual deliberateness as a requirement for the sort of production that generates ownership rights seems to be a drastic concession in plain contradiction with the principles he enunciated before. Be that as it may, Caramuel’s view is that discovery unaccompanied by occupation can generate ownership rights because it can be a deliberate productive act, even if on occasion it is performed by someone who, though capable of deliberate action, did not act deliberately. Note that Caramuel’s view is of considerable practical moment: while seas and other bodies of water (as opposed to the seabed) do not seem easily susceptible to occupation38 (at least while in liquid state), they can certainly be discovered, which opens the way for their being owned.39 Caramuel would have argued that debating whether the seas can be objects of occupation, as some authors did, is unnecessary since occupation is not the relevant issue.40 5

Discovery vs. Settlement

While in its narrow sense occupation refers to the mere physical seizing of the discovered territory, settlement typically involves building houses and engaging in productive activities such as agriculture. For Caramuel, although discovery suffices for obtaining moral ownership, settlement also produces a form of ownership. Caramuel holds the principle that: “he who in his land erects his house has a physical and direct right over it”.41 “His land” here covers uninhabited places or place in which the settler is not a subject of an authority. Assume that an island emerges from the sea in everyone’s plain view so that there is no discovery as such. A person settles on the island and builds houses and plants trees.42 The planting of trees and building of houses gives the settler direct physical dominium over the trees and the houses and indirect dominium

38  Freitas suggests that “opening a route” is the marine equivalent to terrestrial occupation. Freitas, De iusto imperio, ch. 3, sec. 14 at 45. 39  Here I am not considering acts of taking possession of the sea. On this Elliot, J.H., Empires of the Atlantic World: England and Spain in America, 1492–1830, New Haven, 2006, 31, and Pagden, A., The Burdens of Empire. 1539 to the Present, Cambridge, 2015, 153–172. 40  See Pagden, The Burdens of Empire, 167. 41  Caramuel, Theologiae Moralis, 31, 133. 42  Caramuel, Theologiae Moralis, 31, 133.

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over the land where they are installed. Caramuel notes that this was the original mode of acquisition of ownership over the first cities and regions. The King of Denmark (Caramuel’s example) attempts to seize the land that has been settled. The settler is morally permitted the use of force to protect the trees that he has planted and houses that he has erected, lands he has tilled, water he has channeled, and cities that he has founded, and therefore also the land on which they are located. Even if the King of Denmark does not seize this land but stations his troops in the uncultivated land or the shores, if they present a threat to the settler’s dominium by, say, introducing plagues that will destroy the harvest, the settler can justly fight against the King of Denmark. Caramuel seems to allot many rights to settlers. Yet his aim is actually to restrict them. Productive settling of an island that has been discovered by someone else cannot provide ownership of that entire island. Settlement produces rights only in cases in which there is no assignable discoverer and the settler can only defend the part of the island that he has settled and the territory contiguous to it. 6

Owning the Seas

Seas present a problem of their own. Caramuel approaches the question of the sea within his discussion on whether the four elements: air, earth, water, fire are susceptible of human dominium. As concerns the sea, Caramuel poses two questions. First, whether one can acquire ownership (physical or moral) over the sea, comprehensively understood so as to include all superficial waters on the earth. Second, whether it is possible to acquire ownership over delimited maritime areas. As concerns physical proprietary dominium it is clear, says Caramuel, that nobody can have this sort of dominium over all the seas, since it is impossible for a human being to produce the seas. However, he notes that portions or regions of the sea can be humanly created or destroyed. He gives an example the Dutch reclaiming land from the sea in Zeeland as an example of partial sea destruction, and intentional flooding as partial sea creation (as, for example, the creation of artificial lakes).43 Concerning the moral dominium of the seas in their entirety, Caramuel provides a puzzling argument. He argues that moral dominium does not only require the capacity to destroy the moral dominium by selling this right or 43  Caramuel, Theologiae Moralis, 230, 914.

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donating it, but also the capacity to physically destroy what is owned.44 Since humankind lacks this capacity it lacks moral dominium over the seas. He gives this illustration: for Peter to be the moral owner of his house it must be the case that not only can he destroy his dominium over it through sale or donation, but he must be also capable destroying it physically by setting it on fire or dislodging it. If he is unable to do so, it means that the house is not really owned by Peter, but rather Peter has only usufruct of the house.45 The argument seems either fallacious or at least seriously baffling. It may be true that if I were not morally allowed to destroy the house in which I live, this would reveal a limitation of my property rights; but the reason we cannot destroy the seas is not any such moral restriction, but a purely physical one. Scrutiny of Caramuel’s emphasis on “destructive power” (potentia destructiva) as a requirement of dominium does not dispel the problem. On this subject, Caramuel argues that the very idea of proprietary dominium—abstracted from a moral or physical valence—includes within it the idea of the “authority to destroy” (destructiva authoritas).46 This authority can be purely physical, purely moral, or mixed. Mixed destructive authority is the authority not only to morally destroy ownership over the thing by selling or donating it, but also by physically annihilating it. His example of mixed destructive authority is that of the owner of a ram. So, suppose you own an immortal ram, one that cannot be killed. Certainly, in that case, it would seem somewhat dubious to say that the owner has the moral authority to kill the ram. Note, however, Caramuel, does not say that moral dominium requires some kind of destructive authority, but rather, the physical capacity to destroy that over which one has dominium. And again, it is unclear how the presence or lack of a purely physical capacity (as opposed to the having of a moral “authority”) can affect the nature of the right that we have over a thing. Perhaps Caramuel has in mind something like the following: physical destruction is a way terminating moral dominium by annihilating that which is morally owned. So, the lack of destructive capacity is in the same category as lacking the capacity to donate or sell a thing—both of which are purely moral methods of destroying moral dominium. Moral entities, such as ownership rights over something, are metaphysically dependent on the existence of physical beings (that which is owned). Caramuel’s view may then be that full dominium over a moral entity requires that all the ways of destroying that moral entity remain open. 44  Caramuel, Theologiae Moralis, 230, 919. 45  Caramuel, Theologiae Moralis, 231, 919. 46  Caramuel, Theologiae Moralis, 33, 138.

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With respect to ownership of maritime zones, rather than the sea comprehensively understood, Caramuel holds that mankind has only usufruct of the seas, which are owned by God. However, mankind can, on common agreement, divide the seas among themselves or according to a law proposed by the majority of nations and accepted by the minority. Leaving aside such possible agreement, do coastal nations own coastal maritime zones? Caramuel refers the interested reader to the works of John Selden, Johan Isaaksz Pontanus, and Fernando Vázquez de Menchaca.47 These works were contributions to what has been called the “great debate on the freedom of the sea” which also prominently includes works by Hugo Grotius and Serafim de Freitas. Caramuel concedes that these works contain much interesting material but dismisses the import of their answers because, in his view, these authors lack a properly grounded concept of dominium. So Caramuel resorts to his own theory of discovery rights to argue that there can be a moral dominium, and even a “virtual or physical dominium”, over a small sea or portion thereof. These include, crucially, seas or waters discovered [detecti] and those created by the intentional submerging of land through the initiative and industry of the public authority.48 This is a straight application of his doctrines of discovery as moral production and of the rights generated by physical production. Caramuel also believes that nations have indirect dominium over those proximate maritime zones, the control of which is necessary for defending their direct dominium over the land. So the offshore maritime area can be closed, admitting only friendly travelers under conditions determined by the sovereign. When the coastal nation is morally allowed to close the offshore area, it thereby becomes a usufructuary (note that the origin of this usufruct title is different from the usufruct right that humankind as whole has over the sea) and has a stronger right over the wealth of that offshore sea (fish, gems, pearls) than foreign travelers have. For Caramuel coastal nations may be considered not to have only usufruct of this the territorial sea but actual use rights 47  He is referring to Pontanus’ Discussionum historicarum libri duo. For an overview, see Bederman, D.J., “The Sea” in Fassbender, B. and Peters, A. (eds.), Oxford Handbook of the History of International Law, Oxford, 2012, 359–382, and Vieira, “Mare Liberum vs. Mare Clausum”. 48  Caramuel, Theologiae Moralis, 232, 925. Claiming discovery rights over the sea was not rare: João III of Portugal wrote in 1537: “the seas that can and should be navigated by all are those which were always known and always known by all and common to all. But those others which were never known before and never even appeared navigable, these seas (that) were discovered by such great efforts on my part may not [be navigated by all]”; in Seed, Ceremonies of Possession, 128.

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which would entitle them to transform waterways (I take him to be referring to coastal inlets such as rías and fjords) infields and meadows (however Caramuel does not allow the creation of fields in the open coast, changing the contour of the coastline). Finally, sovereigns who own distant possessions are allowed, if security against hostile nations requires, to close to others the seas or sea regions interposed between them and those lands. 7

Caramuel and Locke

Caramuel’s theory of dominium seems in some respects close to John Locke’s famous theory of appropriation. Locke argued that one acquires moral ownership by mixing one’s labor with unowned things in their natural state.49 Aware of the problems of taking this view literally, Neo-Lockeans, such as Robert Nozick, have understood or modified Locke’s central idea as holding that we are entitled to the products of our industry and efforts.50 Recently, philosophers have sought to defend intellectual property rights as they apply, for instance, to scientific discovery by appealing to this Neo-Lockean view. Adam Moore, for example, asserts that ideas belong to their producer because “while all matter, owned or unowned, already exists, the same is not true of intellectual property”.51 Contrasting Caramuel with the Lockean and neo-Lockean views brings a number of important differences and similarities between their respective theories into relief. First, Lockeans premise our entitlement to the products of our work on our self-ownership; the products of our labor are, as it were, extensions of ourselves.52 By contrast Caramuel believes that he can reach this conclusion without believing in self-ownership; for him it suffices to believe that we are mere usufructuaries of our bodies and souls. Second, the Neo-Lockean take on scientific discovery asserts that, although the discoverer does not produce what is discovered, he produces the knowledge 49  Locke, J., “Second Treatise of Civil Government”, in Two Treatises on Government, Laslett, P. (ed.), Cambridge, 1988, sec. 27 at 287–288. 50  Nozick, R., Anarchy, State, and Utopia, New York, 1974, 160: “Whoever makes something, having bought or contracted for all other held resources used in the process […] is entitled to it”. 51  Moore, A.D., “A Lockean Theory of Intellectual Property Revisited”, in Hamline Law Review 21 (1997), 1069–1103, 76. For a critique see Attas, D., “Lockean Justifications of Intellectual Property”, in Gosseries, A., Marciano, A. and Strowel, A. (eds.), Intellectual Property and Theories of Justice, New York, 2008, 29–56. 52  Locke, Second Treatise, sec. 27 at 287–288 and sec. 44 at 298–299.

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of it and therefore has some ownership over this intellectual product. While this may seem plausible—although far from uncontroversial—in some cases of scientific discovery (for instance the discovery of a natural substance that can remove all stains), this view yields highly counter-intuitive implications as regards geographic discovery. The discoverer of a planet or an island would have the right to keep this finding secret from the rest of humankind or charge for this knowledge. The ownership over what has been discovered does not give the discoverer control over this knowledge. Much to the contrary, for Caramuel ownership of what is discovered is acquired by making the discovery known to the rest of humankind and thereby providing it with human esse. Third, unlike what seems implied by the Neo-Lockean argument, Caramuel’s argument is not about desert. He does not argue (as, for example, the Portuguese did) that the discoverer (whether acting on her own or through agents) deserves what she discovered because of the labor, industry, and expenses invested in the effort of discovery.53 The discoverer does not gain ownership rights as a reward for his service to humankind. Rather, she gains ownership directly as a producer of a non-physical quality in the product (other than his personal knowledge of it). 8 Summary The first merit of Caramuel’s exposition was to identify a serious lacuna in discussions what belongs to whom. This was the lack of a systematic account on how exactly discovery can produce ownership rights. Caramuel aimed to fill this lacuna by applying the fundamental principles of his moral system to the question of the moral effects of discovery. Under his theory, discovery is narrowly conceived as an act of primarily purposeful detection, to be distinguished from more expansive conceptions of discovery, which includes physical occupation or symbolic taking of possession. While human beings do not own their bodies and souls, which they possess only in usufruct, they do own their free actions and their products. To bring a previously unknown thing into the realm of human knowledge is to provide a new mode of being to the discovered reality. This reality is now not just physical but acquires—by coming to the knowledge of humankind and being placed at its service—a “human mode” of being. To discover, then, is to non-physically produce something, and for this reason the discovery endows its producer with dominium. Therefore, at least if 53  See Seed, Ceremonies of Possession, 129–130.

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the discovery is the result of a deliberate effort (although Caramuel is ready to make concessions on this) discoverers have moral proprietary dominium over what has been discovered. The physical act of occupation is morally redundant. Settlement by a non-discoverer of unoccupied land discovered by somebody else violates the rights of the discoverer. Only when there is no discoverer, for example when knowledge about the existence of an island was acquired simultaneously by everyone, can settlement produce direct ownership over the settlers’ production (houses, crops) and indirect ownership over the land they settle. The sea, considered in its most inclusive sense as including all the earth’s waters, is not susceptible of either physical or moral dominium. However, maritime regions are; they are susceptible to physical dominium insofar as bodies of water can be artificially created and destroyed, and they are susceptible of moral dominium insofar as parts of seas can be discovered or divided by common agreement between the nations. Security considerations can also extend a right of usufruct and use to coastal nations over offshore waters and to sovereigns over navigational roots to non-contiguous territorial possessions. Like Locke’s theory of appropriation, Caramuel’s theory of the moral effects of geographic discovery is not one that can be embraced without further elaboration and interpretation. It is built on a number of theological premises and articulated in Caramuel’s own interpretation and modification of the conceptual language of Late Scholastic metaphysics. Though some of Caramuel’s moves seem obscure or appear to beg the question, nevertheless there are at least two features of his theory that endow it with more than historical interest. First, it invites us to think about the morality of geographic discovery as a matter to be addressed within a general theory property acquisition. Second, Caramuel suggestively proposes that while discovery is a form of non-physical production, the product is not knowledge in the mind of the discovered, but rather a transmutation undergone by the thing discovered which comes to acquire a “human” or “political” mode of being. Bibliography

Primary Sources

Aragón, de, De iustitia et iure, Venice, 1595. Bona Spei, F., Noctua Belgica ad Aquilam Germanicam, Louvain, 1657. Brocardum a Sancto Nicolae, Alphabetum morale seu Theologia Moralis, Köln, 1739. Caramuel, J., Theologiae Moralis, Louvain, 1645. Caramuel, J., Theologia Intentionalis, Lyon, 1664.

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Caramuel, J., Critica philosophica. Artium scholasticarum cursum exhibens, Vigevano, 1681. Diana, A., “De Thesauris”, Alcolea, M. de (ed.), Coordinati seu omnium resolutiones morales, vol. 6, Venice, 1728. Freitas, S. de, De iusto imperio lusitanorum asiatico, Zurita, J. (trans.), Valladolid, 1925. Grotius, H., Mare Liberum, Brown Scott, J. (ed.) and Magoffin, R.V.D. (trans.), New York, 1916. Gutiérrez de la Huerta, L., Tractatus de Thesauris, Naples, 1705. Haunold, C., Controversiarum de iustitia et iure, Ingolstadt, 1671. Justinian, Corpus iuris civilis, Krueger and T. Mommsen, eds., vol. 1, Berlin, 1928. Lessius, L., Iustitia et iure, Louvain, 1605. Locke, J., “Second Treatise of Civil Government”, in Two Treatises on Government, Laslett, P. (ed.), Cambridge, 1988. Lugo, J. de, Disputationum de Iustitia et Iure, tomus primus, Venice, 1718. Megali, M., Secunda Secundae partis institutionis peregrinae confessariorum et poenitentium, Modena, 1619. Molina, L. de, Iustitia et Iure, Venice, 1614. Navarra, P., De ablatorum restitutione in foro conscientiae, Lyon, 1593. Pauwels, N., Theologia practica pars quinta, Louvain, 1717. Platelius, J., Synopsis totius cursus theologici accuratissima, Koln, 1688. Pontanus, J.I., Discussionum historicarum libri duo, Wieringen, 1637. Rebello, F., Opus de obligationibus iustitiae, religionis et caritatis, Lyon, 1608. Sarmiento, F., Interpretatione selectarum libri octo de ecclesiasticis reddibus liber uno, Antwerp, 1616. Sebaldus a Sancto Cristophoro, Theologia Juridico-Canonico-Polemico-morales, vol. 2, Wurzburg, 1740. Soto, D. de, De iustitia et iure, Madrid, 1967 (facsimile of the 1557 edition). Vázquez, G., De restitutione in Opuscula Moralia, Lyon, 1631.



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Attas, D., “Lockean Justifications of Intellectual Property”, in Gosseries, A., Marciano, A. and Strowel, A. (eds.), Intellectual Property and Theories of Justice, New York, 2008, 29–56. Bederman, D.J., “The Sea” in Fassbender, B. and Peters, A. (eds.), Oxford Handbook of the History of International Law, Oxford, 2012, 359–382. Brett, A., “Human Freedom and Jesuit Moral Theology”, in Skinner, Q. and Van Gelderen, M. (eds.), Free Persons and Free States: Freedom and the Construction of Europe, Cambridge, 2003, vol. 2, 15–16. Brito Vieira, M., “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate over the Dominion of the Seas”, in Journal of the History of Ideas 64 (2003) 316–377.

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Doyle, J.P., “Prolegomena to a Study of Extrinsic Denomination in the Work of Francis Suárez, S.J.”, in Doyle, J.P., Collected Studies on Francisco Suárez, S.J. (1548–1617), V.M. Salas (ed.), Leuven, 2010, 123–160. Elliot, J.H., Empires of the Atlantic World: England and Spain in America, 1492–1830, New Haven, 2006. Fitzmaurice, A. “Discovery, Conquest, and Occupation of Territory”, in Fassbender, B. and Peters, A. (eds.), Oxford Handbook of the History of International Law, Oxford, 2012, 840–861. Fitzmaurice, A., Sovereignty, Property and Empire, 1500–2000, Cambridge, 2014. Fleming, J., Defending Probabilism: The Moral Theology of Juan Caramuel, Washington, DC, 2006. Knebel, S., Wille, Würfel und Wahrscheinlichkeit, Hamburg, 2000. Las Heras, J.H., “Del ente moral según Suárez”, in Homenaje a Zavier Xubiri, vol. 2, Madrid, 1970, 135–162. Moore, A.D., “A Lockean Theory of Intellectual Property Revisited”, in Hamline Law Review 21 (1997)1069–1103. Nozick, R., Anarchy, State, and Utopia, New York, 1974. Pagden, A., The Burdens of Empire. 1539 to the Present, Cambridge, 2015. Pastine, D., Juan Caramuel: Probabilismo ed encyclopedia, Florence, 1975. Scott, J.B., Hague Court Reports, 2nd ed., New York, 1932. Seed, Ceremonies of Possession in Europe’s Conquest of the New World 1492–1640, Cambridge, 1995. Velarde Lombraña, J., Juan Caramuel, vida y obra, Oviedo, 1989. Vieira Brito, M., “Mare Liberum vs. Mare Clausum: Grotius, Freitas, and Selden’s Debate on Dominion over the Seas”, in Journal of the History of Ideas 64 (2003), 361–377.

chapter 11

Spanish Colonialism as Perpetual Dominion in the Writings of Juan Solórzano Pereira Felipe Castañeda 1

The Precedent of the Papal Bull Inter Caetera

In 1493, as soon as it became known that a New World inhabited by barbaric peoples had been discovered, through the Bull Inter Caetera Pope Alexander VI conceded a series of rights to the Kingdom of Castile and Aragon that prefigured and anticipated some of the particular and specific characteristics of Spanish Colonialism.1,2 In effect, absolute power was granted over all the peoples and lands that had been, and were to be, discovered so that they could be instructed in the Catholic faith and, additionally, in “good customs”. Thus, from the start, the Bull contains a conception of the New World as something that could not be allowed to continue ruling itself, and whose autonomy it was not convenient to recognize. That is, as a collection of peoples and lands whose meaning resided in the fact that they were to be placed under the care of others, of peoples which were incapable of ruling themselves because of their “barbarous” condition, exemplified by their faithlessness and their way of life.3 Any examination of the kind of power conceded by the Bull should take into account that it displays the following characteristics: on the one hand it is absolute, in that it legitimizes any action that may be considered necessary if the objectives it establishes are to be achieved, imposing no limit of any kind on the means that may be used to further them. The New World is seen as a kind of raw material that must be re-modelled completely, on the assumption that the civilizing endeavour implies drastic changes in existing world visions 1  This chapter was translated by Tiziana Laudato and James Lupton. Special thanks to Catalina Merchán and Manuel Romero for revising this text. 2  See the transcription of the Bull in Solórzano Pereira, J. de, De Indiarum iure (Liber II: De acquisitione Indiarum) (cap. 16–25), II, XXIV, 16, Baciero, C. et al. (eds.), Madrid, 2000, 413–418. Solórzano complements the text with segments taken from the papal bull issued by Pope Callistus III in 1456, see Solórzano, De Indiarum iure De Indiarum iure (Liber II: De acquisitione Indiarum), II, 29, 432–435. 3   See Castañeda, P., La teocracia pontifical en las controversias sobre el Nuevo Mundo, Mexico, 1996.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_013

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and the ways in which reality is understood and assigned value. Any previous forms could be removed in any way deemed appropriate. Clearly, this absolute power legitimizes a form of political power that is expressed in full and untrammelled jurisdiction and authority over the Indies. In order to carry out this humanizing endeavour it was necessary to enjoy total freedom to establish the laws that were to prevail in this New World and to establish the authorities and institutions needed to implement them. Furthermore, it is significant that this all-encompassing power is granted in perpetuity. It might be thought that if the power granted to the Spanish was intended to result in the humanization and evangelization of the Indians, the question of dominion would cease to have meaning once the objective was fulfilled. Curiously, however, the Bull makes no mention of this possibility; indeed, it reiterates that the power it grants is perpetual, a point on which it provides no clarification, clearly on the assumption that if absolute power is granted no additional explanation is required. It might also be ventured that it was felt to be convenient to characterize the situation in this way in order to discourage other European kingdoms—also Christian—from entering into damaging competition with the Spanish Crown. It might be thought, too, that no people would embark on an enterprise such as this if it were known beforehand that it would be limited in time, given the costs it implied, and in the absence of guarantee that the outlay would be recovered. Whatever the truth of the matter, the principal motivation of the essay is to attempt to explain how Spanish colonial dominion over the Indies was understood, given that from the beginning it was justified as an endeavour that would not only end barbarianism and instil Christianity among the Indians, but that also entailed a relation of perpetual dominion. Echoes of the Bull are found in law 1, book 3, tit. 1 of the Compilation of the Laws of the Indies, a text that merits quotation almost in full, as it represents the norm that established expressly the nature of Spanish dominion over the New World: Through the donation of the Holy Apostolic and other just and legitimate grounds, we are the Lord of the West Indies, Islas and Main of the Ocean Sea already discovered or yet to be discovered and that are incorporated into our Royal Crown of Castile. And because it is our will and we have so promised and sworn, so that they shall always remain united to ensure their perpetuity and solidity, we forbid their alienation. And we order that at no time shall they be separated from our Royal Crown […]. And, in consideration of the faithfulness of our vassals and the labours of the discoverers and colonists during their Discovery, so that they may

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have greater certainty and confidence that they shall always be remain united with our Royal Crown, we promise […] that they shall never be alienated […].4 This law dates from 1519; it is particularly significant because not only does it claim possession of the Indies on the basis of Inter Caetera but it also refers to other unspecified legal grounds, placing emphasis on the perpetuity of the dominion to be exercised. In this case, this perpetuity is expressly related to the Spanish Crown’s interest in using its power to guarantee the possessions of the conquistadores and settlers in the New World. It is true, of course, that it would be very difficult to motivate Spanish subjects to remain in the Indies—as would be necessary if governance institutions were to be established overseas—if the conquistadores, priests and other Europeans resident in the Indies were thinking only of their return to the motherland. It was therefore of fundamental importance to concede sufficient prerogatives to encourage them to put down roots in these lands. The law opens the way to a broadening of the question posed above: if perpetual dominion over the Indies is justified because it ensures benefits to the Spanish conquistadores and settlers in the continent, how might it be possible to guarantee compatibility with the interest in developing a civilizing and evangelizing role, given that this implies in one way or another that in time the Indians will become equal to their conquerors, at least when it comes to religion and custom? It would be wrong to reduce the justification of perpetual dominion as presented in Law 1 to a problem of rewarding the conquerors. The law also mentions the sworn desire of the Crown that it should work also to ensure the “perpetuity and solidity” of the colonies themselves. This suggests a different approach to the same problem: how might the legal grounds—which are merely mentioned in the text—be used to justify perpetual dominion over the Indies? Juan de Solórzano Pereira is one of those rare individuals in whom a series of circumstances come together and whose lives offer a unique opportunity to examine problems such as the one at hand. He lived not only at a time when the critical stage of the Conquest was over but also when the process of colonization had matured sufficiently for it to be possible to reflect on its problems, its achievements and its future. He had first-hand experience, furthermore, of different aspects and expressions of the concrete relations of dominance 4  See Recopilación de Leyes de los Reynos de las Indias, vol. 2, Madrid, 1681 (reprint Madrid, 1973), fol. 1.

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between Indians and Spaniards. He was responsible for the silver mines of Huancavelica for several years, but also served as a Judge of Contraband in Callao and as a member of the Council of the Indies, among other posts. In addition, he had received extensive training in theology and the law, having read, as a result, practically all the available literature on matters related to the Indies. He set out his knowledge and experience in a series of texts in which he reflected not only on the overall condition of the New World, but also on the history of colonial regulations and institutions and on the different ways they had been justified.5 But his writings also included far-ranging reflections on the legal grounds, or justifications, of the Conquest and of the retention of the New World. It is these latter that serve to structure this essay, in particular his De retentione Indiarum, which constitutes Book III of his De Indiarum iure. The essay begins by presenting some of the principal legal grounds that were used to justify the retention of the Indies before going on to examine others that indicate that retention was justified in terms of colonial governance. It then goes on to look at the question of the encomiendas, personal services and institutions and other important colonial practices, in order to establish the basic features of the way in which the colonial order was conceived. Finally, the essay concludes with some arguments that it is hoped will help explain fundamental characteristics of Spanish colonialism as a relationship of perpetual dominion. 2

General Legal Grounds for the Retention of the New World

Once the process of conquest was over, in the sense that the principal Indian peoples and kingdoms that represented some degree of danger to Spanish aspirations to dominion had been defeated, a novel legal situation emerged. In effect, the justifications that were advanced for the war waged against the Indians were not themselves sufficient to legitimize either a permanent Spanish presence in the Indies or to exercise dominion over the defeated peoples.6 Attempts were made from the early 16th Century to justify the conquest by recourse to 5   Brief biographical summary in Baciero, C., “Fundamentación filosófica”, in Solórzano Pereira, J. de, De Indiarum iure (Liber III: De retentione Indiarum), Baciero, C. et al. (eds.), Madrid, 1994, 63–65. 6  Castañeda, F., “Das Ende der Debatte um die Conquista und der philosophische Beginn der Colonia bei José de Acosta”, in Vollet, M. and Castañeda, F. (eds.), Mission und Sprache, Frankfurt, 2004, 27–47.

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just war theory as developed by Thomas Aquinas,7 according to which a just war may be initiated only if a series of criteria - ius ad bellum - are met. Other criteria - ius in bello - must be satisfied for a just war to actually be waged, and yet more - ius post bellum - for it to be brought to an end. As these requirements assume that war generally performs a punitive function, just war is understood as an act of punishment in the sense of the use of force to correct deviant actions that constituted an injury and that had led to the war in the first place. In other words, all just wars appear to have an end point: a situation in which they are concluded and in which the defeated party is punished. In principle, once the objective of the war has been achieved, the defeated people recover their autonomy. This being the case, the legal grounds that might be used to justify entering into a war or prolonging it must, by definition, be different from those used to justify maintaining dominion over the vanquished. For this reason, jurists such as Solórzano differentiate between the legal grounds for the acquisition of the Indies and those authoring their retention. In effect—it is worth reiterating—the former are intended to legitimize acts of war while the latter are meant to justify the possession of the goods and persons of the vanquished. As will become clear this distinction did not prevent the authorization of just wars against the Indians that to an extent also presupposed the legitimization of subsequent colonial rule over those who had been defeated. This having been said, the initial legal grounds had to do, precisely, with recognizing the value of the Bull Inter Caeteris. In the words of Solórzano: […] The apostolic requirement to preach implies, by its very nature, […] a simultaneous and extremely broad jurisdiction, delegated by God Himself. Furthermore, it includes total power and authority to perform every spiritual function and to rule and govern souls in spiritual matters and in all others that affect their salvation […] but the Pope […] wished to give them [the kings] and their successors the most complete lordship and absolute freedom of action, power and jurisdiction in temporal matters.8 Independently of the importance granted to economic interests in justification of Spanish colonialism, it does not appear to be possible to separate this kind 7  See, in particular, Aquinas, Summa Theologiae II–II, q. 40. Also Vitoria, F., Relección sobre los indios I y II, in Urdanoz, T. (ed.), Obras de Francisco de Vitoria, Madrid, 1960, and Sepúlveda, J.G. de, Democrates Secundus, in Coroleu Lletget, A. (ed.), Obras completas, vol. 3, Pozoblanco, 1997. 8  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 218s.

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of dominion—at least in its most basic formulation—from an evangelizing interest. Spanish Catholics believed in the imperious need to convert the infidels of the New World. It would be against the principles of Christian Charity and the fundamental precept to love one’s neighbour as one loves God Himself not to do everything in one’s power to convert the Indians. Now, conversion implied an entire process involving the abolition of original, ancestral, beliefs and rituals as well as a series of actions intended to disseminate the new creed and to bring about its eventual acceptance. Since religious beliefs tend to permeate the fundamental affairs of any believing community a change in religion necessarily implies a radical alteration of the existing worldview of the losing party and the adoption of the vision of the victors. And it seems, as has been argued already, that this process will prove impossible if very extensive power is not exerted over the defeated infidel. According to this point of view, there must be a relationship of subordination if the precept of conversion is to be fulfilled. Thus, Divine Law ends up supporting a range of rights over the vanquished that legitimize terrestrial norms. Up until this point Solórzano recognizes the authority of the Pope in order to legitimize the Colonial Empire. The Pope, as head of the Church, has sufficient power to grant rights to permit any Catholic state to advance an evangelizing project. Spain accepted the challenge and with it gained the first pillar of support enjoyed by the Colonial government: that of Papal recognition, a recognition that it should be able to demand, also, of any other Catholic people. Despite the significance of the fact that a colonial government might aspire to international recognition as a direct consequence of a shared creed, Solórzano argues, “no one has the legitimate right to ask for what they already possess”.9 In effect, when he was writing, the Colonial Empire was an existing fact and the process of evangelization was being actively pursued. As the endeavour was by definition compatible with Divine Law, the support of the Pope confirmed the legitimacy of the cause but does not appear to have established itself as a necessary condition. Furthermore, according to Solórzano, Alexander VI’s donation should be interpreted not in terms of what it said but according to what happened following its publication. It is events that provide an indicator of the contents of the Bull rather than the Bull being an ultimate reference point used to justify these events: “In effect, whatever the origins of the title, or legal grounds, thus is the subsequent event configured […] the subsequent possession is

9  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 232.

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interpretative of the titles […] the possession or the use interpret the content of the concession […]”.10 These considerations are important because they begin to suggest that in the eyes of people like Solórzano, the Spanish Empire legitimized itself for the sole reason that it already existed. The existence of the colonies would seem to be sufficient reason, in itself, to consider the Empire legitimate. This being the case, it would not seem to be necessary to justify it. That task lay in the hands, rather, of those who sought to question Spanish dominion. This argument prepares the ground for the introduction of so-called “prescription”:11 “Furthermore, [good faith] has now overcome immemorial prescription whereby all vices are diluted, and all procedural actions or complaints paralyzed absolutely […]”.12 This argument is notable because it indicates that Spanish dominion of the Indies required no special justification. The prolonged period of time during which the Spanish had remained in the Indies provided sufficient justification for their dominion there. The statement of the fact removes any requirement to examine its origins, or its original reasons for the endeavour that might have corrupted its origins. It no longer mattered whether the legal grounds that resulted in the Conquest were just or not, whether there was good faith involved in the Enterprise, or whether the war to acquire the New World was motivated by precepts that were alien to the principles of humanization and evangelization; more than one hundred years of dominion spoke for themselves. The mere passage of time ends up legitimizing possession. Furthermore, if it were convenient to return to the question of the legiti­ macy of the origins then states, the entire world indeed, would end up consumed in an endless cycle of wars and conflicts.13 Solórzano appears to be suggesting that there is no political community in existence whose origins are not in some way questionable, that had not in one way or another, violated others. However, the injuries that resulted during the act of birth would have to have an end. Were this not the case, then it would never be possible to arrive at a state of peace and tranquillity in relations between states; it would never be possible to “turn over a new leaf”. Effectively, just cause would always exist to wage war and it would never be possible to satisfy these grievances. Thus, prescription takes on a fundamental role in overcoming a potential, permanent,

10  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 222. 11  Prescription here refers to the idea that rights lose validity over time. 12  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 3, 272. 13  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 290.

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source of war and unease. Obviously, from the perspective of the Indies, it also made it possible to consider Spanish dominion as a kind of natural fact. The arguments covering prescription and the events that succeeded the promulgation of Pope Alexander’s Bull and that helped fix their interpretation are not lacking in realism. In fact, they indicate that it is simply a given political reality that determines the way in which norms and their justifications should be conceived. In general terms, they indicated that Spanish dominion was legitimate, because it was useful and because its abolition would be problematic. […] With the passage of time, religion and the community of Spaniards and Indians is becoming just one and constituted under the protection and government of a single and shared Spanish King. And the situation, powers and nervous systems of both kingdoms are so entwined and intermingled that they may not be separated one from the other without great and evident danger to both.14 This argument recalls the image of the political community as an organism. With the passage of time, relations between the communities—“Republics”— of Indians and of Spaniards had become linked organically. One could not exist without the other; each was what it was inasmuch as it interacted with the other. The health of the whole depended on the health of all the parts but, at the same time, the health of the parts depended on that of the whole. If this is how things were, restoring possession of the Indies to the Indians would imply the loss of all the advantages that resulted from this organic relationship that existed between them. The argument presupposes, in effect, that inhabiting this kind of relationship of dominion brought mutual benefit with it. But it presupposes too that life would be very complicated indeed if each “Republic” felt itself obliged to follow independent paths. This line of argument connects seamlessly with the humanizing and evangelizing enterprise that had inspired the Conquest in the first place, but also with the economic interests associated with a colonial relationship. According to the point of view espoused by Solórzano, the process of civilization would be cut short for the Indians while the Spaniards would lose their expectations of a life of ease granted as just reward for the efforts they had expended during the Conquest and in pursuing the enterprise of humanizing the defeated peoples.

14  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 358.

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The Legal Grounds or Titles of Colonial Dominion

Although the legal grounds that have been referred to up to now suggest a justification for Spain’s overall dominion of the Indies, they do not expressly define the nature of the dominion nor the way in which it was to be exercised and which it was necessary to legitimize. This is an invitation to present, briefly, a series of additional justifications of the Colonial Empire with the intention of establishing how the specific relations of subordination between the Indians and the Spanish were understood. As has already been indicated, Solórzano was clear that the principal justification of the Colonial Empire lay in the claim that it would humanize and evangelize the Indians. This would have justified not only the very extensive powers granted the Crown of Castile by Alexander VI, but also the dominion over the Indies that the Spanish kingdom had assumed for itself. In addition, however, it cannot be the case that an enterprise of this kind would have been tenable if not accompanied by a sense of moral and cultural superiority over the defeated party. In effect, it would make no sense to attempt to de-barbarize and to humanize the Indians unless it was believed that the Spanish incarnated the ideals of humanity, morality and religiosity. Whatever the case, an examination of this topic would require a return to the justifications of the Conquest, which were based on the conviction that the Indians were inferior to the Spanish.15 It would be necessary to re-examine the just war titles that refer to the barbaric customs of the Indians, to their condition of natural slavery, their conscious violation of natural law, and the like. But this would take us away from the topic under examination. It is, nevertheless, important to mention the point because it is precisely these just war titles that anticipate how the relations of colonial dominion should be understood. To the extent that the war of conquest was justified by the barbarianism of the Indians the post-war situation was established on the basis of the assumption of the domination exercised by a supposedly civilized people—the Republic of the Spaniards—over another—the Republic of the Indians—which was savage and required re-culturalisation.16 At some distance from the Conquest, following several decades of Spanish dominion, the situation had changed: in principle the process of co-existence between the Spanish and the Indians had generated a shared social body. Under 15  See the Valladolid Debate 1552 treaty: “Herein is contained a dispute, or controversy” in las Casas, B. de, Tratados, vol. 1, Mexico, 1965, 217–329. 16  Levaggi, A., “República de Indios y República de españoles en los reinos de Indias”, in Revista de Estudios Histórico-Jurídicos 23 (2001), 419–428.

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this state of affairs, to a degree the Indians were thought to have acquired some Spanish customs and values. It is no longer about relations that came about when distant and distinct peoples first encountered but about how to justify the fact that, within a single body politic, some are assigned the role of the feet and others the head. For Solórzano it was clear: the natural condition of the Indians meant they were incapable of governing themselves. In his own words: […] The nature of the Indians themselves […] may be taken into account: their inconstancy and naivety that do not permit at all that they should be allowed to exercise power or government over themselves. […] therefore, they have to be governed and protected under the Supreme Empire of the Spanish […].17 This argument presupposes that not all human beings are fully equal, but that it is possible to differentiate between them in function of their specific characteristics, their “nature”. This has to do with certain aspects of behavioural conduct and attitudes, that is, with something that manifests the customs to which they are prone. And these, in turn, are conceived of as virtues or vices, or in terms of whether they favour or act as an obstacle to a certain ideal of humankind and of social and political organization. The extent to which it might be possible to modify the “nature” of the Indians is not clear. On the one hand, if it did not prove possible to alter it a least a bit, then the entire formative project of the Empire would be devoid of meaning. While on the other, if the humanizing process proved to be entirely satisfactory then substantial differences between Spaniard and Indian should disappear and the fundamental justification of the dominion of the superior over the inferior would disappear with it. It would seem to be the case that Solórzano believed it was possible to bring culture to the Indians up to a certain point that was not sufficient to permit their autonomy to be recognized but that was not so low that they should be treated as mere slaves. We shall return to this point later. For now, it is worth stressing that the relation of dominion was justified according to the assumption that natural differences existed between peoples, that by their nature some were superior, and that the superior had the right to dominate the inferior. Thus, in the words of Solórzano: “those who are ignorant by nature have the duty to obey and those who understand, to guide and to exercise power”.18 This entire argument echoes the position on natural slavery inherited from Aristotle and which is retained in certain positions assumed by Thomas 17  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 351. 18  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 350.

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Aquinas regarding the natural order of human relations.19 These arguments were salient in particular in the thought of Juan Ginés de Sepúlveda, which in this respect was not dissimilar to Solórzano’s. For our purposes it is worth emphasizing that Solórzano took it as obvious that the less perfect should be subordinated to the more perfect. In the case of the Indians, given their lack of natural ingenuity, their scant prudence, the instability of their decisions, their tendency to idleness and to the sins of the flesh and drunkenness (among other characteristics) it was clear, to his eyes, that they should be subjected to the power of the Spanish Empire. To an extent Indians were seen in general terms as beings who would never become fully adult, beings who would always require help and guidance from others, for their own benefit; they were only capable of participating in perfection to the extent that someone else made it available to them. Clearly, these ideas can help establish an understanding of Spanish colonialism as a perpetual relation of domination. Indeed, if the nature of the Indians were preserved, their imperfection in comparison with the Spaniards would be manifest. As a consequence, they would be condemned to live permanently under the tutelage of an external power. Solórzano was particularly concerned about what might occur if the Indians came to assume their own destiny once more: […] Faced with the barbarianism and blindness of these Indians it might easily appear that, were the dominion and government of the Spaniards to disappear, they would return to the sin of apostasy and their original idolatrous customs, if they were left in the power of their old lords and norms.20 According to this position, the colonial regime was justified because of its role in preserving the Catholic faith of the recently converted indigenous peoples. Indeed, given their propensity to engage in vice and sin they might easily return to their old customs if left to decide for themselves on their customs, values and beliefs. Now, if it was not possible to view the Indians as adults, nor could they be seen simply as slaves, precisely because of the way in which the evangelizing project was conceived. This, too, should be emphasized: it is not possible to be a believer without wishing to be so and it is not possible to have faith without wishing to have it. Thus, the true condition of believer presupposes the possession of at least a minimum of freedom to conceive of oneself as Christian 19  Aquinas, Summa Theologiae I q. 96. 20  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 350.

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but also to retain this identity. Enforced faith is not really faith, as Solórzano argues vehemently: […] The reason Christian princes are able to reign sovereign over these barbarians or infidels is in view of their conversion and improved government […] the consequence is manifest: they must be left in their ancient and natural freedom. Amiable treatment, in effect, contributes more to the reception and perfecting of the faith […].21 This establishes the entire argument: Indians cannot be afforded so much autonomy that they may rule themselves, but nor may they be forced into submission and subjected so that they do not wish to become Christian voluntarily and to perfect their faith. As a result, they are neither believed to be adults with a full set of rights nor as beings with no will at all and devoid of rights. On the one hand, they are to be denied the right to choose their own religiosity, to choose their basic values, customs and form of government, but on the other they may, under certain conditions, enjoy certain basic rights such as life, property and a degree of control over their time. The attempt to consolidate these conditions implies making other characteristics of the colonial regime explicit. It is therefore necessary to discuss, albeit briefly, the institution of encomienda, the provision of personal service and the overall legal position of the Indians. In practice, although according to Solórzano the evangelizing enterprise was the principal justification of the Colonial Empire, certain additional conditions were required for it to be successfully brought about. Whatever happened, the Indians would receive the supreme good of religion. But in order for this to occur political government had to be maintained and this had its financial cost, including the remuneration of all the individuals involved in such an enormous enterprise. And someone had to pay for it. Consequently, fair remuneration to the guarantors of the conversion ended up, also, justifying the relation of dominance. 4

Personal Services and the encomienda

At about the time Solórzano was completing De Indiarum iure, in around 1630, the question of the legitimacy of the institution of personal service was still

21  Solórzano, De Indiarum iure (Liber III: De retentione Indiarum), 428s.

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under discussion.22 This was understood as a kind of labour that the Indians were obliged to carry out in areas such as livestock rearing, mining, construction and farming, for the private benefit of the encomenderos.23 In very broad terms the term encomendero should be understood to mean, a Spaniard— usually a conquistador—who had been entrusted [‘encomendado’] to care for a specific group of Indian men and their families. This tutelage included the duty to evangelize the group and to educate it in good custom. It also involved the requirement to be available to defend their territory by force of arms and to locate their residence close to the group of Indians placed under their care. In return, the encomendero received compensation including “personal services”.24 Consequently, the encomienda was understood to comprise the group of Indians placed under the tutelage or protection of an encomendero. With time the concept of the encomienda came to refer specifically to a right conferred by the authorities that permitted a Spaniard to receive directly a part of the tribute that the group of Indians under his protection owed to the Crown—a matter we shall return to shortly. The intention here is not to focus on the profuse number of norms that were published with the intention of regulating or abolishing the institution of personal service in the context of the encomienda nor to examine the harsh criticisms that were made of this extremely controversial way of “sharing out” a number of Indians and obliging them to work for the personal gain of individual Spaniards. Readers interested in this matter may refer to Bartolomé de las Casas.25 It was, however, a practice that Solórzano assumed to be current and licit, pending deep-rooted changes in the relevant policy and norms: […] Until the state of affairs opens the door for all these [personal] services to be ended, we adhere to the provisions that appear in the most recent decrees of 1601 and 1609 that deal with them and tolerate them: because they are required by the need and usefulness of the Republics of the Spaniards and of the Indians: that if they were removed, it would be difficult to conserve and sustain […].26

22  Bonnett, D. et al. (eds.), Juan de Solórzano y Pereira—Pensar la Colonia desde la Colonia, Bogota, 2006, 245–264. 23  Solórzano Pereira, J. de, Politica Indiana, Madrid, 1648, II, II, 1, 141. For a detailed explanation of the evolution of this concept, see: Zavala, S., La encomienda indiana, Mexico, 1973. 24  Solórzano, Politica indiana, III, I, 1–8, 6s. 25  De las Casas, “Entre los remedios”, in las Casas, B. de, Tratados, vol. 2, 643–851. 26  Solórzano, Politica indiana, II, VII, 184.

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This position is worthy of specific comment because it opens the way to a complementary perspective on the relations of colonial domination. According to Solórzano, many roles were required to be fulfilled if a functional and organized political community were to be maintained.27 At the least, there were two clearly distinguishable areas of work involved: one associated with government and the act of ruling so that the common good of the Republic could be guaranteed, and the other, a vast collection of roles that might, taken together, be described generically as “labour”: activities, that is, involving the production goods and the provision of services. According to Solórzano, work should be shared out in accordance to the aptitudes and natures of the different members of the social whole. In the case of the Indies, there were two clearly differentiated communities: the Republic of the Spaniards and the Republic of the Indians. At this point, when the division of labour has to be justified and defined, Aristotle becomes useful again: […] It cannot appear to be unjust that the Indians who, because of their state and their nature are better suited than the Spaniards to carry out the services of which we are speaking [mining, livestock rearing, farming, etc.] even if obliged to do so, and that the Spaniards with their industry and ingenuity should govern them, train them and help them. […] Because according to the maxims of Aristotle (…) those to whom nature has given stronger or more vigorous bodies for work and less understanding or ability, making them more of tin than of gold, they are the people that should be employed in this while the others, who were given more, should govern them and engage in the other acts and useful functions of civic life.28 According to this position, the Indians were considered to be a variety of natural slave. It has been seen already that they were not in fact seen as simple slaves, given that a degree of freedom had to be recognized to them if they were to be considered capable of conversion to Christianity. However, the fact that they were not accepted as adults in the full sense of the word not only appears to have had consequences connected with the need to maintain a relation of tutelage in matters of religion and customs, but also for the kind of activity available to them within the social whole. The Indians existed to work, to dedicate themselves to activities in which brute strength was more important than prudence, ingenuity and reason; in which virtue was expressed in the 27  Solórzano, Politica indiana, II, VI, 171. 28  Solórzano, Politica indiana, II, VI, 172.

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fact of obeying and fulfilling orders and not in deciding for oneself, in planning or of being responsible for one’s actions. This being the situation, the institution of “personal service” does not appear to be so contrary to Solórzano’s views on the nature and aptitudes of the Indians. Their proper place might be within the encomienda, where not only would they be educated in humanity and in religion but could also be positively employed contributing to the common good by carrying out physical labour defined by their Spanish encomenderos and under their guidance. Now, given that by nature the Indians were not interested in working, there had to be a degree of violence and compulsion involved in the way these “services” were understood. Solórzano comments that this is what experience has shown:29 in the first place, Indians were too prone to drinking binges. This trait had been identified by José de Acosta as their principal vice.30 The habit not only took them away from their places of work but was also associated with a generally lax attitude. Furthermore, the Indian as an individual was not very ambitious. This was associated with an additional problem: Indians were not interested in mingar or working for money. Curiously, this Christian value of absolute detachment, of a lack of ambition, became something that was socially inconvenient: the Indian was entirely uninterested in working. In addition, Indians seemed to be in no hurry in the morning—for Aristotle a characteristic of the natural slave—a trait that meant they were beings with no concern for the future, that lived only in the present and that, obviously, were only interested in satisfying their immediate day to day needs. On the other hand, if nature never does anything in vain and there is a large number of Indians it seems reasonable, Solórzano says, that the natural order itself should have made so many of them available so that the Spanish could put them to work for their own good: “the men, uncouth and rough and with scarce intellect are bred and counted by nature itself in the same numbers as the animals so that, as such, they may serve us, with their limited capacities”.31 As things stood it was not possible for the Republic of the Spaniards to maintain itself without the work of the Indians. To a certain extent it was not viable to retain dominion over the New World without counting on the Indians to carry out agricultural, mining and construction activities or to raise livestock. However, as the Indians were not by nature willing to work for the benefit of their masters a degree of compulsion had to be involved, and this led to the 29  Solórzano, Politica indiana, II, VI, 176. 30  Acosta, J. de, De procuranda indorum salute, Pereña, L. et al. (ed.), vol. 1, Madrid, 1984, 545–579. 31  Solórzano, Politica indiana, II, VI, 172.

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implementation of forms of social organization such as the encomiendas, at least in the form that was common in Solórzano’s time. The encomienda offered a concrete and specific relation of colonial domination: there was a clear distinction between two peoples—the Republics of the Spaniards and of the Indians. The former exercised a certain quota of violence on the latter in order to achieve a benefit, an income; the relation of subordination was justified on the basis of natural differences, according to which one group was made up of natural slaves and the other of individuals destined to govern and care for them. Now, if in order to maintain this relation of domination, it was necessary to set Indians to work for their natural masters while at the same time it was hoped to maintain the Indies within the Crown, then the Colonial regime would have to be perpetuated.32 This, then, is a second point that helps explain the aspiration of Spanish colonialism to exercise perpetual dominion over the Indies: the permanently immature nature of the Indians implied that they required a Spanish protector to maintain them at acceptable levels of humanity and religiosity. On the other hand, however, for this to be possible, the Indians had to work to maintain their encomenderos and the system of government of which they formed a part. However, before returning to this point, a few words about the express justifications of the encomiendas advanced by Solórzano. As indicated at the beginning of this section, encomiendas changed in nature during the Colonial period, from the simple gift or “sharing out” of a number of Indians to a conquistador in payment for the effort invested in acquiring and controlling new lands for the Crown, to a deeply complex form of taxation in which a Spaniard would receive a percentage of the tribute that a given group of Indians owed the Crown. It is helpful to provide Solórzano’s definition of this way of understanding the encomienda: […] A right conceded by Royal Mercy to the Worthies of the Indies permitting them to receive and collect for themselves the tributes of the Indians, which are entrusted [‘que se les encomendaren’] for life […] in exchange for looking after the Indians, both spiritually and temporally and to inhabit and defend the provinces where they have been so entrusted […].33 According to this definition, the encomiendas did not include “personal service”. In effect, the Indians would only be obliged to pay the encomendero a 32  Solórzano, Politica indiana, II, VI, 180. 33  Solórzano, Politica indiana, III, III, 21s.

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part of the tribute they owed the Crown, without entering into a direct dominance relation. Accordingly, the encomendero would not be the direct master of some servile Indians, but merely the beneficiary of a part of the product of their work, without enjoying jurisdiction over them.34 For Solórzano, there were a couple of primordial reasons that justified this form of social organization for the Indian and Spanish communities. The first of these has already been discussed: someone had to look out for the spiritual doctrine of the Indians and ensure they were humanized and adopted good customs. This protector was the encomendero: a Spaniard who took up residence near a group of Indians and ensured the welfare of its members; a person who, because of their greater prudence and understanding could serve as a guide to “those who are not capable of much”.35 The second reason has to do with matters of governance: it would not be possible to maintain control over the vast territories of the Indies if there were no Spaniards to do it. There had to be settlers, and settlers who would defend what had been conquered. It is one thing to acquire territory and another thing completely to maintain it under control. For this to be possible, the conquistadores had to be encouraged to establish themselves there.36 The need for Spaniards to settle in the New World was directly related to the Crown’s desire to control the conquered lands. As long as the Crown wished to possess the Indies, it needed settlers. According to this point of view, the encomienda should be understood not only as a space of evangelization and re-culturisation, but as a bulwark of governance. The Indian should come to see the encomendero as an active representative of the state, as it were and, in addition, as a living bastion of military power. But the fact that the Crown needed resident conquistadores provided insufficient reason for them to feel adequately motivated to put down roots. Solórzano is clear on this matter: “and it was also impossible to get [the conquistadores] to stay, or live close to them (…) if we did not encourage them or, to put it better, bind them, or detain them with the shackles of advantage and comfort provided by these encomiendas […]”.37 This is particularly significant, since the Crown was not interested in its conquistadores returning to the mother country; it needed them to live in the New World. Payment with gold or silver was not the best solution: as the important markets were in Europe, such payment would act as an incentive for 34  Solórzano, Politica indiana, III, III, 23. 35  Solórzano, Politica indiana, III, II, 14. 36  Solórzano, Politica indiana, III, II, 15. 37  Solórzano, Politica indiana, III, II, 15.

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them to return. Furthermore, cash was needed for other necessities such as the on-going business of waging war in the Old World, and the like. This being the case, guaranteeing the conquistadores a good life in the Indies, made possible by the work of the Indians, seemed to be a particularly convenient alternative. This benefit should also be proportional to the length of time the Spaniard remained in the Indies. The encomiendas should therefore be granted for extremely long periods of time, at least for the lifetime of the beneficiary conquistador and of one heir. In effect, the benefit and comfort of the encomienda should constitute “shackles” that would guarantee its permanence. The encomenderos should get used to the idea that it was impossible to live without the Indians that had been entrusted them. 5 Conclusion To a large extent, in the writings of Solórzano, the aspiration that Spanish colonialism should be perpetual was justified in order to guarantee the evangelization and acculturation of the Indians, who were seen as beings who would never reach full adulthood. Paradoxically, this is where the basic Christian duty to love one’s neighbour, to seek to guarantee the eternal salvation of the Indian, meets the conceptualisation of the Other as an inferior human being, of someone who can never be an equal. This is how a process of tutelage, unlimited in time, of civilized and religious Spaniards over Indians who, though capable to some degree of becoming Christians, would never be so to the extent that they could be left to their own devices, could be justified. Dominion over beings who were held to be inferior was understood in these terms as a species of charitable act, as the necessary consequence of the obligations derived from being better and more moral. According to Solórzano, it would even be a sin to abandon the Indians to their fate: […] Even if our Kings wished voluntarily to leave the Indies and abdicate for themselves the right, or dominion, that they enjoy and exercise in them, they could not do so without committing a sin. Because it would be to fail the Church and in the protection of the Indians already converted who, if not cared for, would become apostate and return to their Idolatry.38

38  Solórzano, Politica indiana, I, XI, 112.

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Now, the vocation of maintaining a permanent empire receives further support from a second aspect of the supposed condition of the Indian as a “natural slave”, which in this case coincided with the needs of the state. Certain tasks must be carried out in any society. Some of these are associated with ruling and others with physical work. But as the state was composed of a “Republic of the Indians” and a “Republic of the Spaniards”, and as the latter were unable to support themselves without the help of the former, the Indians appear to have been condemned to serve their masters for as long as the masters wished them to. And there is no reason why this should be in any way limited in time. This argument was strengthened by the fact that the Crown needed to sustain Spaniards in the New World, as a prerequisite for maintaining both control and the system of government. As has been argued above, Spaniards would only be prepared to settle in the Indies if there were sufficient incentives to do so. And these incentives were associated with the prerogatives that Spain granted them over the Indians, whether these took the form of services, income or tribute. Thus, for as long as Spain wished to retain control over the Indies there had to be colonial dominion. Obviously, given the insatiable needs of the motherland, the relation of dominance over the Indies could not been seen as something provisional but had to be in perpetuity.39 Nevertheless, these conclusions need to be qualified in several ways. In the first place, Solórzano appeals to the legal grounds for retention of the New World that in themselves imply the perpetuity of this kind of relation, whether or not the dominion were manifested in the form of colonialism. In effect, when dominion is justified as a consequence of being the first inhabitants or as a result of voluntary alliances between the natives and the conquistadores, as a result of the legitimate possession of the property of peoples who have been vanquished in a just war, or because of the need to unify a territory, etc., the right to hold jurisdiction over the Indies, to defend them and to consider all of their inhabitants to be subjects of Spain is taken to be without limits in time. Thus, Spanish colonialism might be held to be perpetual simply because it considered its dominion in general to be so. Now, either circumstance might have existed: certain aspects of the way in which the colonial relation was understood imply a perpetual vocation that is reinforced by the overall manner in which dominion over the Indies was perceived, whether or not it was understood to be, strictly speaking, colonial. Secondly, Solórzano, supporting himself on the arguments of others such as Acosta, understood that, although the “Indians” were referred to as a 39  Something like this had already been suggested by Vitoria in Relectio de indis, 18; and by Sepúlveda in Historia de Carlos V, XXX, 4 and 26, and in Democrates secundus, 171.

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general category, not all of them were equal in their degrees of barbarianism and inhumanity.40 Indeed, there were Indians who were close to the beasts in their sinful and unnatural customs and their lack of political organization, while others demonstrated, even, many virtues and came very close to his ideal of humanity. This implied that it was not possible to refer to a “Republic of the Indians” as a completely homogenous community. For the same reason, some of the arguments, which are based on the essential differences between Spaniard and Indian, need to be nuanced. Thirdly, Solórzano does not ignore the fact that the diverse people living in the New World had begun to have children, a process that resulted in the mixing of their blood. This is particularly important because it led to the emergence of a population that could no longer be divided into purely Spanish or Indian or Black. It is beyond the scope of this essay to examine how this affected the ways in which colonial dominion was conceived or justified. It would be necessary to ask, for example, how Aristotelian ideas such as “natural slavery” were adapted to take into account the fact of “racial” mixing. But this is not all. Solórzano began to become aware of a phenomenon that many years later would be fundamental to understanding the process of Independence: the Spaniards who lived in the Indies were already ceasing to be entirely Spanish. Their children were children of the New World. The appearance of “creoles”—that is of Spaniards raised entirely in the Indies— made the picture much more complex. This process, too, made it more difficult to maintain an abstract separation between the “Republic of the Indians” and the “Republic of the Spaniards”, which was central to the justifications of the Empire. Bibliography Sources

Acosta, J. de, De procuranda indorum salute, 2 vols., Pereña, L. et al. (eds.), Madrid, 1984 and 1987. Aquinas, T. & Alvernia, Comentario a la Política de Aristóteles, Pamplona, 2001. Aristotle, Sobre la república: Libro I según la traducción latina y escolios de Juan Ginés de Sepúlveda, Bogotá, 2015. A.V., Recopilación de Leyes de los Reynos de las Indias, 4 vols., Madrid, 1681 (reprint Madrid, 1973).

40  Acosta, De procuranda Indorum salute, vol. 1, 55–71.

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Las Casas, B. de, Tratados, 2 vols., Mexico, 1997. Sepúlveda, J.G. de, Democrates Secundus, in Coroleu Lletget, A. (ed.), Obras completas, vol. 3, Pozoblanco, 1997. Sepúlveda, J.G. de, Historia de Carlos V, in Rodríguez Peregrina, E. (ed.), Obras completas, vol. 2, Pozoblanco, 1995. Sepúlveda, J.G. de, Del Nuevo Mundo, in Rivero García, L. and Pietschmann, H. (intro. and ed.), Obras completas, vol. 11, Pozoblanco, 2005. Sepúlveda, J.G. de, Tratado sobre las justas causas de la guerra contra los indios, Mexico, 1996. Solórzano Pereira, J., De Indiarum iure, Madrid, 1994. Solórzano Pereira, J., Politica indiana, 5 vols., Madrid, 1972. Vitoria, F., Relección sobre los indios I y II, in Urdanoz, T. (ed.), Obras de Francisco de Vitoria, Madrid, 1960.



Secondary Literature

Ambler, W., “Aristotle on Nature and Politics: The Case of Slavery”, in Political Theory, 15 (1987), 390–410. Baciero, C., “Fundamentación filosófica de la defensa de la Corona ante Europa”, in De Indiarum iure, L. III, Madrid, 1994, 63–5. Bentley, R., “Loving Freedom: Aristotle on Slavery and the Good Life”, Political Studies 47 (1999), 100–113. Bonnett, D. et al. (eds.), Juan de Solórzano y Pereira—Pensar la Colonia desde la Colonia, Bogota, 2006. Brading, D., Orbe indiano—De la monarquía católica a la república criolla, 1492–1867, Mexico, 1998. Brunstetter, D., “Sepúlveda, Las Casas, and the Other: Exploring the Tension between Moral Universalism and Alterity”, The Review of Politics 72 (2010), 409–35. Brunstetter, D. and Zartner, D., “Just War against Barbarians: Revisiting the Valladolid Debates between Sepúlveda and Las Casas”, Political Studies 59 (2011), 733–52. Castañeda, F., “Das Ende der Debatte um die Conquista und der philosophische Beginn der Colonia bei José de Acosta”, in Vollet, M. and Castañeda, F. (eds.), Mission und Sprache, Frankfurt, 2004, 27–47. Castañeda, F., El indio: entre el bárbaro y el cristiano—Ensayos sobre filosofía de la conquista en Las Casas, Sepúlveda y Acosta, Bogota, 2002. Castañeda, F., Ensayos sobre antropofagia y buen comer en la filosofía antigua y medieval, Bogota, 2008. Castañeda, P., La teocracia pontifical en las controversias sobre el Nuevo Mundo, Mexico, 1996. Fernández-Santamaría, J.A., “Juan Ginés de Sepúlveda on the Nature of the American Indians”, in The Americas 31 (1975), 434–451.

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Frey, H., “La mirada de Europa y el ‘otro’ indoamericano”, in Revista Mexicana de Sociología 58, 2 (1996), 53–70. Harvey, M., “Deliberation and Natural Slavery”, in Social Theory and Practice 27, 1 (2001), 41–64. Levaggi, A., “República de Indios y República de españoles en los reinos de Indias”, Revista de Estudios Histórico-Jurídicos XXIII (2001), 419–428. Losada, Á., Tratados políticos de Juan Ginés de Sepúlveda, Madrid, 1963. Pagden, A., The Fall of Natural Man, Cambridge, 1992. Roux, R., Cómo se legitima una conquista, Bogota, 1998. Smith, N.D., “Aristotle’s Theory of Natural Slavery”, in Phoenix 37, 2 (1983), 109–22. Todorov, T., The Conquest of America. The Question of the Other, Porter, N. (trans.), Oklahoma, 1999. Zavala, S., La encomienda indiana, Mexico, 1973. Zavala, S., La filosofía política en la conquista de América, Mexico, 1993.

chapter 12

The Debate over the Enslavement of Indians and Africans in the Sixteenth- and SeventeenthCentury Spanish Empire Luis Perdices de Blas and José Luis Ramos Gorostiza 1 Introduction The purpose of this chapter is to study the two stages of the debate over slavery in the Spanish Empire as it developed during the sixteenth and seventeenth centuries—a debate in which the Aristotelian distinction between natural and legal slavery played a major role.1 The substance of the debate was fully defined in the sixteenth century, whereas in the seventeenth century the debate simply relapsed into arguments already pointed out by previous jurists and theologians. In its first stage the discussion revolved around the enslavement of Indians, having as its main contributors Francisco de Vitoria (1483?–1546), professor of the renowned School of Salamanca, along with his disciples, as well as the activist Bartolomé de las Casas (1484–1566) and the chronicler and humanist Juan Ginés de Sepúlveda (1490–1573), both of whom had an intense controversy outside the university classrooms. In the second stage, thinkers like Domingo de Soto (1494–1570), Tomás de Mercado (1530–1576), Bartolomé Frías de Albornoz (16th century), Francisco García (16th century), and Luis de Molina (1535–1600), among others, discussed the slave trade in Africa. In neither of the two aforementioned stages did the arbitristas (a group of late sixteenth- and seventeenth-century reformist writers that analyzed Spain’s moral and economic decline) pay any considerable attention to slavery. 2

The Debate on the Enslavement of Indians

The debate on the enslavement of Indians arose immediately after the discovery of the Americas, with the Dominican Order playing the leading 1  This chapter was translated by Carlos Diego Arenas Pacheco.

© Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_014

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role.2 The Dominican Antonio Montesinos paved the way for the discussion with his 1511 sermons, where he denounced the mistreatment of the Indians on the Island of Hispaniola. His condemnations were followed by the promulgation of the Laws of Burgos in 1512.3 Since the 1530s Europeans acquired a sizable body of knowledge about the American indigenous population thanks to the news that arrived from the New World, while conquistadors like Cortés and Pizarro explored new territories in the Americas and came into contact with empires with complex social and economic systems, such as those of the Mexicans and the Incas. The censures against the increasingly oppressive treatment inflicted on the Indians as the conquest followed its course led to the publication of the bull Sublimis Deus by pope Paul III in June 2, 1537, which declared that the Indians had a right to freedom, and that the Christian faith was to be preached to them through peaceful means. Due to Charles V’s opposition, the bull was annulled by the apostolic brief Non incedens videtur, published in June 19, 1538, although the defenders of the Indians clung to the former papal document. This is the context in which we propose to frame Vitoria, Las Casas, and Sepúlveda’s discussions. The Dominican and professor at the University of Salamanca Francisco de Vitoria played a key role in the debate over the treatment of Indians.4 The main concern that guided this theologian and his disciples, all of whom enjoyed great reputation throughout Europe, was the spiritual salvation of human beings and whether their praxis in the different areas of secular life was governed by principles of justice. Among the topics of secular life they discussed were some of great contemporaneous interest, like the conquest of the American territories and the treatment given to its inhabitants. Vitoria’s thought on the Indians and slavery is found in his relections (relectiones), where he discussed subjects he had already treated in his ordinary lectures.5 Taking Thomism as his intellectual springboard, Vitoria attempted to 2  In this chapter we leave aside the debate over the titles of the Spanish monarchy to conquer American territories, and instead focus on the question of Indians. It must be noted, however, that both issues were deeply related. 3  Immediately after the promulgation of the Laws of Burgos, the lawyer Juan López de Palacios Rubios wrote his De insulis maris oceani defending the legitimacy of the war against the Indians. 4  On the School of Salamanca and its members, see Perdices de Blas, L., and Revuelta López, J., “Markets and taxation: modern taxation principles and the School of Salamanca”, in Esic Market. Economics and Business Journal 138 (2011), 91–116. 5  We will pay attention chiefly to his De Indis and De iure belli, both from 1539. [Translator’s note: The Latin text is quoted from Vitoria, F., Relectio de Indis o libertad de los indios, Pereña, L. and Pérez Prendes, J.M. (eds.), Madrid, 1967. The English translation is taken from Vitoria, F. de, Political Writings, Pagden, A. and Lawrance, J. (eds.), Cambridge, 1991.]

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soften some Aristotelian arguments on slavery, although he, just like Aquinas, considered the Aristotelian system and its idea of man as a social being to be of uncontested soundness.6 Vitoria argued that issues of secular life, like those dealing with the Indians, did not belong exclusively to the jurists, simply because the Indians were not subject to the system of positive Spanish law in which these jurists were specialists: “Their affairs cannot be judged by human statutes (leges humanae), but only by divine ones, in which jurists are not sufficiently versed to form an opinion on their own”.7 As Castilla Urbano points out, since Vitoria considered natural law as a participation of divine law in human beings, he was affirming that Indians, governed by natural law, were ultimately subjects of divine but not human legislation.8 Therefore, according to Vitoria, theology should not only involve the study of God and His attributes, but also the study of God’s creation, among which human beings and the justice of their actions were of utmost importance. The sources for the thought developed at the School of Salamanca covered a vast range of texts, from the Bible to other scholastics (mainly Aquinas, due to Vitoria’s Thomism), passing through the Church Fathers, Roman law, and the Greek thinkers of Antiquity, among whom Aristotle excelled. Because of its massive influence on the debate over the enslavement of Indians, we will present Aristotle’s thought on slavery, which was either fully endorsed or modified by the Spanish thinkers.9 Aristotle’s main arguments about slavery are included in the first book of his Politics, where he underscored the indispensability of slaves in the social and economic life of the Greek poleis. Aristotle distinguished between slaves by nature and slaves by law. On the one hand, Aristotle considered that some men were free and other were slaves by nature and that, therefore, slavery was convenient and just. On the other hand, there also existed a legal form of slavery, understood as a “convention by which whatever is taken in war is supposed to 6  Vitoria, De indis, 81 thus held in contrast to Hobbes that “Non enim homini homo lupus est, ut ait Ovidius, sed homo” [Vitoria, Political Writings, 280: “‘Man is not a wolf to his fellow man’, as Ovid says, ‘but a fellow’”]. 7  Vitoria, De indis, 11: “[…] Res illorum non sunt examinandae per leges humanas, sed divinas, quarum iuristae non sunt satis periti, ut per se possint huiusmodi quaestiones diffinire” [Vitoria, Political Writings, 238]. 8  Castilla Urbano, F., El pensamiento de Francisco de Vitoria: Filosofía política e indio americano, Barcelona/Mexico, 1992, 249. 9  On Aristotle’s influence on the debate over slavery and the American Indians, see Llinares, J., “Aristóteles y los indios de América. En torno al problema antropológico de la esclavitud”, in Álvarez Goméz, A. and Martínez Castro, R. (eds.), En torno a Aristóteles. Homenaje al Profesor Pierre Aubenque, Santiago de Compostela, 1998, 457–483.

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belong to the victors”.10 Aristotle clarified the latter by saying: “from one point of view, the art of war is a natural art of acquisition, for the art of acquisition includes hunting, an art we ought to practice against wild beasts, and against men who, though intended by nature to be governed, will not submit; for war of such a kind is naturally just”.11 The slave, according to Aristotle, “has no deliberative faculty at all”,12 and “participates in reason enough to apprehend, but not to have”.13 While slaves by nature were generally engaged in activities related to “the use of the body”, and free men were devoted to political life, there was a simple method to identify a slave by nature, which was to play a key role in the debate over Indians in the sixteenth century: “the barbarian and the slave were by nature one”.14 Vitoria knew of the continual denunciations against the mistreatment of Indians expressed by his Dominican brethren, among whom Bartolomé de Las Casas stood out (but whom he never quoted in his lectures). That is why Vitoria explained that his lectures had been motivated by having heard about “bloody massacres and of innocent individuals pillaged of their possessions and dominions”.15 In any case, for Vitoria, the debate over American Indians needed to start by elucidating the contemporaneous applicability of the Aristotelian theory of slavery. Vitoria’s question was: is the Aristotelian distinction between Greeks as free men and barbarians as slaves analogous to the distinction between Spaniards as Christians and Indians as barbarians? The first question to be resolved before Spaniards continued with their colonizing project was “whether these barbarians, before the arrival of the Spaniards, had true dominion, public and private”.16 The question was automatically resolved if, as was common doctrine, the Indians were considered slaves, since as such they could not have true dominion over anything. Vitoria immediately argued that those who supported this idea appealed to the aforementioned Aristotelian theory, which maintained that there were men who were slaves by nature.17 But before qualifying what the Greek philosopher had really meant, Vitoria hastened to refute those who claimed that mortal sin impeded civil property and true dominion. His main argument was clearly 10  Aristotle, Politics, 1055a7–8, quoted from Aristotle, Politics, in Barnes, J. (ed.), The Complete Works of Aristotle. The Revised Oxford Translation, vol. 2, Princeton, 1984, 1986–2129. 11  Aristotle, Politics, 1056b21–25. 12  Aristotle, Politics, 1060a13. 13  Aristotle, Politics, 1054b21–22. 14  Aristotle, Politics, 1052b9. 15  Vitoria, De indis, 10 [Vitoria, Political Writings, 238]. 16  Vitoria, De indis, 13 [Vitoria, Political Writings, 239]. 17  Vitoria, De indis, 13.

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stated thus: “for man is the image of God by his inborn nature, that is by his rational powers. Hence he cannot lose his dominion by mortal sin”.18 Hence, Vitoria argued that the Indians were rational beings even if they were in mortal sin, and also dispelled the doubt he had expressed using a colloquial turn of phrase (in a language surely shocking for us contemporary readers) in a letter to Miguel de Arcos dated 1534: “In truth, if the Indians are not men but monkeys, they are incapable of injury”.19 But they were, in fact, men. However, there was still another very important question posed by defenders of the colonizing project: could Indians be owners of property if even if they were to be considered “idiotic” or “insane”? Against this idea, Vitoria supported once again the proposition that irrational creatures could not have dominion, but then pointed out that Indians did not belong to such a class of beings because they were rational creatures. Additionally, he made the following statement without ever doubting the rationality of the Indians: “Thus if they seem to us insensate and slow-witted, I put it down mainly to their evil and barbarous education. Even amongst ourselves we see many peasants who are little different from brute animals”.20 Consequently, Indians were rational and true owners of their property. After the aforementioned considerations, Vitoria could not conclude before without commenting explicitly on the Aristotelian arguments on natural slavery: 1. Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights of ownership over their own bodies and possessions (dominium sui et rerum). Such slavery is a civil and legal condition, to which no man can belong by nature. 2. Nor did Aristotle mean that it is lawful to seize the goods and lands, and enslave and sell the persons, of those who are by nature less intelligent. What he meant to say was that such men have a natural deficiency, because of which they need others to govern and direct them. It is good that such men should be subordinate to others, like children to their parents until they reach adulthood, and like a wife to her husband.21

18  Vitoria, De indis, 18 [Vitoria, Political Writings, 242]. 19  Vitoria, Political Writings, 333. 20  Vitoria, De indis, 30 [Vitoria, Political Writings, 250]. 21  Vitoria, De indis, 30–31.

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Moreover, Vitoria appealed to Aquinas’ authority to further strengthen his argument. “Saint Thomas rightly says that in natural law all are free other than from the dominion of fathers or husbands”.22 A different question was whether Indians could be put under some kind of guardianship while they acquired a degree of education similar to that of Europeans, but Vitoria insisted nevertheless that they should never be enslaved or dispossessed of their property.23 Once Vitoria had proven that Indians were not slaves by nature, in his discussion on the legitimacy of the titles that allegedly justified the Spanish presence in America, he had yet to explain the just causes for declaring a war against the Indians, for those captured in an armed conflict could be legitimately enslaved according to Aristotle’s concept of legal slavery. A war, Vitoria argued, could only be fair if there was a just cause to wage it, so he concluded: “if the barbarians have done no wrong, there is no just cause for war”.24 That is, it was unjust to wage war on the Indians and deprive them of their property simply because of their unwillingness to receive the Gospel.25 In addition, Thomas Aquinas also had argued that Gentiles and Jews could not be coerced by force to convert—“the proof is that belief is a matter of will, but fear considerably diminishes the freedom of will”.26 Vitoria outlined the extreme cases in which a war could be considered legitimate (and therefore just) by arguing that a war could not be declared simply because the enemy was an infidel, a sodomite or a fornicator, or because of the expansionist goals or the particular interests of a prince that went against the common good. Spaniards, therefore, could only wage war in the American territories if Indians prevented them from traveling, trading, and preaching the Gospel, and if Christians were obligated to hinder inhuman practices (such as

22  Vitoria, De indis, 36 [Political Writings, 254]. Aquinas, influenced by Aristotle, held contradictory positions on slavery that Vitoria attempted to unravel. See Killoran, J.B., “Aquinas and Vitoria: Two perspectives on Slavery”, in Johnson, H.J. (ed.), The Medieval Tradition of Natural Law, Michigan, 1987, 94–98, and Brett, S.F., The Justification of Slavery: a Comparative Study of the Use of the Concepts of Jus and Dominium by Thomas Aquinas, Francisco de Vitoria and Domingo de Soto in Relationship to Slavery, Washington, DC, 1987, 212–263. 23  Vitoria was very cautious about the question of the guardianship of Indians; see Vitoria, Political Writings, 291.: “But I say all this, as I have already made clear, merely for the sake of argument; and even then, with the limitation that only applies if everything is done for the benefit and good of the barbarians, and not merely for the profit of the Spaniards”. 24  Vitoria, De indis, 63 [Vitoria, Political Writings, 270]. 25  Vitoria, De indis, 64. 26  Vitoria, De indis, 65 [Vitoria, Political Writings, 272].

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the sacrifice of innocents or cannibalism) and to aid allies.27 However, even if the aforementioned cruelties were practiced, Spaniards ought first to remove any cause of provocation by reasoning and persuasion and demonstrate with every argument at their disposal that they have not come to do harm, but wish to dwell in peace and travel without any inconvenience to the barbarians. And they should demonstrate this not merely in words, but with proof.28 Only in the extreme case that this peaceful path was exhausted and Indians themselves opted for violence was it completely lawful for the Spaniards to meet “force with force” (vim vi repellere licet).29 Therefore, according to Vitoria there were very few cases that justified a war. Furthermore, it was necessary to remember that the end of the war was peace, and that (as Las Casas would also argue) a war should never be declared, however just it might be, if greater evils obtained as a consequence.30 Consequently, Spaniards could only declare a defensive war as a minor evil and within many restrictions. Vitoria wanted to limit the reasons that legitimized a war because he knew that if a military conflict was declared by ius gentium, it would be possible and lawful to appropriate what was taken from Indians and to transform them into “our slaves”.31 He restated his argument by denouncing the abuses produced by the Spaniards and how, in many cases, “my fear is that the affair may have gone beyond the permissible bounds of justice and religion”.32 In short, Vitoria limited the criteria by which a war could be justified to rule out the possibility that Indians could become legal slaves through warfare. Thus, we can conclude that Vitoria put Indians and Europeans on the same moral plane to defend the freedom of the former and to force the latter to respect the property rights of Indians. In this sense, Vitoria paved the way for the New Laws of the Indies, promulgated in 1542, that sought to protect Indians. Vitoria considered that Indians could not be enslaved using the first 27  Vitoria stressed that different Indian groups warred with each other and that Spaniards could be allied with one of the parties, as in the case of the aid given to the Tlaxcaltecs against the Mexicans, Vitoria, De indis, 95. 28  Vitoria, De indis, 95 [Vitoria: Political Writings, 281–282]. 29  Vitoria, De indis, 84 [Vitoria, Political Writings, 282]. 30  Vitoria, De indis, 84. 31  Vitoria, De indis, 86: “[…] In nostram servitutem deducantur” [Vitoria, Political Writings, 283]. 32  Vitoria, De indis, 91 [Vitoria, Political Writings, 286]. See his opinion on the injustice of the war against Atahualpa in Vitoria, Political Writings, 331–333.

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Aristotelian argument as a justification because he strongly denied that they could be included in the category of slaves by nature. In addition, he restricted to very extreme cases the possibility of waging a just war against Indians, of enslaving them for this reason, and of seizing their possessions. Aristotle’s arguments and Vitoria’s interpretation would then be analyzed by Sepúlveda (who tried to construe Vitoria and his arguments on just war as supporting his own position), as well as by Las Casas (who proposed, in the same vein as Vitoria, to restrict the concept of a just war even more). Barely four years after Vitoria’s death and on the initiative of Charles V, a Junta (i.e. a deliberative council) was convened in Valladolid (1550–1551) with the goal of discussing the legality of subjecting Indians to Spanish rule. The academic discussion that Vitoria initiated left the lecture rooms of the University of Salamanca and became a public debate. The three eminent Dominican theologians Domingo de Soto, Bartolomé de Carranza, and Melchor Cano were members of the Junta, but Bartolomé de las Casas and Juan Ginés de Sepúlveda, who were not scholars, were the main debaters of the council.33 Las Casas was a self-taught Dominican and a social activist with a persuasive and vehement prose. For his part, Sepúlveda had studied theology, but was primarily a learned translator of Aristotle, the preceptor of the later Philip II, and royal chronicler for both his pupil and Charles V. Sepúlveda, like Vitoria, never set foot in America, and used secondary sources to gain knowledge on the Indians, mainly the Historia General y Natural de las Indias by Gonzalo Fernández de Oviedo (the first part of which was published in 1535).34 Las Casas, who would later become bishop of Chiapas, used as his main argumentative and rhetorical tool an appeal to the Spanish acts of cruelty that he himself witnessed in America, which he reported, according to his critics, distortedly.35 Neither Las Casas nor Sepúlveda make little use of personal attacks in their arguments, although both tried to expound their ideas before the 33  Although both Sepúlveda and Las Casas have a large oeuvre, we have only used their Apologiae, i.e. their writings in defense of their arguments presented before the Junta, to analyze their thought on the matter: see Las Casas, B. de, Apologia, in Losada, Á. (ed.), Obras completas, vol. 9, Madrid, 1988. Among the members of the Junta de Valladolid was Tomás de Mercado, whose thought will be the matter for our next section. See Maestre Sánchez, A., “‘Todas las gentes del mundo son hombres’. El gran debate entre Fray Bartolomé de las Casas (1474–1566) y Juan Ginés de Sepúlveda (1490–1573)”, in Anales del Seminario de Historia de la Filosofía, 21 (2004), 113. 34  La Casas accused Fernández de Oviedo of lying and participating in the mistreatment of Indians; see Las Casas, Obras Completas, 633–643. 35  For an example of how Las Casas made constant reference to his experiences in America, see Las Casas, Obras Completas, 348–351.

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Junta systematically, following the scholastic method.36 They also tried to support their arguments on authorities such as Thomas Aquinas, Thomas Cajetan (the celebrated cardinal and general Master of the Dominicans from 1508 to 1518), and Vitoria.37 As said above, the Valladolid debate dealt mainly with the political submission of Indians under the Spanish Empire. Sepúlveda contended that his goal was not to strip the Indians of their property and possessions or to reduce them to slavery, but rather to subject them to the government of Christians.38 However, his arguments in favor of the political submission of Indians were the same that could be alleged to enslave them, and Las Casas was fully aware of this. As Las Casas explained to prince Philip (later king Philip II), he considered that Sepúlveda’s arguments were “poison wrapped in honey” (toxicum melle preunctum).39 Sepúlveda’s four arguments to justify the submission of Indians can be summarized as follows:40 a) Indians were of a barbaric nature. b) The conflict against the Indians was a just war because Europeans were obligated to: 1) punish the Indians for practicing idolatry and human sacrifice; 2) save thousands of innocents who died or died as a result of human sacrifice; 3) suppress the obstacles that impeded the preaching of the Gospel.

36  For a scholastic summary of Las Casas and Sepúlveda’s debate, see Las Casas, Obras Completas, 50–63. 37  For instance, see Las Casas, Obras Completas, 492–497. 38  Las Casas, Obras Completas, 56–65. 39  Las Casas, Obras Completas, 67. 40  Sepúlveda had already attempted to justify the war against Indians in his Democrates Secundus (1544), a very controversial text that was pleasing to neither Las Casas nor the universities of Salamanca and Alcalá de Henares. Sepúlveda responded to these objections in his Apologia; see Las Casas, Obras Completas, 626–635. For Sepúlveda’s four arguments, see Las Casas, Obras Completas, 56–65. To support his arguments doctrinally he appealed to Papal authority, to Aristotle, and to a wide range of theologians, from Thomas Aquinas to Duns Scotus and John Mair, but above all to other Dominicans like Vitoria. But curiously, in spite of his erudition, Sepúlveda did not appeal to Vitoria’s Relections, but rather to an anecdotal fact: Vitoria’s brother, Diego, supported Sepúlveda’s arguments, something that would have been impossible “if he [Diego] had not felt safe in the authority of his brother Francisco, a learned man of noble and liberal spirit, who was only two days’ distance away from him”, Las Casas, B. de, and Sepúlveda, J., Apologia, Madrid, 1975, 79. This can serve as an example of how Sepúlveda was keen to force his sources to support his own agenda.

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The first argument corresponded to the Aristotelian justification of slavery, who considered barbarians as slaves by nature. Sepúlveda associated the other three premises to Aristotle’s legal slavery. Although Sepúlveda emphasized that the first motivation of the war was not to deprive Indians of their freedom and their possessions, but only to render them political subjects, he did not deny that during and after the war the “barbarians” could legitimately lose possession over the precious metals which they held in little esteem. He stressed that the Indians would gain not only culturally and materially—Spaniards would provide them with iron, with agricultural products such as wheat, barley, and fruit trees, and with various kinds of cattle, such as horses, mules, donkeys, sheep and oxen—but above all spiritually, by obtaining knowledge of the true God.41 However, Sepúlveda made no reference to the loss of human lives during the hostilities, nor to the possibility that Indians could be subjected to slavery when they fell captive. Las Casas wrote an Apologia to combat Sepúlveda’s four arguments, knowing that they could be used to justify the enslavement of Indians (as he had noted elsewhere on many occasions).42 Although there are some differences between Victoria and Las Casas, and the literature that has compared both authors is extensive, we will only focus on their similarities. Las Casas quoted Vitoria’s Relectiones in his writings and agreed with the Salmantine master both in criticizing the Aristotelian argument as adapted by the likes of Sepúlveda and in limiting the cases in which Spaniards could justify war against the Indians. That is, Las Casas shared the basic argumentative lines already drawn by Vitoria. However, it is true that Las Casas, as the bold activist he was, accused the scholar Vitoria of “shyness”, of being “somewhat soft”, or of siding with civil power on some occasions.43 Moreover, unlike Vitoria, Las Casas did not mince his words to disqualify his opponents and to invoke facts rather than abstract arguments. Las Casas took special pains to reject Sepúlveda’s first argument, which was based on the Aristotelian system in which Sepúlveda was a recognized specialist. After making a scholarly distinction between four types of barbarians,44 41  Las Casas, Apologia, 76. 42  The Apologia that we analyze in what follows was written in Latin. Its second part, the Apologética Historia Sumaria, was composed in Spanish, but was not published until 1909. The latter text made constant reference to concrete facts about the treatment of Indians. 43  Las Casas, Apologia, 376. 44  According to Las Casas, the four kinds of barbarians were: 1) cruel and inhumane humans; 2) humans that spoke a foreign language or had no letters; 3) barbarians stricto sensu (slaves by nature, according to Aristotle); and 4) non-Christians. For Las Casas, many Spaniards could be included in the first category, whereas Indians could only be included

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Las Casas concluded that Indians could not be considered barbarians in the strict sense; namely, as beings naturally foolish, cruel, rude, ferocious, stolid, stupid, oblivious to reason, and without any capacity of self-governance. In addition, he pointed out that barbarians stricto sensu were scarce in the world, and, like Vitoria, he emphasized that Indians were made in the likeness of God like any other human being and, as such, their rationality could not be denied: “it is necessary for rational nature, which obtains its capacity from that sole Creator, to have in most cases perfect men endowed with the best intellectual qualities, rarely idiotic or barbaric”.45 In nature, there are as few barbarians as there are monsters. Like Vitoria, Las Casas developed his argument by making direct reference to Aristotle and to the treatment that should be given to the very few humans that could be classified under the heading of barbarians in the strict sense: Therefore, although the Philosopher, unaware of Christian truth and charity, writes that the wise can hunt down the barbarians no less than if they were wild beasts, no one ought to understand by this that the barbarians must be killed or subjected to wicked, hard, cruel and rigid labors, and that for that purpose they can be pursued and captured by the wisest.46 In very colloquial terms, he concluded: “Valeat Aristoteles!” [“Farewell, Aristotle!”]47 He also warned that he who, following the Stagirite, ended up behaving like “a cruel butcher” and as an enslaver of human beings, was a tyrant. Indians were not foolish or stupid, but ingenious, and before the arrival of the Spaniards they had already established “well-constituted political republics […] sensibly organized with the best laws, with religion, and with institutions”48 that would have caused admiration to the wisest of Athens. In fact, in his exalted defense of the Indians, Las Casas represented them with virtues and abilities that would later be extolled by those authors of the Enlightenment who referred to the natives of remote lands as “good savages”. In short, according to Las Casas, Sepúlveda had distorted Aristotle’s doctrine (a serious accusation against an alleged specialist in Aristotle), and had also used a deficient source to describe Indians, such as the biased history written in the second or the fourth category, but never in the third one. See Las Casas, Obras Completas, 80–125. 45  Las Casas, Apologia, 129. 46  Las Casas, Obras Completas, 98–101. 47  Las Casas, Obras Completas, 100–101. 48  Las Casas, Obras Completas, 105–106.

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by Fernández de Oviedo.49 Las Casas, however, had been in America himself, and thus could knowingly disavow any opinion that denigrated the rational capacity of Indians. Las Casas also rejected Sepúlveda’s second group of arguments. Firstly, Las Casas, like Vitoria, dismissed the idea that a just war could be waged because Indians practiced idolatry and the immolation of men.50 It is not that Las Casas and Vitoria did not condemn such practices (if they happened at all), but they only argued against using them as justifications for war. Indians, unlike heretics (who, by definition, had received baptism), were not subject to the Church and, therefore, could not be punished for idolatry. Consequently, quoting the bull Sublimis Deus issued by pope Paul III in 1537, he concluded that “[Indians] should not and are not to be deprived of their freedom or of the dominion of their possessions; on the contrary, they can use, maintain, and enjoy freely and lawfully such freedom and domination; neither should they be subjected to slavery”.51 Secondly, Las Casas deployed all his rhetorical and theoretical weaponry to criticize Sepúlveda’s argument that war could be justified to save the innocent or to prevent cannibalism. On the one hand, Las Casas recognized that this was Sepúlveda’s most compelling argument: who would refuse to wage war against cannibalistic barbarians to save the innocent? That is, faced by Las Casas’s description of Indians as ‘good savages’, Sepúlveda stressed their most violent and brutal qualities. On the other hand, since Victoria himself had accepted this as a motive to wage a just war, albeit with numerous limitations, Las Casas could not leave such an argumentative possibility open. To refute the aforementioned justification of war as the defense of the innocent, Las Casas brandished an argument that had previously been employed by Vitoria: namely, no war should be waged, no matter how justly, if under the pretext of preventing the death of innocents “an infinite multitude of innocents” ran the risk of perishing in an armed confrontation.52 And, in order to leave no stone unturned, Las Casas cited Vitoria himself to corroborate his 49  Las Casas also disregarded John Mair’s defense of natural slavery; see Las Casas, Obras Completas, 604: “Abeat ergo Ioannes Maioris cum suis somniis; ignorat enim ius et factum”. 50  Las Casas quoted Vitoria to argue that Cajetan had never invoked idolatry as a justification for war. See Las Casas, Obras Completas, 326–329. 51  Las Casas, Obras Completas, 210. Las Casas hypothesized cases in which infidels could be punished for practicing idolatry: for instance, if idolatry was practiced in kingdoms that had been unjustly taken away from Christians. But that was obviously not the case in any kingdom in the Americas; see Las Casas, Obras Completas, 156–235. 52  Las Casas, Obras Completas, 396.

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­arguments.53 He went so far as to say that the prince, because of his commitment to the common good of the Republic, was required to tolerate (or “conceal”) certain practices, however bloodthirsty, in order not to cause even greater atrocities.54 In addition, it was necessary to bear in mind that, once the war started, it was difficult to distinguish the guilty from the innocent. On the other hand, by the natural law that ruled over both Europeans and Indians it was sometimes demanded to offer God what was most appreciated—that is, life. And he even pointed out that other religions, including Catholicism, did not completely exclude the immolation of innocents, and used Abraham’s disposition to sacrifice Isaac when tested by God as an example.55 Thirdly, Las Casas quickly dismantled the last premise adduced by Sepúlveda in favor of the just war against the Indians, namely, that war paved the way for the preaching of Catholicism. Like Vitoria, Las Casas believed that the conversion of Indians should be a voluntary act: “the Gospel must be propagated not with spears, but with the preaching of the word of God, examples of Christian life, and through reason”.56 However, the violent behavior of Spaniards, whom Las Casas did not hesitate to categorize as barbarians, predisposed Indians to reject the Gospel. In brief, Las Casas reiterated Vitoria’s arguments against considering the Indians as barbarians and denied the possibility of declaring and waging any just war on Indians that could justify reducing them to slavery and depriving them of their possessions. He expressed his ideas employing a combative style that was approachable for government officers and the general public, and which contrasted with Vitoria’s quiet and academic tone. On the other hand, although Vitoria had already placed numerous impediments to declaring war even in those few cases in which it could be considered fair, Las Casas was even more restrictive in not even accepting the defense of innocent victims sacrificed in idolatrous rites as a reason to justify war. 3

The Debate on the Slavery of Africans

The debate on the slavery of Africans followed the same course as that over the slavery of Indians, but with a very important nuance: African slaves had already been bought in the slave trade. With the exception of a few authors, like 53  Las Casas, Obras Completas, 395. 54  Las Casas, Obras Completas, 392–396. 55  Las Casas, Obras Completas, 452–454. 56  Las Casas, Obras Completas, 558.

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Francisco José de Jaca (1645–1690) and Epifanio de Moirans (1644–1689), no other author proposed the abolition of African slavery. Theologians and philosophers mainly discussed the legitimate causes for the existence of slavery and the justice of sales contracts. That is to say, the debate was focused on the Aristotelian argument on legal slavery. To examine this controversy, which had a clear legal and economic basis, the thought of five scholastics who dealt with economic issues will be highlighted: Domingo de Soto, Tomás de Mercado, Bartolomé de Frias de Albornoz, Francisco García, and Luis de Molina.57 Vitoria also expressed some remarks on the slavery of the Africans, but only in a brief letter that lacked the thoughtfulness and depth that he achieved in his Relectiones.58 For this reason, we will firstly analyze the thought of his most direct disciple, Soto, and we will afterwards study four authors influenced by the School of Salamanca, the most salient of which were the Dominican Mercado (who possessed first-hand knowledge of the slave trade in Seville and the American colonies), and the Jesuit Molina (who lived for almost forty years in Portugal and had good knowledge of the Portuguese slave trade). Soto discussed the enslavement of Africans in a study on property rights in the fourth book of his De iustitia et iure (1553). He argued that by natural law “everyone is born free” (omnes enim nascuntur liberi).59 Nevertheless, taking into account the Aristotelian distinction between natural and legal slavery, Soto studied cases in which the latter form of slavery was legitimate. Thus he explained in the first place that: although all human beings have been created free by God, the desire and the right to preserve life is so innate in all living beings that the needy can 57  That is, in this section we leave aside authors like Las Casas (who had at first recommended the introduction of African slaves to protect the Indians from hard labour, but afterwards criticized their mistreatment), or like Jaca and Moirans, who clearly condemned the institution of slavery but were silenced by the Inquisition. 58  He asserted that if Africans had been made slaves in the wars waged among them, there was no impediment in acquiring them, irrespective of whether such wars had been fair or not (as he had opined in the case of Indians). He also declared that it was lawful to commute the death penalty to slavery if the ‘offender’ consented. But he did not think it legitimate to stripe Africans of their freedom through deception. Finally, he stressed that, since many doubted the fairness of the sales contracts, it was naive to trust that kings and their servants would never allow unfair acquisitions: Vitoria, F., “Carta del maestro fray … al padre fray Bernardino de Vique acerca de los esclavos con que trafican los portugueses, y sobre el proceder de los escribanos”, in Anuario de la Asociación Francisco de Vitoria 3 (1930–1931), 38–41. 59  Soto, D. de, De iustitia et iure libri decem (5 vols.), Madrid 1967 (facsimile of Salamanca 1556), 288B.

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submit themselves to slavery for the sake of their own lives. For although freedom is worth more than all gold, it is legitimate to sell oneself for the sake of life, which is more precious than all gold.60 Although the selling of one’s children in case of need was not usual among Christians, this practice was customary in the lands where the Portuguese came to purchase them and, therefore, this trade could not be labeled as criminal. However, he denounced that it was common knowledge that Africans were seduced “with lies and deceptions” and enslaved almost without realizing it. This practice could not be tolerated since there was a moral obligation to free any man who, being born free, was made a slave unjustly.61 Soto did not accept the opinion of those who argued that through slavery Africans could enjoy a better material life and, more importantly, that they could be saved spiritually by being baptized. Instead, Soto only approved the legal slavery of those who were imprisoned in a war or enslaved to preserve their lives. In short, slavery was a matter solely of ius gentium, since civil authority considered it lawful, and was also corroborated by custom and practice. Finally, it should be noted that in his treatise Soto also dealt extensively with the transfer of property through sales contracts and the justice of said contracts, insisting on a main issue: “The end of the laws which regulate the solemnity of contracts consists in preventing fraud and deception”.62 Mercado included his reflections on slaves in the framework of a large Suma de tratos y contratos [Treatise on Deals and Contracts] (published three times between 1569 and 1591), which analyzed the fairness and legality of diverse forms of commercial and financial activities. Mercado, like Vitoria and Soto, argued that contracts had to be just, truthful, without deception or coercion, and he also focused on cases in which these conditions were not met. One of them was the Portuguese slave trade of Cabo Verde. Mercado mentioned the following justifications for the capture and sale of slaves, some of which were legitimized by the laws of African populations themselves and hence not always coincided with European legislation: the capture of prisoners in a just war, punishment for the commission of public crimes, and the sale of children by parents in cases of extreme need. However, Mercado admitted that among those justly enslaved there were people who had been “deceived, violated, forced, or sequestered”.63 That is, some of the wars 60  Soto, De iustitia et iure, 289A. 61  Soto, De iustitia et iure, 289. 62  Soto, De iustitia et iure, 317B. 63  Mercado, T. de, Suma de tratos y contratos, Sánchez-Albornoz, N. (ed.), Madrid, 1977, 232.

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waged among Africans were probably not just, and many of them were stimulated by the money Spaniards and the Portuguese paid for slaves. Moreover, prisoners of war were often penalized excessively, while parents sold their children motivated by no real need or even by contempt. Added to these injustices perpetrated among Africans were the numerous acts of unfairness committed by Europeans. The brutal reality was that “out of every two slaves that leave [Africa], one is deceived or tyrannically captured or forced”.64 Likewise, Mercado denounced the cruelty of merchants in the Middle Passage—a cruelty that, according to him, exceeded the mistreatment inflicted on imprisoned Christians by the Turks. In short, while the purchase and sale of Africans was licit and just, in practice Mercado doubted whether the Cabo Verde factores or the Portuguese king made an exhaustive examination to ratify the legitimacy of the contracts issued by merchants. Even if the King’s providencias [rulings] had the best of intentions, Mercado did not think it feasible that they could solve the problem. Mercado, instead, appealed to the merchants’ conscience and denounced the unfairness of the Portuguese slave traders’ contracts. He did not discuss, however, a very important issue: the successive trade of African slaves in both Europe and America. Although he no doubt suspected the legality of these transactions, he concluded that, in this matter, “each should consult his confessor” (cada uno consulte con su confesor).65 In contrast, Frías de Albornoz and García proposed different solutions to this question left unanswered by Mercado. Frías de Albornoz studied in Salamanca and published El arte de los contractos in 1573, a work that had a very limited readership. Albornoz followed Mercado’s teachings very closely in questioning the titles by which Europeans attempted to legitimize their enslavement of Africans, in considering slave trade a morally dangerous activity, and in suspecting the legality of the first instance of slave trade in Africa. But Albornoz, in contrast to Mercado, also denounced the second and successive sales in Europe and America, and asserted that: “What do I care if the slave I am buying was captured justly? The presumption is always for his freedom; by natural law I am bound to favor the person who suffers unjustly and not to become an accomplice to the criminal”.66 A different answer to the legality of the second and successive sale of slaves was offered by the Dominican Francisco García, who in 1583 published a treatise on contracts with the purpose of improving on Frías de Albornoz’ views. 64  Mercado, Suma de tratos y contratos, 234. 65  Mercado, Suma de tratos y contratos, 239. 66  Albornoz, B. de, Arte de los contractos, Valencia, 1573, 130v.

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His book had a wider readership than Albornoz’s. In its first part, after discussing the notion of fair price, García analyzed the question of slavery. He considered that the person who had bought a slave and doubted whether he was a freeman had to make the pertinent inquiries, because otherwise he would possess him in “bad faith”, as Soto and Mercado had already said. García, however, opened the door to the justification of dubious practices in this type of trade: It should be noted, however, to relieve the conscience of many, that although in general and commonly speaking this is the reputation of the Blacks who have carried or brought here from Guinea [that of having been deceived], it may well be, speaking of individual cases, that this Black or that Black man has no such particular reputation, and for this reason it may well be that they were bought it in good faith, believing that that one is a slave […] without suspecting the contrary.67 García thus allowed a notion of “good faith” to creep into the argumentation, a ‘subtlety’ that would be adopted by later authors such as Molina, who was the theologian who paid more attention to the question of African slaves in his De iustitia et iure (published between 1593 and 1600; his discussion on African slaves can be found in volume I, treaty II, disputes XXXII–XL). Molina was the first thinker to make a thorough examination of the locations from where the Portuguese extracted the slaves before reflecting on the legality of such operations. He also talked about the humanitarian treatment that should be given to the slave and discussed issues like manumission and fugitive slaves. Having lived in Portugal practically all his life allowed him to acquire a good knowledge of all these subjects and first-hand information provided by his Jesuit brethren. Like the rest of the scholastics, Molina started his discussion with the Aristotelian distinction between natural and legal slavery, and examined the cases in which the latter was accepted for Africans: namely, captivity in just wars, punishment for crimes, selling oneself as a slave, the selling of children by parents, and being born from enslaved parents. Therefore, the purchase and sale of slaves was a legal activity provided that the slave had been reduced to his state by the aforementioned justifiable reasons and a fair price was paid for him. Like Soto and Mercado, Molina argued that, with a few exceptions, the slaves bought by the Portuguese merchants had been enslaved based on illegitimate titles: thus, Molina denounced the moral danger of engaging in this type of trade, and warned that most Portuguese merchants, looking only 67  García, F., Parte primera del tratado utilísimo y muy general de todos los contratos, cuantos en los negocios humanos se suelen ofrecer, Valencia, 1583, 491–492.

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for their gain, were not at all concerned to inquire why their slaves had been reduced to such a social status. In addition, he stressed that this type of trade, like any other trade, should be carried out taking into account a notion of fair price. Molina and his predecessors agreed on many arguments concerning these topics. Hence, the most substantial part of his exposition was devoted to the second and successive slave sale and purchase operations, which reinforced what was already pointed out by Francisco García: Those who subsequently buy these slaves in good faith from the merchants who export them from Africa, if no reasons for doubting whether or not they were initially reduced to slavery justly have reached their ears, and all those who for any other reason possess slaves in good faith, will be able to retain them with tranquility of conscience as long as they are not certain that they have been unjustly enslaved.68 Therefore, he left everything in the hands of the “good faith” of the buyer, who could doubt the legitimacy of his purchase, and who would be moved by “the hope of finding out the truth”. If we compare this with the rest of Molina’s treatise, his vague position regarding the sale and purchase of African slaves contrasts with his strictness concerning general sales contracts and the fair price for which any merchandise should be sold. To put it briefly, if the buyer of a slave heard no testimony that altered his good conscience, he should simply do nothing. This argument was the perfect excuse to preclude any kind of moral doubt arising in the conscience of many a slave owner, even though Molina stressed that numerous precautions should be taken into account when purchasing a slave. In this sense, for example, the jurist of Indian law, Juan de Solórzano (1575–1655), provided an interpretation on Molina that was widely adopted and that abandoned all precautions suggested by the Jesuit. Solórzano concluded his discussion by stating that Soto, Molina, and other theologians saw slave trade as dangerous because of the numerous frauds that were committed, but ultimately these issues were not the concern of individuals.69 Other theologians that followed the road prepared by Molina were the Portuguese Jesuits Fernando Rebello (1546–1608), Esteban Fagúndez (1577–1645), and the Spaniards Tomás Sánchez (1550–1610), and Alonso de Sandoval (1576–1652).70 68  Molina, L. de, De iustitia et iure I, Venice, 1611, d. 36. 69  Solórzano, J., Política indiana, Tomás, F. et al. (eds.), vol. 1, Madrid, 1972, 181. 70   Andrés-Gallego, J. and García Añoveros, J.M., La Iglesia y la esclavitud de negros, Pamplona, 2002, 53–71. Diego de Avendaño discussed in his Thesaurus Indicus (1668–1686) the implications of Molina’s position, expressing a veiled criticism of successive slave trade. See

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4 Conclusion The scholarly dispute over the influence that Vitoria and Las Casas may have had on Spanish imperial policy has been very controversial. Their debates did not stop the machinery of conquest, and it is doubtful whether their thought served to improve the lives of Indians under Spaniard rule. Nevertheless, their arguments at least allowed Europeans to consider American Indians as rational beings and as legitimate possessors of property whose enslavement was illegitimate and unjust, thus restraining those who shielded their cruel actions behind Sepúlveda’s arguments. Therefore, they at least provided the conquest and subsequent colonization of America with a theoretical foundation which may have motivated a more humane attitude towards Indians. That is, however much the Spanish Empire was marked by the Black Legend or plagued by a cruel attitude towards Indians, the truth is that in its midst scholars and thinkers discussed both the legitimate causes supporting or hindering the conquest of America, and the kind of treatment Europeans were obliged to give its inhabitants. Regarding the debate on the slavery of Africans, the authors studied (among which Soto, Mercado, and Molina stood out) focused on analyzing different justifications for slavery and denounced both the moral blame that came with working in the slave trade as well as the deceptions and injustices that were committed both in the first and the successive slave trade transactions. All these problems and the solutions proposed by scholastics were not discussed by authors belonging to other schools of thought despite the numerous printings of the texts we analyzed, some of them even translated into vernacular languages. As an example, it is worth remembering that Soto’s De iustitia et iure, published in 1553, was edited twenty-six times in the sixteenth century, with sixteen of those editions printed outside of Spain. It seems that both Molina’s clear prose and his appeal to the good faith of slave owners gained him many followers. Accordingly, African slaves suffered much more than Indians in the debate on slavery. Despite the importance of the debate on the enslavement of Indians and Africans, which incorporated Aristotelian arguments about natural and legal slavery, the arbitristas (the economists of their time) paid no attention of the economic role played by slave labor and slave trade in the market. This is almost unexpected, given that it is clearly an issue with many economic connotations. However, this can be partly explained by remembering that the Muñoz García, Á., “Diego de Avendaño y la esclavitud colonial africana”, in Revista de Filosofía 56 (2007), 161.

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fundamental interest of these arbitristas, contemporaries of the English mercantilists and the French colbertistes, was to analyze the causes of the Castilian economic debacle. That is, they focused on the heart of the empire, Castile, and on the ways to restore its wealth and to overcome a series of obstacles to the promotion of productive sectors, such as the excess of unproductive work, an inefficient commercial policy, or an oppressive tax system. In this sense, the arbitristas made reference to America mainly to lament the three negative economic consequences that, in their opinion, the Discovery brought with it: inflation, the importation of precious metals that were immediately used to fill up the coffers of the financial centers of Europe, and the abandonment of productive sectors by people whose only income came from rent and not as a result of productive work.71 Their texts, for instance, made no mention of the rise in the traffic of slaves from Africa to the New World for their employment in mines and plantations. In fact, the only generic mention of slavery by an arbitrista was made by González de Cellorigo, who, citing Jean Bodin as an authority, advocated for the gradual introduction of slaves in Spain to counteract the population decline and the neglect of servile trades, the mechanical arts, and agricultural work.72 Interestingly enough, the only relevant Spanish work of the entire seventeenth century that dealt with the issue of slavery, apart from the disputes over theological and moral issues presented in this chapter, is a legal text rather than an economic one, which was intended to be a guide to delve into the intricate legal and administrative framework associated with Indian trade: Norte de la Contratación de las Indias Orientales [Guide to Contracts in the Eastern Indies] by José de Veitia Linage (1672). In chapter 35 of its first book, it described the asientos de negros (slave trade licenses issued by the Spanish crown) granted between 1595 and 1671, and justified the introduction of African slaves in America due to the serious lack of workers, a lack that became pressing as the required labor in fields and mines increased.73 Although at first the legal theologians of the School of Salamanca (and those who were under their influence) dealt with the issue of slavery, as labor 71  Perdices de Blas, L., La economía política de la decadencia de Castilla en el siglo XVII, Madrid, 1996, 41. 72  González de Cellorigo, M., Memorial de la política necesaria y útil restauración a la República de España, Pérez de Ayala, J.L. (ed.), Madrid, 1991, 65–67. 73  Veitia Linage, J. de, Norte de la Contratación de las Indias Orientales, Seville, 1672, 276. On the other hand, Solórzano—lecturer in law at the University of Salamanca, specializing in Indian and contemporary Veita law—made few references to Africans.

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shortages in America and the traffic of African slaves increased during the seventeenth century, Spanish economists paradoxically stopped addressing this issue, central to the economic life of the Empire.74 Bibliography Sources

Albornoz, B. de, Arte de Contratos, Valencia, 1573. Aristotle, Politics, in Barnes, J. (ed.), The Complete Works of Aristotle. The Revised Oxford Translation, vol. 2, Princeton, 1984, 1986–2129. García, F., Parte primera del tratado utilísimo y muy general de todos los contratos, cuantos en los negocios humanos se suelen ofrecer, Valencia, 1583. González de Cellorigo, M., Memorial de la Política Necesaria y Útil Restauración a la República de España, Pérez de Ayala, J.L. (ed.), Madrid, 1991. Mercado, T. de, Suma de Tratos y Contratos, 2 vols., Sánchez-Albornoz, N. (ed.), Madrid, 1977. Molina, L. de, De iustitia et iure tractatus, vol. 1, Venice, 1611. Sepúlveda, J.G., and Las Casas, B. de, Apología, Losada, Á. (ed.), Madrid, 1975. Solórzano Pereira, J., Política indiana, 3 vols., Tomás, F. et al. (eds.), Madrid, 1996. Soto, D., De la Justicia y del Derecho, v. 2., edición de M. González Ordóñez, Madrid, 1968. Veitia Linage, J. de, Norte de la contratación de las Indias Occidentales, Sevilla, 1672. Vitoria, F., “Carta del maestro fray … al padre fray Bernardino de Vique acerca de los esclavos con que trafican los portugueses, y sobre el proceder de los escribanos”, Anuario de la Asociación Francisco de Vitoria, III (1930–1931), 38–41. Vitoria, F. de, Political Writings, Pagden, A. and Lawrance, J. (eds.), Cambridge, 1991. Vitoria, F., Relectio de Indis o libertad de los indios, Pereña, L. and Pérez Prendes, J.M. (eds.), Madrid, 1967. Vitoria, F., Relectio de iure belli o Paz dinámica. Escuela Española de Paz (Primera generación 1526–1560), Pereña, L. et al., Madrid, 1981.

74  On this paradox, see Perdices de Blas, L., and Ramos Gorostiza, J.L., “Slavery and the Slave Trade in Spanish Economic Thought, Sixteenth to Eighteenth Centuries”, in History of Economic Ideas 23 (2015), 11–40.

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Secondary Literature

Andrés-Gallego, J., La esclavitud en la América española, Madrid, 2005. Andrés-Gallego, J., and García Añoveros, J.M., La Iglesia y la esclavitud de los negros, Pamplona, 2002. Brett, S.F., The Justification of Slavery: A Comparative Study of the Use of the Concepts of Jus and Dominium by Thomas Aquinas, Francisco de Vitoria and Domingo de Soto in Relationship to Slavery, Washington, 1987. Castilla Urbano, F., El pensamiento de Francisco de Vitoria: Filosofía política e indio americano, Barcelona/México, 1992. Esponera, A., “Teoría anti-esclavista en Bartolomé Frías de Albornoz (1573)”, in Facultad de Teología San Vicente Ferrer (ed.), Ética y teología ante el Nuevo Mundo: Valencia y América, Valencia, 1993, 93–114. Fernández Durán, R., La corona española y el tráfico de negros, Madrid, 2011. García Añoveros, J.M., El pensamiento y los argumentos sobre la esclavitud en Europa en el siglo XVI y su aplicación a los indios americanos ya los negros africanos, Madrid, 2000. García Añoveros, J.M., “Luis de Molina y la esclavitud de los negros africanos en el siglo XVI. Principios doctrinales y conclusiones”, in Revista de Indias 60 (2000), 307–327. García Añoveros, J.M., “Bartolomé Frías de Albornoz”, en Murillo, I. (ed.), El pensamiento hispánico en América: siglos XVI–XX, Salamanca, 2007, 531–570. Killoran, J.B., “Aquinas and Vitoria: Two perspectives on Slavery”, in H.J. Johnson, The medieval tradition of natural law, Michigan, 1987, 87–101. López Garcia, J.T., Dos defensores de los esclavos negros en el siglo XVII, Madrid, 2007. Llinares, J., “Aristóteles y los indios de América. En torno al problema antropológico de la esclavitud”, in Álvarez Goméz, A. y Martínez Castro, R. (eds.), En torno a Aristóteles, Santiago de Compostela, 1998. Maestre Sánchez, A., “‘Todas las gentes del mundo son hombres’. El gran debate entre Fray Bartolomé de las Casas (1474–1566) y Juan Ginés de Sepúlveda (1490–1573)”, in Anales del Seminario de Historia de la Filosofía 21 (2004), 91–134. Muñoz García, A., “Diego de Avendaño y la esclavitud colonial Africana”, in Revista de Filosofía 56 (2007), 33–162. Pena González, M.A., Francisco José de Jaca: la primera propuesta abolicionista de la esclavitud en el pensamiento hispano, Salamanca, 2003. Perdices de Blas, L., La Economía política de la decadencia de Castilla en el siglo XVII, Madrid, 1996. Perdices de Blas, L., and Ramos Gorostiza, J.L., “Slavery and the Slave Trade in Spanish Economic Thought, sixteenth to eighteenth centuries”, in History of Economic Ideas 23 (2015), 11–40.

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Perdices de Blas, L., and Revuelta López, J., “Markets and taxation: modern taxation principles and the School of Salamanca”, in Esic Market. Economics and Business Journal 138 (2011), 91–116. Tellkamp, J.A., “Esclavitud y ética comercial en el siglo XVI”, in Anales del Seminario de Historia de la Filosofía 21 (2004), 135–148. Vigo, A., “Economía y moral en el Siglo de Oro. El tráfico de esclavos de España a las Indias”, in Scriptorium Vitoriense 41 (1994), 221–245. Vila, E., “La postura de la Iglesia frente a la esclavitud: siglos XVI y XVII”, in Solano, F. (ed.), Esclavitud y derechos humanos, Madrid, 1990, 25–32.

chapter 13

The “New World”: The Shaping of Utopia Beatriz Fernández Herrero A map of the world that does not include Utopia is not worth even glancing at, for it leaves out the one country at which Humanity is always landing. Oscar Wilde, The Soul of Man under Socialism

∵ 1 Introduction In the European projects of colonization prior to the sixteenth century, it was common practice for the colonizers to reproduce their institutions, structures, values, and ways of life on the conquered soil as faithfully as possible.1 The Romanization on the Iberian Peninsula in antiquity is an example not only of the rise in international trade or of the construction of great works of infrastructure and architecture, but also, and above all, of the expansion of a language, a culture, and an institutional way of life. After the arrival of Columbus to American lands, European practices of colonization were transformed and rendered the American event unique since, although colonizers still took the European model as a paradigm of civilization, the ideas and the practices that blossomed in the New World led Europeans to develop completely new models of society and ways of life, which responded, both theoretically and practically, to the desire to improve what had existed in the world known until then. That is, Europeans projected their desires, their ideal of what Europe aspired to be, on the Americas.2 At that moment, a two-pronged intellectual enterprise set sail: on the one hand, Spanish state officials and scientists initiated a geographic and scientific reshaping of the new lands, while, on the other hand, Europeans in general resignified the New World through different strands of utopian ideas. As said above, Europeans attempted to project and express their innermost desires on the newly discovered 1  This chapter was translated by Carlos Diego Arenas Pacheco. 2  Pastor, B., El jardín y el peregrino, Amsterdam, 1996. © Koninklijke Brill NV, Leiden, 2020 | doi:10.1163/9789004421882_015

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lands. As Ramos points out, the flourishing of utopian thought motivated in no small part by the arrival of Europeans in America was also stimulated by the historical context, the “ideological conjuncture”, which, according to Machado, inspired Castile to head confidently into the future.3 Unlike authors like Manuel and Manuel, who in their study El Pensamiento Utópico en el Mundo Occidental do not consider the role of utopian ideas behind the discovery, conquest, and colonization of the Americas, this work aims to show the links between Utopia and America that previous authors have already discovered.4 We take up the question and pursue it in the light of current scholarship. A considerable number of scholars have emphasized that the European utopian view of the Americas did not arise solely from the objective data that discoverers, conquerors, colonizers, and the clergy gathered in the new lands, but above all from the various interpretations that Europeans made of those data. The European mind was conditioned by previous experiences of discovery and colonization, by the numerous reports of travelers and adventurers, and by their expectations of the discovered territories.5 In this text, we will examine the shaping of the New World as a utopia in three stages: 1) a period of prefiguration, when ideas about the New World emerged during the first years after its incorporation into European history; 2) a first moment of configuration, which saw the development of philosophical, juridical, and theological debates that defined both the territories and their inhabitants as utopian subjects; and 3) a second moment of configuration, where utopian dreams were realized on American soil. As Cantú remarked, the discovery of the Americas occurred in a moment of crisis that led Europe to feel the “historical need” to emerge out of herself by fostering projects of discovery.6 In fact, after the end of the fourteenthcentury Black Death pandemic, Europe experienced a remarkable demographic growth that, combined with the flourishing of trade and the demand for new products, culminated in a need for expansion to the West, given that the 3  See Ramos, D., “Influencia de los descubrimientos en la ideología europea. El origen de ‘La Utopía’ como fruto del descubrimiento colombino”, in Anales de Historia Contemporánea 8 (1991–1992), 28; also Paniotova, T., “Orígenes clásicos y autóctonos de la utopía en América Latina”, in Ridaa 60 (2012) (http://ridaa.es/ridaa/index.php/ridaa/article/viewFile/77/76); Cantú, F., “América y utopía en el siglo XVI”, in Cuadernos de Historia Moderna suppl. 1 (2002), 45–64. 4  Manuel, F. y Manuel, F., El pensamiento utópico en el mundo occidental, 3 vols., Madrid, 1984 and Fernández Herrero, B., La utopía de América, Barcelona, 1992. 5  See for instance Rabassa, J., De la invención de América. La historiografía española y la invención del eurocentrismo, Mexico, 2009 and Pastor, B., El jardín y el peregrino, Amsterdam, 1996. 6  Cantú, F., “América y utopía en el siglo XVI”, in Cuadernos de Historia Moderna suppl. 1 (2002), 45–64, here 49.

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East was obstructed by the Turks. The Iberian Peninsula specifically suffered from a high degree of social volatility, added to the impoverishment of the nobility after the completion of the Reconquista, which in turn had imprinted on the Spanish mind an evangelizing and crusading zeal. Added to the historical motivations, a series of technical advancements made oceanic exploration possible: firstly, the translation of Ptolemy’s work, which disproved the flat Earth model and accepted the sphericity of Earth, a theory that is also defended in the Imago Mundi by Pierre d’Ailly (1410), which served as a guideline to Columbus when planning his expedition; secondly, the improvement of maps and navigation charts, the use of instruments such as the sextant and especially the compass, and advances in the science of navigation and nautical training; and, thirdly, the invention of the printing press in 1455, which allowed navigators to have better knowledge of cosmographic theories and to spread their new findings throughout Europe. Such is the historical context when Christopher Columbus launched into his oceanic adventure, a journey that would change European history and the European human nature—but above all, the history and the human nature of the previously unknown (for Europeans) New World and its inhabitants. Columbus’ journey, finally, united both worlds in a common destiny determined and imposed by the newcomers. According to Sanfuentes, “when you leave your own and you get to know something different, you experience interior changes that lead you to rethink what had been usual until then. Sometimes we corroborate what is ours, but at other times we desire to change it. But after the journey, you will never be the same”, since the journey itself constitutes a specific mode of knowledge.7 Consequently, the discovery and subsequent conquest of the American territories can be considered an authentic intellectual adventure for sixteenthcentury Europeans, an adventure that compelled them to rework their ideas about the physical world and their own place in it.8 In each text authored by travelers, chroniclers, and the clergy, along with the descriptions of geographical, botanical, and zoological discoveries, reports on the otherness of American natives, their ways of life, and their sociopolitical organization, we can find a story of personal discovery that would contribute to shape the view of America as a utopia. Undoubtedly, the discovery of lands separate from the triad that until then conformed the classical ecumene (Europe, Asia, and Africa) invalidated

7  Sanfuentes, O., Develando el Nuevo Mundo. Imágenes de un proceso, Santiago de Chile, 2009, 28. 8  Cantú, “América y utopía en el siglo XVI”, 47.

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medieval cosmologies based on the mythical number three, a theoretical breakthrough studied by Abellán in his Historia Crítica del Pensamiento Español: America destroyed the belief in the ‘trinity’ of the Orb, and led to an ‘opening’ of the world that sparked a radical change in European mentality. The discovery of the Americas, from the European point of view, can be seen as the historic milestone that separates the Middle Ages from the Renaissance, and which initiated a period characterized by a deep faith in the efficacy and perfectibility of human reason.9 2

The Prefiguration of Utopia

Although the most frequent term used to describe the arrival of Christopher Columbus to American lands in 1492 is that of “discovery”, we cannot reflect on the New World as an idea without considering Edmundo O’Gorman’s contribution to the discussion in his The Invention of America.10 The term “invention”, however, has a very wide semantic field as demonstrated by historical uses of the term. In his Elegías de Varones Ilustres de Indias [Elegies for Illustrious Men of the Indies], written by Juan de Castellanos at the end of the sixteenth century, “invention” is used as a synonym for “discovery” (cf. the Latin invenire). In his Historia de las Indias, Bartolomé de Las Casas gave the term a providentialist turn by describing Columbus as the one chosen by God to discover the new lands: The divine and supreme Master chose among the children of Adam that lived on Earth in these times of ours the illustrious and great Columbus, who, it is convenient to know, was the first settler by name and deeds, with the goal of entrusting his virtue, ingenuity, industry, works, knowledge, and prudence with one of the divine and eminent feats that He wanted to accomplish in the present time in this world.11 Vitoria also uses the term “invention” when referring to the Indians “recenter inventis” [“recently discovered”] in the first of his Relections on the Indians, “who came under the power of the Spaniards forty years ago, having been previously unknown to our world”.12 Despite the different meanings of the term “invention”, Hernán Pérez de Oliva, one of the main chroniclers of the 9  Abellán, J.L., Historia crítica del pensamiento español, vol. 2, Madrid, 1979, 356. 10  O’Gorman, E., The Invention of America, Bloomington, 1961. 11  Las Casas, B. de, Historia de las Indias, book I ch. 2, Caracas, 1986. 12  Vitoria, F. de, Relectio de Indis, Pereña, L. and Pérez-Prendes, J.M. (eds.), Madrid, 1967, 2.

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American colonies, used the term in his Historia de la Invención de las Indias [History of the Discovery of the Indies], published in 1528, to express the process of intellectual construction of the Fourth Part of the Orb when, while reporting on Columbus’ second voyage, he points out that: Then Columbus, with many other men of authority who followed him desiring to see the great novelties he had reported in Spain, left Spain a year after his first voyage to mix the world together and to give those strange lands a form of ours.13 By bringing back the term, O’Gorman revolutionized historiography on the Americas by proposing that, despite Columbus’ personal motivations and certainties, the incorporation of the Americas into global (European) history could not be considered either a discovery or an invention understood in the conventional sense of the terms. “To discover” is the act of finding something that existed previously, whereas “to invent” generally means to create or transform an artificial object. For O’Gorman, America was discovered only in a strictly geographical sense. But as he himself points out in the prologue to the 2nd edition of his work, “the clue to the problem of the historical appearance of America lay in considering the event as the result of an inspired invention of Western thought and not as the result of a purely physical discovery, brought about, furthermore, by accident”.14 The merely geographical discovery of the Americas was encoded by an already existing imaginary which, according to Zea, is none other than Europe’s own ideal, what Europe desired to discover.15 In the words of Beatriz Pastor, Columbus set sail into the unknown with the hope of finding something specific (namely, the eastern coast of Asia), and therefore he interpreted his perceptions according to this desire, inventing a fictional reality that did not necessarily coincide with what was effectively in front of him. Columbus made no discovery: he verified and identified. The central meaning of discovering as unveiling and making something known is distorted in Columbus’ perception and actions, who, in his constant effort 13  See Pérez de Oliva, F., Historia de la invención de las Indias, 2015, 8 (http://www.saavedrafajardo.org/CentroDocumDiazAbad.aspx?autor=PEREZDEOLIVAFernan&id Autor=1746319) [based on Pérez de Oliva, F., Historia de la invención de las Yndias, Arrom, J.J. (ed.), Bogotá, 1965]. The italics are mine. 14  O’Gorman, E., The Invention of America, Bloomington, 1961, 4. 15  See Aínsa, F., “Presentimiento, descubrimiento e invención de América”, in Cuadernos Hispanoamericanos 411 (1984), 10.

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to identify the newly discovered lands with a whole series of sources and previous models, carried out an inquiry that oscillated between invention, deformation and concealment.16 Hence, to say that America was invented means that the new lands were endowed with a meaning that transformed their original being in order to configure and shape it according to a Eurocentric point of view. By incorporating America into Western history and culture, Europeans legitimized the colonization of the new continent and the submission of its inhabitants. As thinkers on decoloniality have argued, Europe’s self-image hid or concealed the objective reality of American lands, and denied their essence in order to conceptualize it as a brand-new territory, devoid of identity and history. On this tabula rasa, this place of desire, Europeans wished to remake the Western world, freed from all its corruptions and vices. On the new territories, then, dreams of justice and ideals of the good life, that in the old and archaic Europe were impossible to realize, could be made effective.17 Under the gaze of the Old Continent, America was nothing in itself, since Europeans defined the new discovery by what they expected to find. As Zea pointed out in his América en la Historia, “Europe discovers America because she needs her”.18 Indeed, in that era of profound changes, Europe needed a place that represented the opposite of European reality. Abellán calls this “the American inversion”: In America, the values and relations of the Old Continent are inverted: what is bad in the latter, is good in the former, and vice versa. Thus, the New World is valued positively when compared to the Old; the former is the world of the future, of new prospects, of abundance and fertility, whereas the latter is the abode of a past that weighs on their [Europeans’] shoulders, a world of poverty, scarcity, and sterility.19 Furthermore, ancient myths, legends, and accounts of travelers who spoke of lost lands in the middle of the Ocean Sea were taken up and updated in the process of shaping America as a utopia. Perhaps the earliest of such recovered 16  Pastor, B., Discurso narrativo de la conquista de América, Havana, 1983, 20–21. 17  See Arancil Varón, B., “Sobre el proceso de creación de un imaginario múltiple: América durante el período colonial”, in Alemany Bay, C. and Aracil Varón, B. (eds.), América en el Imaginario Europeo, Alicante, 2009, 14. 18  “Europa descubre América porque la necesita”, quoted by Aínsa, “Presentimiento, descubrimiento e invención de América”, 8. 19  Abellán, Historia crítica del pensamiento español, 384.

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myths is that of Atlantis, told by Solon and taken up by Plato in his dialogues Critias and Timaeus.20 This island was said to have a great abundance of plant, mineral, and animal wealth that made it an extremely prosperous and powerful kingdom. The legend of Atlantis fell into oblivion during the Middle Ages, but gained momentum once again after the discovery of America, as can be seen in the Historia General de las Indias by López de Gómara (printed for the first time in 1552), and even in utopian works of literature such as Bacon’s 1626 The New Atlantis.21 Known during the Middle Ages were Plato’s references to the Pillars of Hercules, another mythical geographical area located in the Atlantic, which consisted of six columns located at the edge of the sea that marked the limit of the ecumene.22 Equally well-known is the Irish legend of Saint Brendan’s Island, which tells of the abbot Brendan who, while searching for Eden accompanied by his fourteen fellow friars and after sailing through a sea plunged in darkness, arrived at what he deemed to be Paradise.23 Another mythical land was the Isle of Seven Cities, where according to an old Visigothic legend seven bishops and their parishioners, led by the bishop of Porto, arrived while fleeing west from the Muslim conquest of the Iberian Peninsula. Taking refuge on an isle, they founded seven cities where Spanish and Portuguese refugees could preserve the Christian religion. This island was sometimes called ‘Antillia’ by cosmographers such as Paolo Toscanelli and can be seen in many medieval maps.24 In short, the recovery of myths and legends from Antiquity and the Middle Ages served the men of the Renaissance as ‘proof’ of their belief in the existence of a yet undiscovered part of the world, imagined as an idealized space and identified with the American lands after the European discovery in 1492. As Aínsa points out: It is not an exaggeration to say that the first ‘idea’ of America was forged with the intensity of the images that preceded its discovery. These spaces, born of invention, converged from different directions on the

20  See, for instance, Plato, Critias 113a–120d. 21  See López de Gómara, F., Historia General de las Indias, Mexico, 1988 and Moro, T., Campanella, T., Bacon, F., Utopías del Renacimiento, Ímaz, E. (ed.), Mexico, 1975, 233 and 273. 22  Plato, Critias 114b. 23  Ramírez Alvarado, M., “Mitos e información geográfica fantástica y primeras apariciones del continente americano”, in Latina 8 (1998). 24  Montemayor, C., “Las siete ciudades”, in Revista de la Universidad de México 1 (1972).

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objectification of the American territory and swiftly invested it with their ‘longed-for’ virtues.25 In other words, Renaissance men did not see those legends as mere mythical journeys. Columbus and other explorers resignified them and, by emulating them, saw themselves as pilgrims in search of a world that allowed for the realization of spiritual and material aspirations—not only those of the individual traveler, but of all humanity. Early modern Europeans interpreted America, then, as a territory full of possibilities for adventurers and colonizers. For his part, Columbus’s profound religiosity, his alleged Jewish ancestry, and his intense prophetic zeal made him a messenger of the new heaven and the new earth, a pilgrim in search of the Promised Land, a new Moses, to whom he compared himself and his enterprise:26 Exhausted, I fell asleep, groaning. I heard a very compassionate voice, saying: “O fool and slow to believe and to serve thy God, the God of all! What more did He for Moses or for His servant David? Since thou wast born, ever has He had thee in His most watchful care. When He saw thee of an age with which He was content, He caused thy name to sound marvellously in the land. The Indies, which are so rich a part of the world, He gave thee for thine own; thou hast divided them as it pleased thee, and He enabled thee to do this. Of the barriers of the Ocean sea, which were closed with such mighty chains, He gave thee the keys; and thou wast obeyed in many lands and among the Christians thou hast gained honourable fame”.27 This was precisely one of the reasons that prompted the Admiral to undertake his first oceanic adventure. In this text, we will continue exploring the figure of Columbus, who is arguably the most paradigmatic example of the Renaissance ambitions of discovery. Investigating the motivations behind Columbus and his voyages has long been and continues to be a pressing concern for historians, who have vacillated between positing the search for spices and exotic products, the legend of the anonymous sailor (according to which a certain unidentified sailor told Columbus about the route to the west), or the search for honor and riches as the central drive behind his adventures. 25  Aínsa, F., “Presentimiento, descubrimiento e invención de América”, 8. 26  Varela, C., Cristóbal Colón y la construcción de un mundo nuevo, Santo Domingo, 2010. 27  Columbus, C., “Letter from the Fourth Voyage”, in The Voyages of Christopher Columbus, London, 1930, 299.

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Nevertheless, none of these hypotheses are able to invalidate what was probably one of the main drives behind the expedition: the hope of reaching the mythical lands described by ancients and medievals alike, and the search for a utopian space that materialized the Renaissance aspirations for happiness, justice, and wealth. Contemporary scholars and biographers of Columbus agree that he was a much more cultured man than previously thought, and have located copies of works like Marco Polo’s Travels, Pierre d’Ailly’s Imago Mundi, or pope Pius II’s Historia rerum ubique gestarum that contain his own marginal annotations.28 Therefore, it is not surprising that, although his explicit objective was the search for a Western route towards Eastern Asia, his descriptions of the newly discovered lands contain references to ancient and medieval myths and literary models, a fact that would contribute to the forging of the European image of the New World as a utopian space. As can be seen throughout Columbus’s writings, his project is imbued with a profound mythical, religious, and utopian spirit that, like the voyages of medieval legends, aspired to recover Paradise Lost. On the one hand, the idea that the company had a messianic character can be read in Columbus’s Libro de las Profecías [Book of Prophecies] (1502–1504), where he complains that: Everyone who heard about my enterprise rejected it with laughter and ridicule. Neither all the sciences that I mentioned previously nor citations drawn from them were of any help to me. Only your Highness had faith and perseverance. Who could doubt that this flash of understanding was the work of the Holy Spirit, as well as my own? The Holy Spirit illuminated his holy and sacred Scripture, encouraging me in a very strong and clear voice from the forty-four books of the Old Testament, the four evangelists, and twenty-three epistles from the blessed apostles, urging me to proceed.29 On the other hand, Columbus’s utopian mentality is further reflected in his conviction that the Earth was not exactly spherical but, as he himself points out in his Third Letter, pear-shaped, with Paradise and the Tree of Life located in its

28  See Salvador Miguel, N., “Libros y lecturas de Cristóbal Colón”, in López Castro, A. and Cuesta Torre, L., Actas del XI Congreso Internacional de la Asociación Hispánica de Literatura Medieval, vol. 1, León, 2007, 123–140; Todorov, T., The Conquest of America. The Question of the Other, C. Porter, N. (trans.), Oklahoma, 1999, 14; Gil, J., El libro de Marco Polo. Las Apostillas a la Historia Natural de Plinio el Viejo, vol. 1, Madrid, 1992. 29  Columbus, C., The Book of Prophecies edited by Christopher Columbus, Oregon, 1997, f. 4r.

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upper, protruding section.30 According to Scripture, Paradise was the source of four rivers, namely the Nile, the Tigris, the Euphrates, and the Ganges. When Columbus finds the Orinoco river in his third voyage, he confuses it with the Ganges. These misidentifications and the beauty of the landscape led him to think that he had found the Paradise described in the book of Genesis. The Admiral’s conviction, moreover, was reinforced by hearing that the Indians of the Caribbean venerated a tree called “the Tree of Life”. The Indians believed that after a great flood human beings were reborn from the fruits of the divine tree. His descriptions of the Indians, moreover, endowed them with a natural propensity for goodness that rendered them peaceful, friendly, and trusting. Although they were morally righteous and lived in completely egalitarian and blissful societies, they were all infidels, and therefore Europeans had the obligation to convert them to Christianity: In all the countries visited by your Highnesses’ ships, I have caused a high cross to be fixed upon every headland, and have proclaimed, to every nation that I have discovered, the lofty state of your Highnesses, and of your court in Spain. I also tell them all I can respecting our holy faith and the belief in the holy mother Church […].31 When Columbus wrote this in 1498, the enterprise in the Americas had not only acquired an economic and commercial character, but above all a missionary quality, for which the two aforementioned views on the Americas and its inhabitants had a special importance—namely, the idea that the new territories were Paradise, and that the inhabitants of those lands had an innate propensity for goodness. These two ideas laid the foundations for the shaping of America as a utopian space, as an imaginary geography where European longings and dreams could be realized. As Beatriz Pastor points out, the utopian shaping of America took place in a cultural context in which to discover is equivalent to revealing the analogies between what is seen and what is known, and in which to know reality is part of a process of recognizing the coordinates of the European imaginary and the motifs of Western literary tradition in an alien environment.32

30  Columbus, “Third Voyage of Columbus”, in Columbus, C., Christopher Columbus: Four Voyages to the New World. Letters and Selected Documents, Gloucester, MA, 1978, 133–135. 31  Columbus, “Third Voyage of Columbus”, 142. 32  Pastor, El jardín y el peregrino, 26.

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The New World was projected, then, into the minds of the newcomers according to their own previous models. The shaping of these utopian images, which were not always compatible with the real, did not necessarily show the inability of Europeans to see reality as it was; instead, in the face of the absolute novelty of their discoveries, Europeans contrived and reinvented reality according to their particular and selective way of understanding it, using their desire as guideline. Hence, the essence of America was, according to Rabassa, a semiotically created entity defined as the place where the new human being dreamed of by early modern Europeans could be realized—as a geographical space for future and freedom, which were the main aspirations of the modern European.33 In this way, the existence of the New World was legitimized in the European mind, although its existence would only be possible when it stopped being itself and started being defined in relation to the Old World. The New World, as the Other, stopped being itself to be, in a certain sense, Europe, since it was here where the Europeans projected their desires; but, at the same time, it was Non-Europe because its realization as the place of desire implied the denial of European reality. 3

The Shaping of Utopia

The shaping of America as a locus utopicus led Europe to become aware of its own Otherness, which implied recognizing the possibility “of the existence of an alternate reality”.34 The fabric of societies were no longer considered the immutable work of God—their character now depended solely on human will and they were themselves designed exclusively according to the needs of its members. America’s Otherness was qualified in a specific way, as we saw earlier, since what Europeans sought was to ultimately assimilate the Other into their own mental world or, more properly, into the reverse of that world. To describe the new realities, Europeans resorted to categories that belonged to their own culture: despite being aware that objects and animals already had a name in the languages of the American natives, the Spaniards renamed them using European terms, adding either the qualifier de Indias (castaño de Indias, conejo de Indias, and so on), or, in the absence of a lexical reference, using analogous terms. As for their descriptions, they are, as Esteban Mayorga says in his interesting study on Fernández de Oviedo, structured according to prototypes. For instance, early descriptions of the Americas assimilated objects foreign to Western culture based on their appearance; according to Fernández 33  Rabassa, De la invención de América, 23. 34  Paniotova, “Orígenes clásicos y autóctonos de la utopía en América Latina”, 153.

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de Oviedo, the first chronicler of the Indies, the pineapple received its name because of its resemblance to the pinecones of Castile, and its taste was said to resemble that of peaches, whereas the armadillo had “the skin of a lizard” even though its appearance was that of a “horse in armor”. This, which at first could be explained based solely on human cognitive processes, became a kind of “cultural mimicry” that constituted a first attempt, albeit a perhaps unconscious one, of assimilation of the Other.35 In a similar way, American toponymy was modified after the arrival of the Europeans: Columbus, for instance, had little interest in native toponymy and gave new names to the newly discovered lands. As Tzvetan Todorov said, “nomination is equal to taking possession”.36 Columbus and other explorers began naming the new places using European religious and royal terms, sometimes selecting names that reflected some alleged similarity. It was also not uncommon for explorers to employ toponyms of Spanish regions and cities adding the adjective ‘New’ before them—an expression, perhaps, not only of nostalgia for their native country and of appropriation of the new territories, but above all of a semiotic creation that revealed the explorers’ desire to transform the new lands into a European utopia.37 Perhaps more notoriously than in America’s reshaping as a utopian locus, the encounter and confrontation with other human beings, about whom nothing was known, brought the problem of the Other to the fore. Todorov defined the discovery of America as the discovery that the Self (the enunciator, that is, the European) makes of the Other (the completely unknown, the American indigenous).38 Indeed, the confrontation between the European and the American would ultimately configure (to the eyes of Europe) the nature of the latter and its capacity to be a utopian subject. The first reports of Americans were handwritten by Columbus himself, for whom, according to Todorov, the Indians were only a part of the landscape, a feature that could be described in the same way as any other geographical characteristics. The Admiral’s descriptions varied according to the concrete experiences he had with natives, but he generally depicts them as devoid of civilization (their minimal clothing being a crucial element for considering them uncivilized), and morally ambiguous—their lack of civilization and their ignorance of the Christian faith, on the one hand, makes them appear at times 35  This is in reference to Bhabha’s The Location of Culture quoted in Mayorga, E., “Gonzalo Fernández de Oviedo. La piña, la iguana y su representación en prototipos”, in Ciberletras. Revista de crítica literaria y de cultura 21 (2009) (http://www.lehman.cuny.edu/ciberletras /v21/mayorga.htm#3—consulted 30 August, 2018). 36  See Todorov, The Conquest of America, 27. 37  See Rabassa, De la invención de América, 23. 38  Todorov, The Conquest of America, 3.

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as degenerated half-beasts, while on other occasions their natural goodness, their peaceful and trusting nature, turned them into the noble savages of the Golden Age.39 These two ideas on the American natives would ultimately determine the two contrasting opinions that shaped the so-called controversia de Indias. Indeed, according to many of the first travelers to America, the absence of a culture similar to that in Europe turned Americans into barbarians who were closer to animality than to humanity. This idea spread throughout Europe: for authors such as the encyclopaedist Cornelius de Pauw, America is a young and wet continent, and this environment made all things immature, imperfect and inferior, including human beings.40 In contrast to the figure of the corrupt savage, other thinkers extolled the figure of the Indian as a personification of the natural and virtuous life, undefiled by the vices of civilization. This idealist view of the Indians, together with a longing for the mythical Golden Age, gave rise to the myth of the good savage, whose origin can be traced back to the Décadas de Orbe Novo [Decades on the New World] (1493–1525) by Peter Martyr d’Anghiera, who in the third book of his first Decade described the “naked philosopher”, a savage from the island of Cuba explained the Christian principles that he had learned directly from Nature in the very presence of Diego Colón.41 Later, Fray Antonio de Guevara wrote his fable “El Villano del Danubio”, included in the work Relox de Príncipes (printed in 1529), in which he explicitly stated the dichotomy between civilization and barbarism, praising the latter above the former. Outside of Spain, authors like Montaigne (in his essays Des coches and Des cannibales, both published in 1580) and Antoine-Joseph Pernety also argued for the superiority of the savage Americans over the civilized Europeans.42 This positive attitude towards the Amerindians, which made them suitable as a utopian subject, initiated an intense philosophical, theological, and legal debate that influenced the legislation and policies Spain was to undertake on American soil. The controversy began in the first years of the colonizing enterprise on American soil itself when, during the sermon given by Dominican Friar Antonio de Montesinos to the colonists of the island of Hispaniola, this clergyman formulated two questions of crucial importance: “Are these not 39  Todorov, The Conquest of America, 34–50. 40  De Pauw, C., Récherches philosophiques sur les Américains ou mémoires intéressants, pour servir à l’Histoire de l’Espèce humaine, vol. 2, Berlin, 1769; see part 5, “Le génie abruti des Américains”. 41  See Anglería, P.M. de, Décadas de Orbe Novo, Córdoba (Arg.), 2007. 42  See on Guevara Landa, R., Vasco de Quiroga, Barcelona, 1965, 32–43. Also Abellán, Historia crítica del pensamiento español, vol. 2, 409ss. Montaigne, M., Ensayos, Barcelona, 2007; Pernety, A.J., Dissertation sur l’Amérique et les américains, Berlin, 1770 (https://babel .hathitrust.org/cgi/pt?id=aeu.ark:/13960/t0gt6p55m;view=1up;seq=6).

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men? Have they no rational souls?” Las Casas reflected upon these questions in book III of his History of the Indies.43 Taking an interest in the controversy, King Ferdinand II (the Catholic) ordered the assembly of a board of theologians and jurists who met in Burgos, composed of both defenders and opponents of the intellectual and spiritual capacities of the Indians. Among the latter we can mention the licenciado Gregorio López, who defended that the Aristotelian theory of natural servitude applied to the Americans; on the opposite side, the Dominican Matías de Paz argued that Amerindian people were barbaric only because of their ignorance of the Christian faith, but not because of their lack of rational or spiritual capabilities. From these meetings emerged the Laws of Burgos, promulgated on December 27, 1512, which invested Indians with the legal status of freemen while recognizing their subjection to the Spanish crown and imposing upon them a work regime in the encomiendas, which were initially supposed to be institutions of evangelization. For the first time, a European metropolis produced a specific legislation for a colony, giving a legal specificity to its inhabitants and their way of life. The promulgation of the Laws of Burgos did not stop the debate. Critical opinions against the encomienda regime were expressed by Dominican friars, especially by Bartolomé de Las Casas. As a consequence, Charles V ordered a new board to convene to study the problem of the encomienda. As a consequence of the new discussions, the crown promulgated the New Laws of the Indies in November 20, 1542, which regulated the treatment and work regime of the Amerindians. These new laws, however, were opposed by many Europeans settlers due to their economic interests, and the emperor was forced to abrogate many of the regulations that protected the legal freedoms of American natives. The Controversy of the Indies reached its climax with the debate between Juan Ginés de Sepúlveda and Bartolomé de Las Casas before the Junta de Valladolid in 1550. It is not the subject of this work to enter into a detailed description of their debate, but to consider certain aspects from the scope of moral and political philosophy that are most compelling for the idea of the American utopia. Sepúlveda, a renowned scholar of Aristotle, defended the theory of natural servitude as applied to the Indians, and justified this position on the basis of the Indians’ practice of human sacrifice, their sins against nature, and their condition as less educated and civilized than the Europeans. Precisely for this reason, according to Sepúlveda, Spaniards had the right to rule over the Indians, even by warfare, in the same way that masters were able to exercise their authority over slaves. The contrast between barbarism and 43  Las Casas, History of the Indies, book 3 ch. 4.

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civilization that Sepúlveda’s opponent, Las Casas, presented, took place on a wholly different plane: by describing the Indians as simple people, devoid of all malice and deceit, humble, without hatred or desire for revenge, the Dominican depicted them as moral models, as good savages who follow the principles of natural law, understood as “a pattern of cosmic behavior, external to man” that regulates the principles of nature.44 In the course of the debate, both debaters resorted repeatedly to ancient and scholastic authors to ratify their arguments, Aristotle being their greatest authority. Undoubtedly, Sepúlveda was better acquainted with the Greek philosopher—but the controversy was not about interpreting Aristotle. It was about confronting and giving concrete solutions to a completely unprecedented political and moral problem.45 That is why the Dominican’s first-hand knowledge of the American indigenous reality, something that Sepúlveda lacked, allowed Las Casas to better evaluate the Spanish colonizing enterprise in America: “What others call ‘conquests’ are ‘invasions’ for Las Casas; what almost everyone calls repartimientos or encomiendas in the name of evangelization are, for Las Casas, ‘slaving expeditions’”.46 In short, in the Valladolid debate, each of the debaters argued in favor of a method of conquest and a form of government for the American natives based on their ways of categorizing human beings. Both shared a common goal, however: the need to civilize the Indians, that is, to convert them to the Christian faith and to have them adopt European values. Despite their differences, both coincided in addressing the issue of equality and alterity between Indians and Spaniards. Neither Sepúlveda nor Las Casas were capable of valuing the real alterity of the Other—in their eyes, all Indian peoples belonged to a single category that rendered them identical to each other. Sepúlveda and Las Casas’ conceptions of the Otherness of Indians were projected in different ways. By conceiving of the Indians as a homogeneous group in which internal differences were irrelevant, it allowed Sepúlveda to maintain the idea of inequality between them and the Spaniards based on the good/bad hierarchical structure. For Sepúlveda, then, Otherness was identical to inequality: the Indian was inferior to the European because he was deemed 44  See Manero Salvador, A., “La controversia de Valladolid: España y el análisis de la legitimidad de la conquista de América”, in Revista electrónica Iberoamericana 3 (2009), 89 (http:// www.urjc.es/images/ceib/revista_electronica/vol_3_2009_2/REIB_03_02_A_Manero_ Salvador.pdf—consulted 30 August, 2018) and Pérez Luño, A.E., La polémica sobre sobre el Nuevo Mundo, Madrid, 1992, 155. 45  Fernández Buey, F., Actualidad de una controversia: Valladolid 1550–1551, Barcelona, 2009, 9 (https://www.upf.edu/materials/polietica/_img/int2.pdf). 46  Fernández Buey, Actualidad de una controversia, 9.

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wild, naked, illiterate, and anarchical. Ultimately, the identity of the Indian was reduced to a biological identity that identified all the American peoples as barbarians and incapable humans. For Las Casas, the identity and homogeneity of Indians was both natural and cultural: all Indians were naturally meek, obedient, and kind, but, ultimately, not Christians. The dichotomy was therefore between Christian and non-Christian, although all human beings are allegedly potentially Christian. For Las Casas, then, the difference between Europeans and Indians were differences of fact and not of nature. Spatial and ontological inequality is replaced by a chronological inequality: Indians are now as Europeans were in ancient pagan times. Nonetheless, this Lascasian primitivism ends up being a renovating factor, which is identified with utopia, as observed by Maravall: Certainly, Las Casas’ thought posits no dynamic or progressive conception of history. It can be characterized as a late flourishing—surely not the last—of the classical myth of the Golden Age, so dear to Christian authors, which conflicted with a futuristic conception of history, probably of a more evident Christian origin. For Las Casas, the myth of the Golden Age, by assuming a utopian, reforming, and almost revolutionary character, operated or intended to operate as an impulse for the renewal of the modern world. The same idea would ultimately be developed and made more effective as a philosophical and rhetorical device by Rousseau. Las Casas’ primitivism, thus understood, is a sign of modernity, namely, an opening of historical consciousness towards the future.47 In this way, the Indian, in his rhetorically exalted position as a personification of the virtuous life, and as the good savage who spontaneously followed the tenets of Christianity, became the main actor of America as an imagined utopia. The morally noble Indian, as the idea that guided many of the policies Spain imposed on its new territories, shaped the utopian ideation of those lands. 4

The Realization of Utopia

The conception of the Indian that originated in the Spanish debates and controversies fed the European dreams of reform. Not only did Western authors construct their utopias as imaginary places—they also expressed their conviction 47  Maravall, Antiguos y modernos, 448–449.

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that their ideas, as projects of reform, could be carried out on American soil. Certain religious orders would be the designers of the new realities in the New World and the builders of utopians’ dreams. The Franciscans were perhaps the order most imbibed with utopian ideas due to the Franciscan and Joachimite traditions of millenarianism.48 With previous missionary experiences in the East, Franciscans began traveling to Mexico even before Cortés had completed his conquest. However, the first official expedition, traditionally known as the Twelve Apostles of New Spain, arrived in 1524, with a second group arriving in 1529. Firmly convinced of the unity of the human race, Franciscans saw Indians as human beings endowed with a great mental and spiritual tractability that would allow them to model the American natives according to the principles of primitive Christianity. Franciscans thought it possible to build a new church and a new society entirely composed of Indians, something achievable only in so far as the natives preserved their original ‘purity’ apart from Old Christians. Their utopian project consisted in accommodating the Indians in towns governed by the principles of communal property, equal work for all, and obedience to the Gospel, without the need for more laws than those dictated by nature and reason and those based on the principles of cristiandad and policía (social order). This world shaped by Franciscans was conceived, therefore, as a political and religious utopia in which the body religious was at the same time the body politic. The separation of Spaniards and Indians had the objective of allowing the direct subjection of Indians under Franciscan guardianship, so that the friars could exercise a paternal government, as Maravall points out, over this society of a rustic, primitive, and spiritual kind, which is analogous to the one the Indians had by nature, only that now it has been perfected by grace. As in the utopias of Humanism, the teachings would be inspired by equity, the rights of freedom and by the justice that allows for all free and healthy discourse to be pronounced.49 To accomplish their goal, Franciscan friars needed to learn about native customs to eradicate harmful practices more efficiently and to conserve those that were deemed healthy and useful. Some missionary Franciscans proved to be the most important proto-ethnographers of Mexican civilization. Their research on Indians’ customs and language followed methods comparable to those of modern ethnography and anthropology. Andrés de Olmos, who wrote 48  See Phelan, J., El Reino Milenario de los Franciscanos en el Nuevo Mundo, Mexico, 1972 and Baudot, G., Utopía e Historia en México, Madrid, 1983. 49  Maravall, J.A., Utopía y Reformismo en la España de los Austrias, Madrid, 1982, 104.

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his Arte de la Lengua Mexicana in 1547, or Bernardino de Sahagún, who, aided by native informants and scribes, composed his monumental Historia General de las Cosas de la Nueva España between 1540 and 1585, are two illustrious examples of the general Franciscan conviction of the necessity of investigating the native ideas and practices to render complete evangelization possible. Their works still constitute the main source for researchers of sixteenthcentury Mexico, and their methodology, based on formulaic questionnaires or minutas, was very close to the protocols used by contemporary researchers.50 The main method for the realization of the Franciscan utopia was the education of Indians in three different areas: productive trades, family organization and the education of Indian women, and preparation for social reproduction through higher education for the noble Indian children who were destined to become the new leaders of this ‘Republic of Indians’. Following a similar conviction, Vasco de Quiroga founded the town hospitals of Santa Fe between 1532 and 1533. Don Vasco’s education in Erasmian humanism, his vast legal culture, and his knowledge of the classics (in his Información en Derecho he made constant references to Aristotle and the myth of the Golden Age as presented by Lucian of Samosata) led him to describe the Indians as the personification of the men of the Golden Age, as opposed to the Spaniards, who would be the decadent inhabitants of the Iron Age: For, by divine providence, there is so much and such good metal of people on this earth, and so soft the wax, and so clean the slate, and so new the vessel on which nothing so far has been imprinted, drawn, or instilled, that it seems to me that the matter [materia] is so willing and well disposed, and of such a simplicity and in such a way in these natural people, as it has been told it was in the Golden Age which is so praised by the authors of that ancient golden century, and which is now deplored by people in this Iron Age, for the holy and good simplicity that reigned back then was lost, and the malice that now reigns was strengthened.51 However, Quiroga did not completely idealize the Indians, and considered that some of their customs had to be eradicated. Indians, being “soft like wax”, could be easily corrected and rendered the protagonists of utopia when taught everything they lacked both in the spiritual and material domains. To accomplish that, Quiroga deemed it necessary to relocate Indians in towns where 50  Baudot, G., “Fray Andrés de Olmos and the penetration of Lutheranism in Mexico: new data and documents”, in Nueva Revista de Filología Hispánica 40 (1992), 223–232 and Fernández Herrero, Bernardino de Sahagún. 51  Quiroga, V. de, Utopía en América, Serrano Gassent, P. (ed.), Madrid, 2002, 194–195.

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they were taught to lead a political and, above all, a Christian form of life. Like the Franciscans, Quiroga believed that there was no difference between the spiritual and the material: for him, a just and blissful society was only possible when it followed the precepts of Christianity. For the bishop of Michoacán, civilizing and evangelizing went hand in hand; but unlike the methods of some within the Seraphic Order, Quiroga considered that mass baptisms were out of the question, and a careful and persuasive method of evangelization was necessary to achieve more profound conversions. Again, this is the reason why Don Vasco thought it necessary to relocate populations of Indians where they could all learn at the same time to live as ‘civilized’ Christians. In the town hospitals founded by Quiroga, families lived together in buildings supervised by the heads of each family, and the population alternated between living in the town or working on the land. Families lived following a communal political order, where everyone contributed to the welfare of the community. There were no class or racial differences between them, being governed by the Indians themselves. The similarities between More’s Utopia and the Ordenanzas that governed the town hospitals are evident, and some scholars have described this similarity as some kind of “spiritual brotherhood”.52 Additionally, like the Franciscans, Don Vasco believed that only education could improve human nature: his town hospitals were, for him, ideal educational centers, where daily activities merged into a form of spiritual and political upbringing. In South America during the seventeenth century, the Jesuits founded a group of thirty missions known as the Paraguayan Reductions, located in the former province of the same name. Indians in that part of the Americas suffered immensely due to their work in the yerba mate plantations. Missionaries sought to release them from the encomenderos and attempted to isolate them from the Spaniards, with the final goal of converting them to Christianity and founding an authentic “republic of Indians”. Like the households and towns in More’s Utopia, all Jesuit reductions had a similar physical structure and a shared political organization that has been variously received by scholars. Some have called reductions real democracies (“this Indian state met modern democratic demands”),53 while some have deemed them a theocracy where Jesuits, “more than masters, related with their subordinates like demigods”.54 Each town had a cabildo formed by caciques and a body of neighborhood mayors acting as the highest authorities. The economy of the reductions was based on agriculture, each town being an independent economic unit. Inside each 52  Zavala, S., Recuerdo de Vasco de Quiroga, Mexico, 1987, 21. 53  Lugón, C., La République des Guaranis, Paris, 1970, 61. 54  Lugones, L., The Jesuit Empire, Buenos Aires, 1970, 189.

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town there was a community of goods, although individual property also existed. Likewise, each town specialized in a specific trade, emphasizing above all the practice of music. The utopian experiment of the Jesuit reductions is, among all those carried out in the Americas, the one that has garnered more interest in secondary literature. The uniqueness of these reductions was due perhaps to their geographical and economic isolation, which led some of their opponents to accuse the Jesuits of attempting to form an independent republic, since Indians were not even taught to speak the Castilian language, in contrast to what happened in Quiroga’s town hospitals or in the Franciscan missions.55 The Jesuit order defended against these accusations, and modern scholars have argued that the reductions were not intended to reproduce any Platonic or Renaissance model of independent utopian republics. Jesuits, rather, followed the Laws of the Indies in their search of (what they thought was) the greater good of the natives.56 5 Conclusion Europeans ‘discovered’ America at a time when they desired to open their world and purge it of all its degrading corruptions and vices. Inspired by ancient and medieval authors as well as by the needs of their own time, Europeans elaborated an image of the New World as the land where their dreams of utopia could be realized. This was, naturally, a utopia devised by Europe for Europe; the native inhabitants of the new lands, about whom the colonizers debated whether they could be the protagonists of their utopian dreams, were construed as simple images of European desire. Indians were not seen as they really were, as multiple heterogeneous groups that differed as much between them as they differed from the Europeans. The colonizers attempted to reshape the identities of the natives as the new people who, tailored to European desires, could be the means towards utopia. The myth of Paradise Lost, therefore, was not found but shaped in America. Utopia, then, acquired a unique meaning in America: the newly found lands (the new topoi) were transformed by European desire into eu-topia: the best of 55  Revuelta, M., Once Calas en la Historia de la Compañía de Jesús, Madrid, 2006, 124–126. 56  See Hernández, P., Organización Social de las Doctrinas Guaraníes, 2 vols., Barcelona, 1913; Peramás, J.M., La República de Platón y los Guaraníes, Buenos Aires, 1946; Gothein, E., L’età della Controriforma: lo Stato Cristiano-sociale dei Gesuiti, Venice, 1928; Armani, A., Città di Dio e Città del Sole: lo Stato Gesuita del Guarani (1609–1768), Rome, 1977.

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all imaginable and possible worlds. This transformation was only deemed possible if the values of European culture were implanted there and could shape (or invent) the New World as the opposite of the Old but constituted in its image and likeness. In short, utopia made a global round trip: utopia, imagined in Europe based on reports on the Americas, returned to the new territories now Europeanized, that is, ‘civilized’ and Christianized. 1492 is usually considered as the beginning of modernity in Europe, when the Western mind dared to question its world and began to devise new ones—the American lands constituted the ideal space for the realization of such newness. However, the European emancipatory project and the promises of modernity ultimately failed, as Europeans were not able to understand the Americans as Others. As authors such as Enrique Dussel have argued, the Discovery of America implied a closing of the world that turned the Other into a projection of the Self. Within utopian thinking, it has been deemed necessary to overcome modernity without ignoring the invention of America as a utopia: Dussel’s proposal of “transmodernity” opens a space to a philosophy of dialogue and intercultural communication where equality is defined through differences, “in which all humans (as proposed by Bartolomé de Las Casas in the Valladolid debate in 1550) can participate as equals, respecting their Otherness, their being-Other, at the same time”.57 Bibliography Sources

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Index of Historical Names Acosta, J. de 11, 39n, 145, 203n, 204–205, 287, 291 Albornoz, B. de; also Frías de Albornos, B.  12, 194, 295, 308, 310–311 Alexander VI, 17, 60–61, 63, 81, 214, 273, 278, 281 Alfonso X, 100, 108, 115 Ancona, A. de 71 Aquinas, Th. 2, 69, 71, 78n, 84–85, 87, 89, 94, 96, 99–100, 129, 135–136, 141–142, 150–152, 156–157, 161–163, 200, 206–209, 213–215, 225, 254, 277, 283, 297, 300, 303 Aragón, P. de 142, 255 Aristotle 12, 136, 146, 152n, 162, 164n, 201–205, 211, 215, 231, 233, 282, 286–287, 297–300, 302–305, 331–332, 335 Augustine 33, 87, 175n, 200, 212–213, 215, 225 Azpilcueta, M. de, also doctor Navarrus 91, 100, 129, 174 Báñez, D. 100, 130, 142–143, 145, 205, 208 Benavente, T. de, also Motolinía 207, 209n, 217 Bodin, J. 24, 34, 100, 115n, 145, 314 Bona Spei, F. 257n Boscà, P. 62 Botero, G. 35–36, 37n, 38, 43 Cajetan, also Thomas de Vio 144, 208, 214, 254, 324n Campanella, Th. 34–38, 40–41, 43, 324 Cano, M. 89, 111, 129, 143–144, 218, 224–226, 302 Caramuel, J. 12, 254–270 Carranza, B. de 129, 144, 226, 235, 302 Cartagena, A. de 3, 10, 55–60, 62, 64, 68, 72–74 Charles V 4, 17–18, 21n, 26, 32–33, 36, 82, 86, 94–95, 172, 212, 222–223, 225, 239, 296, 302, 331 Cicero 87, 128, 136, 200 Columbus, Ch. 60, 63, 65n, 72, 79–81, 253, 318, 320–322, 325–327, 329 Cortés, H. 17, 33, 296, 334

Covarrubias, D. 129, 142–144, 204–205, 209, 213, 224, 235 d’Ailly, P. 320, 326 Ferdinand II 54n, 55, 61, 63–64, 66, 331 Fernández de Oviedo, G. 63, 212, 302, 306, 328 Fitzralph, R. 160 Freitas, S. de 262n, 264n, 267 Fumo, B. 144 Gaius 140 García, F. 311n Gentili, A. 100, 145 Geraldini, A. 62 Gerson, J. 78n, 149, 153–159, 163, 165 González de Cellorigo, M. 314 Gratian 69n, 135, 162 Grotius, H. 22, 100, 141, 145, 150, 210, 262, 267 Guevara, A. de 330 Guevara, J. de 145 Hobbes, Th. 131, 297n Hostiensis 61–63, 70 Isidore of Seville 58, 129, 135–136 Jaca, J. de 308 Justinian 253 la Peña, J. de 130, 145, 208, 246 Las Casas, B. de 3–5, 11–12, 53n, 60n, 66n, 70, 72–74, 82, 94, 144, 199, 203n, 204–205, 207–209, 211–212, 217–218, 222–247, 285, 295–296, 298, 301–308, 313, 321, 331–333, 338 Lessius, L. 130, 181, 255 Locke, J. 21n, 100, 268–270 López de Carvajal, B. 10, 55, 60, 63n, 72 López de Gómara, F. 39n, 324 López de Palacios Rubios, J. 10, 54n, 55, 65–73, 144, 211, 296n López Madera, G. 33–34, 39

369

Index of Historical Names Lugo, J. de 194, 226, 255, 261n, 262 Luther, M. 135 Machiavelli, N. 41, 115n Major, J., see also Mair, J. 94, 202, 203n, 211, 214, 303n, 306n Mariana, J. de 22, 39–40, 42 Mazzolini, S. 144 Medici, S. 144 Medina, B. de 100, 130, 143, 145, 174, 183, 208 Megali, M. 255, 271 Mercado, Th. 145, 173–184, 186, 191–193, 206n, 210n, 295, 302, 308–311, 313 Minucci da Pratovecchio, A. 73n Moctezuma 33, 36 Moirans, E. de 308 Molina, L. de 12–13, 93n, 100, 111, 130, 141–143, 145, 149–151, 159–168, 173–174, 184–194, 205, 211, 252, 255, 295, 308, 311–313 Montaigne, M. 330 Montesinos, A. de 3, 65, 66n, 204, 211, 296, 330 Murillo Velarde, P. 112n Navarra, P. de 193, 255 Ockham, W. 78n, 153–154 Olmos, A. de 96 Palafox, J. de 25–26, 40 Pauwels, N. 256n Paz, M. de 3, 10, 54n, 55, 65n, 66, 72, 144 Pérez de Oliva, F. 321 Pernety, A.J. 330 Philip II 21n, 24, 33, 36, 175, 184n, 193, 199n, 246, 302–303 Plato 324 Pufendorf, S. 131, 133n Quiroga, V. de 12, 95, 211, 335–337 Rebello, F. 255, 312

Rousseau, J.J. 333 Saavedra Fajardo, D. 38–41, 43–45, 115n Sahagún, B. de 95–96, 335 Salas, J. de 130, 141–142, 145 Salón, M.B. 142 Sánchez de Arévalo, R. 62 Sandoval, A. de 226, 312 Scotus, J.D. 97, 152, 181, 211, 303n Sepúlveda, J.G. de 3, 5, 11–12, 39, 94, 144, 199–205, 207–209, 211–218, 222–245, 283, 291n, 295–296, 302–307, 313, 331–332 Solórzano Pereira, J. 11–12, 25, 119n, 120–121, 204–205, 273, 275–292, 312, 314n Soto, D. de 4, 8, 40, 91–94, 100, 111, 129–130, 136, 141–144, 146n, 149–151, 153, 156n, 158–165, 167–168, 174, 186, 191, 199n, 204–205, 209, 226, 228–232, 235, 237, 255, 295, 300, 302, 308–309, 311–313 Sotomayor, P. de 129, 144, 208 Suárez, F. 11, 13, 22, 100, 111, 130, 143, 145–146, 204–206, 209, 218, 252, 258 Summenhart, C. 149–150, 153, 155–158, 162, 165 Toscanelli, P. 324 Vázquez de Menchaca, F. 22, 39, 93, 167, 210, 267 Vázquez, G., 130, 143, 255 Veitia Linage, J. 46, 314 Veracruz, A. de, see also Vera Cruz, A. de  62n, 95–97, 210–211, 213 Vitoria, F. de 3–4, 6–11, 13, 39, 44, 53–55, 62n, 72, 85–87, 89, 91–94, 98, 100, 111, 129, 135, 141–142, 149–153, 156–168, 183, 191, 204, 207–210, 212–214, 217–218, 223, 227, 235, 252–253, 291n, 295–309, 313, 321 Zumárraga, J. de 95, 204, 210n, 217 

Index of Modern Names Abellán, J.L. 321, 323 Abril Castelló, V. 205, 223, 232 Aínsa, F. 324 Aldea, Q. 42n Allemann, D. 8 Altamira y Crevea, R. 105n Álvarez-Ossorio, A. 20n Alvira, R. 228n Amelang, J. 23n Añaños Meza, M.C. 6n, 150n Andrés-Gallego, J. 203n Anghie, A. 4n Arancil Varón, B. 323n Armitage, D. 19n Aspe, V. 98n Attas, D. 268n Bakewell, P. 246–247n Barrientos García, J. 173–174n Bataillon, M. 80n 234n Bederman, D.J. 267n Beestermöller, G. 209n Behr, H. 53n Belda Plans, J. 83n Benton, L. 28–29 Bethencourt, F. 54n Beuchot, M. 206n, 211n, 217n Bosbach, F. 45 Botella Ordinas, E. 21n Brading, D. 26n Braun, H. 22n, 26n, 43 Braun, G. 45n Brendecke, A. 28 Brett, A. 22, 150n–157n, 158, 165n–166n, 187n, 259n Brett, S.F. 206n, 300n Brown Scott, J. 53n, 166n Brufau Prats, J. 130n, 150n, 230 Bullón, E. 65n Burbank, J. 19n Cañeque, A. 28, 36 Canet Aparisi, T. 18n Cañizares-Esguerra, J. 19n, 22–23 Cantú, F. 319–320

Cardim, P. 1n–2n, 25n, 28n, 120n Carmagnani, M. 24n, 31 Carro, V. 139, 235, 249 Castañeda, F. 12, 204n, 273n, 276n Castilla Urbano, F. 5n, 11–12, 59n, 144n, 203n, 225n, 228n, 241n, 242n, 297 Centenero de Arce, D. 30n Céspedes del Castillo, G. 80n Chafuen, A.A. 173n, 175n Clavero Arévalo, M.F. 58n Clavero, B. 107n, 118n Cooper, F. 19n Cortest, L. 151n D’Amico, J.C. 18n Dandelet, T.J. 33n D’Emic, M. 181n, 192n Deckers, D. 151n, 246n Decock, W. 9n, 11, 112n, 166n, 173n, 174n, 177n, 181n, 188n, Del Vigo, A. 172n, 174n, 183n, 193n Dias Dinis, A.J. 56n Díaz Ceballos, J. 30n Dios, S. 182n Doyle, J.P. 206n, 260, 261n Dussel, E. 338 Duve, T. 111n–112n, 120n Elliott, J. 1n, 19n, 21, 22n, 25, 49, 172 Ernst, G. 34n, 37n Favarò, V. 29n Fernández Albaladejo, P. 34n, 43n Fernández Buey, F. 244n Fernández de Córdova Miralles, A. 61n Fernández Herrero, B. 12, 81n, 199n, 203n, 212n, 319n, 335n Fernández Valverde, J. 58n Fitzmaurice, A. 207n, 252n–253n Fleming, J. 254n Forte Monge, J.M. 228n Frankl, V. 33 Freire Costa, L. 190n Frohnen, B. 149n, 151n

371

Index of Modern Names Fuente, V. de la 65n Fuertes, J.L. 88n García Añoveros, J.M. 94n, 312n García Gallo, A. 54n, 117n García López, J. 41 García Martínez, B. 29n García Sanz, A. 175n, 195 García, B. 20n Gelderblom, O. 30 Gil Pujol, X. 22n, 25n, 31n, 41 Gómez Camacho, F. 173n–175n, 185n, 193n Gómez-Calero Valdés, P. 193n Goñi Gaztambide, J. 61n Gordley, J. 173n, 177n Gothein, E. 337n Grafe, R. 31n Grasso, K.L. 149n, 151n Greene, J.P. 19n Gruzinski, S. 22, 23, 26n Halme-Tuomisaari, M. 149n, 153n Hanke, L. 65n, 81n, 223n,243n Hausser, Ch. 1n–2n, 21n Headley, J.M. 33n Hernández, B. 78n, 228n, 243n Hernando, C. 37n, 39n Herrero Sánchez, M. 1n, 10, 22n, 24n, 27n, 29n, 32n, 39n, 44n Herzog, T. 11, 21, 29–30, 106n, 108n–113n, 115n, 117n, 118n, 120n–122n Hespanha, A.M. 107n, 118n, 119 Ímaz, E. 95 Iñurritegui Rodríguez, J.M. 34n Kagan, R.L. 30n, 246n Kamen, H. 20n Kany, R. 200n Kaser, M. 140n Kaufmann, M. 150n, 159n–160n, 162n, 184n Keller, A. 200n Killoran, J.B. 300n Kingsbury, B. 100n Kirshner, J. 181n Koenigsberger, H. 25n Koskenniemi, M. 166n, 167

Lagares Calvo, M.J. 174n Lains, P. 190n Langholm, O.I. 173n, 177n, 181n Las Heras, J.H. 258n Lawrance, J. 6n, 55n–56n, 58n Levaggi, A. 281n Levene, R. 105n–106n Llinares, J. 297n Lopetegui, L. 64n Losada, A. 98 228n–229n Lucena Giraldo, M. 30n Lugón, C. 336n Lugones, L. 336n MacGregor, K.R. 184n Maestre Sánchez, A. 302n Mäkinen, V. 11, 151n, 154n, 163n Manero Salvador, A. 332n Manuel, F. 319n Manzano Manzano, J. 58n, 121n, 241n Maravall, J.A. 59n, 83n, 334 Marcocci, G. 54n Marino, J.A. 35n Martínez Millán, J. 25n Martínez Shaw, C. 19n Mayorga, E. 328 Mazín, O. 2n, 18n Méndez Arceo, S. 95n–96n Milhou, A. 35 36n Monsalve, F. 173n 194n Montemayor, C. 324n Muldoon, J. 56n Münch Miranda, S. 190n Muñoz García, A. 313n Munro, J.H. 172n Murillo Ferrol, F. 38n, 44n Nader, H. 29n Nederman, C. 151n, 153n Newitt, M. 54n Nieto Olarte, M. 23 Noonan, J.T. 181n Nozick, R. 268 O’Gorman, E. 321–322 Oliva Melgar, J.M. 19n Osorio, A. 20 Otero, S. 62n

372 Pagden, A. 1, 19n, 35n, 39n, 40n, 98n, 150n, 166n, 228n, 233n, 264n Palos, J.L. 25n Paniotova, T. 319n, 328n Paradinas Fuentes, J.L. 193n Pardo Molero, J.F. 2n, 32n Parry, J.H. 20, 21n Pastine, D. 254n Pastor, B. 318n–319n, 322, 323n, 327 Pauw, C. de 330 Pena Búa, P. 88n Pena González, M.A. 10, 82n–84n, 94n Peramás, J.M. 337n Perdices de Blas, L. 12, 296n, 314n–315n Pereña, L. 130n, 145n, 235n Pérez Embid, F. 56n Pérez Gallardo, L. 55n Pérez Voituriez, A. 56n Perkams, M. 135n Phelan, J.L. 243n, 334n Pietschmann, H. 1n–2n, 21n, 31, 244n Poncela González, A. 206n Popescu, O. 174n, 176n Portuondo, M. 23 Pozo, C. 89n Quijano Velasco, F. 36n Rabassa, J. 319n, 328 Ramada Curto, D. 54n Ramírez Alvarado, M. 324n Ramos, D. 319n Ramos-Gorostiza, J.L. 315n Ramos-Lissón, D. 139n Rawlings, H. 23n Revuelta López, J. 296n Rivero Rodríguez, M. 24n, 26n Robinson, J. 154n Rodrigues, J.D. 30n Rodríguez-San Pedro, L.E. 83n Rojas Donat, L. 56n Rothbard, M.N. 173, 181n Ruiz Ibáñez, J.J. 18n 32n Rumeu De Armas, A. 56n

Index of Modern Names Sánchez Domingo, R. 3n Sanfuentes, O. 320 Scattola, M. 11, 131n–132n, 135n–136n, 140n, 200, 220n Schäfer, Ch. 11, 203n, 207n Schaub, J.F. 24n Schnapper, B. 172n Schüssler, R. 193n Schweighöfer, S. 160n Seed, P. 252n, 267n, 269n Serés, G. 95n Silvério Lima, L.F. 35n Slotte, P. 149n, 153n Specht, R. 173n Straumann, B. 100n Stuczynski, C. 33n, 34 Suárez Fernández, L. 56n Tau Anzoátegui, V. 73, 105n, 114n, 115n Tellkamp, J.A. 128n, 150n, 151n, 159n–162n, 164n–165n, 167n Tennenbaum, F. 203n Thomas, H. 218n Tierney, B. 150n–154n, 166n Todorov, T. 6n, 326n, 329, 330n Traboulay, D.M. 208n Tubau, X. 85n–86n Tuck, R. 156n Van Houdt, T. 177n Varela, C. 325n Varkemaa, J. 154n–156n, 164n Vázquez Janeiro, I. 88n Velarde Lombraña, J. 254n Vila Vilar, E. 117n Villacañas, J.L. 55n–56n Weststeijn, A. 39n Woltag, J.C. 60n Yun Casalilla, B. 32n Zavala, S. 65n, 66n, 229n, 243n, 285n, 336n Zea, L. 322–323 Zubillaga, F. 64n

Index of Subjects Affair of the Indies 10, 98n African slaves 307–308, 310–315  Aethiopes 12 Agriculture 172, 193, 264 Alexandrian or Alexandrine bulls 33, 39, 61, 81, 238, 240 America 8, 11, 17–18, 21, 29, 78, 85–86, 92, 95, 101, 105–106, 108–110, 118, 130, 144, 218, 228, 247, 252, 300, 302, 306, 310, 313–315, 319–328 American continent 12–13, 73, 202, 211 American territories 24, 26, 30, 45–46, 81–82, 199n, 296, 300, 320 Americas 1–3, 6, 10–12, 21, 23, 35, 66–67, 70, 72–73, 78, 85, 93–94, 96, 110, 112, 119–121, 199n, 208, 234, 252–253, 295, 318–319, 321–322, 327–328 Spanish America 11, 21, 23, 105–106, 108–110, 112–113, 115, 118–122 South America 4, 12, 336 Appropriation 57, 212, 268, 270, 329 Aragón 17–18, 24, 26, 36, 46, 64, 142 Aristotelian 9, 38, 88n, 149, 153, 158, 161–162, 175n, 202–206, 208, 212, 216–217, 224, 228, 231–232, 238, 243, 292, 295, 297–299, 302, 304, 308, 311, 331

Christian faith 55, 66n, 67, 72, 81, 204, 211, 218, 231, 235, 239, 296, 329, 331–332 Colonialism 12, 83, 93, 119, 273, 276–277, 283, 288, 290–291 Conquest 1–5, 10–11, 17–18, 30, 32–33, 43, 55, 61n, 62–63, 66n, 67, 72, 74, 79, 97–98, 141, 143–144, 150, 199–200, 209n, 210, 212n, 216, 218, 227, 236, 241–242, 244–245, 247, 252–253, 275–276, 279–281, 296, 313, 319–320, 324, 332, 334 Conquista 11, 66, 199, 201, 216–218, 242, 245 Conquistador 82, 92, 168, 245–246, 275, 285, 288–291, 296 Conscience 43–44, 142–143, 146, 167, 173, 175, 182–183, 191–194, 227, 230, 245–246, 310–312 Contract 80, 111, 112n, 113, 133, 166n, 172n, 174, 177, 182, 187, 188n, 213, 233, 260–261, 308–310, 312 Council of the Indies 28–29, 112, 199, 222–223, 225–227, 245, 276 Customs 11, 37, 42, 105–106, 108–110, 112–113, 118, 121–122, 145, 178, 190, 204, 208–209, 231–232, 238, 273, 281–284, 286, 289, 292, 334–335

Barbarian 7, 202–205, 207, 214, 218, 232–234, 236–238, 241, 284, 298, 300–301, 304–307, 330, 333 Barbarianism 57, 208 Barbarity 6, 204 Black legend 5, 23, 242, 313

Discovery 12, 17, 54, 73, 78, 85, 150, 160, 202, 244–245, 252–259, 262–264, 267–270, 274, 295, 314, 319–325, 329, 338 Inventio 253 256 Dispute of Valladolid, also Debate of Valladolid 11, 199, 217 Dominican 12, 54–55, 65, 90, 93–94, 96–97, 135n, 149–150, 153, 191, 204, 211, 218, 222–223, 226–228, 231–234, 236, 240, 242, 244, 246, 295–296, 298, 302–303, 308, 310, 330–332 Dominion, also dominium 10, 18, 32, 39, 46, 53–55, 57–58, 60–62, 64, 70, 85, 92, 150, 152, 156–165, 168, 213–214, 253–270, 274–283, 285, 287–288, 290–292, 298–300, 306, 332 dominium iurisdictionis, see also political power 6–8, 57, 68, 168

Canary Islands 18, 55–58, 60, 68, 74 Castile 17–18, 20, 23, 30, 33–37, 39, 41, 43–44, 54, 56, 59, 79, 83, 92–93, 112, 115–116, 118, 122n, 172, 223, 225–227, 238–239, 273–274, 281, 314, 319, 329 Catholic 2n, 10, 20–23, 25–27, 30–36, 43–44, 47, 65, 80–81, 85–86, 100, 112, 129–131, 134, 138, 143, 145–147, 229, 240, 260, 273, 278, 283, 331 Catholicism 21, 26, 32–33, 41, 80, 91n, 307

374  dominium proprietatis, see also Property and Ownership 162, 168  dominion rights 149, 151, 156, 158–160, 164, 167–168, 254  physical dominium 257, 259–260, 264, 267, 270 Economy 21, 92, 172, 178–179, 192 Enactments 108, 113–115, 117–118, 162, 213 Encomendero 24, 29, 94, 99, 222–223, 227, 243–244, 246, 285, 287–290, 336 Encomienda 97, 203, 222, 228, 241, 246, 276, 284–285, 287–290, 331–332 Europe 2, 12–13, 17–18, 20–21, 23, 27, 29, 33, 37–38, 43, 46, 78–80, 83, 107, 109, 115, 118n, 120, 128, 150n, 289, 296, 310, 314, 318–320, 322–323, 328 Evangelization 12, 17, 32, 92, 98, 210–211, 214, 228, 231, 235, 244, 274, 278–279, 289–290, 331–332, 335–336 Franciscan 33, 80n, 90, 95–97, 152–153, 226, 240, 246, 334–337 Free choice 153 Freedom 10, 18, 21, 23, 27, 43–44, 67, 93, 122, 155, 158, 161–162, 165, 206, 211, 247, 263, 267, 274, 277, 283–284, 286, 296, 300–301, 304, 306, 308–310, 328, 331, 334 Fueros 105–106, 115, 118 Golden Age 89, 330, 333, 335 Government 4, 26–28, 32, 34, 37–38, 41–43, 46, 57, 65, 94, 98, 146–147, 172–173, 176, 178–179, 185–186, 188–189, 192–193, 212, 223, 244, 246, 278, 280, 282–284, 286, 288, 291, 303, 307, 332, 334 Grain 11, 172–175, 177, 182–194 Granada 17–18, 32, 35, 60–61 Guanche 56–57 Habsburg 17, 21n, 25, 29, 33, 44, 46 Holy Roman Empire 17, 30, 84, 212 Human rights 11, 53n, 98, 149, 151, 166–168 Humanism 86, 88, 95, 98, 100, 108, 243, 334–335 Humanitarian intervention 209, 211

Index of Subjects Humanity 5, 35, 80, 96–97, 233, 281, 287–288, 292, 318, 325, 330 Humankind 78, 85, 87, 132, 266–267, 269, 282 Idolatry 22, 207–208, 230–231, 237–238, 290, 303, 306 Imperialism 20, 32 Indian 6–8, 11–12, 17, 24, 29, 46, 64, 67, 70, 79, 81–82, 86–87, 92–97, 99, 119–120, 167–168, 202, 204, 207–208, 210–212, 217, 223, 227–228, 230–243, 245–246, 274–292, 295–308, 312–314, 321, 327, 329–337 Amerindian 26, 54, 66n, 67–68, 71, 73, 330–331 Indigenous 4–7, 64, 67–68, 116, 121, 208, 210–211, 283, 296, 329, 332 Native Americans 22, 119–120, 160, 203n Indies 10, 12, 19, 24, 26, 28–30, 36–37, 39, 45–46, 61, 65–66, 78, 81–83, 92–95, 98–99, 112, 116, 199, 203, 217, 223, 242, 239, 241–246, 274–277, 279–281, 286, 288–292, 301, 314, 321–322, 325, 329, 331, 337 Infidelity 10, 53–57, 59–60, 64, 208 Injury, also iniuria or aggression 7, 156, 164–165, 209, 230, 277, 299 Ius commune 11, 58, 72–73, 106–110, 112–113, 115–116, 118, 126, 140 Ius gentium, see also law of nations 3, 6, 8–9, 59, 94, 134, 140–141, 160, 162, 165–168, 206, 301, 309 Ius peregrinandi 7 Ius praedicandi  7 Jurisdiction 18, 20, 22, 24, 28–31, 37, 45, 54, 60, 62–63, 67–70, 116, 118n, 156, 173, 213, 231, 246, 256, 274, 277, 289, 291 Jurisprudence 22, 128, 133, 136–137, 140–142, 145–147 Justice 10, 82, 98, 106, 122, 133, 136–137, 145–147, 152, 154n, 156, 159, 164–165, 167–168, 177, 189–190, 192–193, 201, 215–216, 224, 227, 229, 234, 239, 252–253, 296–297, 301, 308–310, 323, 326, 334

375

Index of Subjects Law Canon law 11, 55, 65, 69n, 85n, 90, 111–113, 117–119, 122, 225, 254 Civil law 33, 90, 134, 139, 166, 246, 253, 261 Colonial law 10–11, 119, 121, 123 Eternal law 135, 137–140, 164 Law of nations, see also ius gentium 6–8, 53n, 98, 134–135, 140–142, 144–145, 160, 162, 165–168, 206, 233, Natural law 3, 6, 9, 39, 56, 71, 85, 91, 94, 97–98, 128–139, 141–144, 146–147, 151–153, 157–158, 162, 164, 166–168, 176, 182–183, 185, 189–191, 193–194, 204, 206–208, 210, 213, 230–231, 234, 253, 255, 281, 297, 300, 307–308, 310, 332 Positive law 71, 142, 161–162, 166, 168, 176, 183, 191, 206n Roman law 59, 84, 106, 109–111, 118, 122, 140, 153, 201, 206, 212–213, 297 Laws of Burgos 3, 66, 82, 296, 331 Laws of the Indies, also Leyes de Indias  82–83, 94, 99, 125–126, 222, 274, 301 Market 11, 30, 172–177, 180–181, 183, 185, 187, 189–194, 289, 313 Mexico 4, 27, 33, 62n, 96, 130, 217–218, 243, 334–335 Monarchy Catholic Monarchy 25, 32–33, 36, 43 Polycentric Monarchy 10, 17, 19, 28, 44 Spanish monarchy 1–2, 4, 9, 18–20, 25, 27, 31, 34–35, 37–38, 40, 43–45, 92n, 296n Universal monarchy 18, 34–35, 38–39, 44–45 Moral production 256–257, 259, 267 Moral theology 111–113, 118–119, 122, 130–131, 137–138, 145, 147, 149n Morality 43, 92, 133, 145, 160, 192–193, 201, 260–261, 270 Naples 1, 17, 23, 27 Netherlands 1, 23, 27, 30, 36, 44–45, 252, 254 New Laws of the Indies, also New Laws and Leyes Nuevas de Indias 24, 82, 95, 222, 228, 244–245, 301, 331

New Spain, see also Mexico 1, 17, 27–29, 95, 178, 334 New World 11–12, 23, 33, 80–82, 85, 90, 95–97, 160, 177, 199–202, 204–205, 207–208, 210–212, 214, 217–218, 222, 228–229, 234, 236–237, 243–246, 273–276, 278–279, 287, 289, 291–292, 296, 314, 318–321, 323, 326–328, 330, 334, 337–338 Obligations 258, 261, 290 Ownership 10, 12, 60, 254, 256, 258–260, 263–270, 299 Peace 26, 32, 43, 46, 183, 210–211, 214–215, 279, 301 Peru 1, 178, 222, 226, 244 Philippines 27, 199n Political power 4, 6, 8, 24n, 67–68, 70, 85, 142, 160, 176, 246, 274 Pope, also Pontiff 6–7, 17–18, 35–39, 56, 58, 61–64, 67, 69–71, 79, 81, 85, 143, 184n, 212, 214, 228, 273, 277–278, 280, 296, 306, 326 Portugal 26, 54, 56–57, 130, 184, 190, 254, 308, 311 Possession 6, 12, 33, 44–45, 70, 110, 120, 155, 225, 252, 262–264, 268–270, 275, 277–280, 283, 291, 298–299, 302–304, 306–307, 329 Price Legal price 11, 173–177, 179–186, 188–192, 194 Market price 173, 196 Natural price 176, 185, 189–190 Property 6–7, 12, 21n, 39, 67, 97, 111, 133–134, 141–143, 156–157, 160, 163, 166, 168, 182, 203, 217, 253–254, 256, 260–262, 266, 268, 270, 284, 291, 298–301, 303, 308–309, 313, 334, 337 Providentialism 10, 34, 38 Rationality 142, 160, 164, 299, 305 Reconquista 55, 72, 320 Reductions, also reducciones 12, 336 Reformation 100, 112, 143 Republic 37n, 39–40, 44–45, 61, 179, 183, 187, 212, 256, 258, 280–281, 285–287, 291–292, 305, 307, 335–337

376 Republicanism 19, 22, 36, 45, 128 Res nullius 12, 57, 68 Rights 7, 9, 11–12, 26, 30, 33, 39, 53n, 57, 62, 74n, 82–85, 94, 98, 110, 112, 120, 140, 142, 145–146, 149–151, 153–169, 210, 252–255, 257–258, 261–270, 273, 278–279n, 284, 299, 301, 308, 334 Scholasticism 11, 86, 88n, 89–91, 97, 128–136, 138–143, 145–147, 150, 204, 216 School of Salamanca 10, 83, 87, 90, 94, 98–100, 111, 130, 135, 138, 144, 192, 208, 295–297, 308, 314 Sea 20, 55, 252–256, 263–265, 267–268, 270–271, 274, 323–325 Self-defense 8, 141, 209 Self-ownership 268 Siete Partidas 105n, 108, 115, 118 Slavery 10, 12, 162, 166, 168, 202–204, 206, 295–299, 303–304, 306–309, 311–314 Legal slavery 295, 300, 304, 308–309, 311, 313 Natural slave 202, 204–205, 286–287, 291 Natural slavery 12, 202–206, 224, 231, 238, 281–282, 292, 299 Servitude 34, 203, 331 Sovereignty 17, 20, 24, 28, 34, 36, 39, 43–44, 80, 85, 100, 238, 252 Spain 1–6, 11–13, 27, 33–39, 44, 46, 65, 97, 108–110, 112, 115, 130, 172–173, 175,

Index of Subjects 178–179, 184, 193, 201, 214, 216–218, 227, 240, 252–254, 257, 278, 281, 291, 295, 313–314, 322, 327, 330, 333–334 Spanish Empire 1, 9–10, 12, 20–23, 27–29, 31, 34, 39, 46, 279, 283, 295, 303, 313 Subjective rights 151n, 153, 167 Theology 33–34, 60–61, 84–94, 97, 111–113, 118–119, 122, 128, 130–131, 133–138, 141, 143, 145–147, 149, 153, 156, 191, 218, 225, 254, 276, 297, 302 Thomism 89, 92, 100, 156, 296–297 Treaty of Tordesillas 17, 214 University of Salamanca 3, 38, 53–55, 61–62, 72, 83–84, 87–91, 120, 129, 174n, 224, 296, 302 Usufruct 260–261, 266–270 Utopia 10, 12, 95, 199n, 318–321, 323, 328 War ius ad bellum 11, 200–201, 277 ius in bello 11, 200, 214–216, 277 ius post bellum 201, 277 Just war 7–8, 10–11, 62, 92, 142–143, 145, 147, 150, 199–201, 203–207, 209, 212, 214, 216, 218, 223–225, 236, 277, 281, 291, 302–303, 306–307, 309, 311 Warfare 11, 140, 144, 200n, 209n, 215, 235, 301, 332