CHAPTER 3
That the Portugals have no right of dominion over the Indians by title of the Pope’s gift
Secondly, if they will use the division of Pope Alexander the Sixth, above all that is specially to be considered whether the Pope would only decide the controversies of Portugals and Spaniards, which surely he might do as a chosen arbitrator between them as the kings themselves had made certain covenants between them concerning that matter, and if it be so when the thing was done between others, it appertaineth not to the rest of the nations;1 or whether he would give almost all the third part of the world to two peoples, which though the Pope could and would have done, yet shall it not presently follow that the Portugals are lords of those places, seeing their donation maketh not the lords but the livery2 which followeth, for even to this cause possession ought to be added.3
Moreover, if any man will search the law itself either divine or human and not measure it by his private commodity, he shall easily find such a kind of donation of that which is another’s to be of no moment. I will not here enter into disputation concerning the authority of the Pope, to wit, the bishop of the Church of Rome, nor will I absolutely set down anything but by hypothesis, to wit what the most learned men amongst them confess who attribute most to the authority of the Pope, chiefly the Spaniards who, considering through their quickness of wit and understanding they might easily see our lord Christ had rejected all earthly government,4 he had not truly dominion over the whole world as he was man, and if he had yet could it not be proved by any argument that such right was translated unto Peter or the Church of Rome by the right of vicar; seeing elsewhere also it is certain Christ had many things unto the which the Pope succeeded not,5 the interpreters affirmed (I will use their own words) that the Pope is not a civil or temporal lord of the whole world;6 yea, and that more is, if he had any such authority in the world, yet should he not rightly exercise the same, seeing he ought to content himself with his spiritual jurisdiction but could by no means grant it unto secular princes.7 So then if he have any temporal authority he hath it (as they say) by way of order unto spiritual things, wherefore he hath no authority over infidels seeing they appertain not unto the Church.8
Whence it followeth, by the opinion of Cajetanus and Victoria and the better part as well divines as canonists, that it is not a sufficient title against the Indians either because the Pope gave those provinces as absolute lord or because they do not acknowledge the dominion of the Pope, so that the very Saracens were never spoiled under this color and pretence.9
CHAPTER 4
That the Portugals have no right of dominion over the Indians by title of war
These things therefore being taken away, seeing it is manifest (which even Victoria writeth) that the Spaniards’ sailing to those remote countries brought no right with them of possessing those provinces, one only title of war remaineth which, though it had been just, yet could not profit them for dominion but by the right of prey, to wit, after the possession.1 But it is so far from the matter that the Portugals possessed those things that they had no war at that time with many nations to whom the Hollanders went and so therefore no right could be gotten to them when also, if they had received any injuries from the Indians, they are supposed to have forgiven them by reason of the long peace and friendly traffic with them.
Although there were no cause truly that they should pretend war. For they who pursue the barbarians with war, as the Spaniards do the people of America, are wont to pretend two things: that they are hindered from trading with them, or because they will not acknowledge the doctrine of true religion.2 As for trading, the Portugals obtained it of the Indians, so that in this behalf they have no reason to complain. The other pretence is no juster than that of the Grecians against the barbarians whereat Boethius aimed:
an distant, quia dissidentque mores,
injustas acies, et fera bella movent,
alternisque volunt perire telis?
non est justa satis saevitiae ratio. 3
But this is the conclusion both of Thomas and the Council of Toledo, and Gregory and the divines and canonists and almost all the civilians:4 although faith be declared to the barbarians (for concerning those who were subject before to Christian princes and also of apostates, the question is otherwise) probably and sufficiently and they will not respect it, yet notwithstanding it is not lawful for this reason to pursue them with wars and spoil them of their goods.5
It is needful to set down the very words of Cajetan to this purpose:
Certain infidels (saith he) neither in law nor in deed are subject to Christian princes as touching temporal jurisdiction, as they are found pagans who never were subject to the empire of Rome, inhabiting countries where the Christian name never came. For the lords thereof, although infidels, are lawful lords, whether they be governed by regal or politic government, neither are they deprived of the dominion of their lands or goods for their infidelity, seeing dominion is by a positive law and infidelity by the divine law which taketh not away the law positive, as is handled in the question before. And touching these, I know no law concerning temporal things. Against these no king, no emperor, nor the Church of Rome itself, can make war to possess their countries or subdue them temporally because there is no just cause of war, seeing Jesus Christ, the king of kings, to whom power is given in heaven and in earth, hath not sent soldiers of an armed warfare to take possession of the world but holy preachers as sheep among wolves. Whereupon I do not read in the Old Testament where possession was to be taken by arms that war was proclaimed against any country of the infidels because they were infidels but because they would not grant passage or because they had offended them, as the Midianites, or that they might recover their own granted unto them by the divine liberality. Wherefore we should grievously offend if we went about to spread the faith of Jesus Christ by this means, nor should we be lawful lords over them but should commit great robberies and were bound to make restitution as unjust conquerors and possessors. Good preachers should be sent unto them who by the word and their good example should convert them unto God, and not such as might oppress, spoil, offend and conquer them and make them twice more the children of hell after the manner of the Pharisees.6
And after this manner we hear it hath been often decreed by the senate in Spain and divines (but chiefly the Dominicans) that the Americans are to be converted to the faith by the preaching of the word only and not by war, and that the liberty also which had been taken from them for that cause should be restored, which is said to be approved of Paulus III the Pope and the emperor Charles the Fifth, king of Spain.7
We omit to speak that the Portugals now in most parts promote not religion nor so much as do there endeavor, seeing they are wholly bent to lucre, nay and that also to be true there which a Spaniard writ of the Spaniards of America, that no miracles, no signs and tokens, are to be heard of, no examples of a religious life which might vehemently persuade others to the same faith, but many scandals, many wicked deeds, many impieties.8
Wherefore, seeing both possession and title of possession fail, neither the substance nor jurisdiction of the Indians should be accounted in that nature as if they had been no man’s before, neither seeing they were theirs could be rightly gotten by others. It follows that the peoples of India