The Free Sea

Chapter 4. That the Portugals have no right of dominion over the Indians by title of war

the free sea 17 7. Matthew 17:25–27, 20:26; John 6:15. 8. Vitoria, De Indis, II. 2; Covarruvias on Sext, rule Peccatum, Pt. II, § 9, n. 7; I Corinthians 5:12–13. 9. Aquinas, Summa Theologiae, IIaIIae, q. 12, a 2; Ayala, De jure, I. 2. 29; Cajetan on Aquinas, Summa Theologiae, IIaIIae, q. 66, a. 8; Sylvester Prierias, Summa Sylvestrina , on infidelitate et infidelibus, VII; Innocent on Decretum, III. 34. 8; Vitoria, De Indis, II. 2. 1. Vitoria, De Indis, II. 2. diction 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. 18 the free sea 2. Vázquez, Controversiae illustres, I. 24. 1–5; Vitoria, De Indis, II. 4. 3. “Is it because they differ and their customs disagree, that they unjustly wage such cruel wars and by each others’ weapons are willing to die? Not right enough is cruelty’s reasoning”: Boethius, De consolatione philosophiae, IV. 4. 7–10. 4. Aquinas, Summa Theologiae, IIaIIae, q. 10, a. 8; Decretum, I. 45. 5, 3; Innocent on Decretum, I. 45. 5, 3; Bartolus on Code, I. 11. 1; Covarruvias on Sext, rule Peccatum, Pt. II, § 9–10; Ayala, De jure, I. 2. 28. 5. Matthew 10:23. 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 the free sea 19 6. Cajetan on Aquinas, Summa...