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International Law in the age of Columbus

Published online by Cambridge University Press:  21 May 2009

Alfred P. Rubin
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Extract

The ‘Westphalian’ system existed in a disguised form in Europe before the Thirty Years War. It threw off the disguise in the late sixteenth century and revealed underlying discrete ‘municipal’ legal orders. By the mid-seventeenth century this ‘Westphalian model’ was widely perceived and accepted as a useful basis for political thought.

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Netherlands International Law Review , Volume 39 , Issue 1 , May 1992 , pp. 5 - 35
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Copyright © T.M.C. Asser Press 1992

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References

1. Eliot, T.S., Burnt Norton, lines 1–2, in Four Quartets (1952).Google Scholar

2. Kendall, P.M., Richard III (1955, Sphere Bodes edn. 1972) passimGoogle Scholar; Kendall, , The Yorkist Age (1962, Norton Library 1970) passimGoogle Scholar. For a sense of the intensity of political maneuvering in late-15th century Europe, see Philippe, de Commynes, Memoirs (1490–1510?) (Jones, M. trans. (1972)) p. 90Google Scholar: ‘Princes or those who rule great lordships ought to be wary of allowing rivalries to develop in their households. Far from mere this fire spreads through the whole countryside… God sets up for them an unexpected enemy or enemies, as you may observe … by what, in the recent past, you have seen and see every day in England, Burgundy and other places’. Machiavelli, , The Prince, was written in 1513.Google Scholar

3. Burckhardt, Jacob, The Civilization of the Renaissance in Italy (1860,1868, Mentor edn. 1960) p. 145.Google Scholar

4. The direct ancestor of the nineteenth century barque was developed in the mid-fifteenth century. For a quick and scholarly review of the evolution of naval technology of the period, see Parry, J.H., The Age of Reconnaissance (1963) p. 67, especially pp. 78–82.Google Scholar

5. This is made explicit in such compilations of travel records as Purchas, Samuel, Hakluytus Posthumus; or Purchas His Pilgrims (1625). Purchas's introduction movingly expresses the pointGoogle Scholar

6. St. John 18:38; the distortion of reality mat is implicit in human perception is also part of Buddhist theology and is the theme of the Japanese film Rashomon.

7. Berman, H., Law and Revolution: The Formation of the Western Legal Tradition (1983) p. 52Google Scholar et seq. The ‘Divine Right of Kings’ was at the center of political theory until displaced by social contract theory and other conceptual models used to justify and explain ‘secular’ government The victory of non-divine ‘law’ to justify authority was not clear in die Netherlands until the 1580s or in England until more than a century later. Reading ‘divine law’ texts today would be amusing if it were not for our consciousness of the bloodshed that grew out of the struggles to establish a legal basis for replacing tribal inheritance laws as a means far shifting the seat of authority. See, e.g., the Speech of King James I to the Parliament, Whitehall, 21 March 1610, excerpted in Tanner, J.R., Constitutional Documents of the Reign of James I, 1603–1625 (1930, 1961) p. Wat p. 15:Google Scholar

‘The state of Monarchy is the supremest thing upon earth; for kings are not only God's lieutenants upon earth and sit upon God's throne, but even by God himself they are called gods.’

The right of James to the throne was founded on his being ‘lineally, rightfully and lawfully descended of the body of the … eldest daughter of … King Henry the Seventh … [and] eldest sister of King Henry the Eighth …’ Succession Act of 1604,1 Jac.c. 1, excerpted in idem p. 10 at p. 11. Succession via the female line is not based on biblical or Roman law, but on the Indo-Germanic tribal law as carried into England free of the Salic law's prohibition on female inheritance. A summary of the pertinent part of the Lex Salica familiar to educated English speakers is set out by Janis, in Henry V, I, ii, lines 33–95, where the Archbishop of Canterbury explains mat under the law promulgated by Charlemagne, ‘In terram Salicam mulieres ne succedant. No woman shall succeed in Salique land’ (lines 38–39). It is argued mat the Salic law applied only ‘Between the floods of Sala and of Elbe’ (line 45) in the Germanic principality of Meisen, and not to the French inheritance; that moreover the French King himself traces his authority to rule France in part through female inheritance. In the play, it is hinted that the argument is disingenuous.Google Scholar

8. Janis, , The Life of Charlemagne (composed 829–836 AD)Google Scholar in Einhard and Notker the Stammerer: Two Lives of Charlemagne (Thorpe, L. trans. (1969, 1976)) p. 81.Google Scholar The Empire of Charlemagne broke up on his death, but the Holy Roman Empire of the German Nation was re- established in 962 by Otto L The political events are summarized concisely in Previté-Qrton, C.W., The Shorter Cambridge Medieval History (1952, corrected edn. 1953) pp. 435–439.Google Scholar

9. Boland, C.M., They All Discovered America (1963) is a popular summary of evidence of 18 such arrivals. Boland seems unduly credulous, but some of the tangible evidence is undeniable. I was myself deeply moved by a visit to one site at North Salem, New Hampshire, where there is an extensive area of emplaced rocks and what appears to be an altar that cannot be identified with any Amerindian or English settler tradition. At least one Viking encampment in Canada is well attested. Of course, Viking sagas and other myths that appear to record such arrivals as were known to the propagatcxs of the tales are evidence also, equally moving and compelling in their own ways.Google Scholar

10. Janis, , Politics II.2,8 (1252a25-bl, 1252b11–1253a40); Ethics 1134b18–30Google Scholar, in Barker, E., ed. and trans., The Politics of Aristotle (1946, 1975) pp. 3,5, 365.Google Scholar

11. Janis, , De Re Publico III, xxii:Google Scholar ‘Est quidem vera lex recta ratio naturae congruens, diffusa in omnes, constans, sempiterna… nee vero out per senatum aut per populum solvi hac lege possumus, neque est quaerendus explanator aut interpres eius alius …’ Cicero, , The Republic (Keyes, C.W., trans.) (1928, 1977) p. 210 (Latin), p. 211 (English).Google Scholar

12. Its text is in Davenport, F.G., European Treaties Bearing on the History of the United States and its Dependencies to 1648 (1917) pp. 13–20 (Latin), pp. 20–26 (English)Google Scholar; another English version is in Ehler, S.Z. and Morrall, J.B., Church and State Through the Centuries (1954) pp. 146–153.Google Scholar

13. The tale of Columbus‘s encounter with King John TJ of Portugal in March 1493 is retailed in Janis, , op. cit. n. 12, p. 9Google Scholar and Ehler, and Morrall, , op. cit. n. 12, p. 153.Google Scholar For more detail see Morison, S.E., Admiral of the Ocean Sea (1942) ch. 24, especially pp. 332–336.Google Scholar

14. For Inter caetera divinae of 4 May 1493, see Janis, and Marrall, , op.cit. n. 12, p. 153 at pp. 155–159Google Scholar, Davenport, , op. cit. n. 12, pp. 72–78 (Latin), 78–84 (English).Google Scholar The Latin text and a Spanish translation are reproduced photographically in Perl, R., The Falkland Islands Dispute in International Law & Politics (1983) p. 89 at pp. 90–101.Google Scholar On the background of intrigue, see Nys, E., ‘La Ligne de Demarkation d'Alexandre VI', 27 Revue de Droit International et Législation Comparée (RDILC) (1895) p. 474Google Scholar; Linden, H. Vander, ‘L'Intervention Pontificale dans la Delimitation des Domaines Coloniaux et Maritimes de la Fin du XVe an Debut de XVIIe Siècle‘, 20 RDILC (3rd ser.) (1939) p. 519Google Scholar; Staedler, E., ‘Die Westindiscne Raya von 1493 un ihr Völkerrechtliches Schicksal’, 22 Zeitschrift für Völkerrecht und Bundesstaatsrecht (ZVB) (1938) p. 165Google Scholar; Staedler, E., ‘Zur VorgeschichtederRaya von 1493’, 25 ZVB (1941) p. 57Google Scholar; and see other works cited in Verzijl, J.H.W., 4 International Law in Historical Perspective (1971) pp. 16–19.Google Scholar

15. Janis, and Morrall, , op. cit n. 12, pp. 157–158 (para. 6).Google Scholar

16. The Portuguese settlement of the Azores did not begin until 1432 and ofthe Cape Verde Islands until 1456. It is not clear that the Portuguese officials were confident in 1493 that they knew the precise westward extent of either archipelago, both of which had islands westward of the principal settlements. In fact, the westernmost of the Azores group, Flares, lies at 31'16” West longitude, about six degrees of longitude (about 340 nautical miles at those latitudes) West of Santo Antao (25'22”), the westernmost of the Cape Verde islands.

17. Janis, , op. cit. n. 12, p. 84 at pp. 86–93 (Spanish), 93–100 (English).Google Scholar

18. Janis, , op. cit. n. 12, p. 107 at pp. 108–109 (Latin), 110–111 (English).Google Scholar

19. Idem p. 112 at pp. 113–115 (Latin), 115–117 (English).

20. See Rubin, A.P., International Personality of the Malay Peninsula (1974) pp. 25–28Google Scholar; Janis, , op. cit. n. 12, pp. 118–120 (summary of facts), 121–125 (Spanish text), 125–130 (English translation)Google Scholar. The evolution of the Empire, including Charles's transfer of the Germanic lands except the Netherlands to his brother, Ferdinand, is too complex to attempt summarizing here. Charles's policy was to assert the widest possible authority far the Empire and himself as Emperor. See Robertson, W., The History of the Reign of the Emperor Charles the Fifth (1856) (Prescott, W.H. ed., 1887 edn.) pp. 192,311 et seq.Google Scholar

21. Janis, , op. cit. n. 12, p. 131.Google Scholar

22. Idem pp. 169, 171–185 (Spanish), 185–198 (English). There were two versions of the Treaty. A draft of 17 April was never ratified but was immediately superseded by a draft dated 22 April 1529. Both are in Davenport

23. There are other changes. In the list of titles the Majorcas and Sardinia are dropped and die precedential order of titles is revised to what seems a more logical pattern, for example, raising die archduchy of Austria above the mere dukedoms and counties mat preceded it in the Vitoria list

24. Text of 17 April item 15, 22 April item 14, Janis, , op. cit. n. 12, pp. 157, 180–181 (Spanish), 166, 194 (English).Google Scholar

25. The subtleties of argument involved in the clashes between divine law and mdo-Germanic tribal law reach far beyond this study. The most memorable statement of the Church’s position is probably the bull Unam Sanctam of 1302. See Tiemey, B., The Crisis of Church and State, 1050–1300 (1964) passimGoogle Scholar. Unam Sanctam is abstracted at pp. 188–189Google Scholar. Also, Janis, and Morrall, , op. cit. n. 12, pp. 90–92.Google Scholar

26. Item 9 of 17 April, Janis, , op. citn. 12, pp. 156 (Spanish), 165 (English).Google Scholar The parallel item in die text of 22 April is item 16, Davenport, , pp. 181 (Spanish), 194–195 (English).Google Scholar

27. Compare the text of 17 April item 10 with the text of 22 April item 17: Janis, , op. cit n. 12, pp. 156, 181–182 (Spanish), 165, 195 (English).Google Scholar

28. Compare the text of 17 Aprilitem9 with the text of 22 Aprilitem 16: Janis, , op. cit.n. 12, pp. 156, 181 (Spanish), 165, 194–195 (English).Google Scholar

29. It is not important to mis study to explore mis avenue, but it helps to understand the situation to remember mat in 1580 the two domains were united tinder Philip Ilof Spain, and not separated again until 1640, by which time the Dutch had conquered Malacca, thus removing the prize commercial center from Portuguese control. For a summary, see Livermore, H.V., A History of Portugal (1966, paperback edn. 1969) pp. 158–172.Google Scholar

30. Item 12, in Janis, , op. cit. n. 12, pp. 157 (Spanish), 166 (English).Google Scholar

31. Item 11, in Janis, , op. cit. n. 12, pp. 180 (Spanish), 193 (English).Google Scholar

32. See Janis, , op. cit n. 20, passim, especially Book III at pp. 229–245.Google Scholar

33. Janis, , op. cit. n. 12, pp. 184 (Spanish), 197 (English). The Spanish is not identified here as the formal ‘ratification’. The English is.Google Scholar

34. Janis, , De Indis (Bate, John Pawley, trans.) (‘Ingolstadt’ edn. of 1696 republished by the Carnegie Endowment (1917))Google Scholar. For personal details regarding Vitoria’s life, see the Introduction by Nys, E..Google Scholar

35. As to Charles, see Janis, , op. cit. n. 20, at p. 547Google Scholar et seq., and see the appended Life of Charles V After his Abdication in idem pp. 591–660. As to Philip, his relationship with his Confessor was notorious, or so I was told by the usual guide when visiting the Escorial in 1976Google Scholar, and so it must appear to anybody contemplating his fanatic and shortsighted policies. See Motley, J.L., 3 The United Netherlands (1967, 1875 edn.) pp. 502,503: ‘[W]hether indulging his passions or enforcing throughout the world his religious and political dogmas, he was ever conscious of embodying divine inspirations and elemental laws… He never doubted that the extraordinary theological system which he spent his life in enforcing with fire and sword was right, for it was a part of himself, etc.Google Scholar

36. Janis, , op. cit. n. 34, pp. 131 (English), 235 (Latin).Google Scholar

37. The state being derived from the laws of nature according to Aristotle, there is a philosophical problem confused, rather than clarified, by a peculiarity of translation in the Carnegie Endowment edition of Vitoria. Bate, the translator, would have Vitoria say:

‘And Aristotle (Politics, bk. I) says. Power is of two kinds, the one originates in the family, like that of the father over his sons and that of the husband over the wife, and this is a natural power, the other is civil, for, although it may take its rise in nature and so may be said to be of natural law… yet, man being a political animal, it is founded not on nature, but on law [Et Aristotles (primo Politicorum), dicit quod duplex est potestas: una familiar is, utpatris adfilios et viri ad uxorum, et haec est naturalis; alia est civilis, quae licet a natura quidem habeat ortum; et ideo potest did di iure naturae…est enim homo animal civilie, non tamen natura, sed lege constituta est]’. Idem pp. 131 (English), 235 (Latin).

The second part of mis sentence, distinguishing between ‘nature’ and ‘law’ is incomprehensible in context until the original Latin is checked. There it is clear that ‘law’ is being used in the sense of ‘human law’. The word ‘jus’ is replaced with die word ‘lex’. To understand the distinction completely would involve an analysis of the use of the Latin words jus and lex in various contexts in not only Roman sources but in the evolution of usage by the Scholastics and renaissance scholars. That lies far beyond what is feasible for this study. See Janis, , The Institutes of Justinian (Sandars, T.C., trans. and ed.) (1922, 1970) L.i. and ii, pp. 5–13. And that is only a starting point!Google Scholar

38. This is not the place to delve further into the subject, but it might be useful to note that arguments such as mis underlay Bodin's notion of indivisible sovereignty, first published in 1576, and come back in disguised form in 19th century legal positivism’s presumption of a vertical legal order based on commands issued by political superiors. The answers to those arguments are implicit in Austin's difficulties in placing ‘limited monarchies’ and federations like the American Constitutional system within his framework of a legal order. See Austin, John, The Province of Jurisprudence Determined (1832, Library of Ideas edn. 1954) Lecture VI.Google Scholar

39. ‘Regnum Eius esset eiusdem rationis cum regno civili et temporali, sed …quod ad finem redemptions habebat omnimodam potestatem, etiam in temporalibus, sed, seclusio Mo fine, nullam habebat…S. Thomas intellegit quod gerebat vices Christi quatenus temporalis potestas est subiecta et ministra spirituali spotestatis. Immo hoc modo reges sunt ministri episcoporum, sicut et ars fabrilis est subiecta equestri et miUtari, sed tamen miles am dux non est faber, sed habet imperare fabro in armis fabricandis’. Janis, , op. cit. n. 34, pp. 133 (English), 237 (Latin).Google Scholar

40. ‘Nee hoc habuit Imperator am per legitimam successionem am donationem aut permutationem am emptionem am iusto bello am electione am aliquo alio legali titulo, ut constat’. Janis, , op. cit n. 34, pp. 134 (English), 238 (Latin),Google Scholar

41. Idem pp. 134 (English), 238 (Latin).The Latin words involed are jurisdictionem and dominium per proietatem.

42. Idem pp. 137 (English), 243 (Latin): ‘Papa nullampotestatem temporalem habet in barbaros istos, neque in alios infideles’. In context, the word ‘potestatem’, ‘power’, can only relate to legal authority: ‘power’ in the Hohfeld vocabulary's sense. To analyze further this use of Latin legal terms would go much further than is necessary for this essay.

43. Idem pp. 138 (English), 243 (Latin): ‘Ergo omnino est sophisticum’.

44. ‘Ergo per bellum barbari non possum moveri ad credendum, sed adfingendum se credere et reciperefidem Christianam, quod immane et sacrilegum est’. Idem pp. 145 (English), 215 (Latin).

45. Justinian's, Institutes’ distinction between the jus gentium and the jus naturale is beyond the scope of this essay. In distorted summary, the jus gentium was posited in Gaius and others as law based on reason and thus common to all people capable of reason; discoverable by examining the law administered by different legal orders. To the extent that ‘law’ and ’right reason’ are related, the jus gentium could serve as evidence of the ‘natural law’ based on reason. This concept of natural law is obviously not die one used by Vitoria in this place. It becomes significant later. See the text at nn. 49 and 75 infra.Google Scholar

46. ‘[B]arbari erant veri domini, et publice et privatim’, Janis, , op. cit. n. 34, pp. 139 (English), 244 (Latin). In the Eastern Greenland case (1933)Google Scholar PCIJ Series A/B, No. 53, the Permanent Court of International Justice traced a title dispute between Norway and Denmark in territory whose European settlers bad been ‘massacred by the aboriginal population’. No thought was given to die possibility that the European States claiming sovereignty might not have a superior claim to die aborigines who actually lived there and were sufficiently organized to be able to defeat Viking settlements at a time when die Vikings were major military actors in Europe. The contrast between Vitoria's analysis and the majority of me PCU needs no further comment from me. But it is only fair to point out that in a legally similar situation the PCIJ's successor tribunal, the International Court of Justice, rendered an Advisory Opinion upholding some rights in nomadic aborigines. Sahara, Western, Advisory Opinion, ICJ Rep. (1975) p. 12.Google Scholar

47. Janis, , First Relectio sec. III, in op. cit. n. 34, pp. 150–162 (English), 256–268 (Latin).Google Scholar

48. This viewpoint is implicit in the minds of those who attach the word ‘law’ to what is morally compelled because it is virtuous, and the same word ‘law’ to what is compelled by the act of a duly authorized law-giver. It denies that judges ‘make’ law even for the parties before them, but asserts that they merely ‘find’ law implicit in the values of the society that gave the judges the authority to decide that case. It is a point of view that dominates much ‘common law’ jurisprudence. This is not the place for afull analysis of the competing models. Vitoria clearly separated the Aristotelian ‘natural law’from this sort of ‘natural law’, and both from divine law and human law.

49. Janis, , op. cit. n. 34, pp. 151 (English), 257 (Latin): ‘naturalis ratio inter omnes gentes constituit, vocatw ius gentium’. Vitoria cites Justinian's Institutes without further refinement.Google ScholarPawley, John Bate notes (p. 257 n. 2) mat in the more or less standard text of Justinian's Institutes used today (Krueger), the phrase appears in Institutes l,2,i with a significant difference: the word ‘homines’ (people) is used instead of ‘gentes’. There are other differences relating to the changing conception of the jus gentium between Justinian's time and Vitoria's, and there is mention of other learned authors noting these differences and trying to explain them. They are not significant for present purposes. See the text at a 75 infra.Google Scholar

50. Idem pp. 151 (English), 257 (Latin). The actual events of the first meetings were not as innocent as Vitoria seems to have assumed. See Janis, , op. cit n. 13, chs. 20 (first landings) and 29 (second voyage). On the authority of Columbus's chaplain, Bartolomeo Las Casas, Morison reconstructs the first meetings as friendly, almost joyous, but notes: ‘There never crossed the mind of Columbus, or his fellow discoverers and conquistadors, any other notion of relations between Spaniard and American Indian save that of master and slave’ (p. 282, going on to quote Las Casas at some length to illustrate the point). The first out-and-out fight began during the second voyage, about a year later, when the Spaniards without apparent provocation ‘captured’ some of the Caribs’ Arawak slaves and die Caribs responded with force (p. 406 et seq.).Google Scholar

51. Idem pp. 152 (English), 258 (Latin).

52. Idem pp. 154 (English), 260 (Latin):

‘Probatur, quia causa belli iusti est ad propulsandam et vindicandam iniuriam, ut supra citum est ex S. Thomas (Secunda Secundae, qu. 40). Sed barbari prohibentes a iure gentium Hispanos facium eis iniuriam. Ergo, si necesse sit ad obtinendum ius suum gerere,possum hoc licitefacere’. The citation to St. Thomas is to the Summa Theologiae 2,2 Q. 40, which does indeed refer to a war to avenge wrongs as a ‘just war’. But St. Thomas also requires ‘right intention [intentio bellantium recta]’ quoting St. Augustine mat greed (cupiditas) is not permissible in a just war.

53. Idem pp. 158–159 (English), 264 (Latin): ’[I]n favoram fldei Papa potest mutare dominos’.

54. Castillo, Bemal Diaz del, The Conquest of New Spain (written c. 1570,1st edn. 1632) (Cohen, J.M., trans, and ed. (1963)) pp. 20–21, 37–38, 104–106.Google Scholar See also Prescott, W.H., 1 History of the Conquest of Mexico (1843) (Standard Library edn. 1874) pp. 62–71. Although not mentioned expressly by Bernal Diaz or Prescott, the parallels between Aztec human sacrifice and the Roman ritual crucifixion embedded in Christian symbolism must have seemed diabolical to the devout Spaniards, and there are hints of mat in the sources.Google Scholar

55. Janis, , op. cit. n. 34, pp. 156–158 (English), 262–264 (Latin).Google Scholar

56. Idem pp. 159–160 (English), 265–266 (Latin). Vitoria concedes that a war might be ‘just’ on both sides when one is invincibly ignorant of the true ‘right’. Idem pp. 155 (English), 261 (Latin). The word ‘right’ is Bates‘s translation of the Latin ‘jus’: ‘Nec est inconveniens quod, cum ex una parte est ius et ex altera ignorantia invincibilis, quod sit bellum iustum ex utraque parte’. Vitoria uses as an example the invincible ignorance of the French that the Holy Roman Emperor's title to Burgundy is better than theirs.

57. Idem pp. 155 (English), 261 (Latin): ‘Item hoc est generate ius gentium, ut omnia capta in bello fiant victoris’ (citing Justinian).

58. Idem pp. 161 (English), 267 (Latin):

‘ita videtur quod non sint idonei ad constituendam vel administrandam legitimam Rempublicam etiam inter terminos humanos et civiles. Posset ergo quis dicere quod pro Militate eorumpossent principes Hispani accipere administrationem illorum…. dummodo constaret hoc illis expedire’. An analogy is made to the guardianship of infants.

59. An express refutation at jus gentium logic came two generations later. Janis, , De Legibus, ac Deo Legislatore (1612) II, xix, 2, 6, 8Google Scholar; xx, 1. But Suarez‘s refutation was and is usually ignored by jurists seeking to affirm their moral insights as legally binding on others capable of ‘right reason’. Except for some polemical writings, the entire concept was superseded by the general adoption of conflictof laws theory in the mid-nineteenth century. A ‘choice of law’ approach makes the search for universal principles unnecessary. See Story, Joseph, Commentaries on the Conflict of Laws (1834) pp. 33, 38.Google Scholar

60. Janis, , op. cit. n. 34, pp. 120 (English), 222 (Latin).Google Scholar

61. Idem pp. 121 (English), 223 (Latin), giving 4 biblical quotations.

62. Idem pp. 121–122 (English), 224–225 (Latin).

63. Idem pp. 122 (English), 225 (Latin), proofs 1 and 8 (English; unnumbered in the Latin, apparently regarded by Vitoria as a summary statement).

64. Idem: ‘Et in summa, haec est manifesto haeresis’.

65. Idem pp. 123 (English), 226 (Latin). Vitoria points out that St. Thomas Aquinas came to the same conclusion and it is St. Thomas‘s reasoning he adopts. See St. Aquinas, Thomas, Summa Theologiae II,ii.10,12.Google Scholar

66. Idem pp. 10–19,124–125 (English), 227–229 (Latin).

67. Idem pp. 19, 125 (English), 229 (Latin).

68. This all predates Hohfeld's terminology, familiar to generations of American lawyers. The Latin words are quoted from Sylvester: ‘Nee valet…, quod dominium aliquando non dicit ius, sed solam potentiam …’ Idem pp. 20, 126 (English), 230 (Latin).

69. Idem p. 22 at p. 127. In Latin: ‘Videtur adhuc quod possint esse domini, quia possum pari iniuriam, ergo habent ius. Sed hoc remitto ad iurisconsultos, utrim possiru habere dominium civile‘. Idem p. 231.

70. Idem pp. 23, 127 (English), 231 (Latin): ‘Item non errant in rebus, quae aliis sunt evidentes, quod est indicium usus rationis’.

71. Idem pp. 25, last paragraph, 128 (English), 232 (Latin).

72. A comprehensible, brief and scholarly account is Hanke, L., All Mankind is One (1974). Hanke‘s bibliography is an excellent starting place far those interested in researching this fascinating episode in intellectual history.Google Scholar

73. It seems anomalous that those who saw (and see) in ‘right reason’ a source of law about which all people should agree could not in fact reason themselves to a conclusion on the issues exposed here. The notion that reasonable people disagree when social values are at issue seems so fundamental to civilized discourse, and so clearly demonstrable by at least 2,500 years of debate and the dicta of Aristotle cited at n. 10 above, that the continued strength of the ‘reason’-based model of natural law is to me inexplicable. I suspect that it covers a struggle for ultimate authority to make law, which ‘natural law’ jurists prefer to find in themselves as a group, against the claims of legislators inheriting their authority or officials otherwise empowered to make law for the societies whose constitutions have given them that authority.

74. These have been reprinted in many sources. The copy most convenient for present purposes is Bannon, J.F., Indian Labor in the Spanish Indies (Problems in Latin American Civilization series) (1966) pp. 22–32 (Laws of 27 December 1512), 33–35 (Amendments of Valladolid, 28 July 1513). Since there is no need for a scholarly discussion here, I have not referred to a Spanish text.Google Scholar

75. I am indebted to Jose M.deAreilza, a student at The Fletcher School of Law & Diplomacy, for this outline.

76. Even the famous aphorism, ‘Fiat justiciaruat coelum’ [Letjusticebedonethoughheavenfall] (attributed to L. Calpurnius Piso Caesoninus, d. 43 BC) can often be seen as an exercise of the authority of the judge at the expense of rival ‘law-deciders’ who might be more concerned with things other than the version of justice which is held as if a monopoly by some organized judiciaries. Cf., The Question of Prohibitions (1607), in Coke, Reports, XII, 64 excerpted in Stephenson, C. and Marcham, F.G., Sources of English Constitutional History (1937) pp. 437–438.Google Scholar

77. Gaius, , The Institutes of Gaius (Zulueta, F. de, ed., 1946), 1,1Google Scholar (definition); I,52 (slavery as a status established by the jus gentium); III, 93 (form of contracting under the jus gentium). Cf., Justinian, , op. cit n. 37,I, ii (definition); L,iii,2 (slavery an institution of the jus gentium); interestingly, in Justinian's Institutes, the sections derived directly from Gaius III, 93 do not mention the jus gentium as the source of forms of contracting, but refer to legislation by the Emperor Leo as removing the formalities of expression required by the ancient Roman law.Google Scholar