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 of whom we speak are not proper to the Portugals but free and in their own power, whereof the very Spanish doctors themselves make no question.
CHAPTER 5
That the sea or right of sailing on it is not proper to the Portugals by title of possession
If then the Portugals obtained no right over the people, countries, and jurisdictions, let us see whether they can make the sea and navigation or traffic to be in their power. Let us first consider of the sea which, seeing it is everywhere said to be no man’s right, or common, or the public right of nations, what these words signify shall be most fitly declared if, following all poets from Hesiodus and philosophers and ancient civilians, we distinguish those things into times, which peradventure not a long time, yet notwithstanding by certain reason and their nature, are distinguished. Neither are we to be blamed if in the explanation of the law of nature we use their authority and words who (as it is manifest) were most powerful in the judgment of nature.
We are to know, therefore, in the first beginning of the life of man, dominion was another thing and communion differing from that which they are now.1 For now dominion properly signifieth that which so appertaineth unto one that after the same manner it cannot be another’s, but we call that common whose propriety is conferred among many with a certain fellowship and agreement excluding the rest. The defect of tongues hath enforced to use the same words in a thing which was not the same. And so these names of our custom are referred to that ancient law by a certain similitude and resemblance. That, therefore, which at that time was common was no other thing than that which is simply opposed unto proper. But dominion is a just or lawful power to use a common thing, which it seemed good to the Schoolmen to call usum facti, non juris because that use which is now called use in law or right is a certain propriety, or (that I may speak after their manner) is said privatively unto others.2
By the first law of nations, which sometimes also is called natural and which the poets elsewhere describe in the golden age, and in another place in the kingdom of Saturn or Justice, nothing was proper, which Cicero affirmed: “For by nature nothing is private.”3 And Horace:
nam proprie telluris herum natura nec illum,
nec me, nec quemquam statuit. 4
For nature could not distinguish lords. In this signification, therefore, we affirm all things common at that time, signifying the same thing which the poets do when they say the first men sought the middle and justice held the middle of things by a chaste and inviolable covenant; which, that they might more plainly express, they deny that the fields were divided by bounds at that time or that there was any traffic:
promiscua rura per agros
praestiterant cunctis communia cuncta videri. 5
This word videri is rightly added by reason of the translation of the word as we have said. But this communion was referred unto use:
pervium cunctis iter,
communis usus omnium rerum fuit. 6
By reason whereof there was a certain kind of dominion, but universal and indefinite. For God gave all things not to this man or that but to mankind and after that manner many may be wholly lords of the same thing; but if we take dominion in that signification which it hath at this day it is against all reason, for this includeth a propriety which then no man had. But that is most aptly spoken:
omnia rerum
usurpantis erant. 7
But it seemeth we are come to that distinction of dominions which is now not violent but by little and little, nature showing the beginning thereof. For seeing there are many things the use whereof consisteth in abuse, or for that being converted into the substance of the user they admit no use after, or because by use they are made worse for use, in things of the former kind, as meat and drink, a certain propriety appeared not severed from use.8 For this is to be proper, so to appertain to any that it cannot also be another’s, which afterwards by a certain reason was derived to things of the latter kind, to wit, garments and chattels or movables; which being so, all immovable things—to wit, fields—could not remain undivided, although the use of them consist not simply in abuse, yet the use thereof was procured by reason of some abuse, as ploughed fields and orchards of fruit trees for food, pastures also for raiment, but they could not in common suffice for the use of all people. Property being found out, there was a law set down which should imitate nature. For, as in the beginning that use was had by corporal application whence, we said before, property had his original, so by the like application it seemed good they should be made the proper goods of everyone. This is that which is called occupation by a word most aptly applied unto those things which before were indifferent. Whereunto the tragedian Seneca alludeth,
in medio est scelus
positum occupanti, 9
and the philosopher, “All things pertaining
