“Sir, ere we do depart, it well becomes us, Who in true custody do hold the keys Of war and peace – solemn depositaries – To lift the veil that blinds you. (…)”
Aubrey de Vere, “Julian, the Apostate”
The Irish poet Aubrey de Vere, in his dramatic poem based on the life of the Roman emperor Julian (331 or 332-363), describes the reception of two Persian generals, Meranes and Nohordates, by the Caesar. The satraps fail to obtain from Julian an explanation for the transgression of the truce signed between the Persian ruler Shapur II (309-370) and the former emperor Constantius II (317-361). Before being expelled from the presence of “earth’s lord”, as put by one Roman present at the scene, Nohordates reminds the emperor that the Persians were the ones who held the power to start war or maintain peace. They were the ones who could “open out the book / of time, and point the lessons of the past”133.
The satraps are an example of political players whose authority also encompassed the very power of war. However, De Vere’s generals did not care that much about the justice of a conflict. They threatened war based on political and social struggles, the collision of ancient empires, and the principle of warfare as one of the items in the antiquity rulers’ toolboxes. On the other hand, the Roman legal tradition, which formed the basis for the legal thought of the Iberian societies in the early modern period, was deeply concerned with the justice of war. Although the doctrine can be traced back to Aristotle, who in his Politics uses the term dikaios polemos δίκαιος πόλεµος (just war) to justify self-defense, conquest and aggrandizement, it was the Roman legal tradition that contributed with the concept of just causes for war134. In Latin literature, the first usage of the term is in Marcus Terentius Varro135. In his description of the so-called Fetiales of Rome, Varro writes:
133 DE VERE HUNT, Sir Aubrey. Julian the Apostate – a dramatic poem. London: John Warren, 1822, p. 99.
134 RUSSELL, Fredrick H. The Just War in the Middle Ages. London: Cambridge University Press, 1975, p.
4.
135 FOCARELLI, Carlo. International Law as Social Construct: the Struggle for Global Justice. Oxford: Oxford University Press, 2012, pp. 358-9. This explanation on Roman theory of just war draws largely from Focarelli’s summary of the issue.
Fetiales, quod fidei publicae inter populos praeerant: nam per hos fiebat ut iustum conciperetur bellum, et inde desitum, ut f[o]edere fides pacis constitueretur. Ex his mittebantur, ante quam conciperetur, qui res repeterent, et per hos etiam nunc fit foedus, quod fidus Ennius scribit dictum.
“‘The Fetiales’ 'herald-priests,' because they were in charge of the state's word of honor in matters between peoples; for by them it was brought about that a war that was declared should be a just war, and by them the war was stopped, that by a foedus 'treaty' the fides 'honesty' of the peace might be established. Some of them were sent before war should be declared, to demand restitution of the stolen property, and by them even now is made the foedus 'treaty', which Ennius writes was pronounced fidus.”136
Although Varro was the first, the main Latin sources on just war were Cicero and the historian Titus Livius. Marcus Tullius Cicero’s texts refer to war in conformity to with the Roman procedural law, deeming unjust any war which was not proclaimed and declared137. However, as pointed by Focarelli, “the crucial problem with Cicero’s texts is whether he gave the term bellum justum an ethical or a merely logistical meaning limited to the Roman procedure of waging war (…)”138. Titus Livius, although responsible for leaving a detailed description of the Roman procedure to initiate a war according to fetial law139, also authored one of the most symbolical passages regarding just war, cited by Machiavelli centuries later140.
On an episode of the Second Samnite War (326-304 BC), Livius describes the justice of war as the ultimate weapon for desperate parties. The Livian narrative registers Gaius Pontius, commander of the Samnites, enemies of Rome, as the one defining just war: Iustum est bellum, Samnites, quibus necessarium, et pia arma, quibus nulla nisi in armis relinquitur spes [“Samnites, war is just to those for whom it is necessary, and arms
'-PPHp,:3<1H : G3< p'ps-S?FSP-FQ4P?NS?HF-F6F=D?Q>SP-FQD-S?HF<PHE"p HD-F6s EE>i
<G2, G3< <1H 1,]>:H;,sHF6HFr(?DD?-E7?F7E-FFppNNszs
?47PHp, E,CH(:3) pp }H3HF ,O),::,<F 3< E, ;3:3G E31:>E3 ; 1< ,DH, ,OG3G,EH<G E,F(,::3) ,]
0,)3GDH,3+,;,GF ,CF3G+,; <H(3F)>;3G3H;,G)HE3 ;])><FG3GH3GDH,3HFDH>(,:: 3<+3),E,<GHE]DH>+C,E F,3HFG3FF3;,3<M,<GH;F <O3G0,G3 :3E,:313><,]HG>;<,(,::H;DH>++,<H<G3 GH;3<+3)GH;DH,<><,FF,G]
3+3<3HFGH;,FF, GDH,3<C3H;3H+3) E,GHE`~p-F6,>003)3Fpp})(,::3DH3+,; ,DH3G FF <)G3FF3;,0,G3 :3 C>CH:3>; <33HE,C,EF)E3CG ,FG`ODH>3<G,::,13C>G,FG<H::H;(,::H;,FF,3HFGH;]<3F3DH>+ HGE,(HF E,C,G3G3F1,E GHE HG+,<H<G3 GH; <G,F3G,G3<+3)GH;`~s
p-PDHs<G,E< G3>< : N F>)3 :><FGEH)G_G2,GEH11:,0>E:>( :HFG3),s[<HP6r[<HP6
#F?Y7PQ?S\P7QQppNss
!77?Y?TQp(HE(,)><+3G pppzs
-4>?-Y7DD?OTHS76?Y?TQ?F>?Q3F)>EF3F>CE : CE3; +,) +33G>3M3>p>-NS7PsDQHHF>-NS7P
H<:E3<)3C,p>7ZP?S7QS>-SwH3 3HFG3Q3 1E <+,r?TQSTE7F?E7QS37DDTEOT?3TQF747QQ-P?TEp7SN?--PE-T3?FTDD-F?Q??F-PE?QQN7Q7QSxw(?S>TQS>7P7?Q=P7-SBTQS?47p374-TQ7S>-SZ-P?QBTQSZ>?4>?Q F747QQ-P\p -F6 -PEQ -P7 >-DDHZ76Z>7F S>7P7 ?Q FH HS>7P >HN7 3TS?F S>7EsxsF=D?Q> SP-FQD-S?HF 3\
""p (s s 2, E3<), (P 3)>:> )23 M,::3s Y-?D-3D7 -S
>SSNryyZZZs=TS7F37P=sHP=y<?D7Qyyz>yz>s>SEpP7SP?7Y76?F73PT-P\S>s
56
are clear of impiety for those who have no hope left but in arms.”]141. Livius, although defends the logistical meaning of the justice of war in the first book of his history of Rome, also recognizes the ethical side of the issue, by reminding that, to the Samnites, who had done everything to appease the gods and soften the anger of the Romans, there was no other option than war. A dramatic Gaius Pontius declares:
Quod si nihil cum potentiore iuris humani relinquitur inopi, at ego ad deos vindices intolerandae superbiae confugiam et precabor, ut iras suas vertant in eos quibus non suae redditae res, non alienae accumulatae satis sint; quorum saevitiam non mors noxiorum, non deditio exanimatorum corporum, non bona sequentia domini deditionem exsatient, [placari nequeant] nisi hauriendum sanguinem laniandaque viscera nostra praebuerimus.
[“(…) If nothing in human law is left to the weak against the stronger, I will appeal to the gods, the avengers of intolerable arrogance, and will beseech them to turn their wrath against those for whom neither the restoration of their own effects, nor additional heaps of other men’s property, can suffice, whose cruelty is not satiated by the death of the guilty, by the surrender of their lifeless bodies, nor by their goods accompanying the surrender of the owner, who cannot be appeased otherwise than by giving them our blood to drink, and our entrails to be torn.”142]
The Roman just war theory, although it introduces the concept of justice to the process of waging wars, is torn between this dual logic, between ethical and procedural meanings. The ambiguity created by such conceptual tension is responsible for the emergence of a wide area of discussion, and this is the place where Catholic theologians will argument and debate during the middle ages the justice of war. The justice of war resides on ethics, or is it a matter of process? While Romans created ambiguity and tension, medieval jurists and theologians offered arguments and opinions. As pointed by Focarelli, “Church Fathers changed the Roman just war doctrine radically into a theologically inspired doctrine”143.
Looking at this doctrinal transformation, for the early modern Catholic Church, the result was a vastly ambiguous and useful conceptual package, undoubtedly inherited by early modern theorists and used in their analyses of non-European codes, having direct impact on overseas policies and their decision-making process. This allowed the Church and Iberian theologians to polemicize and use this ambiguity to feed their own political agendas. In the end, this is the process ultimately responsible for the justification of
141 Livius, Ab urbe condita, IX, 1. English translation from SPILLAN, Daniel and EDMONDS, Cyrus. The History of Rome. Books Nine to Twenty-Six, by Titus Livius. London: Bell & Daldy, 1868, p. 560.
142 Idem.
143 FOCARELLI, Carlo. International Law as Social Construct: the Struggle for Global Justice. Oxford: Oxford University Press, 2012, p. 359.
57
modern slavery, which permitted the emergence of this systematic and cruel inhumanity that would follow for centuries in the colonial empires.
In de Vere’s poem, Meranes and Nohordates were the solemn depositaries of the keys of war and peace. In the sixteenth and seventeenth centuries, theologians, and more specifically Jesuits, were the depositaries of the keys that gave access to justification of war. In Portuguese Asia, they aimed at occupying the role once played by the Roman Fetiales, to seize the power once held by the “herald-priests” who could confirm legitimacy of conflicts and their results. As traumatic as a war can be, the justification of war and the subsequent creation of legitimate slavery served as the basis for the normalization of human relations based on inhumane and cruel practices. It does not mean, however, that without this justification the cruelty and inhumanity of slavery would have necessarily become obvious for contemporary men. But it was, without a doubt, the rhetorical instrument used to normalize and control these relations, an instrument on the hands of theologians. Their concern with the legitimacy of the slave-master relations was not restricted to the justified acquisition or enslavement of individuals but comprehended also the control of said relations. In this chapter we will analyze how the process of justification of slavery was built and how it reflected in legal codes from the thirteenth through the sixteenth centuries. These two distinct processes, the development of the medieval theory of just war and the doctrine of servitude, would collide in the dawn of the early modern world. Contrary to the idea put by Saunders – to whom slavery was a traditional and customary institution in the Iberian Peninsula144 – we will show how the association of the doctrine of just war as justification for the enslavement of foreigners was a historical process.145 As such, this entangling process was fundamental to the implementation of slavery as a pillar of Portuguese and Spanish colonial societies and economies in the sixteenth century.
Doctrines of servitude
144 SAUNDERS, A. C. de C. M. A Social history of Black Slaves and Freedmen in Portugal, 1441-1555.
Cambridge: Cambridge University Press, 1982, p. 35; SAUNDERS, A.C de C. M. História Social dos Escravos e Libertos Negros em Portugal 1441-1555. Lisbon: Imprensa Nacional, Casa da Moeda, 1994, p.
63.
145 Noonan has already reiterated the historicity of this process among other doctrinal changes in the teaching of moral duties, recognizing the end of the idea of ownership of slaves to the idea of equal freedom among all men before Christ. “In each case one can see the displacement of a principle or principles that had been taken as dispositive – (…) in the case of slavery, that war gives a right to enslave and that ownership of a slave gives title to the slave’s offspring.” NOONAN Jr, John T. ‘Developments in Moral Doctrine’. In: KEENAN, James F. and SHANNON, Thomas A. (ed.). The Context of Casuistry.
Washington DC: Georgetown University Press, 1995, pp. 193-4.
58
One of the main arguments for slavery in the early modern period was captivity in a just war. As a notion created by the Catholic Church, the history of the various doctrines of just war has been traced a number of times by various researchers, but here we will focus on the process of association between just war and slavery. The result was the creation of the notions of legitimate and illegitimate slaveries, as well as the identification of just forms of enslavement. These were analyzed in a number of casuistry and moral theology works.
When the first crusaders crossed Europe and conquered Jerusalem in June and July of 1099, they had inaugurated a new phase in God’s plan. The armies of France, Italy and Germany had set in motion events prophesied for centuries, bringing the world closer to the final judgement, the Apocalypse, and thus Christian salvation. As put by Jay Rubenstein:
“On a fundamental level, the First Crusade was a holy war, a style of combat that was, in the 1090s, altogether new: a war fought on behalf of God and in fulfilment of His plan. It did not just provide soldiers with a new path to salvation, a way to use martial prowess to perform good deeds. It also enabled them to fight in battles longer and bloodier than any they had ever imagined. (…) When the survivors returned to Europe and relived their memories, cooler and more educated heads could only agree: They had witnessed the Apocalypse.146” While just war doctrine was used to justify and condone the force of arms, holy war represented God’s sanction of the use of violence in order to advance his intentions for mankind, the progress of salvation history, which is by definition an apocalyptic act147. Holy wars and just wars consist both of distinct kinds of relations to the act of war, but these were the two notions of conflict endorsed by Christian thought. They essentially differed, however, in regard to their goals. On the distinction between holy and just wars, Fredrick Russell writes:
“The holy war is fought for the goals of the faith and is waged by divine authority or on the authority of some religious leader. When the latter is an ecclesiastical official, the holy war becomes a crusade. The crusading ideals is historically bound up with a theocratic view of society, while the just war is usually fought on public authority for more mundane goals such as defense of territory, persons and rights. Content with the achievement of more concrete politic objectives, the just war stops short of countenancing the utter destruction of adversaries and tend to limit the incidence of violence by codes of right conduct,
146 RUBENSTEIN, Jay. Armies of Heaven: The First Crusade and the Quest for Apocalypse. New York: Basic Books, 2011, p. XIII.
147 Idem, p. 343; RILEY-SMITH, Jonathan. What Were the Crusades? Totowa, NJ: Rowman and Littlefield, 1977, pp. 15-17.
59
of non-combatant immunity and by other humanitarian restraints lacking in the holy war. In the holy war Christian participation is a positive duty, while in just wars participation is licit but restricted.148”
Russell warns that the distinction was not so clear in the middle ages. The crusades, for example, consisted in a strange hybrid of holy war and just war, which “encompassed both religious motivations for bellicosity and juridical institutions designed to punish those who offended the Christian religion149”. We would argue that the same was true for the early modern period. The ambiguity present on the way the crusades were perceived was fundamental to advance the theory of just war in later periods, when the discussion of conquest was not directly related to the quest for the holy land. By changing the direction followed by Christian soldiers, holy war became just war: this new legal category allowed Christian wars to be waged anywhere. It allowed the crusade to be evoked whenever political agendas considered it relevant or useful, thus transforming a religious enterprise into a political tool for conflict resolution through now legitimated violent means. As a subsequent product of the conquest of the New World in the fifteenth and sixteenth centuries, slavery also has to be read against this ambiguity between the holy and the profane.
The justification of slavery by just war, one of the main and most impacting innovations of early modernity, was far from being a natural and customary equation – it consisted of the product of a slowly process of rational and legal construction, started as early as the twelfth century. In the wake of the First Crusade, facing the many challenges resulting from the military campaign to the Levant, Gratian systematized the many diverse pronouncements of the Church, or canons, in a coherent code, the Concordia Discordantium Canonum (Concordance of Discordant Canons). As explained by David Corey and Daryl Charles, the Decretum, as it is often referred to, was composed around 1140, and was divided in three sections: Distinctiones, Causæ, and Tractatus de Consecratione. War is more closely analyzed on the second section, Causa 23, which comprises of 163 canons and Gratian’s own dicta. In this period, the main concern for the prelates was whether the Church was allowed to use force against its foes, if it could command secular rulers in military affairs, and what were the limits of the Church’s involvement with these issues. Gratian defines just war based on two Church philosophers: Isidore of Seville and Augustine. Isidore defined that a just war was one waged by a formal declaration in order to recover stolen goods, or to repel an enemy attack. In turn, Augustine defended wars were just when their purpose was to avenge injuries. Gratian combines both into one formula: “A just war is waged by an authoritative
148 RUSSELL, Fredrick H. The Just War in the Middle Ages. London: Cambridge University Press, 1975, p.
2.
149 Idem.
60
edict to avenge injuries.150” This formula would be repeated as the basic definition of just war centuries after the Decretum.
Gratian’s thinking was based on five questions related to the definition of justice of belligerent acts. The issues were the resistance against violence, justifications for resort to war, distinguishing public good and private reasons for war, further differences between the uses of force for public good or private reasons, and whether killing in war was homicide151. But as for one of the central points of the procedural side of the issue, the declaration of war, Gratian considered that just wars could be declared by authorities other than secular ones as well. As Corey and Charles explain, Gratian also considered another definition of just war in his text – wars could be waged to defend a legal right or custom, and not only that, these could be declared by religious authorities. The Church deserved, in his view, the right to punish threats and injuries to its community, that is to say, Christianity. But if a war was not waged with the aim of bringing about a just peace, then it was not legitimate152.
Gratian treatment of the servi was focused around certain specific topics: clerical association with ancillae, Christian serfs held by infidel lords, manumission, fugitive serfs, testament, marriage and others. But his work is characterized by a continuous tension “between the concept of the servus as res and as persona”. The solution proposed by Gratian tends to favor the servant – favore libertatis – to the detriment of the lord’s authority.153 It is clear that, in this period, theologians still were not concerned with the legitimacy of one’s enslavement, neither had they considered that the justice of a conflict should be used to discuss one’s right to own a servant.
Following the work of Gratian, Raymond of Peñafort was one of the major influences on ecclesiastical philosophy in the thirteenth century. Compiler of the Decretals of Gregory IX, Peñafort authored the Summa de casibus poenitentiae, a pioneer confessionary manual. He was an heir of the long discussion regarding the conflict between Christians and Muslims, and his work would influence the later discussion of trade with enemies of Christ. Peñafort considered that servants could become so by two ways: by birth from a mother slave, or by commercial transaction, as when one slave was bought. If the slave was baptized, he would be freed. He dedicates special attention to the intricacies concerning the passage of control – dominium – between Christians, Saracens, Jews and pagans, by repeatedly stating that Christians were not to be subjugated to
150 COREY, David D. and CHARLES, J. Daryl. Just War Tradition: an Introduction. Wilmington, DE: ISI Books, 2012, pp. 67-70.
151 See HASHMI, Sohail H. and JOHNSON, James Turner. ‘Introduction’. In: HASHMI, Sohail H. (ed.). Just Wars, Holy Wars and Jihads – Christian, Jewish, and Muslim Encounters and Exchanges. Oxford: Oxford University Press, 2012, p. 6.
152 COREY, David D. and CHARLES, J. Daryl. Op. cit., p. 70-6.
153 GILCHRIST, John. “The Medieval Canon Law on unfree persons: Gratian and the decretist doctrines c.
1141-1234”. In: Studia Gratiana XIX. Rome: University of Bologne, 1976, p. 277.