The next references Las Casas makes to civil law are in the Rule IX.  He begins his critique of the illegal enslavement of the Indians by citing Franciscan philosopher and theologian Richard of Middleton to condemn this practice in Americas.[1]  In this condemnation he is referring to those enslaved Indians who were later sold to somebody else.   Citing Richard, Las Casas asserts that the penitent is obliged to repurchase them at whatever price.  If he is unable to redeem them because he lacks the means, the penitent must make himself a slave in order to free the one unjustly enslaved.[2]  Related to the taking of slaves in the case of war, Las Casas leaves very little room to consider that any of the Indians are enslaved as the result of a just war:

And a similar judgment can be made concerning those that were purchased from Indians, since scarcely shall [an enslaved Indian] be found that ought to be considered truly a slave according to [civil] law.  [However], if someone should be considered truly a slave or taken in wars that the Indians had among themselves or by their just laws, then what I am saying is not understood concerning such a one.[3]

Here he leaves only one reasonable possibility for the enslavement of Indians, those taken in just wars that the Indians wage among themselves.  In the mind of Las Casas, the Spanish conquest is not a just war; therefore those Spaniards who might argue for the taking Indian slaves in a “just war” do not have a valid argument.

The final two references to civil law are in Rule X and Rule XI.  In Rule X, Las Casas refers to the husband’s right by law to the administration of the hacienda.[4]  In this example he does not provide any specific laws, but he only offers general legal references; but property would be treated under civil law.  Rule X refers to merchants who sold arms to conquistadors.  Here Las Casas says these merchants should have questioned the justice [the legality] of the wars of conquest, those conducted with the arms they sold to the conquistadors.  He goes so far as to say that these merchants are obligated to pay restitution for the monies they earned in selling arms to conquistadors, even though they themselves did not carry these arms.   The obligation to pay restitution is the consequence of a commercial transaction between the merchants and conquistadors.[5]

4.  Natural Law

Natural law is a body of laws that are derived from nature and believed to be binding upon human actions apart from laws established by human authority.  These laws are assumed to be permanent characteristics of human nature and therefore can serve as a standard for evaluating human conduct and human law, since they are considered fundamentally unchanging and universally applicable.  Natural law is contrasted with positive law which concerns what a civil society enacts to govern itself.[6]

Las Casas makes one direct reference to natural law in the Doce Reglas.  In Rule VII he clusters three principles together (natural law, law of nations and divine law).  It is his contention that all the atrocities committed by the Spaniards against the Indians are contrary to these laws:

The reason for this rule is two-fold: first, because all the things that were done throughout the Indies with the entrance of the Spaniards into each province.  They placed these peoples in bondage and slavery, using every means and ends [available].  All this was against all natural law and the law of nations, and also against divine law.  Therefore, it is entirely unjust, iniquitous, tyrannical and deserving of all eternal fire, and, consequently, null, invalid and without any value and weight from law.[7]

Las Casas is arguing that these actions are contrary to the natural way in which humans should relate to each other.  That is, the violent actions done by the Spaniards, against the Indians, are contrary to universally acceptable norms of human behavior.

2. Adición de la Primera y Quinta Reglas

a.        Principles

As mentioned, Las Casas wrote the Adición de la Primera y Quinta Reglas in response to the criticism he received for obligating confessors to demand that penitents pledge to make restitution.  In this second half of the Confesionario Las Casas refers to the same principles that he uses in the Doce Reglas (divine law, canon law, civil law and natural law).  However, in the Adición he changes the order of their presentation as follows: canon law, natural law, divine law and civil law.

Notes

[1] Las Casas draws from Ricardus de Mediavilla’s (1249-1308?) primary work, his commentary on the Sententiae of Peter of Lombard.  Richard of Middletown  (A Media Villa) flourished at the end of the thirteenth century.  Middleton Stoney in Oxfordshire and Middleton Cheyney in Northamptonshire have both been suggested as his native place, and he has also been claimed as a Scotsman. He probably studied first at Oxford, but in 1283 he was at the University of Paris and graduated Bachelor of Divinity in that year. He entered the Franciscan order. In 1278 he had been appointed by the general of his order to examine the doctrines of Peter Olivus, and the same work was again engaging his attention in 1283. In 1286 he was sent with two other Franciscans to Naples to undertake the education of two of the sons of Charles II, Ludwig, afterwards a Franciscan, and  Robert.  After the defeat of Charles by Peter of Aragon the two princes were carried as hostages to Barcelona and Richard accompanied them, sharing their captivity till their release in 1295. The rest of his life lies in obscurity. A new point of interest at the present day lies in the fact that, medieval scholastic though he was, he knew and studied the phenomena of hypnotism, and left the results of his investigations in his Quodlibeta (Paris, 1519, fol. 90 8) where he treats of what would now be termed auto-suggestion and adduces some instances of telepathy.  His works include Super sententias Petri Lombardi, written between 1281 and 1285, and first printed at Venice, 1489; Quaestiones Quodlibetales  at Oxford and elsewhere; Quodlibeta tria printed with the Sentences at Venice, 1509; De gradibus formarum at Munich; and Quaestiones disputatae at Assisi. Other works which have been attributed to him are: Super epistolas Pauli; Super evangelia; Super distinctiones decreti; De ordine judiciorum; De clavium sacerdotalium potestate; Contra Patrem Joannem Olivum; a poem, De conceptione immaculata Virginis Mariae; and a sermon on the Ascension. There are numerous works erroneously ascribed to him, among them are a treatise on the rule of St. Francis and the Quadragesimal. The Catholic Encylcopedia, 1912 ed., s.v.  “Richard of Middleton”, by Edwin Burton.