Between the fifth and the tenth centuries Europe was in chaos and disorder. Invading armies from Scandinavia, North Africa, and central Asia swept across the continent, "...gutting cities and effacing any semblance of government" in their wake. As a means for seeking security and protection, people turned to local land owners and offered their labors in exchange for safety. This system of obligations, known as Feudalism, became established throughout most of France, England, Germany and northern Italy by the end of the eleventh century. Local land owners and the armies of mercenary soldiers they employed ruled the lives of all who lived under their domain. Law, in the sense of a unified body of accepted legal principles designed to regulate political relations between regions and interpersonal affairs within communities, did not exist at the beginning of the twelfth century. Instead, norms of acceptable behavior and the sanctions meted out for misconduct were established and enforced by the lords of the estates under which people lived and owed their servitude, and the law across Europe was a 'labyrinth' as a consequence.
Nation-states, within which the people of the twenty-first century find their identity and security, did not exist at that time and would not begin to take shape until the rise of Absolute Monarchy in the sixteenth century. Rather, supra-regional authority over the lives of the masses in Europe was housed within the over-arching influence of the Christian religion and the institutions of spiritual and temporal power that guided it; the Roman Catholic Church and the Holy Roman Empire. The vacuum of universal standards for assessing the rights and obligations of mankind within Europe was filled by ecclesiastical decrees, the cumulative body of which is referred to as the Canon Law. With the codification of these decrees in the early twelfth century, Canon Law provided a more coherent body of moral and legal principles under which people should live their lives than any other source of law in Europe at the time, and its influence increased throughout the century.
It would be difficult to over-state the power of religious beliefs during the Middle Ages. The world-view in Europe during this period, and well into the Modern Era, divided humanity into Christian and non-Christian realms. Invasions by the Jews and Moslems into Christian-claimed territories in the Holy Land had prompted the Church in Rome to call upon Christian princes to undertake Crusades of liberation, "...in the name of Christ", against the 'infidels' of the non-Christian kingdoms in the Near East throughout the twelfth century. Many of the land owners that financed the mercenary armies in the feudal system were also members of the clergy within the Church, and owed their primary allegiance to the papacy in Rome. The cumulative effect of these circumstances served not only to assure the military resources to fulfill the calls to Crusade, but also resulted in an increased centralization of power in both spiritual and temporal matters within the hands of the Pope, who sat at the apex of the Church's hierarchy. This would embolden Pope Innocent III to claim what he called the "...God-given, universal sovereignty of the papacy" when he came to office in 1198. No longer confined to the realm of spiritual leadership, he asserted plenitudo potestatis (the fullness of power) in both spiritual and temporal domains.
The assertion of papal authority over temporal matters did not go without challenge within Christendom and the early thirteenth century witnessed an ongoing feud and struggle for power between Pope Gregory IX and the Holy Roman Emperor, Fredrick II. The effect of this struggle was to gradually diminish the power of both and to open the door for other secular monarchs in Europe to assert sovereign title to the territorial regions controlled by their armies against the papal claim of 'universal sovereignty'.
Another effect of the struggle was to see the re-introduction into Europe of Roman Law scholarship. Fredrick II had come into possession of this body of legal principles from the ancient Roman society through contacts in the Arab world of the Near East during the years of his Crusade efforts. With their emphasis on civic responsibility and the good of the state, these principles served to challenge the system of personal obligation owed within the feudal order, both undermining and gradually replacing these relationships. Natural Law, as the ancient legal principles of Rome came to be called, also placed a new sense of priority on questions about the inherent rights of mankind in relation to this world, and subordinated the Canon Law tenets that had hitherto placed the examination of mankind's' rights solely in relation to the after-life and the Kingdom of Heaven.
The claims to universal papal sovereignty, the conflict between Pope Gregory IX and Fredrick II, the Crusades into the Near East, and the influence of Natural Law principles combined to set the stage for the emergence of a debate within ecclesiastical scholarship over the question of the legitimate exercise of power outside the Church and the rights of non-Christians. "Did non-Christians - all those who were extra-ecclesiam (outside the church) - possess natural rights to property? Did their rulers exercise legitimate authority? In short, did unbelievers possess dominium (lawful possession of property and political power)" within Canon Law?
Initial support for the legitimacy of non-Christian rights to dominium came from the arguments of Innocent IV (pope, 1243-1254). Adhering to the generally accepted view in Europe at the time, "...that the entire globe was the property of God and, as such, distributable by the Pope as His delegate on earth," and despite the ideal of universalism that directed political ambitions within Christendom, Innocent "...defended the right of non-Christians to exercise power,..." "On the question of the legitimacy of secular power outside of the church, Innocent IV held that all rational creatures, Christian and non-Christian, had the right under natural law to own property and to exercise political authority in their own lands."
This view was to be challenged by one of Innocent's pupils, Henrico de Segusio (d.1271, generally known as Hostiensis), who was cardinal of Ostia and a leading member of the Sacred College. Although Hostiensis was willing to concede that non-Christians could exercise dominium as a matter of fact, he was not about to recognize that such exercise of power could ever be justified in Canon Law. It was his view that, "...infidels, neither recognizing nor obeying the power and authority of the Roman Church, are not worthy to have kingdoms, government, jurisdiction nor dominium."
Both men attracted contemporary ecclesiastics to their respective points of view. While the majority of canonists came to agreement that "...legitimate authority did exist in societies other than Christian, and that their princes were entitled to rule...", popular belief coalesced in favor of Hostiensis's rights formulation as the intellectual debate moved from the ecclesiastical to the secular intelligentsia. As regional monarchs increasingly challenged the universal authority of the Papacy over the spread of Christianity, "[i]t was the less tolerant of the two traditions which came to prevail in practice: the accepted rule of action was that Christians had a duty to convert the heathen, and if persuasion did not succeed, then force should be used."
It should be noted at this point that the formulations of both schools of thought with respect to this debate occurred at a point in history when Europe and the philosophers and legal scholars of the age had absolutely no knowledge of the existence of the American continents. All of their ideas and attitudes were stimulated through the perceptual lenses of a physical environment that was brutish and insecure against the backdrop of perpetual aggressions exchanged between Europeans and peoples from societies to the Near East. It is quite striking to consider that such a difference of philosophy over human rights should even come to fruition within Canon Law and Christendom during an era when the climate of inter-societal relations was so intensely confrontational.
It is instructive also to consider the large measure of attention that the debate received within the scholarship of the late pre-contact era and the legal consensus that was achieved within the Church's intellectual elite in spite of such conditions. One is left to wonder whether Hostiensis would have drawn the same conclusions were he to have had the benefit of the 'European Enlightment' which was sparked, at least in part, by the intellectual imagery of the 'Noble Savage...living in the state of nature' and served to influence later scholars like John Locke and Sir Thomas More toward visions of democratic and utopian societies.
Hypothetical conjecturing aside, it must be remembered that Hostiensis's views were framed within the confines of Canon Law scholarship. To juxtapose his views on 'infidel' rights to dominium within Canon Law into an analysis of International Law rights, as they have emerged through the Positive Law tradition, suggests the likelihood of manipulation and subjective interpretation. Hostiensis acknowledged the right as a matter of fact (ie: under Natural Law), but denied the right as a matter of law within Christendom. He was not arguing rights within a world where independent nation states, rather than the universal authority of the papacy, dictated the division of power.
It is also a fallacious assumption that the debate was concluded prior to the discovery of the Americas; thus serving to define a custom that had coalesced into an accepted law recognized by all states in Europe as legitimate for defending claims to the acquisition of new territories. A consensus was in fact achieved within Canon Law which gave credence to the right of Aboriginal peoples to possess dominium but, as with many other occasions in humanity's history, when the recognized law stood in contradiction to the ambitions of the powerful and wealthy it was simply subverted and ignored.
The philosophical mood of Europe immediately preceding the Age of Discovery was also shaped by events and circumstances that were independent from ecclesiastical scholarship, and proved to challenge the previously accepted intelligence of societies across that continent. Five distinct elements of fifteenth century European history, when fused together, help to demonstrate how conditions became ripe for the voyages of exploration that began at the end of that century. When considered holistically with the ecclesiastical debate over the rights of non-Christians, they help to shed light on the moral and legal assumptions Christendom (remember, that's Christendom and not the international community) was operating under when the Old World and New World collided.
First, there was the phenomenon of the Italian Renaissance. The resurgence of classical Greek and Roman scholarship that took place on the Italian peninsula at the beginning of the 1400's may be regarded as a period of unprecedented enrichment in knowledge for the societies of Europe during that age. It may also be regarded as the initial stimulant to five hundred years of suffering for the First Nations' societies across the Americas. Of particular significance was the translation in 1406 of a book titled, Geography, originally written in the second century by Claudius Ptolemaeus (also known as Ptolemy). "His text, summarizing the understanding of the earth at the height of the Roman Empire, contained a gazetteer of known places. In an important innovation, it also described a system of references based on a globe divided into a grid of two sets of circles marked off into degrees, the now-familiar coordinates of latitude and longitude. A map of the world as Ptolemy knew it accompanied the text." The importance of these ideas to navigation cannot be overstated. Previously all vessels of the seas had only natural landmarks to guide their navigations by, and this reliance on visual checks assured that ships would seldom stray far from the coastlines of the known world. However, by adopting Ptolemy's system, "...potential explorers not only saw the rest of the world as accessible but also had a model against which they could compare their discoveries." Without the contribution of ideas incorporated from Ptolemy's work, it is quite possible that the Americas might well have remained undiscovered, at least at that point in Europe's history anyway.
The second major influence from the Renaissance period was the incorporation of Aristotle's doctrine of natural servitude ("that some men are by nature free and others servile") into the ongoing debate over the rights of non-Christians to the legitimate exercise of dominium. It would provide the 'out', so to speak, from the accepted principle that infidels did possess such a right within Canon Law by enabling explorers and monarchs of Europe to later claim that the people they came into contact with in the Americas were actually a sub-human species whose barbaric nature placed them outside the protection of Natural Law. That being the case, they could not possibly possess a right to dominium within Canon Law and their lands could be seized from them with impunity. This argument did not achieve unanimous support, and several influential thinkers of the sixteenth and seventeenth centuries would present challenges to its moral tenets. The lack of its validity as accepted custom can also be recognized from the reaction in Europe to the brutality of the Spanish explorers, which resulted in La Leyenda Negra (The Black Legend). I will return to examine these counter-arguments as their significance to claims of sovereignty in the New World and their impact on the Law of Nations became pronounced. It is of import at present merely to identify the birthplace of an idea that was to provide later monarchs and explorers with a paradigm that could serve to rationalize the suppression and extermination of Aboriginal peoples when the day came that they encountered one another.
Secondly, it should be recalled that the Law of Nations within a Natural Law paradigm, and not International Law as understood from within the Positive Law paradigm that emerged gradually through the nineteenth and twentieth centuries, was the frame of intellectual reference.
The third, fourth and fifth elements are intertwined. During the fifteenth century Europe experienced a population increase. There was also an increased appetite for luxury items, particularly in spices provided to Europe through Constantinople, and the Asian trade networks of the Byzantine Empire. When, during the closing years of the century, the Byzantine Empire collapsed under the strength and expansionism of the Ottoman Empire, Europe found its luxury markets and trade routes threatened. The Ottomans, "...who were fierce proponents of Islam, ...and virulently anti-Christian..." now firmly controlled "[t]he old channels of trade that passed from Asia to the Middle East and the eastern shores of the Mediterranean Sea..." With the Ottoman Empire now in control of the terms of trade, it was essential for Europe to increase its efforts to find a western passage by sea that would give them direct access to the markets of the Orient. Had the 1,000-year-old Byzantine Empire not collapsed, it is very questionable whether Christopher Columbus would have persuaded King Ferdinand and Queen Isabella of Spain to finance his explorations. It is much more likely that he would have been rebuffed, as he was by King Afonso V of Portugal during the eight years he spent endeavoring to convince the Portuguese monarchy to back his outlandish scheme, from 1476 to 1484.
Speculation aside, the fact is that he did make those journeys of exploration for which he has become so famous, and with him came the motivations and mentality of a European society that was in transition to new legal paradigms for the definition and utilization of guiding tenets for both life and the law of their Age. Far from achieving any measure of consensus on legal customs for regulating inter-regional territorial claims, local self-interest ruled the day. It was an era when the rules of politics were determined by the adage, 'might is right', and when the acquisition of new territories, the development of new trade routes, and the accumulation of new sources of wealth became the cornerstone of ambitions toward self-government and self-determination for monarchical communities vis-a-vis the centralized authority of the Roman Catholic Church and the Papacy.
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