The practices of slaving in the medieval and early modern Mediterranean were sorely neglected by historians for a long time. Where medievalists traditionally focused on the Black Sea region and the late Byzantine empire, scholars of early modern slavery directed their attention to the rise of Atlantic slavery. The last two decades, however, have seen a veritable boom in studies on Mediterranean contexts of enslavement, which is part and parcel of the growing attention to the history of Europe’s colonial entanglements.1 The geographic and cultural diversity of enslaved persons in late-medieval cities like Barcelona, Genoa, Venice, or Palermo is impressive. There were Tartars, Circassians, and Abkhazians from the Black Sea region; enslaved Bosnians and Serbians—mostly children or adolescents—whom the Ottomans had taken captive in the Balkans; Muslims from the Iberian Peninsula and the Maghreb; and, increasingly, enslaved Canary Islanders and West Africans.2
One of the best-studied contexts of slavery is the trade in enslaved persons from the Black Sea region between the 13th and 15th centuries. This commerce rested on what Hannah Barker has described as “assumptions and practices that amounted to a common culture of slavery”.3 Christians enslaved Muslims and vice versa, but Latin Christians also captured Orthodox Christians as slaves, and Muslim Arabs subjected Muslim Turks to servitude.4 Commercial relations flourished across religious boundaries. Genoese merchants in control of the Crimean city of Caffa, “an emporium for slaves”, supplied the Mamluk Sultanate of Egypt and Syria with human commodities.5 Yet Italian traders were not just intermediaries in the service of North Africans, for they also pursued their own interests as slavers in the Black Sea.6 During the heyday of the Venetian empire in the first half of the 15th century, Venetian merchants transported numerous enslaved people into the Mediterranean from places as far away as Tana in the Sea of Azov to Trebizond, in what is now northeastern Turkey. It was only in the wake of the Fall of Constantinople (1453) and the subsequent Ottoman conquests of Trebizond and Crimea that the Italians were eventually pushed out of the Black Sea region.7
The aftermath was not, however, a straightforward turn from Eastern Europe to West Africa. The rise of Atlantic slavery from the mid-15th century coincided with increasing incursions into North African territories.8 These raids extended practices familiar from the conflicts between Castile and al-Andalus on the Iberian Peninsula—the so-called Reconquista, or Reconquest.9 But enslavement was not unidirectional. As Robert Davis has shown, Maghrebian enslavement of Christians alone “out-produced the trans-Atlantic trade during the sixteenth and into the seventeenth century”.10 The Mediterranean became a zone of intense activity of corsairs from various ethnic and religious backgrounds. Pirates of all persuasions raided ships and coasts, and “carried off thousands of slaves each year”, as David Abulafia points out.11 At the same time, the Ottoman empire was on the rise. Its fleet moved into the Western Mediterranean and most Maghrebian kingdoms, except for Morocco, came under indirect Ottoman control. The ensuing wars with Christian powers led to large numbers of captives on all sides.12
As a consequence, Iberian cities like Barcelona, Valencia, or Alicante became important Iberian centers for the trade in Mediterranean slaves in the 16th century.13 Granada was another city with a substantial population of enslaved persons. As Aurelia Martín Casares has shown, two-thirds of the slaves from Mediterranean wars and piracy who ended up in Granada were female.14 This astonishing fact is largely due to the gendered nature of warfare, as Martín Casares argues. While men were engaged in belligerent activities and often died in battle, women and children were in turn the “principal booty of war”.15 Yet the best-remembered Maghrebian captive in Christian hands is a man, Leo Africanus (c. 1486–?), the former envoy of the Sultan of Fez, who was captured by pirates on the Mediterranean and eventually became a close diplomatic advisor to Pope Leo X. (in office from 1513–1521).16
The vast majority of Muslim captives in Christian hands, however, ended up serving perpetually as galley slaves. In Iberian and Italian ports alike, they equipped the triremes alongside those forced into that task as a form of public punishment. Ottomans and Maghrebians, by contrast, primarily captured Christians to sell them for a price.17 This Mediterranean ransom economy generated close-knit webs of exchange across religious boundaries, with crucial players such as Christian orders like the Trinitarians and the Mercedarians, as well as the Roman Confraternity of the Gonfalone.18 What is more, this practice not only cut across religious divides, but also applied to many ordinary people.19 It was not just a privilege reserved for noblemen like Miguel de Cervantes (1547–1616), the author of Don Quixote, who spent five years in captivity in Algiers.20 The mission to redeem captured compatriots was also a welcome opportunity for merchants to circumvent the prohibition of commerce with religious enemies.21 But importantly, Iberians invested in privateering similarly made “huge profits” by selling captives they had raided on the shores of North Africa, even when these people were not ransomed back to their native cities but sold off as slaves.22
Many issues recent scholarship has brought to light, particularly on enslavement in the early modern Mediterranean, also preoccupied theologians and jurists at the time.23 Yet while court cases, purchase contracts, or baptismal records have been extensively studied by social and legal historians, the same cannot be said of the Iberian imperial theorists’ accounts of slaving.24 By turning to the works of Spanish and Portuguese intellectuals, this study revisits some of the central themes in recent scholarship, while also proposing new lines of inquiry that enrich our understanding of early modern slavery.
1 Theoretical Foundations: Natural Law, the ius gentium, and Civil Slavery
The natural law discourse owes its name to the central importance that early modern theologians and jurists accorded to the law of nature. The Iberian intellectuals inherited this framework from Aquinas, and agreed with the traditional Thomist understanding that, as Luis de Molina put it, natural law “is the intellect by which we separate and judge the things that are good by their own nature from the things that are bad by their own nature”.25 Some insisted that God not only imprinted the law of nature on the hearts or minds of humans but also on all natural things.26 In the most pronounced articulation of this position, Domingo de Soto maintained that, as a consequence, all the beings on earth possessed natural rights to the extent that they followed their natural inclinations. This overlap between humans, animals, and nature at large reflected the original hierarchy and connectedness of laws in Aquinas. But all the Iberian theorists, including Soto, agreed that natural law in a narrower sense was a uniquely human affair.27 It formed the God-given foundation of dominium: the capacity to act willingly, reasonably, and morally, which rendered humans free. Liberty, in this sense, distinguished the crown of creation from the rest of nature, which operated through instinct rather than moral choice.28
The notion of natural slavery as chattel slavery was problematic from a Thomist point of view because it contradicted the conviction that all human beings were naturally free by virtue of being made in the image of God. As Francisco de Vitoria stressed in the De indis, his lecture on the Indigenous peoples of the New World, “Aristotle does not suggest that natural slaves are by nature of someone else’s right and did not have dominium over themselves and other things. This, in fact, is civil and legal slavery”.29 This distinction was echoed by all Iberian thinkers writing in Vitoria’s vein.30 Luis de Molina even went as far as to suggest that natural slavery “is inappropriately called slavery, since it does not bestow on others a right over such human beings”.31
Legal enslavement was a consequence of the ius gentium, the body of law that governed the passage from Eden to the post-paradisal world. Domingo de Soto explained the necessity for this novel legal framework as follows:
Let us restate this natural principle: Human life must be held out and preserved in peace and tranquility. Therefore, considering the other premise that after the corruption of nature it would not be possible to live in common and to cultivate the fields diligently, and neither to live in peace, the peoples [on earth] brought about the division of these possessions.32
In a world no longer in its pristine condition, the division of things was essential so that humans could pursue their natural end. This was also emphasized by Luis de Molina. To maintain peace and to impose justice in the wake of original sin, he explained, “it became necessary to introduce the dominium of jurisdiction with a certain coercive force”.33 And in the further course of sacred history, once human beings had multiplied and spread across the earth, “it became necessary that this dominium be divided and that rulers were set up to govern the various provinces, cities, and peoples”.34
The new reality not only required divided political power, for the prospect of peace also hinged on the division of what had once been collective ownership of the movable and tangible things on earth.35 In technical terms, this too was a division of dominium, a term that signified both mastery and property. If human beings were capable of owning and governing their own actions, the Iberian followers of Aquinas argued, they were likewise capable of possessing external things and ruling over other human beings.36 In this sense, dominium denoted a set of interlocking phenomena: human freedom, private property, and political power.
The notion of dominium was closely related to right (ius). Molina defined the latter as “the faculty to do or possess anything, or to hold on to it, or to have it in any other way, so that if it is counteracted without a legitimate cause, the possessor suffers an iniuria, that is, his or her right is violated”.37 Like Vitoria and Soto before him, he understood subjective right as a “faculty” of the individual. Scholars have shown that there was some disagreement among the Iberian theologians as to whether dominium and right were the same or whether one was prior to the other.38 For the purposes of this study, however, the more important point is that all the Iberian imperial theorists insisted on a close association between dominium and right, and sometimes used these concepts interchangeably.
1.1 The Idea of Civil Slavery
Civil slavery was intimately connected to all of this. Enslaved persons were subject to the dominium of somebody else. Vitoria, as we saw above, stressed that slaves were not their own but alieni iuris; they belonged to the right of another.39 One crucial consequence of this was that “the modes by which the dominium over a slave is transferred to other human beings are the same as those by which the dominium over other things is commonly transferred, namely by selling, exchange, donation, by a will, etc.”, as Molina pointed out.40
Enslaved persons lacked the right to govern themselves and were deprived of their natural liberty. Slaves, in this sense, found themselves in an unnatural condition. Yet the Iberian theorists were keen to explain that enslavement did not contradict the law of nature for that reason. Domingo de Soto referred to Aquinas to underscore the difference between what was natural in Eden and what was natural after the Fall. As a consequence of original sin, punishment—including legal slavery—was introduced into the world, and this was “in accordance with corrupt nature”.41 The Augustinian Miguel Bartolomé Salón (1539–1621)—a now-forgotten professor at the University of Valencia, who wrote a treatise on justice and right like Soto before and Molina after him—similarly argued that “legal slavery is not by nature, but neither incompatible with nature; on the contrary, natural reason itself admonishes all humans that it is licit if it will be necessary to the preservation of life”.42
Like other matters and entities regulated by the ius gentium, civil slavery was a consequence of the Fall. It thus belonged to a world in which human relations were no longer pristine, and in which it was possible to lose one’s freedom. This was also underlined by Francisco Suárez, one of the most prominent Iberian thinkers. Suárez did not offer a comprehensive treatise of slavery, leaving only scattered remarks on this theme across his many writings.43 But one of these is particularly illuminating. In his Defensio fidei of 1613, a polemic against the validity of James I of England’s Oath of Allegiance of 1606, he put forward a powerful justification of enslavement. “Natural law”, he argued,
does not teach that every human should always be free, and (what is equally so) it does not absolutely prohibit that a human being may be enslaved, but only that this must not be done without his or her free consent, or without a just title and power.44
In the face of the Catholic insistence on God-given freedom, this was a remarkable thing to say. And yet, Suárez put forward a rhetorically forceful iteration here of a dictum shared by all the Iberian thinkers: even if the condition of the slave was not natural in itself, the process of enslavement could nevertheless be in accordance with the law of nature, provided it was properly regulated. Under certain conditions, both the voluntary act of self-submission and a set of legal mechanisms licensed the loss of human freedom.
1.2 Enslavement in “Just Wars”
The most fundamental of these so-called “titles” of slavery was a direct consequence of the ius gentium. It centered on the idea that in a “just war”, it was permissible to enslave one’s enemies. As Vitoria noted in his lecture “On the Law of War” (De iure belli, 1539), this dictum dated back to Roman law, “where it is stated that ‘by the law of nations (ius gentium) all booty taken from the enemy immediately becomes ours, to the extent that even free men may be taken into slavery by us.’ ”45 The ius gentium not only regulated the division of jurisdiction and property but also sanctioned wars. This idea, rooted in the Digest, was a commonplace in early modern Iberian discussions of civil slavery.46
Domingo de Soto, along with later Jesuits like Luis de Molina or Juan de Lugo, emphasized the intimate nexus of enslavement and war by invoking an etymological account from Florentinus in the Digest and Justinian’s Institutes: enslaved persons were called servi from the verb servare, because they had been saved by their enemies from a just death in war. What is more, these slaves were also called mancipia because they had been captured by hand, manu capta.47 The idea of enslavement in “just wars” thus centered on a specific mode of protection: it was a commutation of the right to kill into the right of perpetual servitude.48
This testifies to the inherent complexity of how Iberian theorists understood the ius gentium. As shown above, this legal framework governed human relations in the postlapsarian state and was designed to mitigate the consequences of the Fall—chief among them, the need to preserve peace. And yet, at the very heart of the law of nations lies war as the foremost consequence of the division of things, which brought armed conflicts into being. The individual issues regulated by the ius gentium were no longer perfect in themselves; yet without it, as Molina emphasized, there would be “nothing that would remedy human nature sufficiently”.49 And it was precisely this line of reasoning that also licensed slavery in wars: even though enslavement was neither natural nor good in itself, it was “introduced for the good of the slaves themselves, since perpetual servitude is a lesser evil for them than to be deprived of life”.50
Although the ius gentium was universally valid, Iberian thinkers stressed that there was no such slavery among Christians. This position was already clear in Francisco de Vitoria’s commentary on Aquinas’s Summa. In his discussion of the Thomist hierarchy of laws, Vitoria pointed out that the ius gentium “can be partly abrogated” and that Christians had agreed not to enslave fellow believers captured in war.51 Even more forcefully, Vitoria argued in his lecture “On the Law of War” that “it is not lawful to enslave fellow-Christians, at any rate during the course of the war”.52 This became a standard position endorsed by all the Iberian theologians and jurists.53 The abolition of “just war” slavery among Christians had been introduced by human agreement, but it was considered permanently binding.54
But where did this idea originate? The most comprehensive answer was offered by the Salamanca-educated jurist Gregorio López (1490–1560).55 López was appointed to the Council of the Indies at the height of his career (1543–1556), and he also wrote an influential gloss on the Siete Partidas. Originally commissioned by King Alfonso X. (r. 1252–1284) during the Spanish “Reconquest” of the Iberian Peninsula, the Partidas formed the foundation of Castilian civil legislation until the end of the colonial period.56 But it was Gregorio López’s extensive commentary from the 16th century that made the late medieval law code particularly useful for early modern readers.57 His gloss, featured in every edition of the Partidas after it was first published in 1555, interpreted the law code through extensive references to Roman and canon law, as well as the opinions of jurisconsults and theologians. One of López’s interventions concerned the validity of enslavement in “just wars”. Like Vitoria, he insisted that “the laws regarding the captivity of persons captured in war are not kept among Christians”.58 Instead, López explained, captives from another Christian commonwealth were detained in prisons.59 He made this point with reference to the Renaissance Roman lawyer Bartolomeo da Saliceto (1330–1412), who had discussed the matter in his extensive commentary on Justinian’s Codex.60 The Christian abolition of “just war” slavery was a medieval idea that cast a long shadow.61
In many ways, the Iberian imperial theorists associated enslavement with Christian wars against “infidels” and with wars between non-Christian polities. The Jesuit Tomás Sánchez (1550–1610), “a luminary of the Spanish Golden Age most noted for his contributions to the moral theology and canon law of marriage”, explained why.62 The Christian custom of non-enslavement, he argued, was a consequence of “charity, which is common to all Christians through Christ”.63 This mindset was shared by all the Iberian thinkers. It colored their understanding of the Mediterranean wars between Castilians and Ottomans, as well as their accounts of Portuguese naval ventures in the Atlantic and Indian Ocean worlds. But before we turn to these contexts, we shall see that the issue of “just war” slavery was also at the heart of the greatest controversy over slavery on the early modern Iberian Peninsula.
2 War and Punishment in Castile
One of the most heated political issues in 16th-century Spain was the uprising of the formerly Muslim population of Granada.64 The origins of this conflict date back to the Castilian subjugation of the last bastion of al-Andalus, the Nasrid Kingdom of Granada. But only much later did the so-called “Moorish New Christians”—as the forcibly converted Muslims were known in Castile’s administrative language—experience a drastic change in their status within the Catholic monarchy.65 In the wake of the Council of Trent (1545–1563) and the counter-Reformation, and with the ascension of Philip II to the throne in 1556, the Natives of Granada came under increasing political pressure. The crown had previously tolerated the cultural and religious practices of the converted Christians in exchange for special taxes. But under the new monarch, this kind of patronage and protection ended abruptly. Philip II’s suppression of their privileges rested on the conviction that, as Stephanie Cavanaugh writes, “[c]onversion was a process greater than baptism”, it was “a lengthy and contested project of subject making and an instrument of royal power”.66 Due to these circumstances, a group of leading Granadans called on their community to revolt against Castilian authorities in 1568. From their perspective, the act of rising up against the king and his troops was driven by “a political theology that sought to resist and transform the Christian sociocultural and political system that Moriscos deemed oppressive but that they also construed as divine punishment for deviating from the right path”.67 After two years of bloody warfare in the mountainous Alpujarra region, the king’s troops succeeded in suppressing the revolt. As a result, about two-thirds of the surviving Moriscos—as the Granadans came to be called after their revolt—were deported to other Spanish areas and more than 30,000 people were enslaved.68
In his History of the Rebellion and Punishment of the Moriscos of the Kingdom of Granada (1600), the chronicler Luis del Mármol Carvajal (1520–1600) explained that the question as to whether the revolting Moriscos were justly enslaved had been contested from the outset. “For although the general law permitted that enemies captured in war be enslaved”, he wrote, “this was not to be understood as such among Christians; and because the Moriscos were Christians—or had, as they did, that name—it was not just that they be captured”.69 In Mármol Carvajal’s eyes, the customary abstention from slavery in inner-Christian warfare ought to have protected the Moriscos from their ill-fated trajectory.
2.1 Slavery in the Christian Commonwealth
The very nature of the Morisco rebellion was, however, far from straightforward. Was the Guerra de Granada a war at all? An influential answer to this question came from the pen of Diego de Covarruvias y Leyva.70 In 1527, the year after Vitoria had been appointed to the prime chair in theology at Salamanca, Covarruvias began his education in Roman and canon law at the same university. He studied under Martín de Azpilcueta and attended courses in theology with Vitoria and Soto. Before long, Covarruvias himself became a professor of canon law at Salamanca. And in one of his lectures in the late 1540s, he reflected on the question of what distinguished rebellions from wars.
Covarruvias was writing well before the uprising in the Alpujarras. He addressed the issue from a theoretical point of view, in a commentary on Boniface VIII’s (in office from 1294–1303) regula iuris that no sin could be dismissed unless restitution was made, the so-called regula “peccatum”.71 As Covarruvias put it in the published version of his lecture, those who classified a domestic conflict under the heading of war were mistaken. A rebellion was not, properly speaking, a war but rather “the execution of jurisdiction and punishment”, Covarruvias maintained.72 In so arguing, he followed the opinion of Pope Innocent III (in office from 1198–1216), whose authoritative opinion had entered the Liber Extra (completed in 1234) and thus become part and parcel of one of the most important works of late-medieval canon law.73 The consequence of this redescription, according to Covarruvias, was that “those captured in a rebellion are not made the slaves of those who captured them”.74 It was impossible, he insisted, for a prince to enslave his own people. Malefactors of this kind had to be punished otherwise.
But not all the Iberian theorists agreed with this dictum. In his De iustitia et iure, Luis de Molina underscored that apart from the enslavement of the vanquished in warfare, another valid “title” of slavery was “if anybody, on account of a crime, is condemned to the punishment of slavery by someone who has the power to do so, if the crime is worthy of such punishment according to prudent judgment”.75 The reasoning Molina deployed here cast slavery as an intrapolitical affair. It brought enslavement into the commonwealth and was servitus civilis in quite a literal sense: slavery under the civil law of a particular polity.76 Salamancans like Domingo de Soto had not mentioned the existence of such a title and tacitly aligned themselves with Covarruvias’s view. The idea of slavery as a punishment for crimes entered the Iberian natural law discourse only in the second half of the 16th century. As a form of enslavement principally identified with the laws of West African commonwealths, it loomed large in Iberian accounts of the Portuguese slave trade.77 Luis de Molina, however, was keen to underscore that slavery by public authority was not just an extra-European issue:
After in previous years those people in the kingdom of Granada, who descend from the Saracens, had apostatized—or, rather, revolted through the open manifestation of an apostasy that they had always had in their hearts—they were deservedly punished for their apostasy and rebellion by perpetual slavery, and the baptism they had previously received could by no means prevent their condemnation.78
In Molina’s view, there was no doubt that the rebellion and apostasy of the Moriscos constituted crimes that warranted their enslavement. The Jesuit thus offered a retrospective vindication of what had, in fact, happened.
A more contentious issue, however, was whether the punishment of slavery could also be applied to the children of those who were actively involved in the upheaval. King Philip II commissioned a junta with the most prominent jurists of the Real Audiencia, Granada’s administrative court, to resolve this issue. The outcome was a decree issued in 1572, in which the monarch stipulated that boys under the age of ten-and-a-half years and girls younger than nine-and-a-half years were exempt from slavery.79 Philip II sought to preserve the liberty of the offspring of the Granadan rebels, even if he “required them to remain in the custody of their former masters in the capacity of servants until they reached the age of majority”.80 The primary rationale for this decision was to promote their integration into Catholic society, once they were separated from their “apostate”—and enslaved—parents. Yet the legal prohibition of driving minors into servitude was routinely ignored in practice. As Aurelia Martín Casares argues, “this exemption was not respected by the Old Christians, who bought and sold Morisco children, above all girls, without any scruples”.81
In the intellectual debate that followed in the wake of the Guerra de Granada, the question arose as to whether the king could have enslaved Morisco minors. It was a question about the limits of political power and the moral boundaries of princely rule.82 In Molina’s estimation, the apostasy and revolt of the Moriscos constituted such grave sins and crimes that both the parents as well as their innocent children could licitly be enslaved by public authority, because, as he wrote, “this punishment is expedient for the common good of the commonwealth and the deterrence of others”.83 He supported this claim with a reference to medieval canon law: “For the same reason”, he explained, “children from marriages with clerics, who were ordained to sacred offices, are subjected to slavery”.84 In the face of the notable absence of any locus in Roman law by which the civil punishment of slavery could be legitimated, canon law appeared to be Molina’s only means of establishing a legal analogy to underscore the validity of his claim.85
Yet Molina also offered an additional rationale for why it was licit to enslave the children of rebellious subjects, even though they were innocent. He did so by comparing the punishment of rebels to the dictum that “the offspring follows the womb”, partus sequitur ventrem—the idea that the children of enslaved women inherited the servile condition from their mother. This principle, as Molina explained, was well-established and rooted in various commonplaces in Roman and canon law.86 And while the cities on the Italian peninsula and their colonies in the eastern Mediterranean had turned away from it, as Sally Mckee has shown, in the Iberian empires it was preserved with reference to the Siete Partidas.87 More importantly still, the idea that enslaved women gave birth to slaves had also been endorsed by Thomas Aquinas. In his commentary on Peter Lombard’s Sentences—a text that will be at the heart of Chapter 4 of this book—Aquinas argued that slavery was a “bodily condition” bequeathed by the mother, from whom children inherited “the substance of the body”. The father, by contrast, passed on only his dignity and honor to the child, the “formal complement” to the body.88 The rationale of Roman and canon law, Aquinas concluded, was therefore consonant with reason.89
But what did all of this have to do with the offspring of the revolting Moriscos? Molina’s point was to show that if mothers could pass on the punishment of slavery to their children at birth, then the same logic could justify enslaving children who had already been born because they were still their mothers’ offspring.90 It was, in other words, another analogy through which Molina sought to prove his point. What this actually entailed was later elucidated by Estevão Fagundez, one of the most important Portuguese imperial theorists of the 17th century. Having studied at Évora and Coimbra, Fagundez held a range of chairs at different Portuguese universities, with his longest appointment in Lisbon. In his De iustitia et contractibus of 1641, he closely followed Molina’s line of argument, explaining that
[…] this is so because to enslave the children of the Moriscos is not a punishment directed against the children themselves, but a punishment directed against the parents, who are punished in their limbs or parts […] that is, in their children. For they are children, as long as they remain under the power of their parents.91
2.2 The Iberian Peninsula as a Space of War
Molina had brought the civil punishment of slavery into the Christian commonwealth, but he was cautious not to push this argument too far. At no point did he, nor any of the Iberian theorists, suggest that slavery should be a public punishment for Christians—not even for the much abhorred “heretics” who followed Luther’s sect, as Molina asserted.92 In the end, therefore, he offered an alternative justification for enslaving the Moriscos:
[…] in reality, at the moment when they began to rebel they immediately elected a king and, together with their children who were with them, they formed a hostile commonwealth under their prince, and the Spaniards, therefore, had a just war against this whole commonwealth, and not against them as individual malefactors.93
By slipping into the discourse of “just war”, Molina redescribed the Granada rebellion as an actual Guerra de Granada. From this perspective, the Moriscos were no longer internal criminals but external enemies: they were members of a hostile Muslim kingdom, against which the Spaniards had waged war under the full authority of the ius belli. Although the Moriscos had never left the southern part of the Iberian Peninsula and physically remained, in that sense, in the same place when they began to revolt, the political boundaries were fundamentally re-drawn by Molina. This vividly demonstrates that, in the early modern natural law discourse, the civitas or “state” was a metaphysical rather than a purely physical place.94 In Molina’s estimation, the Moriscos had formed not only an enemy commonwealth but also one fundamentally opposed to the Christian faith. And it was for this reason that they could be enslaved without qualification.
Fernando Pérez (c. 1530–1595), another Spanish Jesuit and Molina’s colleague at the University of Évora, disagreed.95 Writing in the later 1580s, Pérez maintained that the Moriscos had been enslaved as “criminals” rather than as enemies in a “just war”.96 This is noteworthy because Pérez is sometimes cited as an important influence on Molina’s understanding of slavery.97 But the documentary evidence we have suggests the opposite. In two letters from 1582 and 1584, Molina complained about Pérez to the Jesuit Superior General himself, Claudio Acquaviva (1543–1615). By that time, Molina had completed the lectures that formed the basis of the first volume of his De iustitia et iure, and he accused Pérez of plagiarism.98 Molina claimed that Pérez had plotted to appropriate his material on justice and contracts for use in the classroom, with the intention of eventually publishing it under his own name.99 In the end, Molina’s fear did not materialize, as his own treatise made it to publication, while Pérez left only manuscripts. But the rivalry between the two remains remarkable. They never cited each other, and when it came to issues of slavery, they had significant disagreements—not just in this case, as we shall see.
Molina’s insistence that the Moriscos’ children could have been legitimately enslaved also marked a tacit disagreement with the Dominican Domingo Báñez (1528–1604), his fiercest rival in the controversy over free will. Less than a decade before the publication of Molina’s treatise On justice and right, Báñez had argued that Morisco minors had justly been exempt from slavery. Like all the members of their community who had not actively opposed the king’s authority, children rightly kept their liberty. For Báñez, this limitation was in accordance with the law of war. Yet in fact, he insisted that rebels were to be punished as individual malefactors, thereby insinuating that their enslavement was a matter of civil punishment rather than the outcome of a war against another commonwealth.100
In his somewhat convoluted account that blurred the boundary between war and punishment, Báñez failed to address how his argument about a limited right of enslavement in war related to the authoritative opinion of his fellow Dominican, Francisco de Vitoria. As the latter had stressed in his lecture De iure belli, in the “just wars” of Christians against Muslims, “it is not to be doubted that we may lawfully enslave the women and children of the Saracens”.101 Even though they were free of any guilt and could not be justifiably killed, as Vitoria stressed, “when the war is such that it is lawful to plunder all the enemy population indiscriminately and seize all their goods, it must also be lawful to enslave them all, guilty and innocent alike”.102
Luis de Molina drew on precisely this reasoning. He argued that blameless children belonged to the enemy’s body politic and could be punished like any other member of that polity.103 And since the Moriscos had fallen from the faith, no barrier hindered the Spaniards from enslaving them indiscriminately, in the same way that Christians had always captured the children of Turks and Saracens in “just wars”.104 In that sense, the ideological justifications for the enslavement of the Moriscos were deeply intertwined with the ideology of the “holy war” of Christians against Muslims.
Yet the writings of Iberian theorists also reveal that the conflict over Granada was more complicated than a simple war. The question of whether the Moriscos were inside or outside the commonwealth, whether they were rebels or enemies, was a thorny issue—and not an entirely new one. Since the late 13th century, the relationship between Granada and Castile had been marked by truces and broken treaties. The Morisco uprising represents one episode in the long history of a tenuous alliance, in which violence was justified as peacemaking and directed against people positioned precariously between subjects and enemies.105 This was precisely how Miguel Bartolomé Salón captured the complexity of the matter. Granadan membership in the Spanish body politic, he argued, had always been fraught and never final. When rebellion broke out, the state of war was immediately reinstated, allowing the Spaniards to justly enslave the Moriscos.106
∵
In the mid-17th century, another Iberian theorist, the Spanish Jesuit Juan de Lugo, who was “strongly influenced by Luis de Molina” added his own perspective to the debate.107 A trained philosopher and canon lawyer, Lugo became a professor of theology and held positions at Valladolid and Salamanca before being appointed to a chair at the prestigious Jesuit Roman College in the early 1620s. One of the fruits of two decades of teaching and research in Rome was the treatise De iustitia et iure, published one year before Lugo embarked on his second career as a cardinal in 1643.
In that work, he re-opened the question of whether the Morisco children could have been justly enslaved. He began by pointing to Molina’s position that adults as well as minors could have been enslaved because they qualified as enemies of Spain and Christ alike.108 Yet Lugo did not agree with the perspective of his Jesuit predecessor. The title of “just war” slavery, he argued,
[…] does not seem to be legally valid, because these children were baptized, and it is precisely for this reason that they could not, by the law of war, become the slaves of Christians, even though they were members of a hostile commonwealth—by contrast, it would have been licit if they had been adults and enemies.109
Lugo argued that although Morisco minors belonged to an apostate, rebellious, and hostile commonwealth, they nonetheless retained a status distinct from that of their parents. Politically, they were enemies and formed a community with their parents, which justified enslavement. But Lugo maintained that the Morisco children still belonged to the very same spiritual community as the Spaniards and were a constitutive part of the global respublica Christiana.
He did not offer a straightforward explanation for how these children managed to preserve their faith in a community of Muslims. But Lugo was probably aware of what Domingo Báñez’s proposal had put forth. In the latter’s estimation, the potential for apostasy was tied to the age and use of reason, so that it was a priori impossible for minors to fall from the faith.110 And Juan de Lugo here implied the very same point.
A better solution, he explained, was to approach the issue through the lens of civil punishment.111 He agreed with Molina that the twofold offense of apostasy and rebellion was worthy of the punishment of slavery, and he likewise conceded that this retribution could be “extended to the children”.112 However, Lugo pointed out a crucial caveat. In the face of the many fallen warriors in the bloody revolt, he argued, some of these children must have lost their parents. These orphans had to be placed under guardianship, but the issue was that tutors’ actions had no legal effects on the children under their care. As such, there was no justification for forcing orphaned Moriscos into slavery.113
In the end, therefore, Lugo concluded that “the slavery of children before the age of puberty was wisely prohibited by the king, lest it perhaps befalls any innocent persons, on whom slavery could not be lawfully imposed”.114 Through a sophisticated re-reading of Molina, he offered a new perspective on the Morisco rebellion, ultimately supporting the official stance of Philip II.
2.3 Slavery, Empire, and Protection
The debate over the status of Morisco children reveals the underlying tension between bringing slavery into the Kingdom of Castile and the established principle of positioning slavery outside the web of human relations among Christians. In their accounts of slavery as a civil punishment, both Molina and Lugo emphasized that such punishment was possible solely because the Natives of Granada were considered both malefactors and apostates. In that way, slavery could be brought into Spain while still being framed as something external to and incompatible with Christianity. The significance of the Moriscos’ apostasy to Iberian theologians and jurists was equally key to the “just war” perspective. Whether the Granadans and their children had fallen from the faith was a fundamental question that paved the way for bypassing the custom of non-enslavement among Christians. This case is first to illustrate just how central religious considerations were to the political thought of the Iberian imperial theorists and their language of natural law.
But the debate about the status of the Moriscos also highlights the significance of what Lauren Benton and Adam Clulow have termed “protection talk”.115 Following their incorporation into the Castilian monarchy, Emperor Charles V conceded extensive privileges to the Moriscos in exchange for tributary payments. These New Christians were initially able to retain their religious and cultural customs to a remarkable degree. Yet their position within the monarchy remained utterly fragile and ultimately unstable. As Miguel Bartolomé Salón observed, the political membership of the Moriscos had always been conditional. It could be revoked at the very moment they contravened the terms of their inclusion. In this sense, the relationship between Granada and Castile was emblematic of the “webs of protection” that shaped early modern empires more broadly.116
Iberian arguments in favor of enslaving the Moriscos eventually also traveled across the Atlantic into the New World. The New Laws of 1542 formally abolished Indigenous slavery in the Americas. In response to this sweeping policy shift, Iberian intellectuals forged arguments to legitimate a novel system of Indigenous labor coercion, as we shall see in Chapter Six. Yet, amid these changes, Spanish voices from the Americas maintained that slavery proper remained permissible in exceptional situations. The Guerra de Granada became a key precedent for missionaries and colonial administrators who sought to justify the enslavement of the rebellious Chichimeca in northern Mexico.117 In colonial Peru, similar arguments for enslaving the Moriscos were deployed in reference to the Mapuche, a community in the Araucanía region of central Chile. Analogies between domestic and global phenomena shaped how early modern Iberians understood the imperial world they inhabited.118
The Mapuche’s fierce resistance against Spanish colonization endured for centuries and became deeply entrenched in the Spanish cultural memory through Alonso de Ercilla y Zúñiga’s (1533–1594) celebrated epic poem La Araucana.119 The Salamanca-educated jurist Juan de Solórzano y Pereira, a judge in the colonial administration of Peru, also pointed to their political status in his widely-read Política indiana (1648).120 The inhabitants of the Kingdom of Chile, he explained, were so tenacious and belligerent in their resistance to Spanish authority that both Philip II and Philip IV had declared war against them in the early 17th century.121 While the enslavement of Indigenous vassals was no longer permitted, Solórzano argued that this prohibition did not include Chileans. And as long as monarchs deemed it just to wage war against the Mapuche, he maintained, it was lawful to commute the right to kill enemies in warfare into the right to enslave them.122
The very same line of reasoning was also deployed by Diego de Avendaño, a Jesuit professor of theology in Lima.123 In his Thesaurus indicus of 1688, he wrote: “Sometimes it is safe in conscience to reduce indios to perpetual slavery […] because the indios can give us cause for a just war, and thus they can be killed, if this is admitted on account of our just defense: and thus they can be enslaved, by commuting death into slavery, which is the approved doctrine by common consent”.124 At the same time, however, Avendaño argued that Indigenous rebels were exempt from slavery.125 How, then, did these seemingly contradictory claims fit together? His solution was to adopt the very same reasoning that Luis de Molina had previously invoked to justify the enslavement of the Moriscos: if it was evident that certain Indigenous peoples resisted Iberian authority and evangelization with full force, they could not be regarded as future subjects or Christians but only as “enemies of the faith, and must be counted alongside the Moors and Turks”.126 On these grounds, Avendaño concluded that there was justification for the enslavement of the Mapuche. He described them as a “cruel, treacherous, and refractory” people with whom the Spaniards had been at war “for many years”.127 In Avendaño’s view, the formal prohibition of Indigenous slavery did not cover the kind of rebellion that the Mapuche had been staging. Their resistance was recurring, posed a continuous threat to the safety of the Spaniards, and offered no hope of reconciliation. For him, these were sufficient grounds to claim that their enslavement was legitimate.128
3 Fugitive Slaves in the Mediterranean
If the “Reconquest” wars against al-Andalus served as a crucial point of reference for Iberian theorists’ understanding in their interpretation of the Morisco rebellion, the same holds true for their understanding of the wars between Christians and “Saracens” in the early modern period. As discussed in the introduction to this chapter, in the 16th and 17th centuries, the Mediterranean was a contested space marked by piracy and warfare, which led to the enslavement of numerous people on all sides. After all, the Mediterranean ransom economy was a lucrative business. But the Iberian imperial theorists were less interested in the economic dimensions of Mediterranean slavery. Their primary concern lay with the question of whether those enslaved in warfare could rightfully escape their bondage.
In histories of slavery, flight is routinely portrayed as the primary form of resistance available to enslaved persons.129 However, Igor Kopytoff and Suzanne Miers have challenged this view as problematic. They have sought to demonstrate that “[i]n most African societies ‘freedom’ lay not in a withdrawal into a meaningless and dangerous autonomy but in attachment to a kin group, to a patron, to a power […] Here, the antithesis of ‘slavery’ is not ‘freedom’ qua autonomy but rather ‘belonging.’ ”130 Indeed, we must be wary of retroactively imposing contemporary ideals of resistance onto other contexts, periods, and places.131
And yet, the problem of runaway slaves was a major concern in early modern Iberia. It was especially acute along the southern coast, which lay closest to Africa. The journey from Almería to the now-Algerian city of Oran only took around a dozen hours. The chance to escape from Spanish hands was therefore very real for Maghrebians and Ottomans, as Aurelia Martín Casares has shown.132 However, most enslaved people fled to other cities in the Iberian Peninsula, although it is difficult to estimate how many attempts were successful.133 Most surviving records come from court cases, which inherently document failed escapes in which fugitives were apprehended and subsequently punished.134 But the many individual cases that we do know of range from Barcelona to Setúbal, from Valencia to Granada, and from Mallorca to the Canary Islands—and they amply demonstrate that flight from servitude was a pressing problem in the eyes of contemporary authorities.135 It is not surprising, then, that this issue also drew the attention of Iberian theologians and jurists. For them, the question of whether enslaved persons acted in good conscience when they fled brought into focus the limits of individual moral agency.
3.1 Unjust Slaves among the Saracens
From the perspective of the Iberian imperial theorists, a war could only be deemed just if it was waged for a just cause. As Francisco de Vitoria explained in his lecture on that topic, “the sole and only just cause for waging war is when harm has been inflicted”, so that “there can be no vengeance where there has not first been a culpable offence”.136 Although determining when a cause was truly just, and thus when war could also be justified, was not a straightforward matter, Iberian intellectuals were unanimous that the conflict between Christians and Muslims was clear-cut.
Diego de Covarruvias, an important authority on interpolitical conflicts, addressed this issue in his commentary on the canon law rule peccatum. “The aggressions of the infidels”, he asserted, “cannot be licit from any side, and neither their defenses, because they had occupied Christian provinces in a tyrannical, treacherous, and cruel way”.137 In principle, Covarruvias endorsed the “legal fiction” of the Roman law on captives and postliminium, which held that things or people captured by legitimate enemies became their rightful possession, implying that both sides in a war effectively enjoyed the full rights of war.138 But he was keen to emphasize that this principle did not apply to wars of the “Turks and Saracens” against Christians, which he described as “most unjust” (iniustissime). For that reason, the laws of captivity, which extended only to proper enemies did not apply to them, and Christians captured by Muslims were not legally enslaved.139 In so arguing, Covarruvias presented a longue durée perspective on interreligious contest from the so-called Reconquest of the Iberian Peninsula—the act of reclaiming illicitly “occupied” provinces—to the Mediterranean wars in his own time.140 Across time and space, he suggested, the universal injustice of Muslim hostilities against the followers of Christ was self-evident.
Luis de Molina took a similar stance. Although he did not share the rationale behind the law of postliminium—an issue we will shortly explore—he insisted that all those who were held captive without a just cause “could flee wherever they want”. There was no doubt that this principle applied to all the Christians who had been enslaved in the unjust wars of the “Turks and Moors”.141 Furthermore, he maintained that those unjustly enslaved also had the right to despoil their captors—and indeed anybody else who belonged to their commonwealth—during their flight. According to Molina, the Christians in hostile detention were not simply illegitimate human booty from a past raid, who would only be allowed to avenge themselves for the violation of their personal right. Rather, they were active participants in an ongoing “perpetual war” against the Saracens and hence authorized to act with the full force of the ius belli, “with the presumed will of our prince”.142 By framing it that way, Molina demonstrated that his interpretation aligned with the authoritative opinion of Vitoria, who had underlined that “soldiers may not plunder or burn without the authority of their prince or commander”.143
Estevão Fagundez closely followed Molina on this issue. The Portuguese Jesuit argued that, under the premise of a perpetual “just war”, Christian slaves held by Muslims could even rightfully kill their “unjust masters”.144 Yet not all the Iberian thinkers agreed that fleeing Christian captives deserved the full rights accorded in the event of war. In Juan Azor’s opinion, they were permitted to seize only what was needed for their return home. Despite their unlawful enslavement, Christians could not indiscriminately despoil Maghrebian and Ottoman enemies, as that would amount to theft “by private authority”.145 Azor insisted that only the prince could rightfully wage a war by virtue of his public power to defend the commonwealth, and his authority did not extend to fugitive slaves.146
3.2 Just Slaves among the Christians
The noteworthy interim conclusion is that the long-standing enmity between Christians and Saracens, dating back to crusades in Iberia and the Levant, had an immediate impact on the contemporary understanding of Mediterranean slavery. While theologians and jurists agreed that unjustly enslaved captives had the right to flee, a more complex question arose concerning those who had been taken in a “just war”. Put differently: did the “Moors and Turks” also have a right to escape from Castilian and Portuguese servitude?
This question was prominently addressed by Domingo de Soto, who made a crucial distinction between prisoners of war and those who had sold themselves into slavery, a category that was intimately associated with the spaces of enslavement beyond the Mediterranean world, which will be discussed in greater detail in the following chapter. Soto insisted that voluntary slaves “cannot justly flee because they sold themselves freely and for a price”. To escape, Soto insisted, would be tantamount to theft and a violation of contractual justice, “just as one cannot steal a horse from the person to whom one has sold it”.147 This principle found consensus among subsequent Iberian thinkers. Prisoners of war, by contrast, “did not voluntarily fall into this condition” and thus could not be coerced to endure the same “misery” as those who decided to subject themselves and all their possessions to the power of another human being.148 As Soto made plain, there was a qualitative difference between these two kinds of enslavement that centered on the presence or absence of an act of will.
Diego de Covarruvias reached a similar conclusion, albeit from a different perspective. The canon lawyer drew from the law of postliminium we have encountered above. One particularly crucial consequence of this ample and nuanced legal principle was that “a Roman citizen captured by the enemy lost his citizenship but was restored to it (and eo ipso to his liberty) if he later returned, either to his native land or to a friendly city”.149 In Covarruvias’s words, this meant that an enslaved person, even if they were “most justly a captive among the enemy, could licitly return to their people and escape by crossing the enemy’s borders”.150
When Luis de Molina addressed the matter toward the end of the 16th century, he rehearsed Soto’s dictum that voluntary slaves were not entitled to escape.151 He further emphasized that individuals reduced to servitude as a result of public punishment likewise lacked such a right because malefactors were obligated to serve the sentences inflicted on them.152 Crucially, however, he took issue with the opinions advanced by Soto and, in particular, by Covarruvias. As Molina explained:
Covarruvias confirms his sentence with the law nihil interest […] and also with law 23, title 14, partida 7 of the Laws of Castile, which expressly states: a Saracen who was justly captured by us and manages to flee to his own people gains his liberty. Indeed, even if at a later stage he voluntarily returns to do commerce with our people, he can no longer be coerced into his former condition of slavery.153
The passage highlighted here by Molina testifies to the immediate impact of the law of postliminium on the Iberian Peninsula. Firmly incorporated into the Castilian civil legislation, this legal doctrine effectively allowed all Muslim slaves in Iberia to escape the shackles of servitude.
Molina was dissatisfied with the fact that his intellectual predecessors had buttressed this logic. In his view, nobody enslaved under a just title had the right to escape, and this principle applied likewise to those captured in “just wars”.154 He insisted that this was not only a logical outcome but also a necessary one. If slaves were permitted to flee, Molina argued, they would attempt to do so “every day”, thereby rendering them unreliable assets to their masters. The upshot, he warned, would be that nobody would spare the lives of their enemies, and “everyone would justly kill them in war”.155 In opposition to his predecessors, Molina argued that once dominium over a person had been legitimately transferred, “just war” slavery carried the same legal implications as any other form of servitude: it was equally permanent and equally binding. A similar stance was taken by the Portuguese Jesuit Perdo Simões, who held a post at the University of Évora in the 1570s and 1580s and addressed this issue in one of his manuscripts.156
3.3 The Freedom to Flee and the Freedom to Chain
This was a position most other Iberian theologians and jurists were unwilling to endorse. Fernando Pérez, for instance—Molina’s bête noir—vigorously defended the rationale of the law of postliminium, insisting that “infidels” held in Iberian hands had a right to run away and were liberated if they managed to return to their own people.157 The sharpest refutation of Molina’s line of reasoning, however, came from Juan de Lugo. Those captured in wars, he argued, “do not seem more obliged to remain with their masters than those accused and detained for a crime are bound to stay in prison”.158 Echoing Covarruvias, he pointed to the Roman legal dictum that those captured in “just wars” who managed to escape to their people were as free as they had been before their captivity.159 The right of masters over their slaves, Lugo insisted, was contingent upon the enslaved persons not exercising their right to flee.160 An enslaved Ottoman who succeeded in escaping “from Spain to an African province with which the Turks have a union or confederation”, he explained, “can be safe there in the same way that he would be safe in his native land”.161 In this sense, Lugo tacitly defended the rationale of the Siete Partidas, a legal doctrine that Molina had sought to undermine.
However, Lugo emphasized that all those fugitives who remained within their master’s province and failed to move beyond enemy territory “do not regain their liberty”.162 According to the Portuguese theologian Fagundez, whose treatise appeared just a year before Lugo’s, this meant that the privilege of flight could not be extended to enslaved individuals from the Iberian wars in West Africa. As Fagundez underscored, these slaves “lack the hope of fleeing to their people”.163 Both Lugo and Fagundez stressed that those who remained within the enemy’s polity were vagabonds, who roamed around without a purpose. And this assertion constituted, at least implicitly, a reference to a forceful argument advanced by Domingo de Soto a century earlier in his influential De iustitia et iure. In his estimation, humans who wandered about aimlessly forfeited their very humanity, living the life of beasts rather than as political animals: “Aristotle says that just as we can hunt animals, so we can make war against those human beings who are natural slaves: we should give him a hearing just to this extent, that we can drive off or subject by force those who roam around straggling in the manner of wild beasts, keeping none of the pacts of the nations, but trying to get their hands on other people’s goods wherever they go”.164
Yet even those who did have the right to flee, Lugo noted, rarely succeeded in doing so. Enslaved Maghrebians and Ottomans in Iberia, he argued, could rightfully be subjected to disciplinary measures under the threat of punishment. In this regard, Lugo maintained that slaveholders could justly “keep them in chains” or “cause them evil” to deter them from escaping for fear of retribution.165 This point had likewise been underscored by several intellectual predecessors.166 In this sense, Lugo concluded, Molina’s argument that slaves would try to escape daily remained ultimately unfounded. For in fact, “they flee very rarely” on account of the master’s extensive punitive powers.167 Indeed, as we shall see more fully in Chapter 5 of this book, all the Spanish and Portuguese intellectuals were eager to emphasize the centrality of discipline and punishment to the master-slave relationship.
For now, we may conclude that the Iberian theorists’ understanding of slave flight in the Mediterranean reveals an uneasy locus in the Catholic natural law discourse. In this context, the supposedly clear-cut separation of rights grounded in human nature, on the one hand, and non-legal implications of the faith, on the other, had been eroded. From the perspective of the Iberian theologians and jurists, Christians held in Muslim captivity did not possess the status of legal slaves and were therefore permitted to flee lawfully. This view was rooted in the deeply ingrained conviction that the wars by the “Saracens” were inherently unjust.
The wars waged by the Portuguese and Spaniards were not, however, confined to the Arab-Christian world. As shown above, Fagundez explicitly referred to the belligerent conflicts in sub-Saharan Africa. This extra-Mediterranean dimension of warfare was also highlighted by Luis de Molina, who drew attention to the wars of “infidels” who were not Muslims, and who might, therefore, have justice on their side. It was in this context that Molina qualified his earlier categorical claim that slaves taken in a “just war” were a priori prohibited from escaping. His coreligionists, Molina argued, were always exempt from this rule, because “a Christian captive cannot dwell among infidels without notable spiritual harm”.168
See the magnificent survey of the field by Hanß, “Sklaverei im vormodernen Mediterraneum”. See also Schiel and Hanß, “Semantics, Practices and Transcultural Perspectives on Mediterranean Slavery”.
Epstein, Speaking of Slavery, 81, 185, and 191; Armenteros Martínez, La esclavitud en Barcelona, 165–167; Schiel, “Sklavennahme in der Seerepublik Venedig”, 589; Bono, Schiavi, 7–8 and ch. 2.
Barker, That Most Precious Merchandise, 3.
Barker, That Most Precious Merchandise, 209.
Epstein, Speaking of Slavery, 123.
See Schiel, “Slavery in the Western Mediterranean”, 180; and Schiel, “Tatort Tana”.
Schiel, “Sklavennahme in der Seerepublik Venedig”, 588–589.
Groebner, “The Carnal Knowledge of a Coloured Body”, 223.
On the centrality of raiding to wars of (re)conquest, see Benton, “The Legal Logic of Wars of Conquest”, 429–431; and Benton, They Called It Peace, ch. 2.
Davis, Christian Slaves, Muslim Masters, xxiv. The same point is also made in Zeuske, Sklaverei, 180.
Abulafia, The Great Sea, 413.
Malcolm, Agents of Empire, 209–210.
Phillips, Slavery in Medieval and Early Modern Iberia, 10–11 and 43–51. Noel Malcom argues that in the late 16th-century, there were 40,000–50,000 Muslim slaves in Spain (Malcom, Agents of Empire, 210). Alessandro Stella estimates that the total number of slaves brought to Iberia from the Mediterranean amounted to 300,000–400,000 from the mid-15th to the mid-18th centuries, roughly half the number of African slaves. See Stella, Histoires d’esclaves dans la péninsule ibérique, 79.
Martín Casares, La esclavitud en la Granada, 238.
Martín Casares, La esclavitud en la Granada, 241: “… convierte las mujeres y los hijos de los vencidos en uno de los principales botines de guerra”.
See Zemon Davis, Trickster Travels. See also Leo Africanus’ account of his diplomatic travels between Fez and Timbuktu, which is one of the earliest surviving acounts of sub-Saharan Africa: Africanus, “Della descrittione dell’Africa”, ed. Ramusio.
Hanß, “Sklaverei im vormodernen Mediterraneum”, 640; Martin Casares, La esclavitud en la Granada, 242. But despite the flourishing Mediterranean ransom economy, a significant proportion of Christians were captured and held as long-term slaves by the Ottomans in the sixteenth century. See Tarruell, “Prisoners of War, Captives or Slaves?”.
Hanß, “Sklaverei im vormodernen Mediterraneum”, 644–645; Epstein, Speaking of Slavery, 192–193.
Malcolm, Agents of Empire, 210–211.
See Garcés, Cervantes in Algiers; and Kaiser, “Sprechende Ware”, 29.
Kaiser, “Sprechende Ware”, 33.
Martín Casares, “Maghrebian Slaves in Spain”, 98.
This includes Islamic legal scholars, as shown by Freamon, Possessed by the Right Hand.
See Martín Casares, “Maghrebian Slaves in Spain”, 102, on the body of sources used in recent histories of Mediterranean slavery.
Molina, DIEI, tr. I, disp. 3, no. 3, col. 9: “ipsa intellectus qua ea quae ex se et natura bona sunt, ab iis quae ex se mala sunt, secernimus ac diiudicamus”.
Molina, DIEI, tr. I, disp. 3, no. 3, col. 9: “ius naturale a Deo Optimo Maximo sit mentibus nostris inditum, naturisque ipsis rerum impressum”.
On Soto’s dual sense of natural law, see Brett, Liberty, Right and Nature, 142–146.
Brett, Changes of State, 37–39.
Vitoria, De indis, in Relecciones jurídicas y teológicas, ed. and trans. Fernández-Largo et al., vol. 2., q. 1, no. 23, 564: “Aristoteles non intellegit quod tales [i.e., natural slaves] sint a natura alieni iuris et non habebant dominium et sui et aliarum rerum. Haec enim est servitus civilis et legitima”. The translation by Pagden and Lawrance is not exact: “Aristotle certainly did not mean to say that such men thereby belong by nature to others and have no rights of ownership over their own bodies and possessions (dominium sui et rerum). Such slavery is a civil and legal condition, to which no man can belong by nature” (Vitoria, De indis, in Political Writings, trans. Pagden and Lawrance, q. 1, concl., 251). The Latin edition from which I am quoting is based on the same manuscript of Vitoria’s De indis that also provides the foundation for the translation by Pagden and Lawrance; the one preserved in the cathedral library of Palencia from c. 1540, which is most likely a direct copy of Vitoria’s original script. See Allemann, “Re-Reading Vitoria”, 339.
See e.g., Soto, DIEI, lib. IV, q. 2, a. 2, 288: “Duplicem enim servitutem scite Aristoteles dignovit 1. Politicorum. Alteram quidem naturalem alteram vero legalem”.
Molina, DIEI, vol. 1, tr. II, disp. 32, no. 1, col. 158: “Quaedam est, quam vocat naturalem [….] Haec autem aptitudo improprie appellatur servitus, neque cuiquam alteri tribuit ius in huiusmodi homines”.
Soto, DIEI, lib. I, q. 5, a. 4, 44: “Statuamus illud naturale principium: Vita humana in pace et tranquilitate sustentanda est et conservanda. Inde, subsumpta altera praemissa quod natura corrupta in communi vivens neque agros coleret diligenter, neque in pace viveret, gentes intulerunt dividendas esse possessiones”.
Molina, DIEI, vol. 1, tr. II, disp. 20, no. 1, col. 99: “Etenim statim ac genus humanum ab innocentiae statu per peccatum corruit, necessarium fuit iurisdictionis dominium cum vi quadam coercente introduci”.
Molina, DIEI, vol. 1, tr. II, disp. 20, no. 1, col. 99: “Multiplicatis praeterea hominibus, et per orbem dispertis, necesse etiam fuit eiusmodi dominium dividi, pluresque constitui rectores, qui varias provincias civitates ac populos moderarentur”.
Molina, DIEI, vol. 1, tr. II, disp. 20, no. 5, col. 100: “necessarium est res quoad dominia esse divisas, ut ex communi rerum possessione gravissima oriretur”. This point is also emphasized in Brett, “Molina on Law and Power”, 169.
For an excellent history that traces the medieval heritage of early modern Iberian understandings of dominium, see Brett, Liberty, Right and Nature.
Molina, DIEI, vol. 1, tr. II, disp. 1, no. 1, col. 27–28: “Est facultas aliquid faciendi, sive obtinendi, aut in eo insistendi, vel aliquo se habendi, cui si, sine legitima causa, contraveniatur, iniuria sit eam habenti”.
See Brett, Changes of State, 92–93; Brett, Liberty, Right and Nature, ch. 4; and Kaufmann, “Subjektive Rechte als Grenzen der Rechtssetzung bei Luis de Molina”.
See Vitoria, De indis, in Relecciones jurídicas y teológicas, ed. and trans. Fernández-Largo et al., vol. 2, q. 1, no. 23, 564.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 1, col. 160 [incorrectly labeled as 108]: “modis dominium illius transferri in alios, quibus dominia aliarum rerum transferri consueverunt, nempe venditione, permutatione, donatione, ultima voluntate, etc”.
Soto, DIEI, lib. IV, q. 2, a. 2, 290: “servitutem non contra iri aut proprie derogari naturali iuri. […] bifariam aliquid est a natura intentum: Uno modo secundum intentionem primam, quemadmodum generationem intendit, corruptibilis naturae conservatricem: Altero modo quantum ad secundam intentionem: quo pacto corruptionem intendit ut generet. […] Attamen illa deficiente intentione, ex culpa subsequuta est poena, quae est conformis naturae curruptae. Atque inter poenarum genera unum est legalis servitus”. See also Aquinas, Scriptum super Sententiis, ed. Alarcón and Busa, lib. 4, dist. 36, q. 1, a. 1, ad 2.
Salón, Commentariorum in disputationem de iustitia, q. 3, a. 1, concl. 4, 114: “servitutem legalem, de qua agimus non esse a natura, nec repugnare naturae, imo rationem ipsam naturalem omnes homines admonere eam licitam esse, quando fuerit necessaria ad vitae conservationem”. The work was first published in 1591, and after 1608, it appeared under the title Controversia de iustitia et iure atque de contractibus et commerciis humanis. On matters of slavery, Salón closely followed Domingo de Soto’s De iustitia et iure, and his Augustinianism was no cause for any substantial disagreements.
A helpful overview of Suárez’s remarks on slavery is available in Seixas, “Trabalho livre e trabalho escravo na obra da Francisco Suárez”. We shall turn to further important arguments of Suárez’s at various points below.
Suárez, Defensio fidei catholicae, lib. III, cap. 2, no. 9, 220: “ius autem naturae non praecipit, omnem hominem semper manere liberum, seu (quod perinde est) non simpliciter prohibet, hominem in servitutem redigi, sed solum, ut id non fiat vel sine libero illius consensus, vel sine iusto titulo, et potestate.” I owe this point to Benjamin Slingo, who drew attention to this passage in a paper presented at the University of Cambridge on 13 Feburary 2017. Suárez made a similar argument in his De legibus, vol. 3, lib. II, cap. 14, no. 18: “quamvis natura dederit libertatem et dominium eius, non tamen absolute prohibuisse ne auferri possit”.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 3, a. 7, 322. Vitoria here quoted from Inst. 2.1.17.
D.1.1.5: “Ex hoc iure gentium introducta bella […]”.
See Soto, DIEI, lib. IV, q. 2, a. 2, 289: “Unde (ut lege citata et ff. De statu hominum, l. libertas docemur) servitutis nomen derivatum est. Videlicet quod imperatores bello captos vendere, neque occidere solent, sed servare. Et isti dicuntur mancipia: quia victores quos gladio transigere possent, manu capiunt, ut servent”. See Molina, DIEI, vol. 1, tr. II, disp. 32, no. 2–3, col. 158: “Huiusmodi homines, ut Institut. De iure personarum, § servi, habeatur, servi dicti sunt a servando: quia videlicet Imperatores, quos bello capiebant, quosque fas illis erat interficere, servabant, commutata eorum morte in perpetuam servitutem. Dicti etiam sunt mancipia, quasi ab hostibus manu capta, ut ibidem subiungitur”. See Lugo, DIEI, disp. 6, sect. 2, no. 10, 134, original emphasis: “a servando servi dicti sunt, sicut et dicuntur Mancipia, quia manu capiuntur”. For the original passages in Roman law, see Inst. 1.3.3 and D.1.5.4.2–3.
As explicitly argued in Molina, DIEI, vol. 1, tr. II, disp. 33, no. 1, col. 160 [incorrectly labeled as 108]: “iure namque gentium mancipium sit capientum, morte in perpetuam servitutem commutata”.
Molina, DIEI, vol. 1, tr. II, disp. 20, no. 5, col. 101: “nihil est quod naturae humanae sufficienter medeatur […]”.
Molina, DIEI, vol. 1, tr. II, disp. 32, no. 3, col. 158: “Quo sit, ut haec etiam servitus in bonum ipsorum servorum introducta sit, quatenus perpetua servitus minus malum illis est, quam privari vita”.
Vitoria, Comentarios a la Secunda secundae, ed. Beltrán de Heredia, vol. 3, q. 57, a. 4, no. 5, 17: “potest abrogari ex parte ius gentium […] sicut ius gentium est quod captivi in bello justo sint servi, sed […] hoc non tenet inter christianos”.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 3, a. 3, 318–319.
See e.g., Soto, DIEI, lib. IV, q. 2, a. 2, 290; Molina, DIEI, tr. I, disp. 5, no. 4, col. 14.
On this point, see Iurlaro, The Invention of Custom, 5–6 and 62.
Biographical information on López is from Masferrer, “Las Siete Partidas”.
On Alfonso X and the Siete Partidas, see O’Callaghan, “Alfonso X”.
See Birr, “Tradition and Innovation in Knowledge Production”.
Las Siete Partidas, l. 1, tit. 29, partida 2, gloss López: “Inter christianos non servantur iura captivitatis quoad personas captas in bello”.
Las Siete Partidas, l. 1, tit. 29, partida 2, gloss López, verb. alguna cosa: “Tene menti istam l. nam de iure communi nulla l. cavet, quem effectum habeat ista captio personarum in bello, inter reges christianos, et conditor huius legis habuit respectum ad generalem consuetudinem, secundum quam christiani capti in talibus bellis, possunt detineri in carcere pro talea habenda, ut tradit Saly. c. in l. ab hostibus”.
See Saliceto, Ad V., VI., VII., VIII. et IX. libros Codicis commentarii, commentary on C.8.50.2 (l. Ab hostibus, De postliminio et de redemptis ab hostibus), 330: “Nam christiano ad christianum guerram faciente servitus in captivis non inducitur. […] Puto igitur quod solum in carcere pro talea habenda possit retineri”.
In De iustitia et iure, published around the same time as López’s edition of the Partidas, Domingo de Soto pointed to Bartolus of Sassoferrato (1313–1357), another important trecento lawyer, whose 16th-century editor of the Opera omnia also included a reference on the custom of non-enslavement among Christians. Yet Soto did not mention the alternative to detention in the way that López had, with reference to Saliceto (see Soto, DIEI, lib. IV, q. 2, a. 2, 290). As becomes clear from the editorial addition to Bartolus’s text—to which Soto referred without quoting from it—Bartolus’s editor in fact followed the rationale Saliceto had previously offered. See Bartolus of Sassoferrato, In II. partem Digesti novi commentaria, commentary on D.49.15.24 (l. Hostes, De captivis et postliminio reversis), no. 16, 638, verb. Sed secundum mores: “Salic in l. ab hostib. C. de postlim. ubi ait, in locum servitutis et captivitatis taleas subrogari”.
The quote is from Domingo, “Tomás Sánchez”, 225.
Sánchez, Consilia, lib. I, cap. 1, dub. 3, no. 6, 4: “nisi Christianus capiatur a Christiano, tunc enim quantumvis iustum sit bellum, non efficitur servus; sic enim generalis consuetudo obtinuit propter charitatem, quae in Christo omnibus Christianis communis est. Sic definit dicta l. 1, tit. 29, part. 2 et ibi Gregorio Lopez versic. Alguna”.
This paragraph draws on the excellent historical context provided in Birr, “Rebellische Väter, versklavte Kinder”, 282–299.
The Natives of Granada were referred to as cristianos nuevos de moros in Castilian administrative terminology. See Deardorff, “¿Quién es morisco?”, § 1. The status of the formerly Muslim populations under Iberian control, both in Iberia and North African outposts (presidios), also preoccupied Maghrebian jurists in the 15th and 16th centuries. See Hendrickson, Leaving Iberia.
Cavanaugh, “Litigating for Liberty”, 1284.
In so arguing, Mayte Green-Mercado pushes back against earlier understandings of the Morisco rebellion as motivated exclusively by economic and institutional needs. See Green-Mercado, Visions of Deliverance, 67.
On the emergence of the category of Morisco, see Deardorff, “¿Quién es morisco?”. On history of Morisco slavery, see Schirrmacher, Die Politik der Sklaverei, ch. 4.
Mármol Carvajal, Historia del rebelión, lib. V, cap. 32, fol. 124r: “porque aunque por la ley general se permitía que los enemigos presos en guerra fuesen esclavos, no se debía entender ansí entre cristianos; y siéndolo los moriscos, o teniendo, como tenían, nombre dello, no era justo que fuesen captivos”.
Biographical information on Covarruvias is from Helmholz, “Diego de Covarrubias y Leyva”, 174–177; and Scattola, “Naturrecht und politische Theologie in der Relectio regulae ‘Peccatum’ von Diego de Covarrubias”, 261.
The Regulae iuris were a collection of legal norms and principles issued by Boniface VIII, and listed at the end of the so-called Liber sextus, the sixth book that was added to the 13th-century Liber Extra to which we shall turn shortly.
Covarruvias, In regula peccatum, pars 2, § 9, no. 4, in Opera omnia, vol. 1, 541: “Innocentius communiter receptus in dict. cap. olim in 1. restit. spoliar. hanc esse justam belli causam opinatur, tametsi existimet potius esse executionem jurisdictionis punitionem rebellium in hoc casu, quam bellum, et ideo captos in eo non effici servos capientium: quod maxime est observandum”.
The reference in the quote in the preceding footnote is X.2.13.12.
See the quote in the penultimate footnote.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 4, col. 160 [incorrectly labeled as 108]: “Secundus est, quando aliquis propter delictum, quod prudentis arbitrio tanta poena sit dignum, ab habente ad id potestatem, servitutis poena damnatur”.
The Roman legal scholar Francisco Cuena Boy argues that Molina and his colleagues failed to differentiate Roman ius gentium slavery from other types of slavery governed by Roman civil law, effectively collapsing the latter into the former. According to Cuena Boy, this alleged conceptual impasse led early modern Iberian intellectuals to propose that Roman civil slavery was universally applicable, which in turn hindered them from criticizing Iberian slaving in the wider world. However, the Iberian theologians and jurists used Roman law as a flexible resource rather than a rigid template. They understood the ius gentium as a global legal framework—a prerequisite for all forms of slavery, even those confined to a given polity and thus governed by civil law. This was because the ius gentium introduced and framed slavery as a type of private property that had not existed before the Fall. See Cuena Boy, De servitute, 111–205.
We shall return to this point in Chapter 2.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 6, col. 161: “Superioribus annis, cum in Granatensi Regno illi, qui a Saracenis originem trahebant, a fide apostando, seu potius internam, apostasiam, quam semper in corde habuerunt, aperte manifestando rebellassent, merito in apostasiae et rebellionis poena servitutis perpetuae, nihil baptismo, quod antea susceperant, impediente damnati sunt”.
This was loosely based on the age limits for corporeal punishments laid down in the Siete Partidas. See Birr, “Rebellische Väter, versklavte Kinder”, 314.
Cavanaugh, “Litigating for Liberty”, 1283.
Martín Casares, La esclavitud en la Granada, 89: “las compraventas analizadas demuestran que esta salvedad no fue respetada por los cristianos viejos, que compraban y vendían niños moriscos, sobre todo niñas, sin reparos”. On the limited but nevertheless real prospect of enslaved Morisco children to win their freedom in court, see Cavanaugh, “Litigating for Liberty”.
As emphasized in Molina, DIEI, vol. 1, tr. II, disp. 33, no. 7, col. 161: “Dubium vero esse potest, an Rex in conscientia eam legem ferre tenetur”.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 10, col. 162: “delictum […], idque bono communi Reipublicae ad aliorum terrorem expediat”.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 10, col. 162: “qua de causa filii suscepti ex matrimonio cum initiatis ordinibus sacris in commune bonum atque ad aliorum terrorem servituti subiiciuntur cap. Cum multae, 15, qu. 8”. For the original passage in Gratian’s Decretum, see C. 15, q. 8, c. 3.
It is noteworthy, however, that this canon law dictum had entered Castilian civil legislation through the Siete Partidas, a point that was made plain by Gregorio López. See Las Siete Partidas, l. 3, tit. 21, partida 4, gloss López, verb. Siervos de la eglesia.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 32, col. 166–167. Molina here referred to C.3.32.7, Inst. 1.3.4, Inst. 1.4, and X.4.10.
Las Siete Partidas, l. 2, tit. 21, partida 4. On the Italian context, see McKee, “Inherited Status and Slavery in Late Medieval Italy and Venetian Crete”. On the significance of this idea in the early modern Indian and Pacific Ocean worlds, see McManus, “Partus Sequitur Ventrem in Theory and Practice”.
Aquinas, Scriptum super Sententiis, ed. Alarcón and Busa, lib. 4, dist. 36, q. 1, a. 4, corp.: “secundum leges civiles partus sequitur ventrem; et hoc rationabiliter; quia proles habet a patre complementum formale, sed a matre substantiam corporis. Servitus autem corporalis conditio est […] sed in his quae pertinent ad dignitatem, quae est forma rei, sequitur patrem, sicut in honoribus et municipiis et hereditate et aliis”.
Yet Aquinas also accepted that, outside the Christian-Roman world, where Roman and canon law did not apply, it was possible for commonwealths to legislate that children follow the condition of their father. That principle can be traced back to X.4.9.3 and was likewise endorsed by Iberian thinkers like Molina (see DIEI, vol. 1, tr. II, disp. 33, no. 32).
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 11, col. 162: “si ob ventrem fas est filium mancipii innocentem redigere in servitutem tanquam fructum eius, qui ob suum, vel suorum antecessorum delictum iuste aliquando in servitutem redactus est, cur non etiam ob delictum eius, qui ut licere apostarent, in Reipublicae maximum detrimentum rebellavit erit vas [sic] redigere in servitutem filium eius, tanquam illius fructum?”
Fagundez, De iustitia et contractibus, lib. II, cap. 1, no. 8, 143: “Tum etiam, quia hoc non est punire ipsos filios innocentes, sed punire ipsos patres in membris suis, et praecipuis partibus suis, hoc est, in filiis; sunt enim liberi, dum sub patria potestate manent”.
See Birr, “Rebellische Väter, versklavte Kinder”, 308–309.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 9, col. 161: “revera eorum parentes, statim ac rebellarunt sibi elegerunt Regem, feceruntque cum liberis suis, quos secum habeant, Rempublicam unam iniquam sub illo Principe adversus quam totam, et non adversus singulos, qui nocentes erant, erat bellum iustum Hispanis”.
See Brett, Changes of State, 1 et passim.
Fernando Pérez (often referred to as Fernão Perez in Portuguese scholarship) was born around 1530 in Cordoba, where he was educated and joined the Society of Jesus. Appointed as one of the first professors at the newly established University of Évora in 1559, he became prime chair in theology (1567–1572) and rector (1572–1577). He then moved to the Jesuit College of Coimbra, where he remained professor of theology until his death in 1595. Biographical information on Pérez is from Guimarães Pinto, “Pérez, Fernando”.
Pérez’s account of slavery survives in two manuscripts: The first, dating from 1587, has an oral style that suggests that it consists of lecture notes taken by one of Pérez’s students (Cod. 3860 in the National Library of Portugal). The second manuscript, dated 1588 in its title, largely follows the structure and content of the first but is more extensive (Cod. 2623 in the National Library of Portugal). See Ventura, “Sobre os textos da presente edição”, 55–57.
See e.g., Zeron, Ligne de foi, 266; Guimarães Pinto, “Pérez, Fernando”.
By 1580, Molina had completed the lectures for the first volume of the De iustitia et iure and by 1582, he had completed the lectures for the whole treatise (see Stegmüller, Geschichte des Molinismus, 6–7).
Molina’s letters are edited in Stegmüller’s Geschichte des Molinismus: In his letter from 29 August 1582, Molina wrote: “las materias de iustitia con otras que yo e leido está haziendo el Padre Fernan Perez. […] Si a Vuestra Paternidad pareciere maior servicio de Dios, que lo que yo e hecho mejoren y impriman otros, yo soy contento dello” (559). In his letter from 21 April 1584, Molina wrote: “Lo que puedo dezir es, que muchos años a que experimento averseme dado aulas para leer, y el intento de muchos aver sido que yo hiziese lo que yva haziendo, y que se entregase despues a otros que paucis mutatis y concertado el stilo lo imprimiesen nomine alieno […] Y el Padre Fernan Perez viendo que no yva adelante de la suma, siendo los contratos a juizio de muchos la mejor cosa o de las mejores que e hecho, sin nunca aver él leido aquellas materias, se a puesto a leellos estos años, y segun se an sonado con intento de imprimillos” (579–580).
Báñez, De fide, spe et charitate, q. 40, a. 1, dub. 12, col. 1383: “Adulti, qui nihil contra Regem, aut contra fidem peccaverunt, non possunt in servitutem redigi. Nam poena quaedam est personalis, quod qui est iam sui iuris, sua libertate privetur. […] Mihi videtur, quod iure belli infantes et innocentes, qui nihil mali cogitaverunt, non possunt redigi in servitutem”. See the discussion in Birr, “Rebellische Väter, versklavte Kinder”, 310–313.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 3, a. 3, 318.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 3, a. 3, 318.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 3, col. 160 [incorrectly labeled as 108]: “licet enim licite interfici non possunt, iure tamen belli et gentium, sunt mancipia capientium. Ratio est, quoniam illis, tanquam in propriis membris punitur iuste Respublica […]”.
Molina, DIEI, vol. 1, tr. II, disp. 33, no. 9, col. 161: “Ergo sicut Christianis iustum gerentibus bellum cum quacunque alia Turcarum aut Saracenorum Republica, fas est redigere in perpetuam servitutem infantes, quos ceperint […]”.
On this point, see Benton, They Called It Peace, 13 and 39.
Salón, Commentariorum in disputationem de iustitia, q. 3, a. 1, concl. 4, 115: “illud regnum Granatense a Regibus Catholicis acquisitum fuit, permissi sint patres istorum in eo permanere sub hac conditione, ut si rebellarent, redigentur in servitutem omnes pertinentes ad illud regnum. Quia sub hac conditione fuerunt recepti, iuste facti sunt servi omnes isti Granatenses, tam adulti, quam parvuli eorum, sicut a principio potuerunt effici in illo bello iusto quo regnum illud obtentum fuit”.
This quote and other biographical information on Lugo are from Jacob Schmutz’s website Scholasticon.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “Unde probat Molina disp. 31 potuisse licite Hispanos redigere in servitutem non solum Mauros, seu Saracenos illos, qui cum baptizati essent, ut a fide apostaterent, rebellarunt contra Hispaniae regem, set etiam eorum parvulos […] tum quia pars erant Reipublicae illius, quam Rebelles electo sibi Rege statim fecerunt”.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “non videtur efficax, cum illi parvuli baptizati essent, atque adeo iure belli non poterant servi fieri Christianorum, licet essent pars reipublicae hostilis, imo licet fuissent adulti, et hostes”. I have translated the second “licet” in the past perfect even if it is in the present tense in the original Latin. This is so, I think, because Lugo wanted to use the second “licet” as a pun on the first “licet”, which is a homonym but means “even though”.
Báñez, De fide, spe et charitate, q. 40, a. 1, dub. 12, col. 1381: “Pueri innocentes, qui sunt filii istorum apostatarum, retinent veram fidem, quam susceperunt in baptismate, et non potuerunt amittere illam ante usum rationis ergo saltem isti gaudent isto privilegio”.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “Secunda vero ratio melior est”.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “tum etiam quia apostasiae et rebellionis delictum dignum erat, ut puniretur servitute etiam ad filios extensa propter delicti atrocitatem”.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “non probat de omnibus pueris: erant enim fortasse aliqui sine patribus, quo non poterant iuste poenam illam pati propter delictum suorum tutorum, vel curatorum, sub quorum cura erant”.
Lugo, DIEI, disp. 6, sect. 2, no. 13, 134: “Quare sapienter illa impuberum servitus prohibita fuit a rege, ne innocentes forte aliqui eam incurrerent, quibus de iure imponi non posset”.
Benton and Clulow, “Webs of Protection and Interpolity Zones in the Early Modern World”, 49.
The phrase is from the title of Benton and Clulow, “Webs of Protection and Interpolity Zones in the Early Modern World”.
On the debate over the enslavement of the Chichimeca, see Cook, Forbidden Passages, ch. 8.
See Brett, “Scholastic Political Thought and the Modern Concept of the State”, 145; and Brett, Changes of State, ch. 1.
The poem was published in three successive parts between 1569 and 1589. The first complete edition I have been able to access was published in 1590 in Madrid. On Ercilla y Zúñiga, see Adorno, Colonial Latin American Literature, 63–68; and Brading, The First America, 55–56. On the long-standing conflict between the Mapuche and the Spaniards in the 16th and 17th centuries, see Jarra, Guerra y sociedad en Chile, ch. 8; and Korth, Spanish Policy in Colonial Chile, chs. 9–11.
Solórzano will be introduced in more detail in Chapter 6.
Solórzano, Polícita indiana, ed. Ochoa Brun, vol. 1, lib. II, cap. 1, no. 28–29.
Solórzano, Polícita indiana, ed. Ochoa Brun, vol. 1, lib. II, cap. 1, no. 32: “pareció justo derogar por la grande perfidia, y obstinacion de estos Indios Chilenos, y muchos daños, que nos han hecho. Y si por ellos se les pudo hacer guerra justa, y matarlos, tambien pudieron hacerse esclavos”. See also the discussion in Cuena Boy, De servitute, 248–250.
Avendaño will be introduced in more detail in Chapter 6.
Avendaño, Thesaurus indicus, tit. I, cap. 11, § 2, no. 103, 23: “Aliquando Indi redigi in perpetuam servitutem tuta conscientia possunt […] Quia Indis potest iustum bellum inferri, et ita etiam possunt occidi, si id ratio iustae defensionis admittat: ergo et servi fieri, servitute cum morte commutata, quae est communi consensu probata doctrina”.
Avendaño, Thesaurus indicus, tit. I, cap. 11, § 2, no. 100, 23.
Avendaño, Thesaurus indicus, tit. I, cap. 11, § 2, no. 100, 23: “si videlicet ita resistentes non resipiscant, id concedit Pontifex, omnem in eo eventu scrupulum eximens, iam enim illi manifesti hostes Christi comprobantur, et cum Mauris et Turcis numerandi”. For an explicit reference to Molina’s account of Morisco slavery, see Avendaño, Thesaurus indicus, tit. I, cap. 11, § 2, no. 106, 24.
Avendaño, Thesaurus indicus, tit. I, cap. 11, § 1, no. 103, 23–24: “Tale autem bellum et esse potest, et iam multis retro annis experiemur in regno Chilensi, ubi durum satis a stirpe genus, infidum, refractarium, quod neque humana neque divina fides in rationabili contineat officio”.
Avendaño, Thesaurus indicus, tit. I, cap. 11, § 1, no. 104, 24: “Dici potest a Regibus Catholicis hoc iudicatum illicitum, ut vidimus num. 100 verbis illis: Porque estos no se pudieron hacer esclavos, aunque fuese por ocasion de rebelion. Sed id non obstat. Concedimus enim non bellum quodlibet, aut rebellionem quamcumque ad servitutem sufficere, sicut superius explicatum: iteratam tamen, neque securitatem nostrorum, et eorum, qui Christianam sunt religionem amplexi, aut emendationis spe, titulum esse sufficientem affirmamus”.
Forcefully in Phillips, “Slavery in the Atlantic Islands,” 344.
Kopytoff and Miers, “Introduction”, 17.
Kopytoff and Miers, “Introduction”, 54.
Martín Casares, “Maghrebian Slaves in Spain”, 110.
Martín Casares, La esclavitud en la Granada, 398–402.
Phillips, Slavery in Medieval and Early Modern Iberia, 125.
Phillips, Slavery in Medieval and Early Modern Iberia, 124–126.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 1, a. 3, 303, original emphasis.
Covarruvias, In regula peccatum, pars 2, § 11, no. 6, in Opera omnia, vol. 1, 553: “Quorum quidem infidelium aggressiones, non possunt aliqua ex parte esse licita: nec itidem defensiones: cum provincias Christiani nonminis tyrannice, et perfide, ac crudeliter occupaverint”.
See the excellent discussion in Scattola, “Sklaverei, Krieg und Recht”, 309. The reference was to D.49.15.5.2. On Covarruvias’s use of the language of legal fiction, see the quote in the footenote below.
Covarruvias, In regula peccatum, pars 2, § 11, no. 6, in Opera omnia, vol. 1, 553: “Quamobrem nisi aliud lege humana statutm in specie sit, opinor erga Christianos captos a Turcis, vel Sarracenis non esse servandas leges Romanorum, quae de captivis apud hostes loquuntur, nec esse necessarias fictiones legis Corneliae et postliminii […] ego censeo iuste posse captivum Christianum indistincte fugere […] cum tyrannice, et iniustissimo bello captus fuerit”.
Covarruvias’s allusion to the Reconquista is also underlined in Scattola, “Sklaverei, Krieg und Recht”, 308.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 1, col. 197: “Dubium non est, eos homines, qui sine titulo iusto captivi detinentur, fugere posse […] cum Turcarum et Maurorum bellum adversum nos ex eorum parte sit iniustum, dubium non est, nostros, qui apud illos captivi detinentur, licite posse fugere, quo velint”.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 1, col. 197: “quia perpetuo nostris cum illis bellum est, accipere non solum ab eis, a quibus iniuria sunt affecti, competentem recompensationem damnorum et iniuriam […] set etiam tam ab illis quam ab aliis iure belli atque ex praesumpta nostrorum principum voluntate accipere, quaecumque potuerint”.
Vitoria, De iure belli, in Political Writings, trans. Pagden and Lawrance, q. 3, a. 7, 324, original emphasis.
Fagundez, De iustitia et contractibus, lib. II, cap. 5, no. 7, 155: “et per vim ad nostros possunt fugere, iniustos dominos occidendo, quia cum iniustie sint captivi, iniuste detinentur […] quia Mauri, et Turcae, perpetuo nobis iniusti sunt hostes, perpetuumque nobis bellum ubique gerunt […] ex tacito Principis consensu ab illis, in ratione hostium, et iure belli, quantumcumque potuerint accipere”.
Azor, Institutionum moralium, vol. 2, lib. II, cap. 34, 141: “Nec enim arbitror Christiano servo fas esse, Turcis, et Saracenis, aut alii Christiani nominis hostibus quippiam furari, aut rapere, hoc est, privata auctoritate quidpiam auferre […] nisi fortassis, quod est ad fugam necessarium”. As the title of Azor’s treatise reveals, he was deeply invested in Roman law, not just Justinian’s Institutes, as we shall see more fully in Chapter 5 of this book. This point is also noted in Decock, “Spanish Neo-Scholasticism”, 327.
Azor, Institutionum moralium, vol. 2, lib. II, cap. 34, 141: “fas non esse alicui privata auctoritate furari, vel rapere Turcis, vel Saracenis: secus vero publica auctoritate, videlicet iure belli quod quilibet Princeps Christianus habens auctoritatem incidendi bellum, ut suam Rempublicam defendat, potest illis inferre”.
Soto, DIEI, lib. IV, q. 2, a. 2, 289: “Illi enim qui se inopia pressi servituti manciparunt, quia libere se pretio vendidere, fugere iure nequeunt: sicut neque furari quem vendidisset equum”.
Soto, DIEI, lib. IV, q. 2, a. 2, 290: “quoniam cum non sua sponte in illam conditionem inciderint, non est eorum miseria tanta afflictione coercenda […] De illis autem qui seipsos vendiderint, aliquantulo est ratio apparentior, que quicquid sint, domini sint”.
Brett, Changes of State, 181.
Covarruvias, In regula peccatum, pars 2, § 11, no. 6, in Opera omnia, vol. 1, 553: “Imo et si captus esset apud hostes iustissimo bello, liceret ei ad suos redire, ac fugere hostium limites transgrediendo: ut ipse notavi lib. 1. Variar. resolut. c. 2. num. 10. et haec quidem de servis iure belli dicta sint, deque his qui ab hostibus capti servitutem serviunt iure gentium, procedente a ratione ipsa naturali”. Covarruvias here referred to his more extensive treatment of this issue in his Variarum resolutionum, lib. I, cap. 2, no. 10, in Opera omnia, vol. 2, 15.
Molina and those who were writing in his wake also added that this similarly extended to all those who had sold their children in extreme necessity, another title to which we shall turn in Chapter 3. See Molina, DIEI, vol. 1, tr. II, disp. 37 no. 2, col. 197–198; and e.g. Lugo, DIEI, disp. 6, sect. 3, no. 20, 136.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 3, col. 198: “qui ob delictum servitute communi sunt iuste mulctati, fugere de servitutem non possunt, sed per seipsos tenentur eam exequi poenam, eo ipso, quod per sententiam iuste est eis inflicta”.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 4, col. 198: “Confirmat vero Covarruvias suam sententiam ex lex nihil interest […] etiam ex lex 23. titulo 14. par. 7. legum Castella, quae id expressius habet, dum statuit. Si Saracenus iuste a nostris captus fugiat, eo ipso, quod ad suos pervenit, consequi libertatem, adeo ut, si postea sua sponte regrediatur ad mercaturam inter nostros exercandum, cogi non possit ad pristinam servitutem”. Molina here pointed to Covarruvias’s discussion in Variarum resolutionum, as cited above. The legal references are to D.49.15.26 and Las Siete Partidas, l. 23, tit. 14, partida 7.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 10, col. 198–199: “Captus bello ita iusto […] lethaliter peccat, si fugiat dominum suum, teneturque seipsum restituere, esto ad suos perveniat. Probatur primo, quoniam possessor erat legitimus […]”.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 10, col. 199: “Quotidie namque servi fugam arriperent ad suos […] quare potius homines iuste interficerent hostes suos in bello, quam ad tale servitutis genus eos asportarent: quod in detrimentum ipsorummet servorum redundaret”.
We know next to nothing about Simões’s life and it is unclear whether he and Molina knew each others’ texts, they certainly did not cite each other. Simões addressed the problem of slavery in a manuscript from 1585 that is preserved in the National Library of Portugal (cod. 6015), and which was recently edited. It was in this text that Simões argued that “just war” slaves could not licitly escape. See Simões, Materia de restitutione, ed. and trans. Maurício and Miranda, membrum 2, a. 5, 308.
Pérez, “De acquisitione dominii in homines”, ed. and trans. Tarrío and Brito, dubitatio 7, 364; and Pérez, “Non nulla ante materiam de restitutione”, ed. and trans. Tarrío et al., disp. 14, 456.
Lugo, DIEI, disp. 6, sect. 3, no. 22, 136: “non videntur ii magis obligari ad manendum apud dominum, quam reus ad manendum in carcere, quo ob delicta detinentur”.
Lugo, DIEI, disp. 6, sect. 3, no. 22, 135: “prout habetur in § item ea, Inst. de rerum divisione, ubi expresse sermo est de servis captis a Romanis in bello iusto: Liberi (inquit) homines capti in bello iusto in servitutem nostram reducantur: qui tamen, si evaserint, ad suosque reversi fuerint, pristinum statum recipiant”. Lugo here cited from Inst. 2.1.17. In this passage of Justinian’s Institutes, a legal teaching book for students compiled in the 6th century, the respective dictum from the law of captives and postliminium—D.49.15.5, which was originally from the 2nd-century lawyer Pomponius—was reiterated.
Lugo, DIEI, disp. 6, sect. 3, no. 25, 137: “Primo opponit Molina […] ius habet ad illos captivos deferendos, nemo tamen dicet, si ipsi tunc fugiant, antequam suae Provinciae fines egrediantur, furtum eos committere, quia totum domini ius erat sub conditione quod non fugerent”.
Lugo, DIEI, disp. 6, sect. 3, no. 27, 138: “Sufficeret tamen Turcae, si ex Hispania confugiens rediret ad aliquam Africae provniciam, quaecum Turca unionem, et confoederationem haberet, ratione cuius posset ibi securus esse sicut in propria Patria”.
Lugo, DIEI, disp. 6, sect. 3, no. 27, 138: “non liceat servo fugere ut maneat, et vagetur intra confinia eiusdem provinciae et in potestate eiusdem Principis: per hanc enim fugam non recuperat libertatem”.
Fagundez, De iustitia et contractibus, lib. II, cap. 4, no. 11, 153: “Procedit autem haec opinio de fuga ad suos, quia haec sola est iure, et consuetudine concessa ad recuperandam libertatem […] fugas Aethiopum, qui in bello ex nostra parte iusto a nobis capti fuerunt, communiter esse iniustas, et vagabundas, quia ita carent spe evadendi ad suos”. Fernando Pérez had made this argument as well, though neither Fagundez nor Lugo referred to him. See Pérez, “Non nulla ante materiam de restitutione”, ed. and trans. Tarrío et al., disp. 14, 468.
Soto, DIEI, lib. IV, q. 2, a. 2, qtd. and trans. in Brett, Changes of State, 26. On the same page, Brett emphasizes that it is therefore inaccurate to claim that natural slavery was categorically rejected as a just cause for war in the Catholic natural law discourse, as suggested in Tuck, The Rights of War and Peace, 70. Soto’s argument was restated almost verbatim by Martín de Ledesma (1509–1574), who had studied with Vitoria in Salamanca and later became professor at the University of Coimbra. See Ledesma, Secunda quartae, Q. 18, a. 1, dub. 11, fol. 225v.
Lugo, DIEI, disp. 6, sect. 3, no. 26, 137: “sicut enim potest dominus arctiori custodia, et vinculis tenere servum fugitivum, ne iterum fugiat: sic potest aliud aequivalens malum inferre, ut eius metu iterum non fugiat”.
See e.g., See Azor, Institutionum moralium, vol. 2, lib. II, cap. 34, 140; Rebelo, Opus de obligationibus iustitiae, pars 1, lib. I, q. 12, no. 1; Sánchez, Consilia, lib. I, cap. 1, dub. 7, no. 3, 8; and Fagundez, De iustitia, lib. II, cap. 4, no. 10 and 13, 152–153.
Lugo, DIEI, displ 6, sect. 3, no. 26, 137: “neque enim quotidie fugiunt, sed rarissime, nec ideo noxia est dominis illa servitus propter expensas”.
Molina, DIEI, vol. 1, tr. II, disp. 37, no. 12, col. 200: “Ad hac conclusione excipitur, quando fidelis aliquis iuste esset captivus apud infideles, indeque fugisset, neque sine notabili detrimento spirituali apud illos posset commorari”.