Washington Irving's note on Las Casas, in the appendix to his Columbus, evinces much commendable research, and a collection of all the facts he could find. But unfortunately, he had not studied the career of the bishop; he did not pursue his examination deep enough; he also overlooked some evidence before his eyes in Herrera. When Mr. Irving had finished his search and noted the evidence, he stated confusedly what he had collected, without discriminating between inferences and facts; sometimes treating facts as inferences or excuses in the biographies of Ximenes; sometimes treating the inferences in Robertson and Quintana as facts. He entered upon the examination impressed with the conviction that Las Casas had been inconsistent; that the moral conscience of that age was against slavery as much as it is now. He comes to no conclusion, and leaves the charge against the bishop in the same condition he approached it.
Mr. Prescott, in his excellent History of the Conquest of Mexico, in a note on Las Casas, copies only from Quintana, and thereby copies also, many of the mistakes of that celebrated Spanish author. The singular spectacle, therefore, among the curiosities of literature is presented in Mr. Prescott's Conquest, a work of sterling value, for its accuracy resting always upon respectable authorities, wherein a note is seen abounding in errors. Mr. Prescott is also a believer in the inconsistency of the bishop, and that the moral sense at that time was against slavery.
Mr. Ticknor, too, in his History of Spanish Literature, a history renowned and properly admired everywhere, with all his respect for the bishop, is not without his little literary imperfections. It is evident he is not familiar with the events, and their surroundings in the life of Las Casas. He places the famous controversy of the bishop with Sepulveda in 1519. But in that year was the well-known debate of Las Casas with Quevedo, the Bishop of Darien, in the presence of the youthful sovereign. Sepulveda was then a young man of twenty-six years. But Mr. Ticknor wanders in good company, one of the most eminent of England, the celebrated Sir James Mackintosh, who, in his Progress of Ethical Philosophy, states Sepulveda met Las Casas in argument in 1542. That, however, was the year of the famous assembly convoked by imperial order, at Barcelona and Molino del Rey, to take into consideration the bishop's Brief Account of the Destruction of the Indies. Both of these able historians are wrong about the date of the Sepulveda discussion: even Mr. Helps knows better; it was in 1550. Mr. Ticknor further reports that the Brief Account was written for the emperor and dedicated to the prince, afterward Philip the Second. It would have been more proper to write that the Brief Account was written for the emperor, and ten years after printed and dedicated to the prince, then in England, the Prince Consort with Queen Mary.
The state of public opinion, in regard to slavery at that period, requires a few words in explanation in order to leave no uncertainty in the law, or stain on the crown, on the church, or civilization. It differed much from the present, because the condition of society was in many respects not analogous. Slavery was not then considered immoral; but was actually, in its practice, indicative of progress, in ameliorating the calamities of war and the fate of captives by land and sea. Every war undertaken by a civilized nation, and declared in the usual forms, with the solemn religious ceremonies, was held to be a just war. It was an appeal to the God of armies, as an umpire or judge; it was the ordeal by battle. When a victory was won, it was held by the victors a divine decision in their favor; the vanquished were deemed criminals before high heaven; and as a punishment they were put to death. When the prisoners were too numerous for a general massacre, they were led captive to colonize some vacant territory, and to work for their masters. These victims did not feel grateful to their enemies for their clemency; but poured forth their thanks to Providence for his mercy. Their offspring continued in slavery; for the sins of the father were visited on the children to the third and fourth generations, for ever. Even in the course of time, when they intermixed in blood, language, and religion with the descendants of their conquerors, they were often held to servitude. This was the theory and the practice under it; but subject to many exceptions. Exchange of prisoners was sometimes effected; some were ransomed; some were released. At the date of the discovery of America, Spain had been at war with the Saracen for seven centuries; it was not only a just war, but a holy crusade. When captures were made on either side, slaughter ensued without compunction; but not invariably. Both armies and navies were acting on religious conviction; but both were better civilized, the infidel being deemed the more refined of the two. It is true, the old and young, the infirm and diseased, who were poor, were slain or pitched overboard; while the rich and the strong were held for slaves or for ransom. When a parent learned that his child or relation was spared, only enslaved, he felt the joy with which an American mother on the border hears the news that her little girl has not been scalped by the Camanches when captured.
In Europe, therefore, slavery was deemed a mitigation of the horrors of war: an evil inflicted by the hand of Providence, but a lesser evil. No one spoke or wrote against the institution; whoever had dared would have been considered not much better than a brute. Perhaps a few Moslem fanatics desired more Christian blood-letting; perhaps a few Christian fanatics wished a little more of the fluid from the arteries of Moors. Yet in no period of the world's history was it held just to retain slaves not captured in a just war. In Jerusalem, they were returned to the neighboring nations when acquired in private piratical forays. This was the Hebrew law. The law of Moses forbade man-stealing, mentioned in Isaiah, and repeated by Saint Paul in Timothy; but man-stealing meant no more than any other stealing of movable property.
In Athens, the same morality was recognized. Aristotle laid it down in his "Politics" that barbarians could not be held in servitude unless taken in a just war. Rome borrowed her international code from Greece, as she borrowed everything else intellectual. On the revival of learning in the west, the Roman civil law was introduced through the continent of Europe. The justice of war, the property acquired under it, the moral power to enslave, when, where, and in what cases, was elaborately taught at the universities. Its principles were as well understood in the canon law as in the civil law; teachers in ethical philosophy also expounded the doctrine which prevailed in every tribunal or judicature. They all agreed in their premises and maxims; they only differed in their application, as their minds were clear or obtuse.
The rules for the interpretation of laws were the same in the courts of civil or ecclesiastical jurisdiction. The presumption of law was that, as slavery of the foreign infidel existed in Spain, every infidel of a foreign nation was a slave. If one claimed his freedom, the burden of proof lay upon him to prove he was free. When negroes from Africa were brought by Portuguese slave-traders to the Seville market, the presumption arose that these creatures were of that condition. If one of them could show that he was not a slave, that he was not captured in war, but stolen from his tribe, he was adjudged a free man. It had always been known that men were stolen and sold; but every slave claiming to be free had to prove it. The public did not inquire into the fact when they purchased; they did not send to Senegambia. It is well known that mule-stealing is as common in Kentucky as sheep-stealing in the State of New York. Yet no one in the city, purchasing either kind of animal in the open market, will hesitate to buy mules or mutton from a regular drover or butcher. Who could wait, when taking his seat at breakfast, until his conscience was appeased to find out first whether the veal cutlet before him was not cut from a stolen calf? No one, high or low, in Spain, had any misgiving in the traffic of slaves, either in importing them to Andalucia or in exporting them to Jamaica.
But the natives of the Western Indies stood on a different footing, and when their question was first presented by Queen Isabella to the universities of Valladolid and Salamanca for a just opinion, whether the Indians could be enslaved, the professors unanimously decided they could not. The doctors of theology, versed in the canon law, maintained the aborigines of the western hemisphere were conceded to the crown by the bull of Alexander VI. granting the sovereignty of America to the kingdom of Castile and Leon, and the inhabitants, as wards to civilize and make Christians in express terms to be found in the pontifical document; that the sovereign had accepted it on these conditions. To break the promise was to betray the trust. On the other hand, the civil jurists held the Indians were vassals of the crown acquired in peaceful discovery and not reduced by war. Therefore they were never captured, and consequently could never be enslaved.