The crown agreed with the lawyers on the question of title by which the Indies of the West were held. The crown also recognized the stipulations in the bull to civilize and christianize the Indians. Consequently, it was resolved that just war could not be undertaken against them; but the government placed over them should be a missionary government; with a political polity, at the same time, for colonists only, from Castile. Hence, the innumerable mission establishments in America and the comparatively insignificant civil institutions for the Europeans; hence, also, the double aspect of formation in the vice-royalty— the dual government under one head.
The royal officials sent out had no jurisdiction over the Indians, except the viceroy; the religious missionaries had no charge over the Spaniards. As the natives greatly outnumbered the Castilians, the institutions, in a short time, inclined more to the ecclesiastical than to the civil or political; and the religious element continues predominant to the present day. Presidents still govern in fact, although not in the same form as the old viceroys; and as the viceroys represented the king in temporal and spiritual matters, the republican presidents endeavor to imitate, in the plenitude of their power, both the sovereign and the pontiff.
Las Casas understood the law as laid down by the civil jurists, and as understood also by the theologians. Sometimes he defended the Indians under the civil code; sometimes under the canon law. In one way he appealed to his countrymen's sense of justice; in another, to their conscience. In general his arguments were based on the bull of Alexander, contending that the natives were placed in charge of the sovereigns by the head of the church for a religious purpose. Llorente considers this course the weaker side to take, because the pope has no prerogative to grant kingdoms, and principalities, and discoveries at pleasure; yet he excuses Las Casas, because this assumption of the pope's was generally recognized in that age. But the excellent biographer overlooks the words in the petition from Isabella to Alexander, desiring the sovereignty. A saving clause will be found in it, which intimates: "Distinguished lawyers are of opinion that the confirmation or donation from the pontificate is not requisite to hold possession justly of the new world." In that it will be perceived a reservation is inserted against the very power to grant that which it was requested to be granted.
The bishop was aware of this, but still preferred to appeal to the conscience of the conquerors and colonists; to portray the wickedness in enslaving, where their religious convictions might be touched, rather than rely upon the law of the case where every secular law was continually broken, and where even divine law was not much better respected. His policy was correct; its good effects ultimately were manifest, and at last eminently successful.
At this time died Hernando Cortez, the conqueror and scourge of Mexico. When his will was opened, one item directed, as Mr. Prescott translates:
"It has long been a question whether one can conscientiously hold property in Indian slaves. Since this point has not yet been determined, I enjoin it on my son Martin and his heirs, that they spare no pains to come to an exact knowledge of the truth, as a matter which deeply touches the conscience of each of them no less than mine.'
The historian, in a note on the same page, gives this extract in the original, where it reads differently, thus:
"Item, concerning the native slaves in New Spain, aforesaid; those of war as well as of purchase, there have been, and are many doubts," etc.
The term, "by purchase," refers to those natives who were slaves before the arrival of the Spaniards, and sold to him. Mr. Prescott does not perceive the point for which Las Casas was contending, and which touched the conqueror on his death-bed with all his mighty crimes fresh on his soul at the last moment, whether Indians, although taken in war, could be enslaved. On the next page Mr. Prescott remarks: "Las Casas and the Dominicans of the former age, the abolitionists of their day, thundered out their uncompromising invectives against the system, on the broad ground of natural equity and the rights of man." This is a mistake; Las Casas and other Dominicans always held up the bull of Alexander VI., as our abolitionists pointed to the National Declaration of Independence. The glamour perpetually before the eyes of modern biographers about the natural equity and the rights of man prevailing in the sixteenth century has misled them into many errors.
Cortez had no scruples on the subject of his negro slaves! He does not provide for them. His man, Estevan, had the honor of introducing the small-pox to this continent, at Vera Cruz. Many of the race, both African and Spanish-born, were brought to the Indies before 1500; but soon after their arrival, proving refractory, they rebelled against the masters in what was called the Maroon war. Others ran away to the mountains, enticing the simple natives with them, where the negro lived in oriental leisure and luxury, in his harem, who worked for him, and provided for all his wants. In 1502, Governor Ovando recommended that further importation be prohibited; because they escaped, and would not work for the planters. The clergy joined in the recommendation, because the negroes took the Indians with them, whereby the Indian could not be instructed in religion.