By Carl Watner

This article can trace its roots back to a two-book review by Barton Swaim in THE WALL STREET JOURNAL on April 13-14, 2019, titled “Render Unto Caesar.” What really caught my eye, was the banner quote across the top of the page, that read:

“You cannot parcel out freedom in pieces because freedom is all or nothing.” – Tertullian

The new book that dealt with Tertullian was Robert Louis Wilken’s LIBERTY IN THE THINGS OF GOD (2019). According to Wilken, “Tertullian [was] the first in the history of Western civilization to use the phrase ‘freedom of religion’.” (Wilken 11) Born of pagan parents between 150 and 160 AD, Tertullian’s most significant defense of religious freedom was his Latin tract AD SCAPULAM, probably written in late 212 AD. Addressed to Scapula, the proconsul of Africa, after he ordered the suppression of Christians in Carthage, Tertullian wrote:

It is only just and a privilege inherent in human nature that every person should be able to worship according to his own convictions; the religious practice of one person neither harms nor helps another. It is not part of religion to coerce religious practice, for it is by choice not coercion that we should be led to religion. (Wilken 13)

Although earlier Christian writers had defended their religious practices to the Romans, Tertullian broke new ground “in highlighting the freedom and dignity of human beings” (Wilken 16) and he was certainly one of the earliest thinkers to recognize that the power of choice in human beings was “innate, an endowment given at birth.” (Wilken 14) Although he did not describe it as such, Tertullian pointed the way towards seeing religious freedom as, what today would be called, a fundamental human right. (Wilken 2)

Nor did Tertulllian expand upon his insight that “freedom is all or nothing.” It took the better part of 2000 years for libertarians to apply his thinking to the political realm. What this brief discussion of Tertullian highlights s a significant point: namely, that religious and political freedom rest on the simple truth that neither should be coerced by external force. Coerced belief, whether it be to the end of enforcing religious or political conformity, is no belief at all. Forced belief may result in superficial behavior but it cannot command inner acceptance. Coercion and violence destroy the ability to choose and to take full responsibility for one’s choices.

One of the main thrusts of Wilken’s book is “that the principle of religious freedom – that is, that religious believers may worship as they wish – arose chiefly from Christian sources.” (Swaim) In the course of reviewing the history of Christian thinkers who developed this idea over the centuries, Wilken soon mentions Bartolome de las Casas (1484-1566). In my article, “’All Mankind Is One’:The Libertarian Tradition in Sixteenth Century Spain,” I wrote extensively about las Casas and the other Spanish scholastics of Salamanca. He was a combination of lawyer, philosopher, Old Testament prophet, and canon lawyer who was not afraid to go wherever his theology and conscience led him. Known as the Protector of the Indians, he grew not only more radical but more defensive of the Amerindians as he grew older. In 1502 he sailed from Spain for the island of Hispaniola in the Caribbean, and remained in the New World on and off for much of the rest of his life. He observed the Indians first hand. At one time, until his conscience awakened him, he was an encomendero and owner of Indian slaves. He witnessed many atrocities committed by the Spanish conquistadors against the Indians, and on numerous occasions tried to persuade the Spanish kings to “end the injustices against the native peoples.” (Wilken 42)

In defending the rights of the Indians, he argued that the Catholic colonizers should adhere to the ancient custom of the Church that people should be immune from coercion. (Wilken 43) “Compulsion, he argued, is opposed to freedom because it makes what is voluntary a matter of coercion. ‘It is impossible for a thing to be simply coerced or violent and voluntary’.” In a debate before a council of schoolmen in Valladolid in 1550, to illustrate his point he asked “’What does the Gospel have to do with firearms?’ The Church has no authority to spread the Gospel by coercion. As human beings made in the image of God, the Indians are free to accept or refuse baptism on the basis of their ‘natural right of freedom [naturale ius libertatis]’.” (Wilken 43)

Las Casas’ emphasis on immunity from coercion is embraced in what today is called the non-aggression principle. He believed the only way of converting the Indians to the truth of Christianity was by persuasion. (Sanderlin xvii) Despite the fact that in the eyes of the conquistadors the Indians had no standing as human beings, Las Casas saw them as men and women just like the Spaniards. Liberty was the birthright of all men, not just Christians or Europeans. “Freedom is a right present in human beings necessarily and per se, … . Therefore it [freedom] is natural right” of all. (Sanderlin xv) As Las Casas wrote in 1542:

Liberty is the highest, the most precious of all temporal goods of the earth. It is cherished early by all creatures from the least to the most aware, above all by rational beings. … Free men will not accept any impairment of their freedom, unless it comes from their free choice and not from force. Anything that happens apart from choice is force – violent, unjust, perverse, null and void according to the natural law, since it means making free men into slaves. There is no greater harm [to life] than this except for death itself. If you cannot take the goods of free and innocent people away from them justly against their wills, much less can you plunder them, rob them of their state of free human being, usurp their liberty. (Sullivan 243)

Not only did Las Casas reject the claim that the Spaniards could force their religion on the Indians, he held to a proprietary theory of justice by which he maintained that the conquistadors had no more right to invade the territories of the Indians, than the Indians would have to invade Spain if the Indians somehow had discovered the Old World. “He refused to accept that Europeans had the right to be in the Indies without the free consent of the inhabitants.” (Gutierrez xvi) He was led to the conclusion that “a necessary condition of all political legitimacy [was] the free consent of the governed.” (Gutierrez 360) “Nothing may be done against the will of the Indians. All must be done ‘according to and in conformity with … their approval and consent’.” (Gutierrez 383) He appealed to the ancient maxim, “Quod omnes tangit, ab omnibus tractari et appprobari debet,” that “what affects all must be known and approved by all.” (Gutierrez 385)

He endorsed the principle of restitution: “anyone who by violence or deceit comes into the possession of something belonging to another is under the obligation of restoring it to its rightful owner.” (Gutierrez 364) He interpreted this to mean that the treasures of gold and silver which the Spaniards had stolen from the Indians were to be returned to them; and that the Indian kings and princes be restored to their thrones. He argued that it would be better that all the Spaniards left the New World and that the King of Spain lose his claim to the new lands than to wage war against the Indians. (Gutierrez 214-215) “Since the native peoples had been attacked in an unjust war, their wars of self-defense [were] just.” (Gutierrez 360)

Besides claiming to convert the Indians to Catholicism, the conquistadors “were speechless with horror” upon finding evidence of Indian sacrifices and cannibalism. They demanded that the Indians stop these practices immediately. (Sanderlin xviii) In defending these practices, “Las Casas was at odds with the common opinion of theologians of his time,” (Gutierrez 208) however, as one commentator noted, he believed that

Coercion in matters of conscience … [did] violence to the basic humanity of the native people of the Americas. They needed to be persuaded to accept truth, he argued, only by the peaceful methods of reason, love, and the living example of practiced virtue. Las Casas took this position so seriously that he went as far as to defend some of the native populations’ practice of human sacrifice. Of course, he didn’t defend human sacrifice as such, but instead insisted that the indigenous peoples needed to be educated through peaceful persuasion and that even their use of human sacrifice could not justify military conquest and forcible submission.” (Carozza 294)

Las Casas’ defense of Indian sacrifices was multi-pronged. He did not approve of their actions ethically, but he tried to look at it from their point of view. They were offering their God the best thing they had: human life. (Gutierrez 214) In one sense, he presented a negative argument : not that sacrifice was correct but rather that its practice was no justification for war against the Indians. (Gutierrez 175) He had already pointed out that the Spaniards had no jurisdiction over the infidel Indians. Fighting a war against the Indians to prevent sacrifices “would result in more deaths than the sacrifices would ever produce.” Non-interference with the Indian death rituals would be an incomparably lesser evil than the consequences of war. Furthermore he pointed out that human sacrifices to the gods had been customary among many different peoples, including the Romans, and had not God commanded Abraham sacrifice his son, Isaac? (Sanderlin 164) Nor was it reasonable for the Indians to believe the Spaniards when they were told it was a sin “against natural law and God’s law to sacrifice human beings.” The preachers of faith that came “in the company of tyrants, warriors, thieves, [and] killers” were being hypocritical. By trying to impose their wills on the Indians by force they were demonstrating how unchristian they really were. (Sullivan 293)

All of Las Casas arguments were based on “respect for the Indian’s religious customs.” (Gutierrez 174) Freedom of religion, for Las Casas, meant “that all men are to be immune from coercion.” In matters of religion the Indians were not to be forced to act against their beliefs. (Gutierrez 187) The Church had long held that “No one may be obliged to act against his or her conscience, even if that conscience is in error.” (Gutierrez 187) He saw that the Indians had a duty to defend their religious customs and were obliged to follow their consciences, even though it “presented them with something evil as if it were something good.” (Gutierrez 209) As one editor of Las Casas’ APOLOGIA summed up Las Casas position: “If Christians use violent means to impose their will on the Indians, it would be better for the Indians to keep their traditional religion. Indeed, in such a case, it is the pagan Indians who are on the right path, and Christians who behave in this [warrior-like] way might well learn from them.” (Gutierrez 535 footnote 34) If the Indians could not be persuaded peacefully to abandon sacrifice, then Las Cases would accept the fact that no Indians would reach heaven. Better the infidels be faithful to their own beliefs. (Gutierrez 194, 243)

Besides being a defender of the Indians, “Las Casas was the first person in the sixteenth century to denounce black slavery as inhumane and unjust. (Sanderlin xx, Sullivan 159) He “condemned slavery and championed the cause of the Indians on the basis of a natural right to liberty grounded in their membership in a single common humanity” since he saw all mankind as one. (Wikipedia) He rejected “the use of force in the proclamation of the gospel as morally wrong.” (Gutierrez 383) It would not be a far stretch to see some connection between his principled rejection of force in matters of religion to its applicability to matters of force in the political realm. He and the other Spanish Dominican philosophers unknowingly “laid the groundwork for a doctrine of natural rights that was independent of religious revelation ‘by drawing on a juridical and scholastic tradition that derived natural rights and natural law from human rationality and free will’. …” (Wikipedia) As I have discussed elsewhere, the question of religious freedom must ultimately impact on questions of political liberty. If men should not be coerced in their religious beliefs why should they be coerced in their political affiliations? One would not be surprised if Las Casas, the canon lawyer, Old Testament prophet, and proto-libertarian would have agreed with how voluntaryists answer this question. (Sanderlin xvi)

Quotes

There is nothing useful but what is just; there is no law of nature which makes one individual dependent on another; and all those laws which reason disavows, have no force. Every person brings with him into the world his [own] title to freedom.

– attributed to Le Gente by John Christie and Dwight Dumond in GEORGE BOURNE and THE BOOK AND SLAVERY IRRECONCILIALE (1969), p. 148.

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Those who are in the grace of God are not one whit better off than the sinner or the pagan in what concerns natural rights.

– Domingo de Soto (1494?-1560)

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Paganism annuls neither natural right or human rights.

– Francisco de Vitoria (1483?-1546) citing the opinion of St. Thomas Aquinas

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The Hopi knows it is not right to go about trying to change people who have religious beliefs that are different from his own, and he will not try to force them to follow the Hopi way of life. I would not try to force the young people of the white man to live and believe my way. I will not even force my own young people to be initiated into our religious societies. I will only ask them if they want to join or be initiated into them. If they say “no,” it will be respected. This is the very basis of our life, we must not force other people to change their ways.

– Yamada, George. The Great Resistance, A Hopi Anthology. New York: G. Yamada, 1957, p. 55.

References

Carozza, Paolo “From Conquest to Constitution,” 25 HUMAN RIGHTS QUARTERLY (2003), pp. 281-313.

Gutierrez, Gustavo LAS CASAS, Maryknoll: Orbis Books, 1993.

Sanderlin, George (ed.), WITNESS: THE WRITINGS OF BARTOLOME DE LAS CASAS, Maryknoll: Orbis Books, 1971.

Swaim, Barton “Rendering Unto Caesar,” THE WALL STREET JOURNAL (April 13-14, 2019), p. C6.

Sullivan, Francis Patrick, SJ (ed.), INDIAN FREEDOM: THE CAUSE OF BATOLOME DE LAS CASAS, 1484-1566, Kansas City: Sheed and Ward, 1995.

Watner, Carl “’All Mankind Is One,’ The Libertarian Tradition in Sixteenth Century Spain,” 8 JOURNAL OF LIBERTARIAN STUDIES (1987), pp. 293-3309.F.

Wikipedia, “Bartolome de las Casas,” en.wikipedia.org/wiki/Bartolomé_de_las_Casas, at Content Notes ‘d’ citing Mary Ann Glendon,“The Forgotten Crucible: the Latin American Influence on the Universal Human Rights Idea,” 16 HARVARD JOURNAL OF HUMAN RIGHTS (2003), pp. 27-39.

Wilken, Robert Louis LIBERTY IN THE THINGS OF GOD, New Haven: Yale University Press, 2019.