A LEGAL AND MORAL DIVERGENCE

Ordering the New World

Around sixteen years after Cortes conquered and plundered the Aztec capital, and as commodities and precious metals flowed through Spain, the Dominican scholar and so-called founder of international law Francisco de Vitoria set about theorising the legitimacy of this appropriation in his lecture De Indis, delivered in 1539.

Vitoria opened the Americas to claims of hospitality which went beyond the things of necessity, arguing that resources that were available before the division of private property (divisio rerum) could be claimed in the Americas according to the ius gentium. Vitoria developed this right to hospitality (ius hospitii), and also the right to trade (ius negotiandi), as ‘soft' rights which facilitated colonial appropriation without reference to a right of possession.

Vitoria drew upon the classical world to model projections of the ideal global order. To explain why it was that the Amerindians had to welcome the Spanish according to the customs of hospitality, Vitoria cited Virgil's verses:

What men, what monsters, what inhuman race, What laws, what barbarous customs of the place, Shut up a desert shore to drowning men, And drive us to the cruel seas again!

(Aeneid I. 539-40, Dryden's translation)^[601]

Vitoria also drew upon the Christocentric principle of hospitality. He reminded his audience that ‘it is a law of nature to welcome strangers, this judgement is to be decreed amongst all men', and cited the gospel of Matthew where Christ warned ‘I was a stranger and ye took me not in' (Matt. 25:43).^[602] This use of the figure of the stranger to whom hospitality must be granted is strategic.

It is no surprise that Vitoria should draw upon the writings of St Augustine to make this rhetorical move. Vitoria was a Dominican. Western monasticism had been based upon the Rule of St Augustine (c. 400 CE), but it was adopted by the mendicant Dominican Order when it was established in 1216. The Augustinian Rule advocated a common life, where members of the commu­nity lived without individual property and held things in common. The Dominicans were one of the mendicant orders that revolutionised the insti­tutional landscape in the thirteenth century by transcending the institutional

site of the monastery and instead realising their institutional identity as they moved through civic spaces begging for alms, valorising a culture of need.^[606] Their brothers with whom they shared things in common were not those with whom they shared a monastic space but the people they met on the street who gave them alms.

It is worth remembering that this Augustinian model of hospitality was not informed by an idealised equality but by an idealised hierarchy. The Augustinian Rule stipulated that ‘food and clothing shall be distributed to each of you by your superior, not equally to all, for all do not enjoy equal health, but rather to each one's need'.^[607] Here we see that in this idealised community people should have access to things of necessity but that there should be a hierarchy of distribution of resources according to needs decided by the superior.

Vitoria referred to the Amerindians throughout De Indis as ‘the barbarians'. Engaging with his interlocutors who were critical of the faculties of the Amerindians, Vitoria considered their weaknesses, their lack of Christianity, their lack of rationality, and other foibles, but he concluded that they had the right to own their own property. Vitoria circumvented this unfortunate (for the Spanish Crown) conclusion by invoking the universal custom of hospitality, a way to access resources without claiming a property right. This hospitality was conceptualised as universal, but it created criterion for differentiation, for inclusion and exclusion. The Ancient Greeks had developed one of the earliest notions of hospitality, of welcoming the stranger, but they had also used this as a mechanism for distinguishing themselves from primitive societies which feared strangers, a strategy which continued to define the Roman Empire.^[610] As Vitoria drew upon this classical conception of hospitality, he also tapped into its ancient politics, using it as a mechanism to differentiate and exclude. Vitoria stated that ‘to refuse to welcome strangers and foreigners is inherently evil'.^[611] Antony Anghie has charted Vitoria's contribution to the history of international law, arguing that Vitoria was ‘concerned not so much with the problem of order among sovereign states but the problem of order among societies belonging to two different cultural systems'.^[612] Anghie contends that Vitoria resolved this ‘by focusing on the cultural practices of each society and assessing them in terms of the universal law of ius gentium'.^[613] We see here that it was hospitality in particular that made the point of departure for colonial differentiation permissible for Vitoria.^[614]

Vitoria's discussion of hospitality also had tangible negative implications for the indigenous population of sixteenth-century Mexico: he concluded that if the Spanish were denied these rights of hospitality, they may lawfully go to war.

Ordering the Old World

As the Spanish extended their right to hospitality in the Old World, based upon their needs as travellers, these rights were restricted for the poorest people within Europe. Within the Christian tradition, poverty had been considered to be a sacred condition in the Middle Ages and the poor might expect to receive the things they needed by wandering around and begging. In the thirteenth century the mendicant orders had valorised poverty and the socio-religious culture of need and had institutionalised this way of living as a religious life. These mendicant orders fashioned themselves on the poverty of Christ and embodied the New Testament message that God was present in strangers in need (Matt. 25:43). However, in the sixteenth century attitudes towards the poor and ideas of how they should be provided for within an ideal society diversified. As the Spanish extended their right to hospitality in the Old World, based upon their needs as travellers, these rights were restricted for the poorest people within Europe.

The social policies outlined in Forma subventionis pauperum, including the restriction of the movements of the poor and their access to hospitality, were part of broader debates about the rights and freedoms of the poor that took place in sixteenth-century Europe. Treatises such as Forma subventionis pauperum were used to inform new repressive policies against the poor's ability to seek hospitality. In 1531 Charles V drew upon this text as the basis for a series of poor laws and prohibited begging throughout the empire.^[620] Restrictions on the freedom of the poor to travel and to seek hospitality were opposed by the mendicant orders, who had built their existence on these freedoms. The criminalisation of poverty in Spain was opposed in particular by the Dominican Domingo de Soto, who published Deliberacion en la causa de los pobres in 1545 (simultaneously in Latin and Spanish) in response to a 1540 poor law. De Soto reminded people that the poor had natural rights,^[621] not only to the things of necessity (ius necessitatis) but also to travel (ius periginandi) and to seek hospitality (ius hospitii). For de Soto, this ius hospitii was not absolute or unlimited but contextually contingent. De Soto was clear that the poor should not only have bread but all the things they needed.^[622] De Soto stipulated that the poor received the things they needed through alms (limosnas), but this did not fully locate power with the giver (or host), since he justified his position by citing St Gregory, who had explained that everyone was obliged to give to the poor according to their ability, and that it was also important to defend the poor.^[623] De Soto also looked to classical texts, and invoked the Roman law right of foreigners to beg.^[624] De Soto's Deliberacion, which drew upon a range of classical and theological sources, highlights the continuing complexity of conceptions of hospitality as a mixture of moral norms, religious obligations, and intersecting rights to travel and to access resources. The language of rights, of ius hospitii, did not resolve the ancient tensions within the concept of hospitality as an arbitration between the power of the host-guest or giver-receiver.

Significantly, the debates about hospitality (from the rights of the poor to travel and to seek alms to the ways they could access resources), which broke out in Europe in the sixteenth century, need to be placed within a global context. First, as noted by Annabel Brett, de Soto's investigation of the right to travel, part of his discussion on the rights of the poor, has international considerations that have been overlooked by the earlier commentators.^[625] Further, Vitoria's discussion of hospitality in the New World was part of this broader sixteenth-century debate. Placing this sixteenth-century intellectual history in a more global context highlights the divergence in accepted prac­tices and uses of hospitality that took place between the Old World and the New at this time. While the Spanish Crown favoured the expansion of hospitality in the New World, it also favoured its restriction in the Old.

The Forma subventionis pauperum wrote that ‘the freedom to beg in public may be restrained by civil laws'.^[626] The Scheme of Ypres's opposition to extending hospitality in the city was clear; it stated: these strong and lazy beggars everywhere were living at their pleasure without any labour, in sloth and idleness, like drones. They are a nuisance to many, eating other people's food, always wandering, always unstable, without the restraint or control from anyone, shameless, unpunished, running as they pleased... by the emperor's command, sturdy beggars should be banished from the realm.^[627]

While Vitoria emphasised that hospitality should be extended to strangers in the New World, the Forma opposed this for the Old. Ypres prescribed how the city's poor should be looked after, not those coming from elsewhere, and it opposed the free movement of the poor to beg for alms.^[628] The Forma explained that:

God approved nothing better than kindness towards our neighbour for he that loves his neighbour fulfils the law. We think then that pity should be stretched to all poor people on every side, buy yet in such manner that order is maintained. We prefer our own citizens, whose persons and manners we know, to strangers with whom we have no acquaintance.^[629]

It justified this by explaining that in the situation of limited resources, the city had to prioritise its poor citizens. Ypres protects further against strangers staying, ‘no house shall be let to strangers without the consent of the Senate'.^[630] In addition to drawing upon classical sources, the Forma cited St Augustine, On True Religion, who wrote ‘a man cannot justly help everyone he loves unless he helps those that are nearest unto him'.^{[631] [632]}

While De Indis had explained that the Spanish travelling to the New World had the right to stay, the Forma clearly restricted the rights of strangers to stay. The Forma accepted that ‘strangers ought in no wise to be forgotten', stipulat­ing that ‘we give therefore to every poor stranger what he needs, and we are able to provide', qualifying that this means ‘meat and drink and beds'. But it was emphatic about the restrictions on this hospitality, noting that this must be restricted to hospitals and not public begging, and that this should be limited to ‘two, three, four days or sometimes longer till they are strong and able to continue.

Vitoria had explained that the Spanish should have the right to become citizens in the New World, but such rights were denied by the Ypres Forma to travellers in the Old World. It stipulated that ‘those strangers who come to live in our city and to take alms, with a great flock of children, we do not accept'.^[633] Although it added the exception that sometimes necessity such as the catas­trophes of war, shipwreck, fire, might cause the city to accept more people, even then it warned that ‘we take no more of these people than the public purse can afford to maintain'. The Forma projects a model of the world with a very restricted hospitality, writing that ‘there is nowhere in the world that can receive and contain all poor people. There is no common chest anywhere that could sustain them all.'^[634]

As Europeans were appropriating the goods of the Amerindians in the Americas and seeing this through the contorted lens of hospitality, scholars in Europe were thinking about hospitality in a way that protected the giver rather than the receiver. These measures concerned not only improving provisions for the poor, but protecting the rich. It wrote: ‘the rich men's houses are not haunted with these idle parasites'.^[635] And ‘the poor thank the rich for everything they have'.^[636] The policies concerned moving power from the poor, and strengthening governance:

the three griefs of this world - beggary, beggars and begging - do not rule this city as they did before. Parasitical paupers, much to the harm of the community, were abusing the generosity of good men. Now they are denied the gains they had from begging, they are being brought to a quiet and sober manner of life.^[637]

The Forma subventionis pauperum advised that anyone opposing these rec­ommendations, freely claiming their ius hospitii and ius perigrinandi, should be punished:

we should say something about insolent poor people, who obstinately reject a law that forbids begging. They complain, as if a right had been taken from them, that they are not free to beg, when in times past they did what they wanted. They wandered at their pleasure, running up and down, and reckoning nothing unlawful for them. This is not, as they think, liberty, when everyone does as he pleases; rather it is wasteful licence, which as Comicus says, debases us all. True liberty is ruled by reason. Reason considers not how much one would like, or but always looks what is appropriate.^[638]

The Forma does not deny that the poor should have access to the things of necessity, but it explicitly states that poor access these things through con­trolled streams of charity and not as a right.

The Valencian humanist Juan Luis Vives was living in Northern Europe and was inspired by the 1525 Ypres scheme later detailed in the Forma. In 1526, he wrote De subventione pauperum, which he addressed to the councillors and the senate of Bruges. Its opening statement indicates how he too drew upon the classical world to advocate restricted hospitality in Europe: ‘Cicero says that it is a duty of travellers and visitors to avoid over-curiosity when abroad or in a foreign state'.^[639] Vives advocated more restricted hospitality and increased control of those who seek it, recommending that magistrates focus on ‘producing good citizens',^[640] and reminding that charitable measures ‘require specific conditions which appear only too rarely in our times'.^[641] Vives also advocated the restriction of the free movement of the poor: ‘beggars in good health who wander about with no fixed dwelling-place should submit their names, and state the reason for their mendicancy to the Senate'.^[642] While Vitoria had advocated that hospitality meant that citizenship should be extended to strangers, Vives wrote that ‘of the able-bodied vagrants, those who are aliens should be returned to their own country' (but they should have their journey provided for).^[643] For Vives there were distinct hierarchies of hospitality - native-born coming before the foreign, disabled before the able - and he assessed various degrees of weakness relating to age, gender, health, and circumstance. Vives was not suggesting that nobody should receive charity, but he advocated strict criteria which were to be meticulously scrutin­ised by authorities. More precise inclusion meant more precise exclusion in the sixteenth century. As Derrida explained, ‘exclusion and inclusion are inseparable in the same moment'.^[644]

Nor were those receiving hospitality supposed to be considered equal to those who provided it. Hospitality was a therefore a method for establishing a hierarchy of identities. De subventione pauperum is framed in paternalistic terms and suggests awareness that there will be opposition to the competing visions of social order; Vives wrote that ‘these poor, buried in squalor, filth, shame, idleness and crime, think they are being dragged into slavery if their condition is ameliorated'.^[645] The idea that the guest may feel wronged is anticipated and coercion expected: ‘the Senators appointed to make these examinations and perform these duties should be given authority to coerce and compel obedience, even to the point of imprisonment, so that the Senate will be aware of the recalcitrant'.^[646]

As previously mentioned, Charles V used the Forma subventionis pauperum and the De subventione pauperum to inform the series of poor laws that he issued in the sixteenth century. Defenders of the rights of the poor in Europe were ultimately unsuccessful in holding back the tides of discriminatory policies. De Soto's attempt to defend the poor may even have made matters worse. De Soto argued that expelling the poor simply relocated the problem.^[647] As a possible solution, and probably not the one that de Soto intended, in 1552 Charles V ordered that anyone found begging without license be con­sidered a vagabond and subjected to four years' galley service on a first attempt, eight on a second, life on a third.^[648] This brings into focus the divergence in the norms of hospitality between the Old World and the New. Those who, perhaps driven by the necessity of poverty, had attempted to claim a ius hospitii in Spain might have found themselves sentenced to forced maritime labour for the Spanish Empire which grounded its appropri­ation abroad on the same rights of hospitality it denied to the poor in Europe.

In the sixteenth century there was a battle to assert visions of ideal societies. The mendicants had built their orders around the freedom to beg, and they contested the criminalisation of these rights in Europe. Advocates of the new social order in Europe did not just oppose the freedom of movement of the poor, but also the mendicant orders that championed them. For example, the Ypres Forma explicitly opposed the vita religiosa of the mendicant orders, writing that it ‘is better to follow the soberness and discretion of the holy poor men, in Jerusalem at the beginning of the church, after they were converted to the faith. They lived contented with the alms that were given to them, neither running nor begging anywhere. They stayed at home, and applied themselves quietly and thankfully to prayer and contemplation.'^[649] However, on both sides of the Atlantic, advocates of new models of hospitality did not suggest that hospitality be distributed through monastic or ecclesiastic institutions as it typically had been in the Middle Ages, but through hospitals.