De Indis et de Jure by Francisco de Vitoria

Preface

THE CLASSICS OF INTERNATIONAL LAW
EDITED BY JAMES BROWN SCOTT

Member of the Institute of International Law President of the American Institute of International Law

FRANCISCI DE VICTORIA

DE INDIS ET DE IVRE BELLI

RELECTIONES
EDITED BY ERNEST NYS
Honorary Doctor, Edinburgh, Glasgow, and Oxford Member of the Institute of
International Law Member of the International Court of Arbritation at The
Hague
Reprinted 1964
OCEANA PUBLICATIONS INC.
WILDY & SONS LTD.
NEW YORK, U. S. A. LONDON.

PREFACE.

The Carnegie Institution of Washington has undertaken the republication of
the leading classics of International Law and the present volume, containing
the sections De Indis and De Jure Belli extracted from Victoria’s posthumous
work entitled Relectiones Theologicae, and published for the first time in
1557, is edited with an introduction by the distinguished Belgian publicist,
Professor Ernest Nys. The English translation of the introduction and of the
text of Victoria have been made by Mr. John Pawley Bate.

Inasmuch as the various editions of Victoria’s writings, including the
portion of them dealing with international law, are faulty, it was thought
advisable to prepare a revised and critical edition of the text of the two
Relectiones. The work was entrusted to Dr. Herbert Francis Wright,
Instructor in Latin in the Catholic University of America, whose edition of
the sections entitled De Indis and De Jure Belli appears in the present
volume.

The reasons for including Victoria’s tractates are sufficiently set forth by
Professor Nys in his introduction, and yet the general editor is unwilling
to allow the volume to go to press without a tribute in passing to the
broad-minded and generous-hearted Dominican, justly regarded as one of the
founders of International Law, and whose two tractates here reproduced are,
as Thucydides would say, a perpetual possession to the international lawyer.
Victoria’s claim as a founder of the Law of Nations must unfortunately be
based upon these two readings taken down by a pupil and published after his
death, without the professor’s revision and in a very summary form. They are
sufficient, however, to show that International Law is not a thing of our
day and generation or of the Hague Conferences, nor indeed the creation of
Grotius, but that the system is almost as old as the New World.

One reason for undertaking the reprinting of the classics of International
Law is the difficulty of procuring the texts in convenient form for
scientific study; the libraries in the United States have been searched with
the result that few of the earlier works were to be found. Another reason is
that some of the works selected for republication have never been translated
into English. The American publicist is therefore at a disadvantage in
consulting works of admitted authority, and when found they are, as it were,
sealed books to all but trained Latinists. The specialist is thus forced to
rely upon summary statements and references to them to be found in treatises
on International Law, or is driven to examine them in European libraries,
often a difficult task, while the general reader is practically barred from
the stores of knowledge locked up in earlier works on the Law of Nations.
The same difficulty exists in Latin America, Japan, and in a lesser degree
in many European countries.

Eminent publicists, European and American, who have been consulted as to the
usefulness of the plan to republish the Classics, have endorsed the project
and have pledged their personal cooperation. The works to be included in the
series have not only been approved but suggested by them, so that the
undertaking is international in scope, in selection, and in execution.

The underlying principle of selection has been to reissue those works which
can be said to have contributed either to the origin or to the growth of
International Law and the term classic has been used in the broad rather
than in the narrow sense, so that no work will be omitted which can be said
to have contributed to the origin or growth of the Law of Nations. The
masterpieces of Grotius will naturally be the central point in the series,
but the works of his leading predecessors and successors will likewise be
included. The text of each author will be reproduced photographically, so as
to lay the source before the reader without the mistakes which might creep
into a newly printed text. In the case of the early authors the photographed
text will be accompanied by a revised text whenever that course shall seem
desirable. An Introduction will be prefixed to each work, giving the
necessary biographical details and stating the importance of the text and
its place in International Law; tables of errata will be added, and notes
deemed necessary to clear up doubts and ambiguities or to correct mistakes
in the text will be supplied. Variations in successive editions of the text
published in the author’s lifetime will be noted, but little or nothing in
the nature of historical commentary will be furnished.

Each work will be accompanied by an English version made expressly for the
series by a competent translator.

It is hoped that the series will enable general readers as well as
specialists to trace International Law from its faint and unconscious
beginnings to its present ample proportions and to forecast with some degree
of certainty its future development into that law which Mirabeau tells us
will one day rule the world.

JAMES BROWN SCOTT,
General Editor.
WASHINGTON, February 19, 1917.

De Indis De Jure Belli by Francisco de Vitoria
Introduction

INTRODUCTION

BY ERNEST NYS.

Translated from the original French by John Pawley Bate.

I.

One of the masters of the philosophy of history, Robert Flint, makes the
remark that it is at a comparatively late stage that any science definitely
separates itself from contiguous fields of knowledge and assumes an
independent form. In the early part of the seventeenth century the Law of
Nations was established in this manner as an independent domain, if I may so
express it. As Flint says, the man of genius who is called the founder of a
science merely brings together its already existing elements; he confines
himself to uniting its disjecta membra and breathing into them the breath
of life. Such was the role of Hugo Grotius and such was the effect produced
by his treatise, De jure belli ac pacis (Paris, 1625). That celebrated
writer had had precursors, but it is correct to say that none of them had
considered the subject in its entirety. Confining themselves to given
portions of it, some had made a special study of the laws of war, others of
the law of embassy, and some — few in number, it is true — had devoted
themselves to the examination of certain maritime questions arising in time
of war. Furthermore, theologians and canonists and civilians, in many
passages of their voluminous writings, had expressed their opinions with
regard to the justice of war, the capture of enemy property, the fate of
prisoners of war, and other problems arising in the relations of political
communities. It must be borne in mind, too, that from the eleventh or
twelfth century of our era the genius of Europe displayed itself in the form
of an association of republics and principalities and kingdoms, which was
the beginning of the society of nations. Elements had, undoubtedly, been
borrowed from Greek and Roman antiquity, from Byzantine institutions, from
those Arabo-Berber sultanates which had established themselves along the
north coasts of Africa, and from the Moorish kingdoms of Spain; but new
sentiments were showing themselves and generating aspirations towards
political liberty. The members of this association were united by religious
bonds; they had the same faith; they were not widely separated by speech,
and at any rate, Latin, the language of the Church, was available to them;
they admitted a certain equality or at least none of them claimed the right
to dominate and to rule over the others. A formula came into use which gave
expression to these diverse conceptions, Respublica christiana, Res
christiana. In theory the civilians undoubtedly attributed to the elected
heads of the Holy Empire those rights and privileges which the classical
jurists had recognized in the Roman Emperors; these were, however, merely
pompous phrases which led in reality to no serious result and which, even as
the grandiloquent expression of a theory, did not survive the first half of
the fifteenth century. Following the closing years of the fourteenth
century, the kings of France affirmed their complete independence. In
England all subordination to the Empire was denied; Edward II, King of
England, had declared, “Regnum Angliae ab omni subjectione imperiali esse
liberrimum.” Imperial pretensions had likewise been repulsed in Spain.

The respublica christiana comprised a considerable number of members.
Allowing for different degrees of independence, these members were estimated
at 2,000. This means that supremacy was difficult or even impossible; for at
the first attempt to gain an exclusive domination, leagues would be formed
among the oppressed with a view to destroy or weaken the oppressor.
Moreover, the strength of this Empire and of these kingdoms, republics, and
principalities, must not be exaggerated; exact figures we have none, but
from calculations that have been made it appears that in 1480 the population
of Europe barely exceeded 50,000,000, and it is an interesting detail to
note the estimate that the population of France was 12,500,000, of Italy a
little over 9,000,000, of Spain nearly 9,000,000, and of England 3,700,000.

In the thirteenth and fourteenth centuries the introduction of the epoch in
question into the international world (as we may call it) was criticized as
a great subversion by jurists imbued with the Roman tradition. In their
system different peoples were only “sections of the Roman Empire,” sectiones
Romani Imperii. To the Romans the term jus gentium signified in the wide
sense the law common to civilized peoples and included both public and
private law; in the narrow sense it meant the principles governing the
relations of the Roman people regarded as a whole with foreign peoples
similarly regarded.[1] Jurists had shown how the jus gentium in the narrow
sense gave rise to the formation of distinct peoples and consequently to
the foundation of kingdoms, to the intercourse of political communities and
in the end to wars. In the thirteenth and fourteenth centuries the
glossators and commentators, who upheld the claims of the Holy Roman Empire,
taught that this idea of a jus gentium, which would give rise to the
formation of distinct peoples, led to the destruction of unity. In their
eyes the Law of Nations became a reproach. In the gloss of Accursius this
law appears as the work of men. “They needed statutes, statuta, it is said,
and therefore they drew up a great number of them, notably on war and
captivity; collected, they were called the Law of Nations.”

That which publicists have styled Law of Nations, law between nations,
European public law, international law, does not yet appear as a distinct
science in the middle ages. But, as we have seen, theologians, canonists,
and publicists were already discussing a certain number of questions dealing
especially with belligerent relations. Wars, it is well to point out, were
frequent and they were not limited to wars between political communities or
princes; the pest of those distant ages was private war, Faustrecht, Faida,
as it was called; it was the right, broadly speaking, of every free man to
seek his own justice by attacking whomsoever wrought him ill and by bringing
his entire family into the quarrel. The Church strove energetically against
this hateful state of things; the provisions inserted in the collections of
canon law relating to resort to arms, and originating in canons issued by
Councils or in decretals published by the Popes, are concerned with private
rather than with public warfare, and that is why authors discussed so long
the question whether the rules concerning the Treuga Dei, the truce of God,
applied to public war. In most countries the central authority, however weak
it might be, set itself the task of extirpating the mischief by requiring
for private war the observance of certain conditions, by reducing the number
of those who had the strict right to make it, and by imposing certain delays
upon them. Here, too, writers accomplished their duty; theologians,
canonists, and civilians were at one in reserving the right of making war to
princes and to the heads of political communities.

Among the men who exercised a beneficent and lasting influence in these
matters may be named Gratian and St. Thomas Aquinas. Gratian taught at
Bologna, and between 1139 and 1150 drew up a collection meant to be used in
teaching canon law; this was the Concordia canonum discordantium, or, as
posterity called it, the Decretum. Gratian made himself the champion of the
claims of the Holy See, and thus he gained, in the greater part of
Christendom, partisans who disseminated his work, made use of it as a manual
for teaching, and commented upon it. In order to give an idea of the
importance of the Decretum, it is enough to recall that it was reproduced in
numerous manuscript copies and that after the invention of printing it went
through manifold editions. The first printed copy was made at Strassburg in
1471; and from that date only up to 1500 as many as thirty-nine editions can
be counted. Gratian treated of war in Causa XXIII of the second part of the
Decretum. He propounds eight questions. He admits that war may be lawful,
but he stipulates as a condition that it be imposed by necessity, and he
describes it as a situation in which action must not be based on cupidity
nor attended with cruelty, but must be directed toward the securing of
peace.

St. Thomas Aquinas also exercised extraordinary influence here. He had
taught at Paris, at Cologne, at Rome, and in different cities of Italy. In
1274 he was appointed to take part in the labors of an Ecumenical Council,
but he died March 7 of that year, in a convent of the diocese of Terracina,
during his journey to Lyons, where the Council took place. He was 48 years
of age.

The great work of St. Thomas Aquinas is the Summa totius theologiae, the
composition of which began in 1265 and occupied the last nine years of the
author’s life. St. Thomas has devoted to the law of war the fortieth
question of the Secunda secundae. In four articles he examines the following
points: “Is it always a sin to make war? Is it lawful for clerics and
bishops to make war? Is it lawful to lay ambushes in war? Is it lawful to
fight on feast days?” Needless to say, in all the pages in which the author
answers these questions he displays moderation and humanity and a spirit of
conciliation; many of his phrases have become maxims which have been
repeated and approved by the writers of the following centuries in their
dissertations on the law of war.

A writer has pronounced the following just judgment upon St. Thomas Aquinas:
“He does not make his appearance in history as an inventor, as the initiator
of a new doctrine which aroused at one and the same moment enthusiastic
adhesion and passionate hostility. His task and his mission seem to me to
have been rather to sum up and coordinate, in a spirit of great moderation
and with much perspicacity, logic, and good sense, the most widely spread,
or at any rate the most powerful, doctrines of his time, in such a way as to
form of them an harmonious whole fitted for the uses of instruction; for in
his works one can always trace the teacher.”[2]

Without in any way lessening the personal worth of St. Thomas Aquinas, it
may be asserted that his influence was largely due to the fact that he
belonged to the Order of Dominicans founded by St. Dominic Guzman. In 1205
the latter had begun to preach in Languedoc against the Albigenses, but the
labor of conversion — the “holy preaching,” as it was called — produced
hardly any results. Some years later he founded an institute for preaching
at Toulouse; this was the modest beginning of an institution which was
destined to extend throughout the centuries over the whole world. In 1215 he
obtained the help of the bishop. As the general council, held in the same
year, had forbidden the creation of new orders, he could not gain the
support of Innocent III; but in 1216 he received the approbation of Honorius
III. The Order of Friars Preachers then consisted of seventeen members; at
the death of St. Dominic, which took place in 1221, the work was nourishing,
there being sixty houses in different countries of Christendom and more than
five hundred brothers. It was only under the pontificate of Gregory IX, who
reigned from 1227 to 1241, that the Dominicans found themselves invested
with judicial powers in questions of heresy, as the mandataries of the Holy
See and assessors of bishops.[3]

In 1219 Honorius III, when recommending the new Order spoke exclusively of
the preaching to which its members were dedicated. The preaching of the
faith required a doctrinal preparation, and study was therefore deemed
obligatory. “The Dominicans,” writes an author, “had to have a special
training in everything that could help in the refutation of heretics and in
the defense of the faith. They were to study metaphysics only within the
limits set by their constitutions. They were forbidden to give themselves to
subtle speculations and to cultivate alchemy. Morals, theology, and the
study of the Liber sententiarum of Peter Lombard, a vast theological
encyclopedia, had precedence over philosophy. It was then impossible to
study theology without a thorough knowledge of logic.”[4]

In our own day a member of the Order has paid a well-deserved tribute to the
Dominicans: “According to the institution of St. Dominic,” says he, “study
is an obligation of rule for the Friar Preacher, and a universal,
necessary, and permanent function. And without going as far as the
celebrated Cardinal Cajetan, who held that every Dominican failing to devote
four hours a day to study is in a state of mortal sin, it is certain that a
Dominican who does not ordinarily busy himself in intellectual work is not
doing as he should and offends gravely against the Rule.”[5]

One of the favored books of the Dominicans was, of course, the Summa totius
theologiae of the man who was the glory of their Order as he was the honor
of the whole Church. The doctrines taught by St. Thomas were thus echoed far
and wide.

In the last half of the fourteenth century books began to appear which
their authors had devoted to special parts of what now forms the Law of
Nations. We may mention, as the most ancient of the works of this kind which
have been preserved, the treatise De bello of Joannes de Legnano, a
professor at Bologna, where he died in 1383. This writer had on several
occasions been charged with diplomatic missions. He busied himself at the
same time with law, theology, philosophy, morals, and astrology.[6] As
regards astrology, the lucubrations which figure in his book are curious,
but there was nothing in them to shock his time. Another work is l’Arbre des
batailles of Honoré Bonet. He was born in Provence and belonged to the Order
of St. Benedict. In 1368 — he was then at least twenty-five years old — he
went to Rome. In 1382 he was presented with the benefice of Selonnet in the
diocese of Embrury. We see him next at the University of Avignon, where he
became doctor decretorum. His work was probably composed about 1384. One part
is devoted to the law of war. In 132 chapters the author treats of the
origin of war, of the lawfulness of war against infidels, of the rights of
the Emperor, of the Pope, and of kings as regards war, of questions about
things taken from the enemy, ransom of prisoners, and similar matters.
These curious and interesting pages are full of noble sentiments.

Let us mention that Christian de Pison utilized the work of the Prior of
Selonnet in his Traité des faits d’armes et de chevalerie. Honoré Bonet and
Christian de Pison were not without a certain influence. L’Arbre des
batailles was in fact reproduced in superb manuscripts which formed parts of
the libraries of great princes, and after the discovery of printing it went
through several editions. The work of Christian de Pison obtained its share
of honor also.

Grotius has given us the names of some authors. He refers to special works,
“composed, some by theologians, such as those of Franciscus de Victoria,
Henricus de Gorcum, Wilhelmus Matthaei, and Joannes de Carthagena; others by
jurists, such as those of Joannes Lopez, Franciscus Arias, Joannes de
Legnano, and Martin of Lodi.” He blames these authors for a want of order
and exactitude and especially for ignorance of history. He recognizes that
Peter du Faur de Saint Jovis has attempted to supply this lack in some
chapters of his Semestria, and that two other writers, with the same end in
view, have more comprehensively illustrated certain definitions and general
maxims by the examples which they gathered. “I refer,” says he, “to
Balthazar Ayala and Alberico Gentili, especially the latter, from whose
work I admit that I have derived some help, and I think that others will be
able to profit by it.” Beside these remarks Grotius furnishes some general
information, pointing out, among the authors whom he has consulted for the
law of nature and the law of nations, the writers of classical antiquity,
the Fathers of the Church, the scholastics, “who often manifest great
genius,” and the jurists who had made a special study of Roman law. Among
these jurists he mentions Irnerius and his successors, “such as Accursius,
Bartolus, and a great number of others who for a long time have been
recognized as authoritative at the bar,” and those who have combined the
pursuit of belles-lettres and the study of law. He also alludes to Alciati
and his disciples and indicates by name Covarruvias, Vasquez, Bodin, and
Hotman. Among all these writers there is one whose correct name was
discovered only thirty years ago, Wilhelmus Matthaei. The real name is
Wilhelmus Mathiae, author of the Libellus de bello justo et licito, which
appeared at Antwerp in 1514.

Among these names we note that of Franciscus de Victoria, the subject of
this essay. It was not only in the De jure belli ac pacis libri ires that
Grotius referred to him; he had previously done so several times in the De
jure praedae commentarius, which he had written in 1604 and which was
published in 1868 under the care of Professor Hamaker.

Before Franciscus de Victoria the law of war had been the subject of
studies by Spanish authors. At a time when the science of the Law of Nations
had not yet taken form, we find St. Isidore, Bishop of Seville from 596 to
636, inserting in his work entitled Etymologiae a definition or rather a
description of the jus gentium which approaches closely to the modern
conception. According to Heinrich Dirksen he had borrowed his texts
concerning jus naturale, jus civile, and jus publicum from the Institutes of
Ulpian, wherein the jus militare was placed side by side with the jus
gentium and made a subject of treatment. The jus gentium of St. Isidore
corresponds almost exactly to our international law and classified by the
side of it is the jus militare, a statement of the matters which compose the
law of war. These passages about the jus gentium and the jus militare are to
be found in the fifth book of the Etymologiae; in the eighteenth book the
author treats of war and enumerates the various kinds. One circumstance,
moreover, helped to give exceptional importance to the utterances of the
learned bishop on the law of war: in the twelfth century Gratian inserted
them in his collection together with other texts of the same author, and as
the Decretum was the subject of discussion and comment for centuries, and as
it is still an integral part of the Corpus Juris Canonici, they have
acquired a considerable importance in education and in doctrine.

Mention must be made of St. Raymond of Peñafort. Born between 1175 and 1185,
in the castle of Peñafort in Catalonia, he studied at the university of
Bologna, where he became a doctor of law and where he taught from 1216 to
1219. Returning to Spain, he was made canon of Barcelona and in 1222 he
entered the Order of St. Dominic. He was then called to Rome by Gregory IX,
to form a new canonic collection from earlier compilations and the decretals
of this Pope. In 1238 he was chosen to be general of the Dominican Order,
but at the end of two years he resigned the position. He came home again and
strove for the unity of the faith against heretics, Jews, and Mussulmans. He
showed himself a great advocate of the study of oriental languages, having
especially in view the training of friars able to preach the Christian
faith. He died in 1275. In addition to the collection of the Decretals of
Gregory IX, St. Raymond of Peñafort composed the Summa poenitentiae, wherein
questions relating especially to the law of war are the subject of
examination.

A monument of legal science, curious alike for the number of topics
treated, and for what one might call the precocity of a great number of its
provisions, which really are far in advance of the time at which they were
put forth — such is the collection known as Las siete partidas. This was
the work of King Alfonso X of Castile, who had as collaborators Jacome Ruiz,
Fernando Martinez, and Roldum. The Siete partidas deal with ecclesiastical
law, politics, legislation, procedure, and penal law; the law of war is the
subject of extremely detailed regulations. In the second Partida, some
chapters are given to military organization and to war. As regards war,
much is borrowed from the Etymologiae of St. Isidore of Seville, of whom we
have just spoken, and in many respects the influence of Mussulman law is
very apparent. Maritime law is also dealt with. Commenced in 1256, the
compilation took seven years to complete.

It is proper to mention here one of the great theologians of Spain, whose
works contain considerations concerning war and the canonic rules relative
thereto. Alfonso Tostado was born in Castile about the year 1400; he studied
in all probability at Salamanca and attained distinction as a theologian and
a canonist. He became bishop of Avila and took part in the labors of the
Council of Basel. He died in 1455. In the Venetian edition of 1596 the works
of Tostado occupy twenty-three volumes folio; the title-page of the first
volume sings the praises of the author: He was “philosopher, theologian,
very learned in the law, both canon and imperial, skilled in Greek and
Hebrew;” the preface adds that he was erudite in mathematics and geography.
Some sentences of his writings deserve citation. He reminds us that “Bellum
justum est justitiae executio,” just war is a mode of legal execution.
According to his teaching, “in a just war everything that a man can seize
becomes the property of the captor, both by divine law and by the Law of
Nations, and it is just to kill; but an unjust war does not differ from
public brigandage.” He adds that “in a just war there is nothing that may
not be wrought upon the enemy, except a violation of truth.” “Wars are just
when they are undertaken in order to obtain redress for injuries,
restitution of property, or recompense for wrongs done. Once commenced, a
just war may be continued until the wrongs done, the property seized, and
the expenses incurred have been made good.” The author has before his eyes,
we must point out, not only public war, but also private war, when it is
conducted in accordance with the rules laid down by the law of the country.
Let us add that Alfonso Tostado maintained in his writings the thesis that
ecumenical councils were of higher authority than the popes.

Mention should be made of Gonsalvo of Villadiego. He was born at Villadiego
in the diocese of Burgos. He studied at Salamanca, where, after taking the
doctorate in law, he was appointed a teacher.

Canon of Toledo in 1476, he was nominated by Ferdinand and Isabella to hold
the position of “auditor” for the affairs of Spain in the tribunal of the
Roman Rota. He died at Rome shortly after his promotion to the episcopal see
of Oviedo. He wrote a Tractatus de legato.

Joannes Lupus (Juan Lopez) was a native of Segovia. We possess certain
information about him. We know that he went to Rome, where he was imprisoned
in the Castello del Sant’ Angelo, but we do not know the reason of his
detention. In volume XIII of the Tractatus universi juris of Francesco
Ziletti, first part, first folio, a letter is to be found dated the sixth
day before the kalends of September, 1491; it was written in the town of
Siena by Joannes Lupus, Sedis Apostolicae protonotarius et Segobiensis
decanus. Lopez was vicar of the Archbishop of Siena, Cardinal Piccolomini,
afterwards Pius III. He died at Rome in 1496. One of his writings, De
matrimonio et legitimatione is dated from the Castello del Sant’ Angelo, the
sixth day before the kalends of November, 1478. Two other of his writings
are entitled: De confoederatione principum and De bello et bellatoribus.

We may also mention Franciscus Arias de Valderas, a native of the ancient
kingdom of Leon. About 1530 he was a member of the Spanish college at
Bologna; in 1532 he upheld a thesis at Rome, which, after receiving a
little amplification, was published in 1533 in the capital of the Christian
world under the title De bello et ejus justitia. Arias is a lover of peace,
but it must, with regret, be stated that he admits the persecution of
heretics and that he cites in this connection the example of Jesus chasing
the money-changers from the Temple.

II.

In the history of humanity there has been no epoch comparable in importance
to the glorious years which mark the end of the fifteenth and the beginning
of the sixteenth century. Then took place that event, the greatness of which
can not be exaggerated, the discovery of the New World — in other words the
addition of an immense field to the theatre of human activity and the
inclusion of the whole globe within the scope of man’s political activities.
How the imagination must have been struck when there came to the countries
of Europe, where the Christian commonwealth — the respublica christiana —
was concentrated, first the news that the bold expedition of Christopher
Columbus had resulted in the discovery of lands of which no one up to that
time had known the existence, and then on numerous other occasions the
further news of the struggles of the conquistadores the happy issue thereof,
and the conquest by the Spaniards of countries endowed by nature and
containing the greatest riches. The discovery by the Portuguese of the route
to Asia by way of the Cape of Good Hope could not have seemed less
marvellous and astonishing to the most vivid imaginations. And as a still
further addition to these deeds, thirty or forty years previously the art of
printing had been discovered, thus furnishing the precious means of
communicating writings and of securing for them circulation and diffusion.
Is it necessary to recall that in the same era there took place that
glorious movement which is called the Renaissance, and thanks to which,
cultivated intellects found themselves once more in the presence of
classical beauty? In so far as Spain is concerned, fresh causes of rejoicing
appeared for the writers of this epoch: Christians, they saw the triumph of
the cross over the crescent; Spaniards, they saw, in their complete victory,
the termination of the wars which their ancestors had for so many centuries
waged against the Moors.

In this most important epoch lived Franciscus de Victoria, the man whose
life and works are the subject of these pages.

Franciscus de Victoria receives his surname from Vitoria, the chief town of
Alava, where he was born — in 1480 according to some writers, but in the
first years of the first decade of the fifteenth century according to
others. His parents removed to Burgos when he was still a child and it was
there that he received the first elements of learning. While yet young he
took the Dominican habit in the convent of San Pablo at Burgos, one of the
three great houses of the Order in Castile; in so doing he followed the
example of his elder brother, who had already become a member of the Order.
After the conclusion of his novitiate, Franciscus de Victoria was sent by
his superiors to Paris, where the Order had a college. The Friars Preachers
had been able to install themselves, August 6, 1218, in a guest-house for
poor foreigners, founded by Jean de Barastre, dean of St. Quentin and
chaplain to the king, and on the January 3, 1221, they had been solemnly
confirmed in the ownership thereof. The house of St. Jacques had not been
long in procuring admission into the University, and agreements had been
concluded with regard to lectures and degrees — agreements, let us note,
which gave rise to frequent conflicts.[7] It was there, we may remind the
reader, that, at the time of the French Revolution, were held the meetings
of those who, because of the place where they met, were called Jacobins.

At Paris one of the teachers of Franciscus de Victoria was Peter Crockaert,
Petrus de Bruxellis. This man was born at Brussels about 1460; at first an
ardent disciple of the Scot, John Mair, and like him a nominalist, he
became a Dominican in 1503 and displayed the greatest zeal for St. Thomas
Aquinas; in one of his books, where he treats of questions relating to the
logic of Aristotle and touches on one point of the doctrine of the Angel of
the School, he styles himself Divi Thomae doctrinae interpres et propugnator
acerrimus. Very close bonds attached Franciscus de Victoria to the Belgian
theologian; for in 1512 he supervised the printing of a work by him, a
commentary on the Secunda Secundae of the Summa of St. Thomas. Crockaert,
already reader of the Sententiae, took the degree of bachelor, and in 1510
he became a licentiate. He died in 1514.

Franciscus de Victoria found his own merit recognized. In 1513 he was
designated by the general chapter of the Order held at Genoa for promotion
to the degrees, and two years later he was confirmed by the general chapter
held at Naples in the office of lecturer on the Libri sententiarum of Peter
Lombard. In 1520 he was admitted to the Sorbonne and on March 24, 1521, he
obtained the degree of licentiate in theology.

In his studies on Spanish law Eduardo de Hinojosa has said that, if Spain
had notable theologians before Franciscus de Victoria, it is nevertheless
to him that the revival of theology is due.[8] It is incontestable that
Franciscus de Victoria not only gave a vigorous impulse to the science of
his choice, but that he also impressed a new character upon it; he
embellished and enlarged it; thanks to him, the majority of Spanish
theologians renounced the incorrect, rude, and barbarous form of their
predecessors; thanks to him, ideas came to take the place in discussions
formerly held by phrases; thanks to him also, other sciences were drawn upon
in the study of theology. It is thus that in his lectures devoted to the
rights of the Indians and to the law of war, problems are treated not as if
they were without practical and actual interest, designed merely to exercise
the reason and to furnish the opportunity for objections and refutations,
but as questions raised by grave events, the solution of which is of
interest to all men of heart, since in practice it often leads to serious
consequences. Moreover the illustrious publicist does not content himself
with a vain display of erudition; he is full of generosity and of kindness
and his teaching breathes the noblest sentiments.

Writers have attributed to the University of Paris the merit of having
taught Franciscus de Victoria the doctrine which he merely transported into
Spain. To be content with such an explanation one must be ignorant of the
state of education in the capital of France at the beginning of the
sixteenth century and not know that neither the love of innovation nor even
mere curiosity of mind had any influence on the great majority of the
teachers, for whom all science consisted in endless disputes on words and
about words. In saying this we have no thought of reproaching the University
of Paris for having pronounced against the teaching of Luther and for having
condemned it. Other universities had already rebuked him. The reformer was,
moreover, a menace to the existence of ecclesiastical institutions and he
had to expect violent attacks. But even within the bounds of orthodoxy it
was very necessary to maintain a hostile attitude to all who were not
thoroughly imbued with the idea that the doctrines of the past were the
perfection of wisdom. In the closing years of the fifteenth century Erasmus
lived in Paris and saw the masters at work; he assuredly had sound judgment,
and here is the verdict which he pronounced upon them: “Are there any brains
more imbecile than those of the theologasters? I know nothing more barbarous
than their speech, more coarse than their understanding, more thorny than
their teaching, more violent than their discussions.” “In 1500,” writes
Louis Delaruelle, “the University of Paris in its organization and in its
methods is almost the same as it was a century earlier. It is always the
formidable machine constructed in the Middle Ages for the manufacture of
theologians. Everything there continues to be subordinated to this end. The
study of literature consists entirely in that of grammar and is relegated to
the lowest grade of instruction. Logic is ever the science of sciences;
disputation continues to be preferred to any deep study of authors.”[9]

In 1527 Pierre de la Ramée, Ramus, studied at the University of Paris. “When
I came to Paris,” he wrote at a later date, “I fell into the subtleties of
the sophists, and I was taught the liberal arts by question and disputation
without ever being shown a single other advantage or use in them.”[10] To
demonstrate the vice of this kind of instruction, let us say that
disputation was all in all in it. “There is disputation before dinner,”
wrote Juan Luis Vivès in 1531, “there is disputation after dinner; there is
disputation in public and in private, in every place and at every time. The
bursars of the colleges held disputations every Saturday; each in his turn
was ‘respondent’ (respondens) and ‘opponent’ (opponens).” Ramus, whom we
have quoted above, gives a more complete description still. “I believed then
— the scholar must believe (so says Aristotle) — that there was no
particular need to trouble myself about the nature or aim of logic, but that
the only thing to do was to make it the object of our shouts and our
disputes; I accordingly disputed and I shouted with all my might. If the
business in hand was to defend in class some thesis on the categories, I
believed it my duty never to yield to my adversary, were he a hundred times
right, but to hunt for some fairly subtle distinction in order to embroil
the whole discussion with it. If on the other hand, I were the assailant of
the thesis, then all my care and effort were directed not to the
enlightenment of my adversary, but to beat him by some argument, whether
good or bad; so I had been taught and trained. The categories of Aristotle
were like the ball with which we used to play our childhood’s game and which
we had to get back by our shouts when we had lost it, but which on the
contrary we must not let any noise dispossess us of when once we had got it.
I was then convinced that all logic reduced itself to a discussion about
logic with vehement and furious words.”[11]

So it was obviously not among the masters of philosophy or theology in Paris
that Franciscus de Victoria was enabled to acquire the precious possession
wherein were united the spirit of research and of innovation, the tendency
toward progress, the love of his neighbor, and the sentiment of solidarity.
Nature had endowed him with great qualities; in himself there reposed a
strength that nothing was to curb or to stifle. He had, then, the good
fortune to find himself in surroundings favorable to the development of his
innate gifts. In reality everything demonstrates that he was in constant
communication with the humanists who, side by side with the representatives
of official instruction and despite their hostility and anger, were at that
time making the capital of France the center of a vast movement of
reconstruction.

In 1520, during his stay in Paris, Franciscus de Victoria became intimate
with one of the most deserving of the humanists, Josse van Assche, Jodocus
Badius Ascensius, Josse Bade, as French writers called him. This latter was
born at Ghent. After having gone through a course of study at the
University of Louvain, he had betaken himself to Italy, where he had studied
Latin and Greek; later he had taught at Valencia and Lyons and then he had
established himself as a printer at Paris, and, without abandoning his
literary labors, had published a number of works, among which were many that
were written or at any rate annotated by the representatives of the
reconstruction theories.

The name of Franciscus de Victoria figured on the title-page of two volumes
of sermons by Pedro de Covarrubias, a Spanish Dominican: this shows that he
had revised the work. Doubtless if this were an isolated fact, it would not
justify any forcible conclusion; but other facts can be added to it which
show that Franciscus de Victoria was no stranger in this “republic of
letters,” as it has been called, which dates its beginning from the year
1516 and of which Erasmus was the recognized head. When in 1527 a campaign
of denunciation was started in Spain against this illustrious savant, he
addressed a letter to Franciscus de Victoria; and their common friend, Juan
Luis Vivès, testified to the eminent qualities of Victoria, and assented
that he had affection and adoration for Erasmus.

Thanks to being brought into contact with men animated by noble sentiments,
Franciscus de Victoria undoubtedly found his natural leanings strengthened
and received help from this beneficent influence for taking in hand the
defense of the just cause of the Indians. In treating of the cruel topic of
the law of war, he asserted principles which bore the imprint of moderation
and humanity. Almost the whole of the pacific movement at the beginning of
the sixteenth century issued from humanism, and this had produced its effect
on the thought of the Spanish publicist.

Shortly after 1521, Franciscus de Victoria returned to his own country,
where he was appointed first regent of the Dominican College of Saint
Gregory at Valladolid. In 1526 the primary chair of theology at the
University of Salamanca became vacant by the death of Pedro, or rather
Pablo, of Leon, who had held it since 1507. It was thrown open to
competition and on September 7, 1526, the judges awarded it unanimously to
Franciscus de Victoria, who was sworn in before a notary on September 21 and
occupied the position until his death.

A member of the Order of St. Dominic has tried recently to show, by
following the information supplied by contemporaries, the method of
instruction and the professorial qualities of the great man.

“Franciscus de Victoria,” he writes,” came up to all hopes, he even
surpassed them. Under his powerful direction the College of Salamanca
attained a position unique in Spain. His manner of teaching distinguished
him from most of the other professors. Instead of the aridity of scholastic
formulas, which he employed only in order to lay the bases of his teaching,
he knew how to bring out eloquently their beauty and their grandeur. He did
not despise elegance of diction; he loved to support the conclusions of
theology by happy citations from the Fathers and by the facts of
ecclesiastical history. His courses, made attractive by the grace of his
language, rapidly reached universal favor. Solidity of doctrine with
elegance of instruction, this is what was afforded by the long professorate
of Franciscus de Victoria. For twenty years he filled the chair of theology
at Salamanca, from 1526 to 1546, that is, until his death. He had the
shaping of most illustrious disciples: Melchior Cano, Domingo Soto,
Bartholomew of Medina, and many others boasted of having had him for their
master. It was he who, according to their own admission, as well as
according to the admission of savants outside the Order, restored
theological teaching in Spain; it was he who, uniting solidity of doctrine
to a literary style, provided the method which it was necessary to follow in
order to win back for theology the place of honor. He did not write, but his
disciples, greedy to hear him, piously gathered together his learned
discourses. At least some of them were subsequently published.”[12]

The contemporaries of the incomparable professor were unanimous in extolling
his talent for exposition. They also praise him for having dictated to his
pupils. This method was undoubtedly not new. It had been employed at Paris
for more than a century; it was also employed in other French universities;
doubtless it appeared useful because the Spanish teachers had carried
improvisation to the point of abuse and had too often preferred
grandiloquence and inflated phrases to clearness and simplicity and
precision.

The pupils of Franciscus de Victoria felt bound to pay homage to their
master. One of the most illustrious of them, Melchior Cano has done honor to
him in magnificent terms. “Spain,” writes he in De locis theologicis libri
duodecim, ” has received this eminent master of theology from the great
goodness of God.” He calls him sacrae theologiae restaurator cui debent
Hispaniae quod veram theologiam docuerit. He adds that he has increased,
enriched, and rendered more illustrious the doctrine of Saint Thomas: “What
doctrine I have,” he goes on to say, “worthy of the approval of the wise,
what skill I have in the judgment of men and things, what literary culture I
have above other scholastics and utilize in my works, — doctrine, judgment
and eloquence I owe all to this man, whom I have followed as my chief and to
whom I have yielded obedience, giving careful heed to his precepts and his
admonitions….. The principles which I teach belong as much to my master as
to myself and more; I am bound to render him this justice. I desire that the
wisdom of this illustrious man be proclaimed and known to posterity.
Although I acknowledge myself to be much inferior to him, I wish to render
him, as best I can, the thanks that I owe him. I also beg future readers of
my works to believe that my master was infinitely greater than I can
say.”[13]

Domingo Soto pays the same eulogistic tribute to Franciscus de Victoria.
Born at Segovia in 1494, he had studied at Alcala and Paris. At the age of
thirty he had entered the Order of St. Dominic. In 1532 he had become
professor of theology at Salamanca for the evening course, whilst
Franciscus de Victoria was the teacher in the morning.

One other testimony may be invoked among numerous others; it is that of
Alfonso Garcia Matamoros, the author of the book, De academiis et doctis
viris Hispaniae, sive pro asserenda Hispanorum eruditione narratio
apologetica. He calls Franciscus de Victoria “the splendor of the Order of
St. Dominic, the honor and the ornament of theology, the model of ancient
religion. Franciscus calls theology down from heaven as Socrates in ancient
times called down philosophy.”

Instruction did not absorb all the activity of the great professor of
Salamanca. On numerous occasions he was consulted by Charles V, who
submitted cases of conscience to him and sought his advice on affairs of a
delicate nature. It was in this way that he had to give his opinion on the
validity of the arguments put forward by Henry VIII of England, with a view
to procure the nullity of the marriage which he had contracted with
Catherine of Aragon, the aunt of the Spanish monarch. The dissertation, De
matrimonio, published in the Relectiones contains a passage relating to
this historic suit.

In 1532 Franciscus de Victoria pronounced his famous dissertations, De Indis
and De Jure belli Hispanorum in barbaros, in which he examined the titles
which the Spaniards might allege to justify their domination in the New
World. We shall have an opportunity to examine them in detail.

In 1539 Charles V submitted to the professor of Salamanca several questions
about the affairs of the Indies. The letter is dated from Toledo, January
31. In the following year he addressed to him, on the same subject, another
letter, dated from Madrid, March 31.[14] On March 21, 1541, Charles V
consulted yet again the man in whom he had such confidence. It was about a
grave matter which had been brought before the Council of the Indies by
Bartholomew de Las Casas: Was it lawful and fitting to baptize adult Indians
according to the form employed in the New World, that is to say, without
giving them a preliminary religious instruction? Charles V commissioned
Franciscus de Victoria to examine the point, to consult such of the
theologians of Salamanca as he should deem it expedient to question, and to
transmit their opinions together with his own. The conclusion was in favor
of the thesis submitted by Las Casas.[15] Let us here note that the
professor of Salamanca was probably better qualified than any other person
to give a considered and well-informed opinion on the subject of the
Indians. Several of his pupils with whom he remained in touch were devoted
missionaries to the West Indies: for example, Alonso de Veracruz and Domingo
de Salazar, both of them Dominicans, the latter of whom, after becoming
professor of theology at Mexico, wrote a treatise on the titles possessed by
the kings of Spain to domination over the Indians.[16]

A great event was preparing for the Church; it was the assembly of an
ecumenical council. It is difficult in our day to imagine the importance
then attributed to the assembly of the bishops of the Christian world. The
struggles between the Holy See and the ecclesiastical representatives of
the nations of Christendom were not forgotten. Sovereigns as well as clergy
and laity threw themselves with ardor into endless disputations. Both those
Catholics who remained faithful and the partisans of Luther demanded with
the same ardor the convocation of the ecclesiastical authorities to decide
what was conformable to dogma and to discipline.

After his interview with Cardinal Cajetan, Luther had appealed from an
ill-informed Pope to a better-informed Pope; but on November 28, 1518, he
had appealed from the Pope himself to the future general council and he
renewed this second appeal after the condemnation pronounced by the bull of
Leo X of June 15, 1520, against him and against his adherents.[17] Since
1523 the Diet of Nuremberg had demanded that Pope Adrian VI should summon a
council in some town of Germany, and thereafter diets continued to insist on
this summons. On June 2, 1536, Paul III issued a bull summoning a council
for the following year; the town named was Mantua; but the Holy See met with
constant difficulties; the Pope published as many as six bulls proroguing or
convoking afresh the ecumenical assembly, and at last a bull of November 19,
1544, opened the council for March 15, 1545. “But,” writes Frà Paolo Sarpi,
“matters dragged and the council opened December 13, 1545; there were
legates and bishops to the number of twenty-five.”[18] The place of meeting
was Trent. The Roman Curia would have preferred some town of the Papal
States as the seat of the assembly; attempts were made with this object in
view; the legates obtained from the Fathers a transference to Bologna; twice
the Council was suspended; twice it resumed its sessions. Convoked afresh
December 3, 1560, it closed its labors December 4, 1563. The work itself of
the Council does not concern. us here: we must confine ourselves to a
summary of the situation created for the Holy See, the bishops, and
governments. The Popes were reproached for having given predominance to the
Italian element; in truth the majority was constantly formed of prelates who
were dependent on the Curia, and in the closing period there were 150
Italian bishops against 66 bishops of other nationalities. The bishops of
non-Italian countries were in opposition to the Holy See, in this sense at
least that they constantly affirmed the independence of their spiritual
functions. In this way it came about that the Archbishop of Grenada,
Guerrero, complained that the bishops were transformed into vicars-general
of the Pope, dependent on and removable by him, and that the Spanish
prelates in general denounced the usurpations of the Holy See in episcopal
authority and maintained that it would be impossible to remedy these abuses
without restoring to the bishops all that had been usurped from them by
Rome.[19]

The legates represented at one and the same time the council over which they
presided and the Pope whose agents they were. The Popes had at first desired
the presence also of the sovereigns and their personal co-operation in the
labors of the council; but, if this desire was not realized, the princes at
least entered into relations with it by correspondence and were represented
by ambassadors.

“These,” says an author, “were accredited to the council itself, which was
treated as a power. Also they could not be received unless their
credentials were perfectly in order. When presenting them they usually
addressed a harangue to the council. They expressed themselves orally with
as little discretion as their masters did in writing. Every one knows what
excitement was aroused by the discourses of Amyot in 1551, of Pibrac in
1562.”[20]

The Fathers of the council held two kinds of meetings. There were public and
solemn sessions or assemblies, in which decrees were issued and which were
only twenty-five in number. There were also congregations, or preparatory
assemblies; these were either general or special.

Theologians collaborated in the special congregations and in those general
congregations which were public, for according to the rule the Fathers
alone were admitted to the secret general congregations. “Below the
Fathers,” says the author just cited, “were the inferior theologians, such
as the simple doctors of the Sorbonne, sent by the Pope and by the kings or
brought by the prelates. Not being prelates themselves, they had no vote;
admission to the secret general congregations was closed to them; there was
only a small number of them who succeeded in obtaining an entrance there at
the end of the council; they were admitted to and probably rendered great
services in the public general congregations and private congregations. They
themselves held meetings in which they prepared for all the others and which
the Fathers attended at their pleasure.”

It is stated that among the theologians who collaborated in the labors of
the Council of Trent, the Spaniards distinguished themselves above all
others. They were able, in fact, to put forward in the discussions men of
the highest worth, such as Domingo Soto and Melchior Cano, to cite two names
only. On the eve of the meeting of the council, the prince-royal, who
afterwards became Philip II, acting on behalf of Charles V, had invited
Franciscus de Victoria to take part in the labors of the ecumenical council;
but the latter excused himself on the plea of age and persistent
ill-health.[21] He died some months after the opening of the work. It has
been stated that the influence of the illustrious thinker upon the Spanish
prelates who sat at Trent was extraordinary, as is evidenced by quotations
from his disciples among them and also from his old pupils among the
theologians.

The Order of Dominicans had generally been faithful to the Holy See. Its
traditional education proved this, and the names of eminent members, such as
that of Juan de Torquemada, appeared in the first rank of the champions of
the rights of the Pope against the pretensions of the Councils of Basel and
of Florence. In 1511, under the pontificate of Julius II, nine cardinals,
inspired by Louis XII, King of France, and by the Emperor Maximilian, had
convoked at Pisa an ecumenical council which was to be opened on September
1; their contention was that, if the Pope neglects or refuses to convoke a
council, this right belongs to the Sacred College. The master-general of the
Order at that time was the famous theologian, Tommaso de Vio, born at Gaëta
and thence called Cajetanus. He forbade the Friars Preachers to give any
countenance to the assembly at Pisa and wrote his treatise, De authoritate
Papae et Concilii utraque invicem comparata, wherein he contended that the
Pope alone is the supreme head of the Church, that he is its lawgiver and
its judge of ultimate appeal, that the council can neither impose a law upon
him nor judge him, and that the papal approbation alone gives obligatory
force to the decrees of the ecumenical assembly. From the lectures which his
pupils published we know the opinions which Franciscus de Victoria, if the
state of his health had allowed him to be present, would doubtless have
expressed at the Council of Trent, on the subject of the relative positions
of the Pope and the council and the relations between the spiritual and the
temporal powers. These lectures are entitled, one, De potestate ecclesiae,
another, De potestate civili, and the third, De potestate Papae et Concilii.

The learned theologian displays the profoundest respect for the Church and
for its head. He places the respublica spiritualis and the respublica
temporalis side by side and he teaches that both are perfect, that is to
say, that they are self-sufficing; in other words, if either is unable to
maintain itself unharmed and intact in its own sphere, it may do all that is
needful to accomplish its object. The head of the Church has thus the right
to act, not immediately and directly, as if usurping civil power, but by
giving orders through the medium of his spiritual power. Franciscus de
Victoria applies his reasoning to the case in which an unjust law has been
established by a prince and to the case in which princes make war on one
another about some country to the manifest detriment of religion; in this
last hypothesis he admits that the sovereign pontiff may forbid the princes
to make war and may, at need, constitute himself the judge of their quarrel.
In reality, he claims not to encroach on civil authority; his wish is to
safeguard spiritual authority and to protect it from encroachments. He cites
by way of analogy the case which might present itself in international
affairs. “If,” says he, “the Spaniards can not otherwise defend themselves
against the wrongs done them by the French, they are entitled to occupy the
cities of the latter, to impose new princes upon them, to punish the guilty,
and to act as if they were the real masters: all the doctors are of this
opinion.”

As regards the relative positions of the Pope and the Council, Franciscus
de Victoria would have the Council treat the Pope with deference; he exacts
the avoidance of scandal, but he in no wise goes so far as to proclaim the
superiority of the Pope. Juan de Torquemada, as we have seen, had defended
the prerogatives of the sovereign pontiff against the Council of Basel; but
the same Torquemada had cooperated in the labors of the Council of Constance
which had deposed Pope John XXIII; and he had given his approbation to this
measure. This approbation, the professor of Salamanca considers of great
importance, and he recognizes the right to call the council against the will
of the Pope, if the latter’s character is destructive to the Church.
Franciscus de Victoria does not even admit that the sovereign pontiff, of
his own will and without reasonable ground, may dispense with the observance
of decrees issued by the councils.

In the preceding centuries the rights of the Emperor had not only caused
violent struggles in the domain of fact, but also keen and animated
discussions among publicists. We have already seen how the kings of France
and of England had affirmed their independence. In Spain, King Alfonso X of
Castile, who had intrigued for the imperial crown, had, in the Siete
partidas, attributed the highest position to the Emperor. “The imperial
dignity,” he has written “is the loftiest and excels all other dignities.”

The utterances of jurists, seduced by the notions current in Roman law,
were significant. To go no further back, we may cite Bartolus of
Sassoferrato, who, in the middle of the fourteenth century, wrote these
lines:

“If anyone asserted that the Emperor is not the monarch of the entire
world, he would be a heretic; for he would make a pronouncement contrary to
the decision of the Church and contrary to the text of the Gospel which
says: ‘A decree went forth from Caesar Augustus that a census should be
taken of all the world,’ as St. Luke has it and so Christ, too, recognized
him as emperor and master.”

With regard to a papal bull denying the imperial supremacy, Bartolus did
not hesitate to reproduce and to approve the contemptuous words of his
teacher, Cino da Pistoia: “Let it go by with the other errors of the
canonists.” A contemporary of Bartolus, Alberico da Rosciate, had raised
rational objections against the universal monarchy of the Emperor, and had
come to the conclusion that the two powers were distinct and that the Pope
was dominant in spiritual affairs and the Emperor in temporal affairs.

According to Franciscus de Victoria, the Emperor is not the lord of the
world, “Imperator non est dominus orbis.” He proves his proposition by means
of arguments of law and of fact; he recalls that the Roman Empire was
divided into an empire of the East and an empire of the West, and that the
emperors of Germany have never raised a pretension to be masters of Greece,
whilst the Council of Florence recognized John Palaeologus as lawful
sovereign. “The patrimony of the Church,” writes he, “is not subject to the
Emperor; the kingdom of Spain and the kingdom of France are no more under
his domination, although the gloss says that this independence is matter of
fact and not matter of law; doctors even concede that some cities formerly
subject to the Empire have succeeded in withdrawing from its rule by force
of custom, a thing which would not be possible, if their subjection were by
divine right.”

III.

We must now go back a few years and relate the incident already alluded to,
mentioned in the letters of Erasmus and Vivès, especially the part played by
Franciscus de Victoria when the great humanist was violently assailed in
Spain.

Erasmus had paid a tribute to the purity of Luther’s morals in a letter
addressed to Cardinal Wolsey in 1518; in a letter written to the rector of
the University of Erfurt, he had admitted the usefulness and the beauty of
the object pursued by the German monk. On March 28, 1519, Luther initiated a
correspondence with the celebrated savant; he testifies to his respect for
him and to his gratitude for the services rendered by him to literature and
to the emancipation of thought. Erasmus’s answer was a mixture of approbation
and advice. But soon events assumed an aspect of violence, and Erasmus,
something of a sceptic, but always pacific and the enemy of all excess,
refused to follow the impetuous rebel or even to pass over in silence one of
his doctrines in which he saw danger to the human mind.[22] In the month of
September, 1524, he wrote the book, De libero arbitrio; Luther replied in
1525 with the treatise, De servo arbitrio, and Erasmus wrote the
Hyperaspistes diatribe ad servum arbitrium. “The rupture,” says a writer,
“was henceforth irreparable. Erasmus remained until his death the enemy of
the Reformation and did not cease to write against it; thanks to his
powerful influence, thanks to his numerous affiliations, all the humanists
followed his example…. If Erasmus became the bitter enemy of Luther, the
latter did not show him any consideration. He did not lay down his weapons,
even in the presence of death.”[23]

The Catholics ranked Erasmus among the most valiant defenders of the faith
and Pope Clement VII protected him. Nevertheless he had rancorous enemies,
who, in many countries, tried to arouse the ecclesiastical authorities
against him. In the month of April, 1524, Noël Beda, doctor of theology,
formerly principal of the College of Montaigu, having become syndic of the
faculty, denounced at the Sorbonne some propositions, which he had extracted
from the works of the learned writer, and demanded their condemnation. The
storm was long and very violent. In Spain also the tempest broke. Erasmus
reckoned many friends there, more perhaps than in any other country of
Christendom.[24] But he had enemies also. In 1526 a campaign of denunciation
was directed against him by the Spanish monks, who accused him of attacking
the Holy Trinity, the divinity of Christ, and the divinity of the Holy
Ghost.[25] He was obliged to defend himself. The monks, the Franciscans
especially, were animated by sentiments akin to hatred toward the great man.

The printed correspondence of Erasmus contains an important letter about
these events. It is addressed “theologo cuidam Hispano Sorbonico,” “to a
Spanish theologian of the Sorbonne.” The text completely solves the question
concerning the identity of the addressee. The humanist mentions the fact
that the whole movement was directed by one of his enemies, Edward Lee, with
whom several years previously he had been engaged in violent polemics. In
1526 Lee was in Spain as ambassador of Henry VIII and he had aroused
Erasmus’s enemies, who had gone so far as to lay a plaint against him in the
palace of the Emperor. Among the leaders was the prior of the Dominican
convent of Burgos. Erasmus names him and adds, “tuus, ut audio, frater,”
“your brother, as I am informed.” There is no room for doubt. It is to
Franciscus de Victoria that Erasmus is writing. Moreover, the devoted friend
of this latter, Juan Luis Vivès, had expressed himself in the most
flattering terms with regard to Franciscus de Victoria, whom he had known at
Paris when he himself was studying at the College of Beauvais under the
direction of Jean Dullaert, a native of Ghent. Thanks to Juan de Vergara,
secretary of the Archbishop of Toledo, Alfonso de Fonseca, Vivès was kept
informed of the plot that was being hatched and helped in the preparation of
defense. “Diego de Victoria,” he wrote to Erasmus, “has a brother,
Franciscus de Victoria, like him a Dominican, a theologian of Paris, a man
of genuine reputation, in whom much confidence is placed; more than once he
defended you at Paris before numerous theologians; from his childhood he has
occupied himself with literature; he admires you, he adores you. He is a
teacher at Salamanca, where he holds what is called the primary chair.” The
monks tried to arouse the mob and to drive them to sedition; they took an
oath to hearken neither to Emperor nor to bishops, saying that they owed
obedience to God rather than to man.[26] Because of their clamors and raging
sermons, it was necessary for the civil authority and the religious
authority, almost all the representatives of which, including the Emperor
and the archbishops of Toledo and Seville, were favorable to Erasmus, to
agree to promise an inquiry and to nominate a commission of investigation.

In his letter to the “Spanish theologian of the Sorbonne,” that is to say,
to Franciscus de Victoria, Erasmus had asked the latter to intercede with
his brother, Diego, and also with Noël Beda, who at the same time was
raising almost insurmountable difficulties tor him in Paris.

In France, the Sorbonne condemned the propositions which Beda pretended to
have extracted from the works of the great humanist; and, in December, 1527,
it gave a doctrinal judgment in thirty-two articles. It is true that for
four years the government refused to allow this censure to be printed.[27]

In Spain, the commission of inquiry met at Valladolid; it comprised
twenty-one theologians, among whom was Franciscus de Victoria. The partisans
of Erasmus were greatly in the majority. But no judgment was pronounced. The
plague which was then desolating the country caused a suspension of the
proceedings and they were never resumed. It is true that another blow was
dealt to the celebrated writer. “Erasmus,” says Llorente, “thought he had
come out of this affair well; not so at all; for the Council of the Supreme
forbade the reading of his Colloquies, of his Praise of Folly, and of his
Paraphrase of the New Testament.”[28]

We possess some interesting information about Franciscus de Victoria, thanks
to two learned Belgians who knew him personally, Nicholas Cleynaerts and
Joannes Vasaeus. Cleynaerts was born at Diest in 1493 or 1494; he studied at
the University of Louvain, where, in 1519, he obtained the authorization to
teach Greek and Hebrew, either publicly or privately. In 1531 Joannes
Vasaeus, a native of Bruges, attended his lectures. In this year the natural
son of Christopher Columbus, Fernand Columbus, “the greatest bibliophile of
his time, perhaps of all time,” as Henry Harrisse describes him, was looking
for learned persons whose collaboration he wished to secure in organizing
the library which he was creating at Seville and which was afterwards
called, from his name, the Columbine.[29] He was very rich; his annual
income was reckoned at a sum equal in our money to 300,000 francs, and to
this income must be added the profits accruing from commercial operations.
He made offers to Cleynaerts and Vasaeus which they accepted. In the month
of October, 1531, Fernand left the Low Countries and directed his steps
towards Spain in company with the two Belgians. At Salamanca, Cleynaerts and
Vasaeus made the acquaintance of Franciscus de Victoria, with whom they
remained in relations of close friendship, as is proved by passages in their
writings. It is known that Cleynaerts was called to Portugal to direct the
education of the brother of King John III, Prince Henry, who was then
Archbishop of Braga and who subsequently ascended the throne. Vasaeus became
librarian to Fernand Columbus; at the end of three years he returned to
Salamanca, where he tried to gain a livelihood by giving lessons. Later on
he was called to Portugal. He is the author of Chronicon rerum memorabilium
Hispaniae, only the first volume of which appeared. He died in 1552.

In his letters Cleynaerts makes several references to Franciscus de
Victoria, with whom, moreover, he was in correspondence; he vaunts his
extraordinary learning; he praises his admirable Latinity; he urges Vasaeus
to pay the greatest heed to the advice which the professor of Salamanca
gives him.[30]

Shortly after the death of Franciscus de Victoria, Joannes Vasaeus paid an
impassioned tribute to him in his Chronicon. “If he had lived,” writes he,
“what help he would have given me! His erudition was incredible, his
reading almost unlimited, his memory ready; he was like a miracle of
nature.”[31] In a book on the Adagia of Erasmus the same author dedicates
the following lines to the memory of the master of Salamanca: “In the whole
of Spain there was no one so wise, so simple, and, I make bold to add, so
saintly.”

Franciscus de Victoria died August 12, 1546. For two years he had suffered
much from rheumatic pains, and the disease made such progress that he had to
procure a substitute for his theological lectures, Juan Gil Fernandez de
Nava. The University, the Dominican Order, and the whole town gave him a
touching funeral amidst general grief.

IV.

The lectures of Franciscus de Victoria have come down to us in part. After
his death some former pupils collected his formal lectures, the relectiones
which the professor had delivered, and had them printed. The first edition
was not very correct; succeeding editions also left much to be desired in
this respect; but the mistakes, after all, were mistakes of printing, which
the reader can correct. One consideration, which is of more importance,
forces itself on the mind of the reader; it goes to the root of the matter
and raises the question whether the lectures, as they have come down to us,
are quite complete. Even if no decisive answer can be given, it is certain
that the dissertations, such as we now see them, are enough to give us an
idea of the opinions of the master and, even as regards their form, they
enable us to appreciate the elegance, the clearness, the charm of the Latin
diction employed by the professor of Salamanca.

Their very title, Relectiones theologicae, shows that theology was in the
fore-front; nevertheless some topics are treated which belong to politics
and to the Law of Nations. The author has been at pains to explain the way
in which he views his task when occupied with legal problems. He maintains
that the office and function of the theologian extend to such a point that
no argument, no controversy, appears foreign to the profession and
institution of theology. And especially as regards questions about the
rights of barbarian populations, he affirms that they are still open to
discussion, inasmuch as they have in no way been settled. To the objection
that wise and prudent men have been entrusted with the administration, he
replies that doubt is permissible, because there is a rumor abroad about
massacres and spoliations and so it is lawful to ask oneself whether all
that has happened is free from injustice. “Now,” he writes, “the settlement
of these matters does not belong to jurists, or at any rate it does not
belong to them alone. As the barbarians are not subjects in virtue of any
human law, matters concerning them ought to be examined from the point of
view, not of human, but of divine law, in which jurists are not sufficiently
versed to be able to solve the difficulties. It is a question for the forum
of conscience, the department of the priests, that is to say, of the
Church.” “Et cum agatur de foro conscientiae, hoc spectat ad sacerdotes, id
est, ad Ecclesiam, diffinire.”

The first edition of the Relectiones theologicae appeared at Lyons in 1557,
from the house of Jacques Boyer; in 1565 a second edition was printed at
Salamanca, by Juan de Canova; it bears the title Relectiones undecim; other
editions are entitled Relectiones theologicae tredecim partibus divisae; the
difference arises from the fact that two of the lectures are sometimes
divided into prior and posterior. The edition of 1565 was supervised by
Father Alonso Muñoz, of the Order of St. Dominic. It is dedicated to Don
Carlos. The title-page states that the edition “has been purged of the
prodigious and countless mistakes with which the first edition, that of
Jacques Boyer, was filled.” The prefatory announcement contains the
complaint, made by Alonso Muñoz, with regard to the mistakes of this same
edition; he writes that he had made a list of these mistakes when helping
Domingo Soto in the correction of his book of Sententiae. We might add that
to the copies of the edition of Muñoz the licentiate Mercado, censor of
books at the court of the king, has annexed four pages of Errata with their
corrections. In 1580 a correct edition was printed at Ingolstadt. In 1587 a
fourth edition appeared at Lyons; it was the work of an unknown theologian.
It is preceded by a eulogy of Franciscus de Victoria, in which the facts
are recalled that Melchior Cano and Domingo Soto were pupils of this teacher
and that the kings of Spain submitted to him cases of conscience concerning
the New World and the repudiation of Catherine of Aragon by Henry VIII. The
edition was published at the expense of Pierre Landry; and some Latin verses
written in praise of the last-named find a place at the end of other verses
written to honor the author of the work and to give some idea of the work
itself.

Still other editions may be cited — that of Antwerp of 1604 and that of
Venice of 1626, a copy of which was used by Henry Hallam in connection with
the interesting pages about Franciscus de Victoria which he wrote in his
Introduction to the literature of Europe in the fifteenth, sixteenth and
seventeenth centuries. Mention may also be made of an edition of Salamanca
of 1680 and of an edition of Cologne in 1696, the latter being published
under the supervision of Johann Georg Simon, professor of law at Jena and
later at Halle. Reference may further be made to an edition of Madrid of
1765. Finally, it is proper to add that the Marquis de Olivart, who has
rendered so many services to the science of international law, has published
the two lectures on the Indians and on the law of war.

Other works of the author appeared after his death. These are the Summa
sacramentorum Ecclesiae, printed at Valladolid in 1561, and a manual in
Spanish for confessors, Confesionario, which appeared at Salamanca in 1562.
Nicholas Antonio mentions the manuscripts, Commentaria in universam Summam
Theologiae Sancti Thomae and Commentaria in IV libros Sententiarum.

The lectures with which we are now to be particularly occupied are entitled
in the edition of 1565: De Indis recenter inventis relectio prior and De
Indis, sive de jure belli Hispanorum in barbaros, relectio posterior. They
are devoted to an examination of the titles which the Spanish might put
forward in order to justify their domination in the New World. They were
delivered in 1532 and are the first complete exposition of the question. It
had undoubtedly already been brought before scientific opinion; thus we may
mention Juan Lopez de Palacios Rubios, who undertook the defense of the
oppressed Indians in a formal opinion given at the request of King
Ferdinand. “The king,” wrote he, “has added to his power the isles of the
ocean commonly called the Indies and he has summoned into the truth of the
Gospel the men and the uncultured peoples there resident. The question thus
arises, what rights does the sovereign possess? The author has learned from
a reliable source that the aborigines of the countries just discovered by
Christopher Columbus are men endowed with reason — mild, pacific, and
capable of rising to the level of our religion. They have no private
property, but cultivate certain land in common. They are addicted to
polygamy, which results in the disorganization of their families. Are they
free? Yes, for God has given liberty to all men; nevertheless they ought to
hearken to the teachings of Christian priests.”[32]

Already in 1494 the question of the aborigines of the New World had been
submitted by the government to a commission composed of theologians and
canonists who pronounced in favor of the generous doctrine, and a letter of
Queen Isabella, dated February 10, 1495, showed that the arguments invoked
had convinced the sovereign. Unfortunately the authorities of the mother
country yielded to the claims and demands of the colonists who were animated
by the spirit of lucre. Slavery existed in Spain. It was recruited not only
from prisoners made in wars waged in the country itself against the Moors,
but from the closing years of the fourteenth century there had been markets
at Seville and Cadiz in which natives of the Canaries (Guanches, as they
were called) were exposed for sale; at the commencement of the fifteenth
century negro slaves had been introduced into Castille in the wake of the
expeditions made by the Portuguese. The Spaniards were familiarized with
slavery; it is not surprising that the abominable thought of reducing into
slavery the aborigines of the New World should have been conceived, nor is
it any more to be wondered at that negroes should have been transported to
the West Indies. ” Before the organization of the slave-trade was thought
of,” writes Georges Scelle, “and from the first days of the conquest,
negroes were certainly brought from Spain into America. It is notorious that
at the end of the fifteenth century slaves were numerous in Portugal, in
Spain, and especially in Andalusia: white slaves, Moors, Jews, and
especially black slaves. Is it not reasonable to suppose that Spaniards took
some with them? They transported them not only from Portugal and Spain, but
from the islands of the Mediterranean, the Balearic Isles, Sardinia (where
they were numerous), Madeira, and the Canaries, which had been conquered a
little time before and at which the vessels touched when sailing for the
West.”[33] Repartimientos and encomiendas were established, on which the
Indians were reduced to servitude, whilst certain populations were condemned
to slavery. “The usage,” writes Alexander von Humboldt, “of distributing the
natives among the Spaniards, in order to facilitate the work of the mines,
began in 1496 …. By the Provision of December 20, 1503, the central
government authorized compulsory labor, arbitrary taxation of wages, the
right of transporting the natives to the most distant parts of the island
and of separating them for six and then for eight months from their family.
This was the demora. There was also the mita, the exploitation of the
mines.”[34] On December 20, 1503, a horrible decree was signed. “It
allowed,” says the illustrious savant just cited, “the reduction into
captivity and the sale of the Caribs of the isles and of the mainland….
There were lengthy discussions about the shades of difference which
distinguish the varieties of the human race; which populations were Caribs
or cannibals, condemned to extermination or to slavery, and which were
guatiaos, or Indians of peace, old friends of the Spaniards? In 1511 it was
decreed that the Caribs should be branded with a hot iron, a barbarous
custom which at the beginning of this century I found much in vogue among
the black peoples of the Antilles.”[35] The Hieronymites and the Franciscans
were the first missionaries to visit the New World. Cajetan became
master-general of the Order of Dominicans in 1508; he was full of zeal for
evangelization, but the government would not allow the departure of
missionaries belonging to this Order until September, 1510: then three
brothers started, all belonging to the convent of San Esteban at Salamanca.
Among them was Antony of Montesino, who returned to Europe in 1511 and took
up the defense of the unhappy populations before a commission which
Ferdinand assembled at Burgos in 1511.

In 1519 another solemn discussion took place before the young king, Charles,
in which Diego Columbus, viceroy of the Indies took part. Bartholomew de las
Casas made himself there the devoted advocate of the oppressed and thus
inaugurated the long series of devoted services which won for him the
glorious name of defender of the liberty of the natives of America.

In his Relectiones Franciscus de Victoria repudiates all theories, whether
based on the alleged superiority of the Christians, or on their right to
punish idolatry, or on the mission which might have been given them to
propagate the true religion.

The question whether unbelievers had dominium had been discussed by others.
In order to refute it, Franciscus de Victoria, in the Relectio de potestate
civili, cites the opinion of Richard Fitzralph, Archbishop of Armagh (whence
his name Armachanus), who died in 1360. He tells us how the latter, in his
book, De paupertate Christi, teaches that unbelief and even mortal sin
prevent the existence of power, of the right of domination, and of
jurisdiction, and that grace is the title to and basis of all power. In the
Relectio de Indis, he cites again the opinion of the Archbishop of Armagh;
he mentions the similar doctrine of Wycliffe; he recalls that before these
two writers the Poor Men of Lyons (the Waldenses) had fallen into the same
mistake; he adds that the Council of Constance condemned the proposition
which Wycliffe had formulated as follows: “Nullus est dominus civilis, dum
est in peccato mortali.”

Franciscus de Victoria raises the question of title by discovery, inventio,
the only title, says he, which was invoked at the beginning of the
enterprises in the New World, and the only title in virtue of which
Columbus, the Genoese, sailed. But he points out that this title is a
sufficient one only in connection with uninhabited regions, and that in the
case in question the barbarians were, both alike from the public and the
private point of view, the real masters of the country. “According to the
Law of Nations,” says he, “that which has no owner becomes the property of
the seizor; but the possessions we are speaking of were under a master, and
therefore they do not come under the head of discovery.” It is not
irrelevant to note that title by discovery was admitted by a number of
Spanish and Portuguese authors, and that it was with the purpose of
contesting its validity when applied to newly discovered lands that Grotius
required occupation in addition to discovery. “Invenire enim,” wrote he in
the Mare liberum, chapter 2 and chapter 5, “non est oculis usurpare, sed
apprehendere, ut Gordiani epistola ostenditur: unde grammatici invenire et
occupare pro verbis ponunt idem significantibus.” Adopting the view of
Franciscus de Victoria, he writes, “Invenire nihil juris tribuit, nisi in ea
quae ante inventionem nullius fuerunt.” He adds, “Occupatio in mobilibus est
apprehensio, in immobilibus instructio aut limitatio.”

The professor of Salamanca repudiates the argument according to which the
barbarians are under obligation to accept the Christian faith. He maintains
that they are in no wise bound to believe merely because they have been told
of the truth of the religion of Christ; according to him, if they refuse to
become Christians after the proposition has merely been put before them,
that does not entitle the Spaniards to declare and make war on them. In
order that there may be a just cause of war, those who are attacked must
have committed some fault justifying the attack of which they are the
object. That is the teaching of St. Augustine; it is the common opinion,
sententia communis, not only of theologians, but also of jurists. But if the
barbarians are asked to give a hearing to those who would speak to them
about religion, they can not refuse without committing a mortal sin, nor can
they neglect to examine the probable and reasonable arguments which are put
before them. The question then is, whether the Christian faith has been so
propounded and announced to the aborigines of the New World that they are
bound to recognize it; this question Franciscus de Victoria refuses to
answer in the affirmative: “There have been no miracles or manifestations,”
says he, “which ought to have convinced them; there have not even been
examples of religious life; on the contrary, the Spanish have been guilty
of numerous scandals, crimes, and impieties.”

The great theologian then inquires into a delicate question which was also
discussed by all the theologians and jurists who concerned themselves with
the domination of the Spanish in the New World: can infamous vices and
morals, and bloody practices, justify the making of war on those who are
guilty of them? His teaching is that these do not afford the Spanish a just
cause for establishing their domination by force of arms.

We may observe that the charges brought against the Indians were well
founded. A passage from Bernal Diaz del Castillo, one of the companions of
Fernand Cortez in his Mexican expedition, throws some light on this matter.
Diaz quotes the language used by his leader to some caciques who implored
his protection. Cortès, he writes, told them that they ought to give up
idols and sacrifices to idols. “He added that they ought to purge themselves
of the shameful vices which their young men indulged in so scandalously; and
that, furthermore, there was every day a sacrifice before our eyes of four
or five Indians whose hearts were offered to the idols, while their blood
was scattered on the walls and their legs and thighs and arms were cut up
for food, just like meat coming out of our slaughterhouses (I believe, too,
that they sold them retail in their markets).” He ended by promising that
“if they would abandon their evil customs and practices, we would not only
become their allies; but we would also make them lords of other
provinces.”[36]

A historian confirms what has been said about the degree of civilization
attained by the peoples of the New World. “The Mexicans and Peruvians,” he
writes, “were barbarians: that is, while possessing a material basis
sufficient to support a low degree of civilisation, their habits of thought
and life remained essentially savage. The Mexican warriors, the most
advanced class found in America, were cannibals; in both Mexico and Peru
regular human sacrifices formed an essential part of the scheme of life.
Cannibalism was unknown in Peru, though it existed among the Indians of the
forest districts to the eastward of the Andes (the montaña) and to the
northward of Los Pastos, the northern limit of the Inca dominion: this may
reasonably be ascribed to the fact that the Peruvians possessed large
domesticated food-animals, which were wanting in Mexico. In most other
respects the Peruvians were at a lower level than the Mexicans.”[37] “In
Mexico,” continues the same author, “there existed a rudimentary commerce.

… Slavery, an important element in the earliest advancement, had come
into existence…. In Peru, so far as appears, commerce was unknown … nor
was there any division of labor, except that between the warrior and the
cultivator.”

The author just cited gives some instructive details. “The ‘weak males,'”
says he,” are a noticeable class in ancient society, and abounded in the New
World. Incapable of getting their living by the chase, the weak males would
in the earliest savagery probably be killed and eaten, or, in the
alternative, left to perish. In more advanced savagery they are allowed to
survive, on the terms of systematically sharing the tasks of the women,
which include the quest of wild vegetable food. From this the transition is
easy to their becoming assistants, when the stage of partial agriculture has
been reached, in the cultivation of the soil. Males of this class, wearing
female attire, and performing the lowest functions imposed on the female
sex, were commonly found, in the latest times, in the most advanced
communities of America: those of the Mexican pueblos shocked the moral sense
of the conquistadores scarcely less than did the hideous idols, the human
sacrifices, and the cannibal feasts. Originally the weak males are of
necessity celibates. As agriculture advances and labour is more and more in
request, some of them, it would seem, are allowed to become the parents of
others; their progeny, weak in physique, are well adapted to form the
nucleus of the lowest group in the industrial class, the slaves. Tribes
which have been largely depleted of their women, in the manner above
indicated, must necessarily rely more and more on their weak males for
purposes of labour; their vigour will consequently diminish, and they will
be ready for subjugation by stronger ones.”[38]

The illustrious theologian admits, however, that lawful titles may exist
for the Spanish domination over the Indians. “The first title,” says he,
“may be called the title of natural society and of natural communication.”
“Primus titulus potest vocari naturalis societatis et communicationis.” In
virtue of this title the Spaniards may travel and sojourn in those parts,
but on condition always of doing no hurt to the inhabitants, and it is not
permissible to hinder them from such travel and sojourn. The learned author
invokes the Law of Nations, the jus gentium. In this connection we have the
words, “Quod naturalis ratio inter omnes gentes constituit, vocatur jus
gentium.” The passage is found at the beginning of the third section of the
dissertation upon the aborigines of the New World. It has been asserted that
the illustrious professor confined himself to a quotation of the well-known
passage borrowed from Gaius by the Institutes of Justinian and that, quoting
from memory, he had substituted the word gentes for the word homines, which
in vulgar Latinity often meant “persons,” “men,” “nations.” It is enough to
read the development of his thought that Franciscus de Victoria gives in
order to be convinced that he is dealing with gentes in the sense of
“nations”; it is people whom he places side by side with one another in his
argument; it is the word nationes that he uses after gentes; finally, it is
the word gentes that he contrasts with the word homines. The examples which
he gives in explanation of his thought are concerned with the relations of
nations and with their intercourse. “Among all nations,” he writes, ” it is
deemed inhuman to refuse a welcome to foreigners and strangers, unless there
is some special reason to the contrary; it is regarded as humane and in
conformity with duty to treat strangers kindly; now this would not be the
case if strangers were doing a wrong in visiting a foreign nation.” He adds
that it would not be permissible for the French to forbid the Spanish to
travel in France or even to dwell there, and that neither could the Spanish
refuse to admit the French. May an observation be made? It is that it is
puerile to challenge the use by a man of genius, such as Franciscus de
Victoria was, of a terminology which expressed so perfectly his notion of a
juridic order extending over the whole globe and composed exclusively of
political communities. In the third book of Pantagruel, which appeared in
1545, Rabelais translates the expression jus gentium by “droit des peuples.”

The author of the Relectiones theologicae asserts the right of the Spanish
to carry on trade in the New World, to carry thither, for example, the wares
which the natives lacked, and to bring thence gold or silver or other
things which abound there. “The barbarian princes,” says he, “can not
prevent their subjects from trading with the Spanish, and the Kings of Spain
on their side can not forbid the Spanish to trade with the Indians.” He
invokes the maxim that we ought not to do to another what we do not want
done to ourselves. He asserts that the Spanish could not hinder the French
from trading with Spain. He shows that nature herself has established a
relationship between all men, “inter omnes homines cognatio.” “Man,” he
writes, “is not a wolf to man, as Ovid writes; he is a man.” “Non enim
homini homo lupus est, ut ait Ovidius, sect homo.” He adds that when things
are common property, the barbarians can not prevent the Spanish from
profiting thereby; he gives as illustrations the gold of the mines or of the
streams and pearls of the sea or of the rivers. He admits that an effective
sanction should guarantee the exercise of trade. Moreover, if the barbarians
oppose the Spanish in their exercise of this right, the latter should first
have recourse to reason and should show that they do not come with intent to
hurt. If such a method is insufficient, and if the Indians employ force, it
is lawful for the Spaniards to defend themselves, to repel violence, to
build forts, to make war, showing moderation, however, and inflicting the
least injury possible. If the barbarians persist, nevertheless, in their
hostility, and if they try to destroy the Spaniards, the latter may make use
of all the rights of war, may despoil their enemies of their goods, may
reduce them to captivity and may depose their chiefs. Here, too, moderation
and measure are requisite; as the doctors say in treating of war, the prince
who wages a just war is in virtue of that very fact the judge of his
enemies, may punish them in accordance with law, and may condemn them in
proportion to their wrong-doing.

Franciscus de Victoria mentions some cases in which intervention with armed
force is justifiable. Thus, the Indian chiefs may not persecute those of
their subjects who have been converted to Christianity, nor purpose to
bring them back to irreligion, and the same chiefs may not exercise tyranny
nor enact tyrannical laws without giving the Spaniards the right to put an
end to these abuses. He foresees the possibility of the aborigines
voluntarily submitting to the king of Spain and proclaiming him their
prince; for such action unanimity would not, according to him, be necessary;
a majority would suffice. Another lawful title would be the rendering of
help to allies; it is thus that the Romans conquered the world, that is, by
making war especially to aid peoples who had formed bonds of friendship with
them.

The learned author treats more especially of the laws of war in the De
Indis, sive de jure belli Hispanorum in barbaros, relectio posterior. He
examines the four following questions: May Christians make war? What
authority may declare and make War? What are the causes of a just war? What
may be done to an enemy in a just war?

He cites texts of the New Testament which seem to condemn resort to force;
but he teaches that these are counsels and not orders, and it is in this way
that he refutes the doctrine of Luther according to which Christians may not
take arms even against the Turks, because, if the latter should invade
Christendom, it would be in accordance with the divine will. With Saint
Augustine he teaches that Christians may engage in military service and may
make war. He enumerates several grounds which render war lawful. For
instance, defense against an enemy; recourse to arms against evil-doers and
the seditious; the pursuit of enemies after repulsing their attack; the
necessity of defending public safety; the preservation of general
tranquillity against tyrants and oppressors.

As to the authority to whom is reserved the right to declare and make war,
the author of the Relectiones theologicae observes that in a defensive war
every man, even a private person, may repel force by force in order to
protect his person and property, and he mentions in passing the opinion of
authors who teach that a private person may not kill his adversary if by
flight he could escape from the threatening peril. He gives definiteness to
his thought by showing that there is a difference between the political
community, Respublica, and the mere private individual: the latter may
defend his person and his property, but he may not avenge the wrong nor
retake his goods after they have been out of his hands for a considerable
time, “intervalle temporis”; the Respublica possesses authority to defend
itself and its members, and in addition to avenge wrongs. In this
connection he recognizes that a prince’s authority is like that of the
State: “The prince,” says he, “is the issue of the election made by the
Respublica.” He examines a little more closely the ideas of Respublica and
prince.

“The State, properly so called,” he writes, “is a perfect community, that
is to say, a community which forms a whole in itself, which, in other words,
is not a part of another community, but which possesses its own laws, its
own council, and its own magistrates.” As examples, he names Castille and
Aragon and Venice. He adds that the fact that several principalities and
perfect States are under the same prince is immaterial; in such a case,
furthermore, each of these principalities and perfect States has the right
to make war, a right without which they would be incomplete and consequently
imperfect. However, as the Law of Nations and human law have a great
influence here, custom may give the power and authority to make war, even
when the Respublica is not perfect. Necessity itself may confer the right
to make war; such would be the case if, within a kingdom, one city were to
attack another, or one noble were to attack another, without intervention
on the part of the king in the interests of order.

Franciscus de Victoria enumerates some grounds which would not justify
recourse to arms. He states that diversity of religion is not a sufficient
reason for making war; he teaches that neither the desire to aggrandize a
realm, nor the glory or interest of the prince, can justify hostilities.
“The lawful king,” says he, “differs from a tyrant in that a tyrant
organizes the government for his own profit, whilst the king has the public
good alone in view.”

The conclusion is that there is only one just cause of war — that is, the
injury suffered. Not every kind of injury suffices; serious and atrocious
ills, such as death, burning, devastation, must have been inflicted; slight
injuries will not justify recourse to arms.

“What may be done in a just war?” asks the author. “Everything that is
necessary for the defense of the public weal,” is his answer. He concludes
that it is lawful particularly to recover lost property, and its value, and
to seize the enemy’s goods as indemnification; he cites the case of a
private person appealing to a judge and obtaining from him not only the
restitution of the objects which had been carried off, but also the expenses
incurred and the damage sustained; the prince who makes a just war is really
acting as a judge. It is lawful to go even further to bring about peace and
security; we may destroy the enemy’s fortresses and at the same time
construct others within his territory. “The aim of war,” he repeats, “is
peace and security; he who is waging a just war may do everything that is
needful to obtain peace and security, which rank among the assets of
humanity. In the same way that self-defense against internal foes and bad
citizens is allowed, so may measures be taken against external foes, and a
conqueror may require the conquered to give hostages and to surrender his
arms and ships.” The author goes still further; he grants that after victory
has been won the victor may exact vengeance for the wrong done to him and
may punish his enemy. In order to show the truth of his proposition, he
asserts that a prince possesses, not only over his subjects, but also over
foreigners, the authority necessary to compel them to refrain from injurious
acts; he invokes the Law of Nations and natural law which require the
existence of an authority able to prevent the good and innocent from being
harmed with impunity. He returns on several occasions to an idea which was
frequently developed in the Middle Ages and which Grotius repeats, in his De
jure praedae commentarius, citing these very Relectiones theological, and
that is that when a political community commits a wrong it becomes the
subject of the other political community; the conqueror becomes the judge of
the conquered and thus the subsequent measures are justified; for otherwise
it is impossible to find a justification for war, political communities
having otherwise no authority one over the other.”[39]

The infliction of useless injuries in war must be guarded against. Innocent
folk must not be attacked if the object of the war can be attained without
harming them; laborers should not be despoiled if victory can be obtained
without inflicting losses on them.

Children and innocent folk may not lawfully be killed; but may they
conformably with law be led off into captivity? The author admits that the
children and women of the Saracens are led into captivity and into slavery;
as regards Christians, he observes that it has been conceded that prisoners
of war do not become slaves and he concludes that even if the captivity of
the children and women is indispensable to the attainment of the object of
the war, they may not, however, be reduced to slavery, but must be offered
for ransom: on this point also he recommends moderation.

“In the midst of a battle during both an attack and a defense.” says
Franciscus de Victoria, “it is lawful to kill all combatants, but when
victory has been obtained and the danger is over, may all those who have
carried arms be put to death?” His answer is that the nature of the wrong
suffered and of the hurt sustained must be taken into account; all atrocity
and inhumanity should be abstained from; he adds that if, strictly speaking,
prisoners of war who have borne arms may be put to death, nevertheless the
custom and usage of war, consuetudo et usus belli, are such that after
victory has been won prisoners of war are spared, unless they be deserters.

The author develops several propositions on the subject of booty. He
supports the opinion of Silvester de Prierio, according to which one should
content oneself with what is a sufficient and just reparation for the
injury sustained. “If,” says Franciscus de Victoria, “the French have sacked
some unimportant town or place, the Spanish would have no right, even if
they could, to ravage the whole of France.” He declares himself against the
pillaging and burning of towns; he admits that necessity may excuse cruel
measures, but he lays emphasis on the barbarous acts committed on like
occasions by the bloodthirsty.

A question arises in connection with what in our days is called military
occupation. Is it lawful to occupy and to hold as long as may be necessary
a field, citadels, or a town belonging to the enemy? Franciscus de Victoria
answers affirmatively, but requires that the object be to obtain an
indemnity, to guarantee security, to avenge a wrong, or to inflict
punishment. He holds that necessity and the reason of war, necessitas et
ratio belli, may justify the measures taken. He requires moderation and
insists that at the end of the war the conqueror should retain only what
will compensate for damage sustained and expenses incurred; he repeats the
idea already enunciated:

“Superior judex potest commode mulctare authorem injuriae, tollendo
scilicet ab eo civitatem, aut arcem. Ergo et princeps, qui laesus est, hoc
poterit, quia jure belli factus est tanquam judex.”

There is another question, namely, whether tribute may be exacted from the
vanquished. The author answers this question in the affirmative. It is
lawful because it is a question both of recovering damages for an injury and
of inflicting punishment.

Still another question: May we depose the princes of the enemy and set up
others in their stead; may we arrogate the sovereignty to ourselves?
According to Franciscus de Victoria the following maxim ought to prevail
here, namely, that the punishment should never exceed the measure of the
wrong which it purports to avenge.

Franciscus de Victoria ends by formulating three rules which may be stated
as follows: In the first place, the prince may not seek occasions for war,
he ought to try to keep at peace with all men; if he makes war, it should be
in spite of himself. In the second place, when war has broken out for just
causes, the belligerent may not aim at the destruction of the enemy people;
he may only have in view the defense of his own country in such a way as to
attain peace and security. In the third place, when victory has been
attained it must be used with Christian moderation; the conqueror should
consider himself a judge pronouncing judgment concerning two States, one of
which has sustained a wrong and the other has done a wrong; he should
endeavor to see how satisfaction may be given while inflicting the least
harm possible on the guilty political community, since among Christians the
fault is generally imputable to the princes themselves and since it would be
unjust to punish the subjects who are fighting for their princes and to
admit the maxim which the poet formulates, that the Greeks ought to bear the
consequences of the follies of their kings:

Quidquid delirant reges, plectuntur Achivi.

V.

In a study such as we have undertaken we must of necessity limit ourselves
to the most important questions and must consequently neglect a series of
special points which would nevertheless have been of interest. We have
referred to the exquisiteness of form that Franciscus de Victoria was able
to give to a work which he himself did not destine for publicity and which
in his lifetime was not printed. We have noted the limpid clearness of his
Latinity. We have attempted to give an idea of the substance of his doctrine
and of the force of his reasoning. We will not emphasize the sentiment of
humanity and charity which predominates in all his pages. A great deal of
labor might be expended upon the authors quoted by the illustrious professor
and thus it might be ascertained how vast were his studies and how profound
a knowledge of the literature of his subject he had accumulated.

It is superfluous to say that the Old and the New Testament, and the
Fathers of the Church — especially St. Augustine — are cited and that
frequent quotations are made from Aristotle. Among the theologians and
canonists whose opinions are mentioned figure almost all the known authors
of the middle ages: Gratian and his Decretum; Saint Thomas Aquinas and his
Summa totius theologiae; the commentators on the canon law; the commentators
on Roman law, Bartolus at their head; then come writers less generally
known, such as Altissiodorensis (who is William of Auxerre) and that other
doctor of the thirteenth century, William of Paris. Furthermore, Richard
Fitzralph, Archbishop of Armagh; John Wycliffe, William Ockham, and Jean de
Jandun. Mention must also be made of Juan de Torquemada. A single detail
shows the care and exactitude employed by the professor of Salamanca: he is
referring to Juan de Torquemada and recalling that he wrote in favor of the
Papacy when the bishops of the Council of Basel in 1431 affirmed the
supremacy of the ecumenical council over the Pope. “Contra quos,” says he,
“Cardinal de Turrecremata fecit opusculum, quod vocavit ‘De decreto
irritante,’ in quo contrariam sententiam contendebat ostendere. Sed illum
librum ego invenire non potui.” Also among the authors cited are Cajetan,
whom we have already mentioned, and Silvester Mazzolini. Franciscus de
Victoria quotes principally their Summa poenitentia. Both belonged to the
Older of Dominicans. Cajetan, as we have said, was born at Gaëta, whence his
name. From 1508 to 1518 he was master-general of the Order of Dominicans. In
1517 Leo X included him in his famous creation of thirty-one cardinals. He
died in 1534 and was accorded the reputation of the greatest theologian of
his century. Silvester Mazzolini, born at Prierio in Piedmont, also a
Dominican, was named by Leo X Master of the Sacred Palace. He died in 1523.
It has been said of him that “he was a scholastic by race and a rigid
disciple of St. Thomas.” Franciscus de Victoria quoted also as an authority
St. Antoninus, Archbishop of Florence from 1446 to 1459. who is especially
known by his Confessionale.

It would also be interesting to refer to the citations of the Relectiones
theologicae made by the great writers on the Law of Nations. To pass them
all in review would be an arduous task; but some details are interesting.

High homage was paid to Franciscus de Victoria when numerous pages of his
Relectiones were reproduced in the editions of the Siete partidas, as
commented on by Gregory Lopez de Tavar.

Another tribute, equally great, was paid by Alberico Gentili. The
illustrious Oxford professor did not measure his praises. In his De jure
belli libri ires he is pleased to quote the opinions of the Spanish
theologian and on one occasion, he writes, “testatur doctissimus a
Victoria.”

We have mentioned that Grotius cites Franciscus de Victoria in the
Prolegomena to his great work, De jure belli ac pacis libri tres, which
appeared in 1625; as we have elsewhere seen, he also cited him in the Mare
liberum, which appeared in 1609 and which is in reality a chapter extracted
from a work composed in 1604, De jure praedae commentarius. This remained in
manuscript until 1868 and was then printed for the first time. In this last
work the author often mentions the learned professor of Salamanca,
especially on the subject of the characteristics of a political community,
which must have its own council and authority.

In 1633 appeared the Monarchia Messiae of Thomas Campanella; this latter
mentions the opinion of Franciscus de Victoria concerning the rights of the
King of Spain over the New World; but, haughty ultramontane that he was, he
attributes the legality of that title to the division made by the Pope
between the sovereigns of Spain and of Portugal, a division emanating,
according to him, from one who was both lord and judge. For Campanella the
Pope is “the vicar of the Judge of the quick and the dead and of earthly
princes and kings, the vicar of the King of kings, and of the Lord of
lords.”

In 1635 John Selden’s Mare clausum was printed. Franciscus de Victoria is
cited; but Selden combats his opinion.

We have mentioned the influence exercised in Spain itself by Franciscus de
Victoria, who in a way revivified the teaching of theology. He was in
reality the founder of that celebrated school of Salamanca, which may be
said to have taken its inspiration from the Order of Friars Preachers and
which included the greatest of their names. “It is a truly extraordinary
thing,” writes a historian, “this assemblage of Doctors, of whom we do not
know which to admire most. Spain had never before given so many incomparable
Masters to the Order of St. Dominic, and never has since.”[40]

The influence of the author of the Relectiones theologicae continued, thanks
to his disciples. A man of great worth, Hermann Conring, has done justice to
him. He was born at Norden in Frisia in 1606 and was called to teach in the
University of Helmstaedt; he died in 1681. Alphonse Rivier passes the
following judgment upon him: “A universally learned man, theologian,
physician, jurisconsult, Germanist and Romanist, publicist, diplomat,
philosopher, a great wit, a small character.” In his Examen rerum publicarum
potiorum totius orbis, Hermann Conring devotes an important chapter to
Spain. He speaks there especially of the development of scholastic theology
brought about by the writers of this country and he observes that no country
of Europe has produced more subtle writers. He invokes the testimony of
Domingo Bannès, a member of the Order of Friars Preachers, and professor of
theology at Alcala, at Valladolid, and at Salamanca, who attributes to
Franciscus de Victoria the merit of having started this powerful movement.
“He acquired his learning in Paris,” said Bannès, “but he far surpassed his
masters.” Conring tells us that Bannès traces the cause of the progress
effected by the Spanish in scholastic theology to the sad gravity which,
according to him, distinguishes them, and he supports his opinion. He pays a
magnificent tribute to Franciscus de Victoria. “There is,” he writes, “a
work of his entitled Relectiones, which may be extraordinarily useful, not
only for theologians, but also for jurisconsults, because it discusses moral
topics with the greatest care and subtlety, wherefore I always read it with
admiration.”[41]

The professor of Helmstaedt insists on the fact that Franciscus de Victoria
was the very first to raise moral problems in juridic questions; he adds
that the Spanish have continued to study theology and philosophy in this way
and that similar works are vainly sought amongst the French or Dutch or
Germans, whose genius is not suited to this study. “Often,” he adds, “I am
surprised that Hugo Grotius was able to make progress in this kind of work
so much greater than that ordinarily made by the other authors. But his
genius was curious. However, if he excelled in philosophy and produced the
incomparable book, De jure belli ac pacis, he owed it to his reading of the
Spanish jurisconsults, Ferdinand Vasquez and Diego Covarruvias, who had in
their turn made use of the work of their master, Franciscus de Victoria. He
cites them frequently. Spanish legal science differed much from French legal
science. In France we can praise only Cujas, Hotman, Bauduin, and others who
have given their works a literary finish, but in Spain natural law is much
better cultivated; there is indeed no other place where it is so happily
taught. And all this Spain owes to Franciscus de Victoria. The same
consideration applies to philosophy; it is moral philosophy that is most
studied in that country. Let him who aspires to the most exact knowledge of
moral philosophy procure Spanish authors. Compared with the Spanish, the
Germans and the French are naught. It is for the reason pointed out by us
that the Spanish have been so successful in the cultivation of metaphysics;
here, too, a predisposition to sadness and seriousness is requisite. In
physics they are veritable children, because the study of physics is a gay
affair; accordingly they cultivate only the saddest side of it, that is to
say, medicine, and they neglect the agreeable side. For the same reason the
study of the humanities languishes in Spain. Among its numerous writers
scarcely one can be praised for the cultivation of belles-lettres. Mariana
and Barclay have both noted this fact. Among theologians may be mentioned
the Ciceronian, Melchior Cano. When, on the initiative of the Jesuits,
Philip IV founded a royal academy at Madrid, there was not found in Spain —
not even among the Jesuits — a single writer who was skilled in
belles-lettres. In this country there is only one modern historian,
Mariana.”

The authors on international law of the nineteenth century have not failed
to pay homage to Franciscus de Victoria. In his History of the Law of Nations
in Europe and America, Henry Wheaton mentions him in an exceedingly
laudatory manner and devotes seven pages to an analysis of the two
Relectiones that relate to the Law of Nations. Another great author, James
Lorimer, a legal philosopher and a jurist, has praised the Spanish writers
of the sixteenth century in general, and Franciscus de Victoria in
particular. “From these few observations,” he writes, “you will have no
difficulty in perceiving the extreme injustice of the manner in which, down
to our own time, it has been customary to speak of the scholastic jurists.
Learned as Barbeyrac was, the few perfunctory sentences which he devotes to
them in his celebrated preface to Pufendorf — which he adopts in his
preface to Grotius, as serving for both works — are no exception. The fact
is, that ever since the Reformation the prejudices of Protestants against
Roman Catholics have been so vehement as to deprive them of the power of
forming a dispassionate opinion of their works, even if they had been
acquainted with them, which they rarely were.”[42]

The eminent Oxford professor, Thomas Erskine Holland, has also paid homage
to the celebrated Spanish writer in one of the introductory lectures of his
course, a lecture which is reprinted in the remarkable Studies in
International Law, published in 1898. Another English author, Thomas Alfred
Walker, in his History of the Law of Nations, which appeared in 1899, has
given several pages of analysis to the Relectiones theologicae. Finally, in
a collection edited by the learned Antoine Pillet, a French professor,
Joseph Barthélemy has contributed an elaborate study of the life and work of
Franciscus de Victoria.[43]

Here our work may end. We have tried to relate the life and activity of one
of the great precursors of Hugo Grotius. Because of the vigor of his
reasoning, the nobility of his sentiments, and his profound love of
mankind, Franciscus de Victoria is still in our day an imposing personality.
He was modest, simple, good; a sturdy defender of truth and of justice.
Whoever reads his writings esteems their author, and that is why I venture
to bring to his illustrious name my tribute of admiration.

ERNEST NYS.

British Museum, August 20, 1913.

1. ALPHONSE RIVIER, Principes du droit des gens (Paris, 1896), vol. I, p. 5.

2. H. R. FEUGUERAY, Essai sur les doctrines politiques de St. Thomas d’
Aquin, précédé d’une notice sur la vie et les ecrits de l’auteur par M.
BUCHEZ (Paris, 1857), p. 8.

3. TH. DE CAUZONS, Histoire de l’Inquisition en France, vol. I (Paris,
1909), p. 429.

4. CHARLES THUROT, De l’organisation de l’enseignement dans l’Université de
Paris au moyen âge (Paris, 1850), p. 115.

5. D. A. MORTIER, of the Friars Preachers, Histoire des maîtres généraux de
l’Ordre des Frères Prêcheurs, vol. I (Paris, 1903), p. 63.

6. THOMAS ERSKINE HOLLAND, Studies in international law (Oxford, 1898), p.
44.

7. VICTOR LE CLERC, Discours sur l’état des lettres au quatorzième siècle.
Dans Histoire littéraire de la France au quatorzième siècle (Paris, 1865),
vol. I, p. 101.

8. EDUARDO DE HINOJOSA, Estudios sobre la historia del derecho español
(Madrid, 1903), p. 235

9. LOUIS DELARUELLE, Guillaume Budé: Les origines, les débuts, les tace,
maîtresses (Paris, 1907), p. 54.

10. CHARLES WADDINGTON, Ramus (Pierre de la Ramée): Savie, ses écrits et ses
opinions (Paris, 1855), p. 23.

11. CHARLES WADDINGTON, op. cit., p. 24.

12. D. A. MORTIER, of the Friars Preachers, Histoire des maîtres généraux de
l’Ordre des Frères Prêcheurs, vol. V (Paris, 1911), p. 379-380.

13. D. A. MORTIER, op. cit., vol. V (Paris, 1911), p. 380.

14. EDUARDO DE HINOJOSA, op. cit., p 245.

15. Ibidem, p. 195.

16. Ibidem.

17. ALBERT DESJARDINS, Le pouvoir civil au Concile de Trente. In Revue
critique de législation et de jurisprudence, vol. xxxiv (Paris, 1869), p. 3.

18. Histoire du Concile de Trente, written in Italian by PAOLO SARPI, of the
Order of Servites, translated by PIERRE FRANÇOIS LE COURAYER, doctor in
theology of Oxford (London, 1736), vol. I, p. 167.

19. lbid., vol. II, p. 313.

20. ALBERT DESJARDINS, article cited, p. 221.

21. EDUARDO DE HINOJOSA, op. cit., p. 201.

22. E. S. MARSEILLE, Erasme et Luther: Leur discussion sur le libre arbitre
et la grâce (Montauban, 1897), p. 14 et seq.

23. Ibid., p. 35.

24. MARCELINO MENENDEZ PELAYO, Historia de los heterodoxos españoles
(Madrid, 1880), vol. II, p. 61.

25. lbid., p. 65 et seq.

26. H. DURAND DE LAUR, Erasme, précurseur et initiateur de l’esprit moderne
(Paris, 1872), vol. I, p. 492.

27. Ibid., vol. I, p. 507.

28. Histoire critique de l’inquisition d’Espagne despuis l’époque de son
établissement par Ferdinand V jusqu’ au règne de Ferdinand VII, tirée des
pièces originales des archives du Conseil de la Suprême et de celles del
tribunaux subalternes du Saint Office, by D. JEAN-ANTOINE LLORENTE, sometime
secretary of the Inquisition, translated by ALFRED PELLIER (Paris, 1817),
vol I, p. 461.

29. H. HARRISSE, Excerpta Colombiniana (Paris, 1887), p. 25 et seq.

30. NICOLAUS CLENARDUS, Epistolarum libri duo (Antwerp, 1556).

31. JOANNES VASAEUS, Rerum Hispanicarum chronicon, Chap. VI: Rerum
Hispanicarum scriptores aliquot (Frankfort, 1579), vol. I, p. 437 et seq.

32. VICENTE DE LA FUENTE, Palacios Rubios: Su importancia jurídica, política
y literaria. In Revista general de legislación y jurisprudencia, vol. XXXVI
(Madrid, 1870), p. 242.

33. GEORGES SCELLE, La traite négrière aux Indes de Castille; contrats et
traités d’assiento (Preface by Mr. A. PILLET) (Paris, 1906), vol. I, p. 121.

34. ALEXANDER VON HUMBOLDT, Examen critique de l’histoire de la géographie
du nouveau continent et des progrès de l’astronomie nautique aux XVème et
XVIème siècles, vol. III (Paris, 1837), p. 281.

35. Ibid., vol. III (Paris, 1837), p. 293-294.

36. Histoire véridique de la conquête de la Novelle-Espagne, written by the
captain, BERNAL DIAZ DEL CASTILLO, one of the conquistadores; translation by
D. JOURDANET (Paris, 1877), p. 121.

37. EDWARD JOHN PAYNE, History of the New World called America, vol. I
(Oxford, 1892), preface, p. vii.

38. EDWARD JOHN PAYNE, op. cit., vol. II (Oxford, 1899), p. 17.

39. H. GROTIUS, De jure praedae commentarius, ex auctoris codice descripsit
et vulgavit H. G. HAMAKER (The Hague, 1868), p. 29.

40. D. A. MORTIER, op. cit., vol. V (Paris, 1911). p. 385.

41. HERMANN CONRING, Opera (Brunswick, 1730), vol. IV: Examen rerum
publicarum potiorum totius orbis, chap. 1 (De republica Hispanica), p. 77.

42. JAMES LORIMER, The institutes of the law of nations, vol. I (1883), p.
71.

43. Les fondateurs du droit international, leurs oeuvres, leurs doctrines,
with an introduction by A. PILLET (Paris, 1904), p. 1 et seq.

De Indis De Jure Belli by Francisco de Vitoria
Part 1

DE INDIS ET DE IVRE BELLI RELECTIONES
BEING PARTS OF
RELECTIONES THEOLOGICAE XII
BY FRANCISCUS DE VICTORIA

Primary Professor of Sacred Theology in the University of Salamanca.

THE TRANSLATION
BY JOHN PAWLEY BATE, LL.D.

Reader of Roman and International Law in the Inns of Court, London.

TRANSLATOR’S NOTE ON CITATIONS.

1. Bible. — The references made in the original to the Vulgate are given
in the translation in terms of the English Authorized Version of the reign
of James I.

2. Canon law books. — The references in the translation are given in the
following abbreviated manner: (a) Decretum, pt. i, by number of Canon and
number of Distinctio, e. g., can. 6, Dist. 96: (b) Decretum, pt. ii, by
number of Canon, number of Causa, number of Quaestio, e. g., can. 41, C. 7,
qu. 1: (c) Decretales, by X (for extra Decretum) then number of book, title
and chapter, thus X, 5, 6, 6: (d) Liber Sextus, by the number of book, title
and chapter, followed by “in VI,” thus 5, 2, 19 in VI.

3. Civil law books. — The references in the translation are to Mommsen’s
edition of the Corpus Juris Civilis.

In addition to the above-named books the author cites or refers to the
writings of the following:

Adrian VI, Pope.
Almain, Jacques.
Altissiodorensis (i. e., of Auxerre), Gulielmus.
Ambrose, St.
Anconitanus (i. e., of Ancona), Agosrino Trionfi.
Andreæ, Joannes.
Angelus of Chiavasso.
Antoninus, St., Archbishop of Florence.
Aquinas, St. Thomas.
Archbishop, the, see Antoninus
Aristotle.
Armachanus (i. e., of Armagh), see Fitzralph, Richard.
Augustine, St. Baptista de Salis.
Bartolus.
Bernard, St.
Cajetan, Cardinal (Thomas de Vio).
Cicero.
Conrad.
Dionysius Areopagiticus.
Durandus.
Eymerici, Nicholas.
Fitzralph, Richard, Archbishop of Armagh.
Gandavensis (i. e., of Ghent), Henricus Gerson.
Hostiensis (Henry of Susa, Cardinal. Bishop of Ostia).
Hugo, see de Sancto Victore.
Lombard, Peter.
Luther, Martin.
Natalis, Herveus.
Ovid.
Paludanus, Petrus.
Panormitanus (i. e., of Palermo), Nicolo Tudeschi.
Parisiensis (i. e., of Paris), Gulielmus.
Sallust.
de Sancto Victore, Hugo.
Scotus, Duns.
Sylvester of Prierio Terence.
Tertullian.
de Torquemada (Turrecremata), Juan.
Vergil.
Waldensis (i. e., of WaIden, Essex), Thomas Netter.

(The Title-Page of the Edition of 1696)

THE RELECTIONES IN MORAL THEOLOGY OF THE VERY CELEBRATED SPANISH
THEOLOGIAN, FRANCISCUS DE VICTORIA,

comprised in two volumes, in the order shown overleaf,

Formerly published at Ingolstadt, and now, because of the lack of copies
and the nobility of their contents, revised and furnished with a twofold
index by the toil of

JOHANN GEORG SIMON, J. U. D.,

Counsellor and Professor of Halle.

“A work of the utmost utility alike to jurisconsults and to
theologians.” [Conring]

COLOGNE AND FRANKFORT,

At the cost of AUGUST BOETIUS. 1696.

(Overleaf of the Edition of 1696)

VOLUME I.
I. On the Power of the Church, part 1.
II. On the Power of the Church, part 2.
III. On Civil Power.
IV. On the Power of the Pope and Council.
V. Part 1, or on the Indians lately discovered.
VI. Part 2, or on the Law of War.
VII. On Marriage.
VOLUME II.
VIII. On the Increase of Charity.
IX. On Temperance.
X. On Homicide.
XI. On Simony.
XII. On the Magic Art.
XIII. On the Obligations of a man attaining the use of reason.

[Of the above, only Relectiones V and VI are pertinent to the objects of
this work and the others are therefore not included.]

TO THE CHRISTIAN READER, GREETING[1]:

It having been decided to reprint here, at Ingolstadt, these thirteen
Relectiones of Franciscus de Victoria, who was by far the most learned
theologian of the highly flourishing University of Salamanca within the
memory of our fathers, I undertook the task of correcting them at the
instance of certain doctors, who, on account of the celebrity of his
reputation, were glowing with fervent admiration of so great a man. Now in
this business so entrusted to me, I see that there are a few items
concerning which it is worth while that you have an accurate account: these
are, the amount of labor and toil expended by me in correcting and preparing
the publication; the character and greatness of the man who composed these
Relectiones; and the amount of advantage and profit which the perusal of
them will bring even to Germans, who seem to be somewhat strange to the
gymnastic and scholastic form of discussion therein employed.

Well, reader, you will scarcely believe how much labor we have expended on
this business, unless either you make a careful comparison of this edition
of ours with the Lyons and Salamanca editions or realize in some fashion by
our description the character of each of these editions. For I had at first
the use of the Lyons edition only, in clearing the blunders from a good part
of the first volume, and the printer had already finished striking off the
first five sheets of it, when, beyond my hope and belief (for I did not
think such a thing existed here), a copy of the much more correct Salamanca
edition came into my hands in the manner following: The Reverend Father
Gregorius Rosephius, a preacher of Augsburg,[2] when on a visit to us, had
perceived the extremely wearisome nature of the task, which I had undertaken
in correcting the Lyons copy (I seemed indeed to be cleansing the Augean
stable), and had noticed that some of the passages pointed out by me were
hopelessly corrupt, and by his courteous intervention with the well-born
gentleman, Marcus Fugger (on whom the desire of the public welfare had such
a hold), he procured me the loan, from the well-known library of the Fugger
family, of a copy of the Salamanca edition. How faulty and corrupt the Lyons
copy was, I would rather that you, my reader, should learn from the Letter
to the Reader, which Brother Alonso Muñoz placed at the beginning of the
Salamanca copy, than from me. A part of that Letter it has seemed advisable
to insert in this, because it, too, contains the praises of the author, and
because some of the disciples of that most erudite man are mentioned by name
there.

“When, honest reader, I was busy at Salamanca, trying to help Brother
Domingo Soto with the correction of the proof of the fourth volume of the
Sententiae, then in the press, there appeared a little book with a most
imposing title, but containing countless horrible misprints, absurdities
which were disgraceful and insulting to the author as well as to the whole
theological school. It made one aghast to behold in the tiny body of so
small a book so unbelievable an off-scouring of close-packed blunders, and
ashamed and sorrowful that rascals should seem to have such license towards
the master-pieces of most distinguished men, and with impunity, too. This
was the title of the book: “The Relectiones of the Reverend Father, Brother
Franciscus de Victoria, of the Order of Preachers, formerly Primary
Professor of Sacred Theology in the University of Salamanca.” You observe
how fair and full of promise the inscription is; and indeed for this, in
Pliny’s words, its bail could be forfeited.

“When, then, at Salamanca I came across this very book, newly issued from
the press, I began to read it with the utmost avidity, and I had barely
cast my eyes upon the first page that presented itself, when, lo, there
lighted on my very eyes some impious error on the topic of Simony, which
stirred my spleen marvellously. I made no tarrying, however, the matter
being one which could easily be detected by anyone of even moderate
learning; I go on, and the farther I went, the more mistakes I kept finding,
and even some mutilations. Perceiving that the thing was by no means to be
borne, I laid it before the very Reverend Fathers, Brother Domingo Soto and
Brother Melchior Cano, who prompted me to take on myself my present charge,
namely, the correction of that book according to the most exact copies.
Master Franciscus Sanctius, Canon of the Cathedral of Salamanca and
Moderator of the chair of Moral Philosophy in the gymnasium likewise of
Salamanca and therefore administer of the Holy Inquisition in the business
of examining books for admission or rejection, learnt of this. He came to
Brother Domingo Soto to discuss the matter with him, and at the suggestion
of the same Franciscus I was summoned and received afresh from the twain the
injunction “to adorn this Sparta.”

“Now, although I was aware how unpleasant a business it was, how hard and
wearisome the affair, how inglorious the labor of correcting and restoring
the monuments of others, especially those so ulcerous, so altogether
deranged, so piteously (I had almost said) and hostilely regarded, as these
were, yet, moved by the authority of my preceptors as well as induced by
love of a very fine work and of its author, Victoria, who was also my
dearest of teachers, I put my shoulders under a burden which I have loved.”

And then at the dose of the same letter Muñoz adds this paragraph:

“Enjoy, then, in your good fortune the fruits of our vigils and toil,
whereby it has come to pass (without boasting) that instead of the muddy
work, not to say the mud, of yore, you have something clean and clear, and
gilded and resplendent all over, as you will easily discover by experiment,
if, wherever the book be opened, you will make a comparison and will
consider the difference between this book, which we are handing to you, and
the book which we have corrected, namely, the one which Jacques Boyer struck
off at Lyons in the year of our Lord 1557. Before it none was printed, and
after it no other printers have ventured to reprint it, fearing (howsoever
small it is) this our diligence, of which they are not unaware.”

From this, my leader, you will perceive, without any words of ours, how
faulty and corrupt was the Lyons edition, and how much more correct is that
of Salamanca (of the year 1565, to wit). But I do not know by what
ill-chance it has happened that into this Salamanca edition, so clean, so
clear, so gilded, have crept blunders and faults neither few nor trivial.
It labors at times under the same faults as the Lyons edition; sometimes
under faults of its own, which needs must be corrected either by reference
to the Lyons edition or in some other way. What, then, my reader, was I to
do, there being so many faults even in the Salamanca copy, in which I had
placed my hopes of correcting the other copy? Was I to make a transcript of
the whole of the Salamanca copy (for the well-born man who had loaned it to
us had stipulated that it was not to be entrusted to any printer or have any
marks made on it) and send the transcript to the printer to be printed? But
I had no leisure for that, and if I had had, it would not have helped
towards a correct edition of the work because of the faults and blunders,
which, we have said, had crept into the edition in question. Was I to
correct the whole of the Lyons text, just as I had corrected it in part,
before I had that of Salamanca, and so corrected give it to the printer?
That, too, was impracticable, because the former was blemished by many more
and graver faults than the latter, and because, unless we corrected the
former by the Salamanca text, we should seem to have borrowed the last-named
to no purpose.

Accordingly I settled the matter as follows. From the place where the
printer had stopped printing (he happened to have stopped after the fifth
sheet, usually marked by the letter E) I and a wise colleague, whom I had
joined with me, made a very careful collation of the two texts, and to the
best of our ability, corrected that of Lyons, which was to be sent to the
printer, by that of Salamanca, wherever the latter had no obvious error. But
wherever a serious and manifest fault occurred in the Salamanca text (for I
thought that I could rely on my own judgment in the removal of the more
trifling blunders) I took counsel with the most skilful theologians and
philosophers, in order that the fault might be corrected by the common
judgment of many, after considering in the two copies all the words and
opinions of the author, which seemed to conduce to an understanding of his
mind. It happened sometimes that all of us together could hardly find a
principle or method for the restoration of some corrupt passage. Let any
incredulous person take the two editions and read just one passage in the
“Relectio on the Increase of Charity,” about No. 10, and if he can extract
therefrom the sure meaning of the author while retaining the identical
words, then he may indeed charge us with falsehood or ignorance.

When, then, on this principle we had collated the two editions right to the
end, we carefully corrected by the Salamanca text the five sheets also,
which, we have said, had been struck off, in order that nothing might be
wanting for the absolute and complete expurgation of the entire work. As we
could not remove from these sheets themselves the errors which occurred in
them, we noted them at the end among the rest of the Errata.

This indeed was a big and tedious task, but bigger and more tedious was that
which we undertook, in regard of the whole work now emended according to the
Salamanca text, of simply correcting, repurging, and illustrating it with
scholia throughout. This was the more toilsome and difficult in proportion
as the two editions were more corrupt and as the author — owing to the
strength of his very acute intelligence, which, according to the wont of
highly learned men, he directs upon the matters before him — seems less
careful of his words, less mindful of order or of the things initially
propounded for discussion. Hence it happens that sometimes he might appear
to use an overconcise and scholastic mode of discourse; sometimes, to omit
answering arguments which have been propounded; sometimes, to give one
answer to many things at the same time; sometimes, when discussing a mooted
question or refuting an argument, to insert questions and doubts which he
meets upon his way; sometimes, to omit altogether some of the questions to
be discussed, which he has propounded at the beginning of the relectio (as
is evident in the “Relectio on Marriage” and the “Relectio on Temperance”).

Nor did our labor stop here, but in the third place we had to go over the
whole work after it was in type, both to make a complete alphabetical index
and to correct the misprints. While attempting to accomplish this latter
task, we bestowed equal diligence upon the former, so that we have left in
this edition of ours a text much more correct than had previously been
published, by the removal of a large number of faults and blunders, which
either had come in afterwards or had not previously presented themselves. Of
these, a few indeed, but the more important, however, we have noted down
among the Errata at the end of the book. From this, my reader, you will
understand that not all the errors noted at the end of the book are due to
either the carelessness or ignorance of the printer, but they may have crept
in (especially in the first five sheets, because we did not have the
Salamanca copy) either because of the corrupt state of both the editions
which we used or even because of our own inability to make an exhaustive
scrutiny and examination. We have, however, left untouched not a few
passages, which seemed susceptible of emendation, had we labored on them,
because they ran in that way in both editions or at any rate in the
Salamanca edition and in order that no one might charge us with excessive
freedom in the correction of another’s work.

About the author of these Relectiones, I have ascertained this much: that
he lived in the reign of the Emperor Charles V, King of Spain; that he
belonged to the Order of St. Dominic; that he was a shining light and
ornament of that Order; that he flourished especially in the praise accorded
to a very acute intelligence, to judgment, and to sound doctrine, and in the
number and glory of his most learned disciples (some of whom are very
well-known because of their published books, such as Melchior Cano and
Domingo Soto); further, that his universal authority was so great and his
name so outstanding that he seemed to his hearers a second Pythagoras: that
he was reckoned by the most learned theologians and philosophers to be the
alpha and prince of the theologians and philosophers of his day, and that
(I) *the Catholic Sovereigns of Spain brought to him cases affecting their
conscience (such as (a) that of the conquered provinces of the New World,
and (b) that of the divorced wife of the King of England, both of which are
discussed in this book), desiring instruction on these matters from him
especially, with the result that he himself, relying on this very authority,
of which he was not unaware, gave the freest judgment, just as the
principles of his conscience demanded, in the causes of Sovereigns and even
(II) of the Supreme Pontiff. When I carefully consider this, I am wont to
doubt which of the two is the more praiseworthy: in this man, a certain
freedom of speech, buttressed by his authority and surpassing erudition, or,
in the Sovereigns of Spain and even in the Supreme Pontiff, a singular
moderation of mind and a desire to learn and uphold justice and truth. Hence
it comes about that with equanimity, aye, pleasure, they silently allow
themselves to be chided by this learned man and to be rebuked (when the
principle of the doctrines which he had to deliver so requires).* For those
extremely wise Sovereigns bear in mind what another Sovereign has left in
writing: “The righteous shall rebuke me in compassion and shall upbraid me;
but the oil of the sinner shall not fatten my head.”[3]

Wherefore it is an injustice for the heretics of our day to ridicule the
monastic orders everywhere on the ground that they are rude and unlearned
and flatterers alike of Popes and princes. Surely, if these heretics be
compared with our Franciscus de Victoria, they will neither be worthy of
the name of theologian nor found to say or write aught in conformity with
truth, but in everything to fawn on princes. Now how great a debt the
University of Salamanca, and therefore Spain, owes to this man, the
aforenamed Alonso Muñoz, in a Letter to the Most Serene King Charles of
Spain. testifies in the following words:

“The whole of Spain owes much to this excellent man, for, while he has
deserved well of it on many grounds, he has especially done so in respect
of this. that whereas Theology among the Spaniards lay in confusion and
covered with dust, or rather with mud, tattered and torn, dumb and almost
tongueless, it was restored by his exertions alone to clarity, splendor,
and its native beauty, to purity and dignity, comeliness, grace, and
soundness, as if in virtue of a tardy postliminy. In witness of the truth of
this are not merely the centuriae,[4] but also the Iliads[5] of his
disciples, whom his school has poured out in all directions.”

Now, my reader, lest the word relectio be unfamiliar to you, you should
realize that at Salamanca it meant a kind of theological exercise not very
unlike those disputations which are known to have been in vogue in the days
of our ancestors in the most celebrated universities under the name of
quodlibeticae quaestiones. The seemingly more difficult of those
quaestiones, which had been discussed in the daily prelections of a whole
year, were also reconsidered in these relectiones in a public assembly of
the most learned, and by the same doctor, so that they might be much more
accurately decided than theretofore and receive as it were the finishing
touches. And since our author was, beyond controversy, the prince of
theologians of that time, especially among the Spaniards, you will perceive
that whatever conclusions have been arrived at after discussion in these
Relectiones have all been tested and weighed by the judgment of the most
learned theologian, as if in the scales of the most skilful goldsmith, and
that, therefore, they ought to adjudged much more solid and firm than the
things superficially discussed by the heretics of today, men, forsooth,
devoid of learning and judgment.

Now, although these Relectiones may seem suited to the bent of Spaniards
rather than of Germans, seeing that the former prefer to cultivate a
gymnastic and concise manner of theologizing and the latter a sedate and
rhetorical manner, yet if we look at both the manner of disputation and the
fruits of the learning handed on in these Relectiones, it seems that they
will bring much advantage and profit to Germans. For if we attentively
consider that from the time when the waves of false opinions and heresies
began here to buffet the ship of the Church, Theology has been denuded by
almost everyone (fearing, perhaps, the insults directed by heretics against
the philosophers and theologians of the School) of the protection and arms
of the philosophical and theological school and been called back into a
rhetorical, or rather, a grammatical mode of reasoning, and that for this
reason either those who have thus approached sacred literature with unwashed
hands have made no further advance in that pursuit than has been made by a
clever grammarian or rhetorician or that, because they are ignorant and
unaccustomed to the exercises of disputation and judgment, wrong opinions
have either been begotten or defended, we shall, above all, be led into
that opinion (into which Cicero testifies that he was led in a similar case)
and come to think that theological doctrine is not of much good to the
Christian Republic without eloquence, but that eloquence without doctrine
brings very often over much hurt, never any good. And so if anyone (to use
the words of that same Cicero with little alteration) omits those most
befitting and unerring studies of theology and divine doctrine and spends
all his energy upon the exercise of speech and writing, he is being bred to
be useless to himself, a dangerous citizen of his country and a parricide of
his Mother Church. He, however, who so arms himself with eloquence as to be
incapable of fighting against the good of his country and the doctrine of
the Church, but able to fight in their behalf, will in our view be a man of
the highest usefulness alike to his own and his country’s interests, the
best-affected citizen, and the dearest son of his Mother Church.

I have mentioned these matters, my reader, not because I think that, in
their mode of transmitting theology, either this Franciscus de Victoria and
the other Spaniards are deficient in grace or in faculty of speech or the
Germans are devoid and destitute of solid doctrine (for I know both that
this Victoria in his Relectiones is eloquent to the limit of his theme and
that other Spaniards, especially when they are pleased to drop the
scholastic habit of speech, can both speak and write with polish, and also
that no small number of Germans have been perfectly trained in the doctrines
of philosophy and theology, but because I think that German theologians will
best consult their own country’s interests, if they studiously conjoin the
solid and scholastic kind of theologizing, such as is that of this Victoria
and of the Spaniards in common, with that sedate and rhetorical kind, which
they themselves generally adopt.

Further, the fruits of these Relectiones are both abundant and manifold,
and both they who are teachers of others and all other persons will be able
to gather them. This indeed we can make plain by reference to the
Relectiones one by one.

In the first relectio it is shown that there are in the Church two distinct
powers, the ecclesiastical and the civil, and that the former is stronger
than the latter; accordingly, the false doctrine of the Lutherans and of
those who equate the two powers or subordinate the ecclesiastical to the
civil is overthrown.

In the second relectio, which also bears the title “On the Power of the
Church,” two dogmas of the heretics are refuted; the one, that the strictly
ecclesiastical and spiritual power is initially and of itself existent in
the whole of the Church universal in the same way as the civil power is in
the civil State; and the other, that all Christians are priests, and all
equal, and that there is no order and are no certain grades in
ecclesiastical power.

In the third the necessity, origin, and force of the civil power and its
authority are so established and confirmed that the pernicious dogma of
Luther, which has brought destruction to an almost innumerable number of
simple folk, falls to the ground of itself.

The fourth relectio contains a very fine discussion “On the Power of the
Pope and Council,” which, though it may seem of less use to those engaged in
strife with heretics or tainted with heretical practices, is nevertheless
useful and fruitful even for them. For, while the scope of the general power
alike of the Pope and of the Council is explained, at the same time the
sovereignty of the power and authority of each, but in its own measure, is
asserted. Now, if the authority of the Supreme Pontiff and Councils were
established and were in the ascendency among the Germans, it would obviously
result both that no sects would be propagated among them and that all
heresies would be dispelled, not otherwise than darkness before the rays of
the sun.

The fifth relectio is entitled “Of the Indians” (that is, of the barbarians
of the New World commonly called Indians). Now, although this appears to be
the answer given by the author to the Catholic Sovereigns of Spain, it
nevertheless contains many things useful and wholesome for everyone who is
in a case the same as or like to that in which those Sovereigns were. Among
these things are: how a person in doubt on any matter of conscience ought
to take the advice of those who are learned and wise in that kind of matter;
how he ought to follow what they have laid down, even if, as may happen,
they are in error; and how many unlawful, how many lawful, titles there may
be, by which those Sovereigns might claim to reduce foreign provinces and
populations into their power. After a careful discussion and settlement of
these points, the conscience of those concerned is openly taught what to
abstain from doing in this business and what to do.

In the sixth, “A Further Relectio on the Indians, or on the Law of War,”
much, and this useful, instruction is delivered, which ought to be observed
by kings and princes, in order that they may make or wage war in a lawful
manner, and by all other persons, in order that they may in lawful manner
serve as soldiers under their own or a foreign prince. Meanwhile a
refutation is given of that dogma of the heretics, that it is not lawful for
Christian princes to fight either with other Christians or with the Turks.

In the seventh, which seems to be the author’s answer in the cause of the
Queen of England who had been divorced by the King, her husband, a strenuous
attack is made upon that false dogma of the Lutherans that all the degrees
forbidden in Leviticus 18 and 20 are still forbidden by divine law. The
heretics, further, get a shrewd knock, when it is convincingly shown in this
relectio that matrimonial causes are rightly and properly brought before
ecclesiastical judges.

The eighth, in which the topic is “The Increase and Decrease of Charity,”
contains a discussion pertaining indeed rather to the school of theologians
than to a public assembly or to other folk, yet one very helpful to these
same theologians, both in the sharpening of their wits and in its harvest of
very beautiful and genuinely theological matter. We may also add that here
there is a condemnation of that conjecture of the heretics that all
righteous persons are equals in charity and grace before God and that, as
Luther asserts, the ever Blessed Virgin, the Mother of Christ, in no respect
surpasses any woman from the midst of the people.

The ninth contains a varied and interesting disputation “On Temperance,”
which will probably be pleasing to most folk here because of the controversy
about the pleasures of the table. Those barbarians, the cannibals, are here
condemned, and those who sacrifice men to God. There is also a defense or
the Carthusians, who perpetually abstain from flesh, and of other religious,
who seem to shorten their days by other forms of abstinence. We should have
had in this relectio more numerous defenses against heretics, had not the
author absolutely passed over one or another of the quaestiones propounded
at the beginning.

The tenth, in which there is a discussion “On Homicide,” is of use in many
ways; but more conclusions are arrived at in it than we can set out in
summary form.

The eleventh, containing a discussion “On Simony and the Punishment of
Simoniacs,” may seem to be not only useful, but even necessary here, where
this stain is so inveterate and so wide-spread as scarcely to be reckoned a
vice. Nor are the heretics free from this vice, though cut off from the
body of the Church.

Not less useful and necessary is the twelfth, in which there is a
disputation “On Magic,” seeing that we have often heard by sure report, nay,
we assuredly know, that, after the new Gospel had been introduced by Martin
Luther, it obtained such a hold especially in the regions of the North
that, in proportion as the doctrine of Christ was gradually failing and
dying away in the minds of men, so Magic was gradually gaining in strength,
with the result that, when the former was quite extinct, the latter seemed
to reign alone with her partner. Heresy. Nor are the Anabaptists and
Calvinists altogether destitute and devoid of this Magic and of the
Pythoness’ breath, nay rather they breathe that breath in their words,
writings, manners, face and eyes.

In the last relectio a topic is treated which is most worthy of a
Christian, namely, what are the obligations of everyone on first arriving at
the use of reason. For what more befitting can be taught or learnt by a man,
and especially by a Christian, than the condition or manner, in which he
should turn himself to God as his ultimate end and highest good, for the
enjoyment of which he has been created?

It is now your part, Christian reader, to receive with gratitude and
pleasure this work — on the correction of which we have bestowed so much
toil and time, which has been lucubrated by such and so great a man, and
which contains doctrine so sure and solid, so useful and necessary — and by
reading it and meditating on it rouse your zeal for the knowledge of the
highest things. It will be an abundant recompense to us, if by reading it
you become both wiser and better. Farewell.

At Ingolstadt, on the day of St. Lawrence, Martyr, in the year 1580.

A POEM TO THE READER IN PRAISE OF THE WORK BY AN UNKNOWN AUTHOR.[6]

What a number of things, O reader, this book, small as it is, contains —
laws, Popes, and sacred theologians.

ANOTHER EXTEMPORANEOUS POEM COMPRISING AS BRIEFLY AS POSSIBLE

THE SUBJECTS OF BOTH VOLUMES.[7]

What are the powers of Holy Mother Church and of the Popes this book
teaches; what is the power of the Fathers when duly assembled in their Great
Council; at the same time, too, the civil laws and the laws of war (for even
Mars is not lawless); and it treats of the lawful bed and marriage of men.
This, Franciscus de Victoria, is the first part of thy work, and that is so
far, too, the cost of our gratitude for thy deed.

What a delight of piety and how fair a virtue it is to have abstained from
good things and to impose a law on luxury, but how great an impiety to
pollute the hand with human blood, and to take away a life, which, once
lost, is irrecoverable either with gold or prayers or an abundant price!
Alas, he must carry a hard flint in his breast, who goes against his own
entrails with the dread sword. Nor does the pious Church sell for a price
its prebends, but gives them free to well-deserving persons, and she drives
off evil spirits, nor may any of her affairs prosper by magic arts, arts
summoned from the one[8] dungeon of the abyss. In the last threshold of the
book, too, Victoria, worthy of eternal life, teaches the conduct which
befits those who come to the true use of reason.

Nor are slight thanks thine for so great a work, who art so ready to bring
forth both from darkness and from rust the writings of so great a man,
because, if God is propitious to the daring, thou shalt live eternally, and
after paying the debt of death thou shalt live, and God will place thy soul,
when freed from the body, in the ethereal heaven, and thou shalt appear
among the gods. Only go on in thy well-deserving and spare not thy hard
toil.

1. This preface, which Simon prefixes to his edition, is a copy of the
preface to the edition which appeared at Ingolstadt in 1580, and is in the
form of a letter “To the Christian Reader” from the editor, who describes
himself as “one of the Doctors of Sacred Theology at Ingolstadt.” The black
figures in the inside margin of pages 115-187 indicate the corresponding
pages of the Photographic Reproduction included in this edition. The pages
of the Photographic Reproduction corresponding to pages 105-114 are
unnumbered in the original.

2. Or some other “Augusta.” — TRANSL.

• The part between these asterisks is marked as a quotation in the

original. — TRANSL.

3. Ps. 140 (Vulgate).

4. Such as were compiled by people like the Magdeburg centuriators (whom the
writer would naturally dislike). — TRANSL.

5. Reading Iliades for Yliades. ‘Ilias has a way of being used in Greek as
equivalent to a vast string of things, e.g.; ‘Ilias kakon. — TRANSL.

6. This is a literal prose translation of a laudatory poem, which Simon
reproduces after the preface. It probably appeared in the Ingolstadt
edition (1580), which Simon professes to reproduce. It also appears in the
edition of Muñoz (1565) and it may be that Muñoz was its author.

7. This is a literal prose translation of a laudatory poem, which Simon
reproduces after the first laudatory poem. It probably appeared in the
Ingolstadt edition (1580), which Simon professes to reproduce.

8. Reading uno for uni; but the latter may be an extemporized genitive,
“the dungeon of the one abyss. — TRANSL.

De Indis De Jure Belli by Francisco de Vitoria
Part 2

 THE FIRST RELECTIO

OF THE REVEREND FATHER, BROTHER FRANCISCUS DE VICTORIA,

ON THE INDIANS LATELY DISCOVERED.

The passage to be discussed is from St. Matthew’s Gospel: “Teach all
nations, baptizing them in the name of the Father and Son and Holy Spirit,”
last chapter.

SUMMARY OF THE FIRST SECTION.

1. How a person in doubt on any matter, to obtain safety of conscience,
should consult those whose business it is to give instruction in such
matters.

2. After one in doubt has taken such advice he ought to follow what the
wise have laid down, else he will not be safe.

3. Whether one in doubt ought, consistently with safety of conscience, to
follow the advice given by the wise in a doubtful matter when they lay down
that to be now lawful which in other circumstances is unlawful.

4. Whether the Indian aborigines before the arrival of the Spaniards were
true owners in public and in private law; and whether there were among them
any true princes and overlords.

5. Examination of the error of those who assert that persons living in
mortal sin can not have ownership of anything at all.

6. Mortal sin does not preclude civil ownership of the true kind.

7. Whether ownership is lost by reason of unbelief.

8. The divine law does not make heresy a cause of forfeiture of the
heretic’s property.

9. Whether heresy causes loss of ownership by human law.

10. A heretic incurs the penalty of confiscation of his property as from
the date of the commission of his offense.

11. But although the heretic’s offense is patent, the fisc may not seize
his property before condemnation.

12. Even though condemnation issues after the heretic’s death, confiscation
of property dates back to the time of the commission of the offense, no
matter who is vested with the property.

13. Sales, gifts, and all other modes of alienation by a heretic are void
as from the date of the commission of the offense, etc.

14. Whether a heretic before condemnation is the owner of his property in
the forum of conscience.

15. A heretic may lawfully live of his own property.

16. A heretic may make a gratuitous conveyance of his property, as byway of
gift.

17. A heretic whose offense has rendered him liable to process may not
convey his property for value, as by way of sale or dowry.

18. In what case a heretic may lawfully alienate his property for value.

19. Barbarians are note preluded by the sin of unbelief or by any other
mortal sins from being true owners alike in public and in private law.

20. Whether the use of reason is a pre-requisite of capacity for ownership.

21. Whether a boy can be an owner before he has the use of reason.

22. Whether a person of unsound mind can be an owner.

23. Inasmuch as the Indian aborigines were not of unsound mind, they are not
precluded from being true owners on the pretext of unsoundness of mind.

24. These aborigines were true owners alike in public and in private law
before the advent of the Spaniards among them.

“Teach all nations, baptizing them in the name of the Father and Son and
Holy Spirit” (St. Matthew, last chap.). This passage raises the question
whether the children of unbelievers may be baptized against the wishes of
their parents. This question is discussed by the doctors on the fourth book
of the Sententiae, dist. 4, and by St. Thomas, Secunda Secundae, qu. 10,
art. 12, and Tertia Pars, qu. 68, art. 10. The whole of this controversy and
discussion was started on account of the aborigines of the New World,
commonly called Indians, who came forty years ago into the power of the
Spaniards, not having been previously known to our world. This present
disputation about them will fall into three parts. In the first part we
shall inquire by what right these Indian natives came under Spanish sway. In
the second part, what rights the Spanish sovereigns obtained over them in
temporal and civil matters. In the third part, what rights these sovereigns
or the Church obtained over them in matters spiritual and touching religion,
in the course of which an answer will be given to the question before us.

As regards the first part, it might seem at the very outset that the whole
of this discussion is useless and futile, not only for us who have no
concern either to inquire whether the men in question have conducted their
administration with propriety in every detail or to raise any doubts about
that business or to correct any fault that may have been committed, but also
for those whose concern it is to attend to and administer these matters.
Firstly, this may so seem because neither the sovereigns of Spain nor those
at the head of their councils are bound to make completely fresh and
exhaustive examination of rights and titles which have already been
elsewhere discussed and settled, especially as regards things of which the
sovereigns are in bona fide occupation and peaceful possession; this is so
because, as Aristotle says (Ethics, bk. 3), “if any one were to be
continually inquiring, settlement would be indefinitely postponed”; and
sovereigns and their advisers could not attain security and certitude of
conscience, and, if they had to trace the title of their rule back to its
origin, they could not keep anything they had discovered. Moreover, inasmuch
as our sovereigns, namely Ferdinand and Isabella, who were the first to
occupy those regions, were most Christian, and the Emperor Charles V was a
most just and scrupulous sovereign, it is not to be believed that they did
not make a thoroughly complete and exact investigation into everything that
could affect the security of their estate and conscience, especially in such
a great matter. On these accounts, then, it may seem not only useless but
also presumptious to raise any question about the matter; it is like looking
for a knot in a bulrush and for wickedness in the abode of the righteous.

In meeting this objection we must bear in mind what Aristotle says (Ethics
bk. 3), namely, that just as there can be no questioning or deliberation
about matters either impossible or necessary, so also there can be no moral
investigation about those which are certainly and notoriously lawful and
seemly, or, or the other hand, about those which are certainly and
notoriously unlawful and unseemly. For no one can properly raise a question
whether we ought to live a temperate and brave and upright life or a wicked
and base life, nor whether we ought to commit adultery or perjury, or
cherish our parents, and other matters of this kind. Certainly such
discussion would not be Christian. When, however, some project is on foot
concerning which there is a genuine doubt whether it be good or bad, just or
unjust, it is then advantageous to take advice and to deliberate and to
abstain from premature action before finding out and determining how far it
is or is not lawful. Such is the case with matters which, when viewed from
different sides, look good or bad, as happens in many kinds of barter and
contract and other businesses. And in all these cases the circumstances are
such that, even if the thing in question were in itself lawful, it would be
sinful for any one to do it before deliberating and assuring himself of its
lawfulness; and he would not be excused on the ground of ignorance, for the
ignorance would manifestly not be invincible, since he does not do what in
him lies to inquire into the lawfulness or unlawfulness of the matter. For
in order that an act, the goodness of which is otherwise uncertain, be good,
it must be done in accordance with the investigation and determination of
the wise, it being (Ethics, bk. 2) one of the conditions of a good act that
it be done in accordance therewith. Accordingly, when, in a doubtful case,
the doer omits to take the advice of the wise, he is without excuse. Nay,
even if we grant that the act in question is lawful in itself, yet, if there
be any doubt thereon, the doer is bound to take the advice, and to act in
accordance with the award, of the wise, even though they be themselves in
error.

Accordingly, if anyone, without consulting the doctors, were to make a
contract, concerning the lawfulness or unlawfulness of which men were
doubtful, he would undoubtedly sin, even though the contract were otherwise
lawful and even if the doer thought so, not, however, on the authority of
the wise, but of his own inclination and judgment. And on the same
principle, were one in a doubtful matter to consult the wise and they were
to rule against its lawfulness and yet he were to follow his own judgment
and do the thing, he would sin even though the thing were otherwise lawful
in itself. For example, suppose a man is in doubt whether so-and-so is his
wife and he seeks advice whether he is bound to render the marital debt or
whether it is right for him to do so, or whether he may exact it from her,
and the doctors reply that it is not at all right, and yet he be led by his
wife’s affection and his own desire to refuse to accept that reply and
thinks that his act is lawful, it is certainly sinful for him to approach
his wife, although such approach be lawful in itself (as it really is),
because he is acting contrary to the conscience which he ought to have. For
in those matters which belong to his salvation a man is bound to yield
credence to the teachers appointed by the Church, and in a doubtful matter
their ruling is law. For just as in the contentious forum the judge is bound
to judge in accordance with what is alleged and proved, so in the forum of
conscience a man is bound to base his judgment, not on his own sentiments,
but on demonstrable reason or on the authority of the wise; else his
judgment is presumptuous and exposes him to the risk of going wrong, and
indeed he does err in the very fact. This accords with what was laid down in
the Old Testament (Deuteronomy, ch. 17):

“If there arise a matter too hard for thee in judgment, between blood and
blood, between plea and plea, between leprosy and not leprosy, being matters
of controversy within thy gates (saith the Lord), thou shalt arise and get
thee up to the place which the Lord thy God shall choose, and thou shalt
come unto the priests the Levites and unto the judges that shall be in
those days and enquire, and they shall show thee the sentence of judgment,
and thou shalt do according to the sentence which they of authority in that
place shall show thee, and according to the judgment which they shall tell
thee thou shalt do, not declining to the right hand or to the left.”

I accordingly assert that in doubtful matters a man is bound to seek the
advice of those whom the Church has appointed for that purpose, such as
prelates, preachers, and confessors, who are people skilled in divine and
human law. For in the Church some are eyes, some feet, and so on (I
Corinthians, ch. 12); and in Ephesians, ch. 4, “And he gave some, apostles;
… some, evangelists; and some, pastors and teachers,” and in St. Matthew,
ch. 23, “The Scribes and the Pharisees sit in Moses’ sent; all therefore
whatsoever they bid you observe, that observe and do.” And Aristotle
(Ethics, bk. l) lays this down as a precept, following Hesiod, “The man who
is ignorant in himself, yet does not listen to another in order to know what
is good, is a foolish and empty person.”

It is, therefore, not enough for security of life and conscience that a man
should deem himself to be doing right, but in doubtful matters he must
needs rely on the authority of others whose business is therewith. For it is
not enough that merchants should abstain from doing what they themselves deem
wrong, if they nevertheless enter into illegal contracts without the advice
of the wise. And so I do not agree with Cardinal Cajetan when he says that
if a doubt arises about something which really is lawful in itself and some
preachers or confessors who otherwise have authority to pronounce thereon
declare it unlawful or declare it mortal sin when it is venial, vet the man
who, following his own inclination in the matter, disbelieves them and
determines in his own conscience that it is not a mortal sin, does not sin.

As an example, Cajetan takes the use by women of paint and other superfluous
adornments, a thing really not a mortal sin, but which he assumes might be
pronounced a mortal sin by preachers and confessors. If, says he a woman is
so given to such adornment that she does not yield assent to them, but
thinks it lawful or not a mortal sin, she does not commit a mortal sin when
she resorts to such adornment. Now this I declare dangerous. For in those
matters which are necessary to salvation a woman is bound to yield assent to
the wise and she exposes herself to danger if contrariwise she does what the
wise pronounce to be a mortal sin. And, on the other hand, if in a doubtful
matter a man has taken counsel with the wise and has accepted their ruling
that the thing is lawful, he is safe in conscience — at any rate until he
receives a second opinion and is driven to doubt or to believe the contrary
by a person of such authority, or by reasons of such cogency, as ought to
affect his judgment. This is notorious, for he does all that in him lies and
so his ignorance is invincible.

The premises, then, establish the following propositions:

FIRST. In doubtful matters a man is bound to seek the advice of those whose
business it is to give it, otherwise he is not safe in conscience, whether
the doubt be about a thing in itself lawful or unlawful.

SECOND. If after a consultation in a doubtful matter it be settled by the
wise that the thing is unlawful, a man is bound to follow their opinion,
and if he act contrary thereto he is without excuse, even if the thing be
otherwise lawful.

THIRD. On the other hand, if after such consultation it be settled by the
wise that the thing is lawful, he who follows their opinion is safe, even
if it be otherwise unlawful.

When, then, we return to the question before us, namely, the matter of the
barbarians, we see that it is not in itself so evidently unjust that no
question about its justice can arise, nor again so evidently just that no
doubt is possible about its injustice, but that it has a look of both
according to the standpoint. For, at first sight, when we see that the whole
of the business has been carried on by men who are alike well-informed and
upright, we may believe that everything has been done properly and justly.
But then, when we hear of so many massacres, so many plunderings of
otherwise innocent men, so many princes evicted from their possessions and
stripped of their rule, there is certainly ground for doubting whether this
is rightly or wrongly done. And in this way the discussion in question does
not seem at all superfluous and so we get a clear answer to the objection.
Moreover, even if it be granted that there is no doubt about the whole
question, it is no novelty for theological discussions to be instituted on
points of certainty. For we discuss about the Incarnation of our Lord and
other articles of faith. For not always are theological discussions of the
deliberative sort, but frequently they are of the demonstrative sort, that
is, entered upon, not for purposes of deliberation, but of instruction.

But some one may come forward and say: Although there were at one time some
elements of doubt in this business, yet they have now been discussed and
settled by the wise and so everything is now being administered in
accordance with their advice and we have no need of a fresh enquiry. To such
a person I answer first. God be blessed if it is so; our discussion raises
no obstacle thereto; nor would I raise any new complaints. Secondly, I
assert that it is not for jurists to settle this question or at any rate
not for jurists only, for since the barbarians in question, as I shall
forthwith show, were not in subjection by human law, it is not by human, but
by divine law that questions concerning them are to be determined. Now,
jurists are not skilled enough in the divine law to be able by themselves to
settle questions of this sort. Nor am I sure that in the discussion and
determination of this question theologians have ever been called competent
to pronounce on so grave a matter. And as the issue concerns the forum of
conscience, its settlement belongs to the priests, that is, to the Church.
Accordingly in Deuteronomy, ch. 17, it is enjoined on the king that he take
a copy of the law from the hand of the priest. Thirdly, in order that the
whole of the matter be adequately examined and assured, is it not possible
that so weighty a business may produce other special doubts deserving of
discussion? Accordingly I think I shall be doing something which is not only
not futile and useless, but well worth the trouble, if I am enabled to
discuss this question in a manner befitting its importance.

FOURTH. Returning now to our main topic, in order that we may proceed in
order, I ask first whether the aborigines in question were true owners in
both private and public law before the arrival of the Spaniards; that is,
whether they were true owners of private property and possessions and also
whether there were among them any who were the true princes and overlords of
others. The answer might seem to be No, the reason being that slaves own no
property, “for a slave can have nothing of his own” (Inst., 2, 9, 3, and
Dig., 29, 2, 79), and so all his acquisitions belong to his master (Inst.,
1, 8, 1). But the aborigines in question are slaves. Therefore the matter is
proved; for as Aristotle (Politics, bk. l) neatly and correctly says, “Some
are by nature slaves, those, to wit, who are better fitted to serve than to
rule.” Now these are they who have not sufficient reason to govern even
themselves, but only to do what they are bidden, and whose strength lies in
their body rather than in their mind. But, of a surety, if there be any
such, the aborigines in question are preeminently such, for they really seem
little different from brute animals and are utterly incapable of governing,
and it is unquestionably better for them to be ruled by others than to rule
themselves. Aristotle says it is just and natural for such to be slaves.
Therefore they and their like can not be owners. And it is immaterial that
before the arrival of the Spaniards they had no other masters, for there is
no inconsistency in a slave having no master, as the glossator on Dig., 40,
12, 23, notes. Nay, the statement is expressly made in that passage of the
Digest and it is the expressed case set out in Dig., 45, 3, 36, pr., where
it is said that a slave who has been abandoned by his master and not taken
into possession by any one else can be taken into possession by any one. If,
then, these were slaves they could be taken into possession by the
Spaniards.

On the opposite side we have the fact that the people in question were in
peaceable possession of their goods, both publicly and privately.
Therefore, unless the contrary is shown, they must be treated as owners and
not be disturbed in their possession unless cause be shown.

In aid of a solution I am loath to recall to notice the numerous utterances
of the doctors on the nature of dominion. I have set them out at length when
commenting on Restitution, 4, dist. 15, and on Prima Secundae, qu. 62, and I
pass them by here for fear they should lead me to omit things of greater
moment. And so let me pass them over in order to observe that, if the
aborigines had not dominion, it would seem that no other cause is assignable
therefor except that they were sinners or were unbelievers or were witless
or irrational.

FIFTH. Now, some have maintained that grace is the title to dominion and
consequently that sinners, at any rate those in mortal sin, have no
dominion over anything. That was the error of the poor folk of Lyons, or
Waldenses, and afterwards of John Wycliffe. One error of his, namely, that
“no one is a civil owner, while he is in mortal sin,” was condemned by the
Council of Constance. This opinion was also held by Armachanus (bk. 10,
Adversus errores Armenorum, c. 4) and in the Dialogue, Defensorium pacis;
and Waldensis wrote to controvert him in his Doctrinale antiquitatum fidei,
vol. I bk. 2, ch. 81 and 82, and vol. II, ch. 3. Armachanus relies on the
fact that such dominion is reprobated by God: “They have set up Kings but
not by me; they have made princes and I knew it not” (Hosea, ch. 8); and
then is added the indictment, “Of their silver and their gold have they made
them idols that they may be cut off.” And so, says he, such persons have no
lawful dominion in the eyes of God. It is certain, however, that all
dominion is by divine authority, for God himself is the creator of
everything, and none but they to whom He has given dominion can have it. Now
it is not agreeable to reason that He should give it to the disobedient and
transgressors of his commandments, just as human princes do not give their
property, such as towns and strongholds, to rebels, and if they have given
it to them, they confiscate it. But we ought to judge about divine things
through the medium of human things (Romans, ch. l). Therefore God does not
give dominion to the disobedient. And in token hereof God at times removes
such from their exalted position, as in the cases of Saul (I Sam., ch. 15
and 16), and of Nebuchadnezzar and Balthazar (Daniel, ch. 4 and 5). Again
(Genesis, ch. 1), “Let us make man in our own image and likeness that he may
have dominion over the fish of the sea,” etc. It appears therefore that
dominion is founded on the image of God. But the sinner displays no such
image. Therefore he has no dominion. Further, such a one commits the crime
of treason. Therefore he deserves to lose his dominion. Likewise, St.
Augustine says that the sinner is not worthy of the bread he eats. Also, the
Lord had given our first parents dominion over paradise and then deprived
them of it because of their sin (Genesis, ch. 1). Therefore, etc.

It is true that both Wycliffe and Armachanus speak without distinguishing
and seem to be speaking rather of the dominion of sovereignty which belongs
to princes. But because their reasoning applies equally to all dominion,
they seem to have in view all kinds of dominion generally. And that is how
Conrad (bk. I, qu. 7) understands their teaching, and Armachanus is
sufficiently clear in that sense. Those who would follow their teaching may,
therefore, say that the barbarians had no dominion, because they were always
in mortal sin.

SIXTH. But against this doctrine I advance the proposition that mortal sin
does not hinder civil dominion and true dominion. Although this proposition
was established in the Council of Constance, yet Almain (4, Dist. 15, qu.
2), following Ailly, bases an argument in favor of it, on the fact that a
person already in mortal sin who finds himself in extreme need their
property by civil law, and the Pope rules that the same is to hold for the
crime of heresy. And Joannes Andreae seems to hold the same opinion, in his
comment on the afore-mentioned chapter cum secundum leges. And it seems to
be had from the law Manichaeos (Cod., 1, 5, 4), whereby heretics are
precluded from sale or gift or any dealing with their property. Also, civil
laws bind in the forum of conscience, as St. Thomas teaches (Prima Secundae,
qu. 96, art. 4).[1]

TENTH. Let the third proposition in the course of our exposition be:

A heretic incurs confiscation of his property from the day of the
commission of his offense. This is commonly held by the doctors and is the
ruling in the Directorium inquisitorum (bk. 3, tit. 9), and also in the
Summa of Baptista de Salis on the word absolutio (§ 17), and it seems
settled in the afore-mentioned chapter cum secundum leges and in the
afore-mentioned law Manichaeos (Cod., 1, 5, 4).

ELEVENTH. A fourth proposition: Nevertheless, although the offense be
manifest, the fisc can not seize the property of a heretic before
condemnation. This is also generally received, and is the ruling of the
aforenamed chapter cum secundum leges. Nay, it would be contrary to the
divine law and to natural law for a penalty to be enforced before
condemnation has issued.

TWELFTH. It follows from the third conclusion that, when condemnation has
taken place, even though this be after death, the confiscation dates back to
the time of the commission of the offense, no matter into whose control the
property has come. This corollary is also generally admitted and especially
by Panormitanus in his comment on 3, 5, 1 in VI.

THIRTEENTH. And a second consequence is that every sale or gift of or other
dealing with such property is void as from the day of the commission of the
offense. And so, when condemnation has taken place, all such dealings are
rescinded by the fisc and the property is taken by the same fisc, even
without any repayment of the price to the purchasers. This, too, is
generally admitted, and expressly so by Panormitanus in the passage just
named, and is manifest from the afore-named law Manichaeos (Cod., 1, 5, 4).

FOURTEENTH. A fifth proposition: Nevertheless a heretic continues to be
owner in the forum of conscience until he is condemned. This proposition
seems to be at variance with Conrad and with the Directorium inquisitorum
and Joannes Andreae; it is, however, the proposition of Sylvester, under the
word haeresis, I, § 8. Adrian also maintains it, discussing the matter at
some length (Quotlibeta, 6, qu. 2), and Cajetan seems to hold the same view
in his Summa, under the word poena. The proposition is proved, first, by the
fact that this deprivation in the forum of conscience is a penalty;
therefore, it ought in no wise to be inflicted before condemnation. Nor am I
sure whether human law could effect this at all. It is also proved by what
is clear from the above-named chapter cum secundum leges, namely, that
property is confiscated in the same way by the very fact of an incestuous
marriage; as also when a free woman who has been ravished marries her
ravisher. Nay, if any one fails to pay the accustomed dues on imported
merchandise, the goods are forfeit by the very fact; as also in the case of
an exporter of contraband merchandise, such as arms and iron, to the
Saracens. All the details will be found in the above-named chapter cum
secundum leges and in Cod., 5, 5, 3, and Cod., 9, 13, 1, and in X, 5, 6, 6,
and in Dig., 39, 4, 16 (?). Aye, and the Pope expressly says in the
afore-named chapter cum secundum leges that, just as confiscation takes
place in the cases named, so he intends it to take place in a case of
heresy. But no one denies that an incestuous person and a ravisher and one
who supplies the Saracens with arms and one who does not pay customs remain
true owners of their property in the forum of conscience. Why, then, does
not a heretic also? Conrad himself treats as identical the cases named and
the case of a heretic. It would, moreover, be over severe to require a man
who has just been converted from heresy to give up his property to the fisc.

FIFTEENTH. It follows as a corollary that a heretic may lawfully live of
his own property.

SIXTEENTH. Secondly, it follows also that he can make a gratuitous
conveyance of his property, as by way of gift.

SEVENTEENTH. It follows, thirdly, that if his offense can be brought before
the tribunals, he can not convey his property for value, as by way of sale
or dowry. This is manifest, because he would defraud the buyer, making him
incur the risk of loss of both the thing and the price, should he, the
seller, be condemned.

EIGHTEENTH. Lastly, it follows that, if there were in fact no risk of
confiscation, he might even make a conveyance for value. Thus, if some
heretic were in Germany, a Catholic could lawfully buy from him. For it
would be oppressive if a Catholic could not buy land from a heretic or sell
land to him in a Lutheran state; yet it would be necessary to say this, if
a heretic were utterly disabled from ownership in the forum of conscience.

NINETEENTH. From all this the conclusion follows that the barbarians in
question can not be barred from being true owners, alike in public and in
private law, by reason of the sin of unbelief or any other mortal sin, nor
does such sin entitle Christians to seize their goods and lands, as Cajetan
proves at some length and neatly (Secunda Secundae, qu. 66, art. 8).

TWENTIETH. It remains to ask whether the Indians lacked ownership because of
want of reason or unsoundness of mind. This raises the question whether the
use of reason is a precondition of capacity for ownership in general.
Conrad, indeed (bk. I, qu. 6), propounds the conclusion that ownership is
competent to irrational creatures, alike sensible and insensible. The proof
consists in the fact that ownership is nothing more than the right to put a
thing to one’s own use. But brutes have this right over the herbs and plants
(Genesis, ch. 1): “Behold I have given you every herb bearing seed which is
upon the face of all the earth and every tree in the which is the fruit of a
tree yielding seed; to you it shall be for meat and to every beast of the
earth.” The stars, too, have the right to shine for light (Genesis, ch. 1),
“And God set them in the firmament of the heaven to give light upon the
earth and to rule over the day and over the night.” And the lion has
dominion over all animals that walk, whence he is called the king of beasts.
And the eagle is lord among the birds whence in Psalm 103 the verse about
his house being their leader.[2] Sylvester (under the word dominium, at the
beginning) is of the same opinion as Conrad, saying that the “elements
exercise dominion one over the other.”

I answer by the following propositions:

First: Irrational creatures can not have dominion. This is clear, because
dominion is a right, as even Conrad admits. But irrational creatures can
not have a right. Therefore they can not have dominion. The proof of the
minor is that they can not suffer a wrong and therefore can have no right.
The proof of this assumption is that he who kept off a wolf or a lion from
its prey or an ox from its pasture would not do it a wrong, nor would he who
shut a window to prevent the sun from shining in do the sun a wrong. And
this is confirmed by the fact that, if the brutes have dominion, he who took
away the grass from a stag would commit theft, for he would be taking what
belongs to another against the owner’s will.

Also, wild beasts have not dominion over themselves. Therefore much less
over other things. The proof of the assumption is that they may be killed
with impunity, even for pleasure; and so Aristotle (Politics, 1) says that
the chase of wild beasts is just and natural.

Also, wild beasts themselves and all irrational animals are more fully
within the ownership of man than slaves are. Therefore, if slaves can not
have anything of their own, much less can irrational animals.

Our proposition is also confirmed by the authority of St. Thomas Aquinas
(Prima Secundae, qu. 1, art. 1 and 2, and qu. 6, art. 2, and Contra
Gentiles, bk. 3, c. 110), to the effect that only rational creatures have
dominion over their acts, the test of a roan’s being master of his acts
being (as St. Thomas says, Prima Pars, qu. 82, art. 1, on obj. 3) that he
has the power of choice. Hence (as he says in the same place) we are not
masters of our appetite as regards its final end. If, then, the brutes have
not dominion over their acts, they have it not over other things. And
although this seems to be a dispute about a name, it is assuredly a highly
improper and unusual mode of speech to attribute dominion to things
irrational. For we do not ordinarily say that a man has dominion save over
that which is placed within his control. For when we have not dominion, we
speak thus: “It is not within my control,” “It is not in my power.” Now, as
the brutes are rather moved than move themselves, as St. Thomas says (Prima
Secundae, as above), they for that reason have no dominion.

Nor is there any force in Sylvester’s remark that dominion sometimes does
not signify right, but only power, in which sense we say that fire has
dominion over water. For, if this is enough to confer dominion, a robber
has dominion over his victim even up to death, because he has power to kill
him, and a thief has power to seize his victim’s money. Further, as regards
the statement that the stars exercise dominion and that the lion is king of
beasts, obviously this is said metaphorically and by way of figure.

TWENTY-FIRST. There might seem some doubt whether a boy, who has not yet the
use of reason, can have dominion, inasmuch as he seems to differ little from
irrational animals. And the Apostle says (Galatians, ch. 4): “The heir, as
long as he is a child, differeth nothing from a slave”; but a slave has not
dominion; therefore, etc. But let our second proposition be: Boys, even
before they have the use of reason, can have dominion. This is manifest,
because they can suffer wrong; therefore they have rights over things;
therefore also they have dominion, which is naught else than a right. Also,
the property of wards is not part of the guardian’s property; but it has
owners and no others are its owners; therefore the wards are the owners.
Also, boys can be heirs; but an heir is one who succeeds to the rights of
the deceased and who has dominion over the inheritance (Dig., 44, 3, 11, and
Inst., 2, 19, 7). Also, as already said, the basis of dominion is in the
possession of the image of God, and children already possess that image. The
Apostle, moreover, says in the passage of Galatians just cited, “The heir,
as long as he is a child, differeth nothing from a slave, though he be lord
of all.” The same does not hold good of an irrational creature, for a boy
does not exist for the sake of another, as does a brute, but for his own
sake.

TWENTY-SECOND. But what about those suffering from unsoundness of mind? I
mean a perpetual unsoundness whereby they neither have nor is there any hope
that they will have the use of reason. Let our third proposition be: It
seems that they can still have dominion, because they can suffer wrong;
therefore they have a right, but whether they can have civil dominion is a
question which I leave to the jurists.

TWENTY-THIRD. However this may be, let our fourth proposition be:

The Indian aborigines are not barred on this ground from the exercise of
true dominion. This is proved from the fact that the true state of the case
is that they are not of unsound mind, but have, according to their kind, the
use of reason. This is clear, because there is a certain method in their
affairs, for they have polities which are orderly arranged and they have
definite marriage and magistrates, overlords, laws, and workshops, and a
system of exchange, all of which call for the use of reason; they also have
a kind of religion. Further, they make no error in matters which are
self-evident to others; this is witness to their use of reason. Also, God
and nature are not wanting in the supply of what is necessary in great
measure for the race. Now, the most conspicuous feature of man is reason,
and power is useless which is not reducible to action. Also, it is through
no fault of theirs that these aborigines have for many centuries been
outside the pale of salvation, in that they have been born in sin and void
of baptism and the use of reason whereby to seek out the things needful for
salvation. Accordingly I for the most part attribute their seeming so
unintelligent and stupid to a bad and barbarous upbringing, for even among
ourselves we find many peasants who differ little from brutes.

TWENTY-FOURTH. The upshot of all the preceding is, then, that the aborigines
undoubtedly had true dominion in both public and private matters, just like
Christians, and that neither their princes nor private persons could be
despoiled of their property on the ground of their not being true owners. It
would be harsh to deny to those, who have never done any wrong, what we
grant to Saracens and Jews, who are the persistent enemies of Christianity.
We do not deny that these latter peoples are true owners of their property,
if they have not seized lands elsewhere belonging to Christians.

It remains to reply to the argument of the opposite side to the effect that
the aborigines in question seem to be slaves by nature because of their
incapability of self-government. My answer to this is that Aristotle
certainly did not mean to say that such as are not over-strong mentally are
by nature subject to another’s power and incapable of dominion alike over
themselves and other things; for this is civil and legal slavery, wherein
none are slaves by nature. Nor does the Philosopher mean that, if any by
nature are of weak mind, it is permissible to seize their patrimony and
enslave them and put them up for sale; but what he means is that by defect
of their nature they need to be ruled and governed by others and that it is
good for them to be subject to others, just as sons need to be subject to
their parents until of full age, and a wife to her husband. And that this is
the Philosopher’s intent is clear from his corresponding remark that some
are by nature masters, those, namely, who are of strong intelligence. Now,
it is clear that he does not mean hereby that such persons can arrogate to
themselves a sway over others in virtue of their superior wisdom, but that
nature has given them capacity for rule and government. Accordingly, even if
we admit that the aborigines in question are as inept and stupid as is
alleged, still dominion can not be denied to them, nor are they to be
classed with the slaves of civil law. True, some right to reduce them to
subjection can be based on this reason and title, as we shall show below.
Meanwhile the conclusion stands sure, that the aborigines in question were
true owners, before the Spaniards came among them, both from the public and
the private point of view.

SUMMARY OF THE SECOND SECTION.

On the illegitimate titles for the reduction of the aborigines of the New
World into the power of the Spaniards.

1. The Emperor is not the lord of the whole world.

2. Even if the Emperor were the lord of the world, that would not entitle
him to seize the provinces of the Indian aborigines and to erect new lords
and put down the former lords or to levy taxes.

3. The Pope is not civil or temporal lord of the whole world, in the proper
sense of civil lordship and power.

4. Even if the Supreme Pontiff had secular power over the world, he could
not give that power to secular princes.

5. The Pope has temporal power, but only so far as it subserves things
spiritual.

6. The Pope has no temporal power over the Indian aborigines or over other
unbelievers.

7. A refusal by these aborigines to recognize any dominion of the Pope is
no reason for making war on them and for seizing their goods.

8. Whether these aborigines were guilty of the sin of unbelief, in that
they did not believe in Christ, before they heard anything of Christianity.

9. What is required in order that ignorance may be imputed to a person as,
and be, sin, that is, vincible ignorance. And what about invincible
ignorance?

10. Whether the aborigines are bound to hearken to the first messengers of
Christianity so as to commit mortal sin in not believing Christ’s Gospel
merely on its simple announcement to them.

11. If the faith were simply announced and proposed to them and they will
not straightway receive it, this is no ground for the Spaniards to make war
on them or to proceed against them under the law of war.

12. How the aborigines, if they refuse when asked and counselled to hear
peaceably preachers of religion, can not be excused from mortal sin.

13. When the aborigines would be bound to receive Christianity under penalty
of mortal sin.

14. In the author’s view it is not sufficiently dear whether Christianity
has been so proposed and announced to these aborigines that they are bound
to believe it under the penalty of fresh sin.

15. Even when Christianity has been proposed to them with never so much
sufficiency of proof and they will not accept it, this does not render it
lawful to make war on them and despoil them of their possessions.

16. Christian princes can not, even on the authority of the Pope, restrain
these aborigines from sins against the law of nature or punish them
therefor.

It being premised, then, that the Indian aborigines are or were true
owners, it remains to inquire by what title the Spaniards could have come
into possession of them and their country.

And first, I shall advert to the titles which might be alleged, but which
are not adequate or legitimate.

Secondly, I shall set out the legitimate titles under which the aborigines
could have come under the sway of the Spaniards.

Now, there are seven titles, which might be alleged, but which are not
adequate, and seven or eight others, which are just and legitimate.

The first title that might be alleged, then, is that the Emperor is the
lord of the world, and in such a way that, even if it be granted that in
time past there was a defect in his claim, it would by now be purged as
regards our present, most Christian Emperor. For, even if we assume that the
Indian aborigines may be true owners, yet they might have superior lords,
just as inferior princes have a king and as some kings have the Emperor over
them. There can in this way be many persons having dominion over the same
thing; and this accounts for the well-worn distinction drawn by the jurists
between dominion high and low, dominion direct and available, dominion pure
and mixed. The question, therefore, is whether the aborigines had any
superior lord. And, as this question can only arise with regard to either
the Emperor or the Pope, let us speak of these.

The first allegation to consider is that the Emperor is lord of the whole
world and therefore of these barbarians also. This is supported, firstly, by
the appellation, “Lord of the world,” commonly given to the late Emperor
Maximilian or to the present Emperor Charles, ever August. Also (Luke, ch.
2), “There went out a decree from Caesar Augustus that a census should be
taken of all the world”; but Christian Emperors ought not to be in any
worse condition than he; therefore, etc. Also, our Lord seems to have
pronounced Caesar to be the true lord of the Jews. “Render unto Caesar,”
said he, “the things that are Caesar’s,” etc. (St. Luke, ch. 20). But it
does not seem that Caesar could have this right, save as Emperor. Therefore
Bartolus, commenting on the Extravagans of Henry VII, Ad reprimendum,
expressly holds that “the Emperor is the rightful lord of the whole world.”
And this is also the opinion of the glossator on X, 4, 17, 13. So, too, the
glossator on X, 1, 6, 34.

And they prove the allegation first from can. 41, C. 7, qu. 1, where
Gregory[3] says that there is one king among bees, and in the world one
Emperor, and also from Dig., 14, 2, 9, where the Emperor Antoninus says:

I indeed am lord of the earth,” and Cod., 7, 37, 3, § 1, “everything is
understood to belong to the Emperor.”

The allegation might also be supported by the fact that Adam first and then
Noah seem to have been lords of the world: ” Let us make man in our image,
after our likeness, and let them have dominion over the fish of the sea and
over the fowl of the air and over all the earth,” etc. (Genesis, ch 1) and a
little later on, “Be fruitful and multiply and replenish the earth and
subdue it, etc.; and there is a similar pronouncement made to Noah (Genesis,
ch. 8). But these two had successors. Therefore.

Also, there is a proof in the incredibility of God’s having instituted in
the world anything but the best system of government: “In wisdom hast thou
made them all” (Psalm 104). But monarchy is the best system, as St. Thomas
admirably shows (De regimine principum, bk. 1, ch. 2), and as Aristotle
seems to hold (Politics, bk. 3). Therefore, it seems to be in accordance
with divine institution that there should be one Emperor in the world.

Also, the things which are outside nature ought to imitate things natural.
But in things natural there is always one governor; as in the body, it is
the heart; in the soul, it is reason. Therefore in the world there ought to
be one governor, just as there is one God.

1. Now, this contention is baseless. Let our first conclusion, then, be:

The Emperor is not the lord of the whole earth. This is proved from the
fact that dominion must be founded either on natural or divine or human law;
but there is no lord of the earth in any of these; therefore, etc. The minor
is proved, first as regards natural law, by what St. Thomas well says (Prima
Pars, qu. 92, art. 1, on obj. 2, and qu. 96, art. 4), namely, that by
natural law mankind is free save from paternal and marital dominion — for
the father has dominion over his children and the husband over the wife by
natural law; therefore no one by natural law has dominion over the world.
And, as St. Thomas also says (Secunda Secundae, qu. 10, art. 10), dominion
and preeminence were introduced by human law; they, therefore, were not by
natural law. Nor would there be any greater reason why this dominion should
be more proper for Germans than for Gauls. And Aristotle (Politics, bk. 1)
says, Power is of two kinds, the one originates in the family, like that of
the father over his sons and that of the husband over the wife, and this is
a natural power; the other is civil, for, although it may take its rise in
nature and so may be said to be of natural law, as St. Thomas says (De
regimine principum, bk. 1, ch. 2), yet, man being a political animal, it is
founded not on nature, but on law.

Now, as regards divine law, we do not read that before the coming of our
Saviour Christ the Emperors were lords of the whole world, although in the
gloss mentioned on the Extravagans, Ad reprimendum, Bartolus adduces the
passage in Daniel, ch. 2, about Nebuchadnezzar, of whom it is said: “Thou, O
King, art a King of Kings; for the God of Heaven hath given thee a Kingdom
and power and strength and glory. And wheresoever the children of men dwell,
He hath given thee all.” It is, however, certain that Nebuchadnezzar
received his sovereignty from God by no special grant, but in the same way
as other princes (Romans, ch. 13):

“There is no power but of God”; and (Proverbs, ch. 8): “By me kings reign
and princes decree justice.” Further, Nebuchadnezzar had not a legal rule
over the whole earth, as Bartolus thinks, for the Jews were not legal
subjects of his.

Another proof that there was by divine law no ruler over the whole world
lies in the fact that the Jewish nation was free from the foreigner; nay,
the Jews were forbidden by their law to have any foreigner as their lord
(Deuteronomy, ch. 17): “Thou mayest not set a stranger to be king over
thee.” And, although St. Thomas (De regimine principum, bk. 3, ch. 4 and 5)
says that the Romans were entrusted with empire by God because of their
justice and their patriotism and the excellence of their laws, yet this is
not to be taken to mean that they had their empire by divine grant or
institution, as St. Augustine also says (De civitate Dei, ch. 18), but that
in the divine providence it befell that they should obtain the sovereignty
of the world. This, however, was not in the way in which Saul or David had
his kingdom from God, but in some other way, such as by just war or other
title.

This will be plain to any one who considers the titles and modes of
succession whereby sovereignty and lordship in the world have come down to
our own day. For, to omit everything that happened before the flood, the
world was certainly divided after Noah into different provinces and
kingdoms, whether this were by ordinance of Noah himself — for he survived
the flood three hundred and fifty years (Genesis, ch. 9), and sent colonies
into different regions, as appears in Berosus of Babylon — or whether, as
is more likely, different family-groups by the common agreement of mankind
occupied different provinces, as (Genesis, ch. 13) “Abram said unto Lot:
‘… Is not the whole land before thee? … If thou wilt take the left hand,
then I will go to the right, or if thou depart to the right hand, then I
will go to the left.” We are, accordingly, told (Genesis, ch. 10) that
through the descendants of Noah came diversities of peoples and countries,
whether in some regions they first assumed lordship by usurpation, as Nimrod
seems to have done, of whom Genesis, ch. 10, v. 8, says that he was the
first to be a mighty one in the earth, or whether by accord of several to
unite in one State they appointed a prince over themselves by common
agreement. For it is sure that either in these or in other like modes
sovereignty and lordship began in the world and that afterwards, either by
right of inheritance or of war or by some other such title, they were
continued unto our own day, or at any rate up to the time of the Saviour’s
coming. Herein it is manifest that before the coming of Christ no one was
vested with world-wide sway by divine law and that the Emperor can not at
the present day derive therefrom a title to arrogate to himself lordship
over the whole earth, and consequently not over the barbarians.

It might, however, be alleged that after our Lord’s coming there was one
Emperor over the world by express grant of Christ, in that He, as regards
His manhood, was Lord of the world, according to St. Matthew, ch. 28: “All
power is given unto me,” etc., which, according to St. Augustine and St.
Jerome, is to be understood as regards His manhood. Also, as the Apostle
declares (I Corinthians, ch. 15), “He hath put all things under his feet.”
Therefore, just as He left on earth one vicar in matters spiritual, so also
in matters temporal, and in the latter case it is the Emperor. St. Thomas,
too, says (De regimine principum, bk. 3, ch. 13) that Christ was from His
nativity the true Lord and monarch of the world and that Augustus though
unwitting thereof, was acting as His deputy. Now, it is clear that this
deputyship was not in matters spiritual, but in matters temporal. Seeing,
then, that Christ’s Kingdom, if it were temporal, was over the whole world,
Augustus was, on that showing, lord of the world and so on the same
principle his successors were.

This reasoning is, however, quite inadmissible: In the first place, because
of the doubt attaching to the statement that Christ as regards His manhood
was temporal Lord of the world. The probability indeed is that He was not,
and our Lord seems to have asserted as much in the passage: “My Kingdom is
not of this world.”[4] Accordingly. St. Thomas remarks in this connection
that Christ’s dominion is directly appointed for the soul’s salvation and
for spiritual profit, although it is not excluded in matters temporal in the
same fashion as it is appointed in matters spiritual. This shows that in St.
Thomas’s view His Kingdom was not of the same sort as a civil and temporal
kingdom, but that, while He had all kinds of power, even in matters
temporal, which would subserve the aim of redemption, yet apart from that
aim He had none. Further, even if we grant that He was temporal Lord, it is
guess-work to say that He bequeathed that power to the Emperor, there being
no mention of any such thing in the whole Bible. And as regards St. Thomas’s
statement that the Emperor Augustus was Christ’s vicegerent, firstly, he
does indeed make it in the passage referred to, but in his Tertia Pars,
where he is professedly discussing the power of Christ, he makes no mention
of this temporal power.

Secondly, St. Thomas’s meaning is that the Emperor was Christ’s vicegerent
to the extent that temporal power is subordinate and subservient to
spiritual power. In this sense, of a truth, kings are the servants of
bishops, just as the smith’s art is subject to the knight’s and the
soldier’s, while all the time neither the soldier nor his superior officer
is a smith, but is only concerned to give the smith orders about the making
of armor. Again, St. Thomas, writing on that passage in St. John, ch. 18,
expressly says that Christ’s Kingdom is not temporal or such a kingdom as
Pilate conceived, but a spiritual kingdom, inasmuch as our Lord declares in
that passage: “Thou sayest that I am a King. To this end was I born and for
this cause came I into the world, that I should bear witness unto the
truth.” This shows it to be a mere fiction to say that by express grant of
Christ there is one Emperor and lord of the world.

A consideration which palpably confirms this is the following: If there had
been any such institution by divine law, how comes it that the Empire was
divided into Eastern and Western, first among the sons of Constantine the
Great and then, later, by Pope Stephen, who conferred the Empire of the West
on the Germans, as is held in X, 1, 6, 34? For the assertion that the Greeks
thereafter were not Emperors is inept and ignorant, as the glossator hereon
points out, seeing that the German Emperors never claimed in virtue of this
grant to be Lords of Greece, and John Palaeologus, Emperor of
Constantinople, was held to be lawful Emperor at the Council of Florence.
Moreover, the patrimony of the Church (as the jurists themselves, and even
Bartolus, confess) is not subject to the Emperor. Now, if all things were
subject to the Emperor by divine law, no imperial gift or any other title
could divest the Emperors of them, any more than the Pope can release any
one from the power of the Popes. Also, the Kingdom of Spain is not subject
to the Emperor, nor is France, as is also held in X, 1, 6, 34
abovementioned, although the glossator adds out of his own head that this is
not so much a matter of law as of fact. Also, the doctors agree that States,
which have in times past been subject to the Empire, might be freed from
that subjection by prescription; which would not be the case, if this
subjection were in virtue of a divine law.

Now, in point of human law, it is manifest that the Emperor is not lord of
the world, because either this would be by the sole authority of some law,
and there is none such; or, if there were, it would be void of effect,
inasmuch as law presupposes jurisdiction. If, then, the Emperor had no
jurisdiction over the world before the law, the law could not bind one who
was not previously subject to it. Nor, on the other hand, had the Emperor
this position by lawful succession or by gift or by exchange or by purchase
or by just war or by election or by any other legal title, as is admitted.
Therefore the Emperor never was the lord of the whole world.

2. Second conclusion: Granted that the Emperor were the lord of the world,
still that would not entitle him to seize the provinces of the Indian
aborigines and erect new lords there and put down the former ones or take
taxes. The proof is herein, namely, that even those who attribute lordship
over the world to the Emperor do not claim that he is lord in ownership, but
only in jurisdiction, and this latter right does not go so far as to warrant
him in converting provinces to his own use or in giving towns or even
estates away at his pleasure. This, then, shows that the Spaniards can not
justify on this ground their seizure of the provinces in question.

A second alleged title to the lawful possession of these lands, and one
which is vehemently asserted, is traced through the Supreme Pontiff. For it
is claimed that the Pope is temporal monarch, too, over all the world and
that he could consequently make the Kings of Spain sovereign over the
aborigines in question, and that so it has been done.

In this matter there are some jurists, who hold that the Pope has full
jurisdiction in temporal matters over the whole earth, and they even add
that the power of all secular princes comes to them from the Pope. This is
the tenet of Hostiensis on X, 3, 34, 8; also of the Archbishop (pt. 3, tit.
22, ch. 5, § 8); and also of Augustinus Anconitanus. Sylvester holds the
same doctrine, making a much more ample and liberal concession of this power
to the Pope, under the word infidelitas (§ 7) and under the word Papa (§§ 7,
10, 11 and 14), and under the word legitimus (§ 4). He has some singular
remarks on this topic in the passages mentioned, as, for example, that “the
power of the Emperor and all other princes is sub-delegated as regards the
Pope, being derived from God through the medium of the Pope,” and that “all
their power is dependent on the Pope,” and that “Constantine gave lands to
the Pope in recognition of his temporal power,” and on the other hand that
“the Pope gave the Empire to Constantine to his use and profit,” nay, that
“Constantine’s act was really not a gift, but merely the return of what had
previously been taken away,” and that, “if the Pope does not exercise
jurisdiction in temporal matters outside the patrimony of the Church, this
is not for want of authority, but in order to avoid the scandal of the Jews
and in order to promote peace”; and many other things even more empty and
absurd than these. The sole proof that he gives herefor is in the passages
“The earth is the Lord’s and the fulness thereof,”[5] and “All power is
given unto me, both in heaven and in earth,”[6] and the Pope is the vicar of
God and of Christ, and (Philippians, ch. 2) Christ “for our sake became
obedient even unto death,” etc. Bartolus, too, seems to be of this opinion
in his comment on the Extravagans, Ad reprimendum, and St. Thomas seems to
favor it at the end of the second book of the Sententiae, the closing words
of which are by way of solution of the fourth argument, which is the last of
the whole book, namely, that the Pope holds the summit of both kinds of
power, both secular and spiritual, and Herveus is of the same opinion in his
De potestate Ecclesiae.

This, then, being laid as a basis, the authors of this opinion say as
follows: In the first place, that the Pope has free power, on the footing of
supreme temporal lord, to make the Kings of Spain rulers over the Indian
aborigines. Secondly, they say that, even if it be assumed that he could not
do this, at any rate if these aborigines refused to recognize the temporal
power of the Pope over them, this would warrant him in making war on them
and in putting rulers over them. Now, each of these things has been done.
For, first, the Supreme Pontiff granted the provinces in question to the
Kings of Spain. Secondly, the aborigines were notified that the Pope is the
vicar of God and His vicegerent on earth and it was claimed that they
should, therefore, recognize him as their superior, and their refusal
furnishes a good ground for making war on them and seizing their lands, etc.
Hostiensis, place cited, expressly makes this point, so does Angelus in his
Summa.

Now, inasmuch as I have fully discussed the temporal power of the Pope in my
Relectio de Potestate Ecclesiastica, I will put my answer to the above into
a few brief propositions:

3. First: The Pope is not civil or temporal lord of the whole world in the
proper sense of the words “lordship” and “civil power.” This is the
conclusion arrived at by Torquemada (bk. 2, ch. 113), and by Joannes Andreae
and by Hugo, on can. 6, Disc. 96. And the most learned Innocent admits, in
the above cited X, 1, 6, 34, that he has not temporal power over the Kingdom
of France. And it seems the definite opinion of St. Bernard in the second
book of his De consideratione, addressed to Pope Eugenius III. The opposite
opinion seems contrary to the precept of our Lord who, (St. Matthew, ch. 20,
and St. Luke, ch, 22), says, “Ye know that the princes of the Gentiles
exercise lordship over them,” etc. “But it shall not be so among you.” And
contrary also to the precept of the Apostle Peter, “neither as being lords
over [God’s] heritage but being ensamples to the flock,”[7] And if Christ
the Lord had not temporal power, as has been shown in the foregoing
discussion to be more probable and as is also the opinion of St. Thomas,
much less has the Pope it, he being Christ’s vicar. The above-mentioned
thinkers attribute to the Pope that which he has never claimed for himself;
nay, he admits the contrary in many passages, as I have shown in the
Relectio referred to. And the proof is sufficient, like that given above
concerning the Emperor, for no lordship can come to him save either by
natural law or by divine law or by human law. Now, it is certain that none
comes to him by natural or by human law, and none is shown to come to him by
divine law. Therefore the assertion is ungrounded and arbitrary.

Further, our Lord’s injunction to Peter, “Feed my sheep,”[8] clearly shows
that power in spiritual and not in temporal matters is meant. It is,
moreover, demonstrable that the Pope has not the whole world for his sphere.
For our Lord said (St. John, ch. 10) that there should be “one flock and one
shepherd” at the end of the age. This is sufficient proof that at the
present day all are not sheep of this flock. Again, assuming that Christ had
this power, it is manifest that it has not been entrusted to the Pope. This
appears from the fact that the Pope is no less vicar of Christ in spiritual
than in temporal matters. But the Pope has no spiritual jurisdiction over
unbelievers, as even our opponents admit, and, as seems (I Corinthians, ch.
5) to have been the express teaching of the Apostle: “For what have I to do
to judge them also that are without?” Therefore he has it not also in
temporal matters. And of a truth there is nothing in the argument that, as
Christ had temporal power over the world, therefore the Pope also has it.
For Christ undoubtedly had spiritual power over the whole world, not less
over believers than over unbelievers and could make laws which bound the
whole world, as he did with regard to baptism and the articles of faith. And
yet the Pope has not that power over unbelievers and may not excommunicate
them or forbid their marriage within the degrees permitted by the divine
law. Therefore. Also, the fact that, according to the doctors, Christ did
not entrust supremacy in power even to the Apostles shows that there is no
force in the consequence: Christ had temporal power over the world;
therefore the Pope has it too.

4. Second proposition: Even assuming that the Supreme Pontiff had this
secular power over the whole world, he could not give it to secular
princes. This is obvious, because it would be annexed to the Papacy. Nor can
any Pope sever it from the office of Supreme Pontiff or deprive his
successor of that power, for the succeeding Supreme Pontiff can not be less
than his predecessor; and, if some one Pontiff had made a gift of this
power, either the grant would be null or the succeeding Pontiff could cancel
it.

5. Third proposition: The Pope has temporal power only so far as it is in
subservience to matters spiritual, that is, as far as is necessary for the
administration of spiritual affairs. This is also the view of Torquemada
(as above, ch. 114), and of all the doctors. And the proof of it lies in the
tact that an art to which a higher end pertains is imperative and preceptive
as regards the arts to which lower ends pertain (Ethics, bk. 1). But the end
of spiritual power is ultimate felicity, while the end of civil power is
political felicity. Therefore, temporal power is subject to spiritual power
This is the reasoning adopted by Innocent in X, 1, 33, 6; and it receives
confirmation from the consideration that, whenever anybody is entrusted with
the charge of any office, he is impliedly granted everything without which
the duties of the office can not rightly be discharged (X, 1, 29, 1)

Inasmuch, then. as the Pope is a spiritual pastor by Christ’s commission
and the discharge of the duties of this office can not be hindered by the
civil power (there being no lack in the provision of things necessary either
by God or by Nature), it is beyond doubt that power over things temporal has
also been left to him so far as is necessary for the government of things
spiritual. And on this principle the Pope can infringe civil laws which
tend to breed sinners, just as he has infringed the laws with regard to
prescription by a party acting in bad faith, as is clear from X, 2, 26, 20.
And on this principle also, when princes are at variance with one another
about some right of sovereignty and are rushing into war, he can act as
judge and inquire into the claims of the parties and deliver judgment, a
judgment which the princes are bound to respect, lest those numerous
spiritual evils should befall which are the inevitable results of a war
between Christian princes. And although the Pope does not do this or does
not do it often, it is not because he can not, as Master Durandus says, but
because, for fear of scandal, he wishes to prevent the princes from thinking
his motive is ambition or because he is afraid of a revolt from the
Apostolic See on the part of the princes. And on this principle the Pope can
sometimes depose kings and even set up new kings, as at times has been done.
And certainly no one rightly calling himself Christian should deny this
power to the Pope. This is the view held by Paludanus and Durandus (De
jurisdictione ecclesiastica), and by Henricus Gandavensis (Quodlibeta, 6,
art. 23). It is in this sense, also, that those numerous rules are to be
interpreted which say that the Pope has both swords. The earlier doctors
make the same assertion, as also does St. Thomas in the second book of the
Sententiae, as above quoted.

Aye, and there is no doubt that in this way bishops have temporal authority
within their bishoprics on the same principle that the Pope has authority
in the world. And so they err in speech and in deed, whether princes or
magistrates, who strive to prevent bishops from deterring laymen from sin
by fines or exile or other temporal punishments. For this is not in excess
of their power, provided they do not do it from greed or for gain, but of
necessity and for profit in things spiritual. And herein we find a further
argument in support of our first conclusion; for if the Pope were lord of
the world, a bishop would also be temporal lord in his bishopric, seeing
that within his bishopric he also is a vicar of Christ, but this our
opponents deny.

6. Fourth conclusion: The Pope has no temporal power over the Indian
aborigines or over other unbelievers. This is dear from propositions I and
III. For he has no temporal power save such as subserves spiritual matters.
But he has no spiritual power over them (I Corinth., ch. 5, v. 12).
Therefore he has no temporal power either.

7. The corollary follows that even if the barbarians refuse to recognize
any lordship of the Pope, that furnishes no ground for making war on them
and seizing their property. This is dear, because he has no such lordship.
And it receives manifest confirmation from the fact (as will be asserted
below and as our opponents admit) that, even if the barbarians refuse to
accept Christ as their lord, this does not justify making war on them or
doing them any hurt. Now, it is utterly absurd for our opponents to say
that, while the barbarians go scatheless for rejecting Christ, they should
be bound to accept His vicar under penalty of war and confiscation of their
property, aye, and penal chastisement. And a second confirmation is
furnished by the fact that the ground, according to the persons in question,
for disallowing compulsion, even if they refuse to accept Christ or His
faith, is that it can not be evidently proved to them by natural reasoning.
But the lordship of the Pope admits of this proof still less. Therefore they
can not be compelled to recognize this lordship.

Again, although Sylvester discourses at great length on the power of the
Pope, yet, under the word infideles (§ 7), he expressly maintains against
Hostiensis that unbelievers can not be compelled by arms to recognize this
lordship and can not be deprived of their property on this pretext. And
Innocent maintains the same in X, 3, 34, 8. There is also no doubt that
this was the opinion of St. Thomas too (Secunda Secundae, qu. 66, art. 8, on
obj. 2); Cajetan is express thereon, in his comment on the passage where St.
Thomas says that unbelievers cannot be deprived of their property, save only
that the subjects of temporal princes can be deprived for reasons known to
the law and rendering their subjects in general liable to deprivation. Of a
truth, Saracens dwelling among Christians have never been deprived of their
property on any such pretext or made to suffer any harm. Why, if this
pretext be enough to justify making war on them, it is as much as to say
that they can be deprived by reason of their unbelief. For it is certain
that none of the unbelievers recognize this lordship. But there is no
doctor even among our opponents who would allow that they can be deprived on
the mere ground of unbelief. Therefore the allegation of the doctors in
question is utterly sophistical, namely, that if the unbelievers recognize
the lordship of the Roman Pontiff, war can not be made on them, but that it
may if they do not recognize it; for none of them does recognize it.

This shows that the title under discussion can not be set up against the
barbarians and that Christians have no just cause of war against them
either on the ground that the Pope has made a gift of their lands on the
footing of absolute lord or that they do not recognize the lordship of the
Pope. This is the opinion maintained by Cajetan at considerable length, on
Secunda Secundae, qu. 66, art. 8, on obj. 2. And the authority of the
canonists to the contrary ought not to weigh much, because, as said above,
these matters are to be discussed with reference to the divine law, and the
majority in numbers and weight hold the contrary view, and among the latter
is Joannes Andreae. Our opponents have no text in their favor. And even the
weighty authority of the Archbishop of Florence is not to be admitted here,
for he followed Augustinus Anconitanus, just as in other places he usually
follows the canonists. What has been said demonstrates, then that at the
time of the Spaniards’ first voyages to America they took with them no right
to occupy the lands of the indigenous population.

Accordingly, there is another title which can be set up, namely, by right
of discovery; and no other title was originally set up, and it was in virtue
of this title alone that Columbus the Genoan first set sail. And this seems
to be an adequate title because those regions which are deserted become, by
the law of nations and the natural law, the property of the first occupant
(Inst., 2, 1, 12). Therefore, as the Spaniards were the first to discover
and occupy the provinces in question, they are in lawful possession thereof,
just as if they had discovered some lonely and thitherto uninhabited region.

Not much, however, need be said about this third title of ours, because, as
proved above, the barbarians were true owners, both from the public and from
the private standpoint. Now the rule of the law of nations is that what
belongs to nobody is granted to the first occupant, as is expressly laid
down in the aforementioned passage of the Institutes. And so, as the object
in question was not without an owner, it does not fall under the title which
we are discussing. Although, then, this title, when conjoined with another,
can produce some effect here (as will be said below), yet in and by itself
it gives no support to a seizure of the aborigines any more than if it had
been they who had discovered us.

Accordingly, a fourth title is set up, namely, that they refuse to accept
the faith of Christ, although it is set before them and although they have
been adjured and advised to accept it. This title might seem to be a lawful
one for occupying the lands of the barbarians, firstly, on the ground that
the obligation of the aborigines to receive the faith of Christ results from
the passage: “Whoso believeth and is baptized shall be saved, but he who
believeth not shall be damned.”[9] But damnation is not visited on any one
except for a mortal sin, and “There is no other name given among men whereby
we must be saved” (Acts, ch. 4). Therefore, as the Pope is the minister of
Christ, at least in things spiritual, it would appear that at any rate by
the authority of the Pope they can be compelled to receive the faith of
Christ, and if they reject the demand to receive it they may be proceeded
against under the law of war. Nay, it would seem that princes may do this
on their own authority also, seeing that they are God’s ministers (Romans,
ch. 13), and “revengers [to execute] wrath upon them that do evil.” But
those, indeed, do evil who do not accept the faith of Christ. Therefore they
can be coerced by princes.

A second argument is: If the French refused to obey their King, the King of
Spain could compel them to obedience. Therefore, if the Indian aborigines
refuse to obey God, who is their true and supreme Lord, Christian princes
can compel them to obedience; for the cause of God ought not to be in worse
condition than the cause of men. And this is confirmed, as Scotus (bk. 4,
dist. 4, qu. 9) argues about the baptism of the children of unbelievers, by
the fact that persons ought to be compelled to obey a superior lord rather
than an inferior lord. If, then, compulsion may be employed to make these
aborigines obey their chiefs, much more may it be employed to make them obey
Christ and God.

A third argument is: If the barbarians publicly blasphemed Christ, they
could be compelled by war to cease from such blasphemies, as the doctors
admit and as is true. For we could take measures of war against them, if
they made a mock of the crucifix or in any other way abused Christian
practices by way of insult, as by jesting imitation of the Sacraments of the
Church or the like conduct. This is obvious; for if they outraged a
Christian sovereign, even one now dead, we could avenge the outrage; much
more, then, if they outrage Christ, who is the living King of Christians.
This is indubitable; for if Christ were alive in the flesh and pagans
wrought an outrage on Him, there is no doubt that we could avenge the
outrage by war. So, therefore, in this case. But unbelief is a greater sin
than blasphemy, for, as St. Thomas asserts and proves (Secunda Secundae, qu.
10, art. 3), unbelief is the gravest of the sins which lie in moral
perversity, because it is directly opposed to faith, while blasphemy is not
directly opposed to faith, but to the confession of faith. Unbelief cuts at
the root of turning to God, that is, at faith, while blasphemy does not.
Therefore, seeing that Christians can proceed by war against unbelievers for
their blasphemy of Christ, so they can for their unbelief itself. And the
contention that blasphemy is not so great a sin as unbelief is confirmed by
the fact that unbelief, is, in a Christian, a capital crime by the civil
laws, while blasphemy is not.

8. By way of answer let my first proposition be: Before the barbarians
heard anything about Christianity, they did not commit the sin of unbelief
by not believing in Christ. This proposition is precisely that of St. Thomas
in Secunda Secundae, qu. 10, art. 1, where he says that in those who have not
heard of Christ unbelief does not wear the guise of sin, but rather of
punishment, such ignorance of things divine being a consequence of the sin
of our first parent. “Such unbelievers as these,” says he, “are indeed open
to condemnation for other sins, … but not for the sin of unbelief.”
Accordingly our Lord says (St. John, ch. 15): “If I had not come and spoken
unto them, they had not had sin.” St. Augustine, in his exposition of this
passage, says it refers to the sin of unbelief in Christ. St. Thomas says
the same (Secunda Secundae, qu. 10, art. 6, and qu. 34, art. 2, on obj. 2).

This proposition is opposed to the teaching of many doctors and especially
to that of Altissiodorensis, 3 p.,[10] on the question, Utrum fidei possit
subesse falsum, where he says that ignorance not only of Christ, but of any
article of faith is not invincible ignorance in any one, for if a man does
what in him lies, God will illuminate him either through the doctor that is
within him or through a doctor outside, and so it is always a mortal sin to
believe anything contrary to articles of faith. He takes an illustration
from an old woman to whom a bishop might preach something contrary to an
article of faith. And he lays down the general proposition that ignorance of
divine law excuseth none. William of Paris was of the same opinion and
supported it by the same kind of argument. For either, says he, such an one
does what in him lies and therefore will receive illumination, or if he does
not this, he is without excuse. And Gerson (De spirituali vita animae, lect.
4) appears to be of the same view. “Doctors are unanimous,” says he, “that
in matters of the divine law there is no room for invincible ignorance,
seeing that God will always help him who does what in him lies, and He is
ready to enlighten the mind as far as will be necessary for salvation and
the avoidance of error.” And Hugo de Sancto Victore ([11]bk. 2, pt. 6, ch.
5) says that none is excused by ignorance for breach of the command to
receive baptism, for he could have heard and known, had it not been for his
own fault, as was the case with Cornelius (Acts, ch. 10).

Adrian gives precision to this doctrine, in his Quodlibeta, qu. 4. “There
is,” says he, “a two-fold distinction in matters of the divine law. There
are some matters to the knowledge of which God does not oblige every one
universally, such as the nice problems of the divine law and difficulties
with regard to this law and with regard to Holy Scripture and the
Commandments; in these matters there may well be a case of invincible
ignorance, even if a man does all that in him lies. There are other matters
to the knowledge of which God obliges all men generally, such as the
articles of faith and the universal commandments of the law; of these it is
true, as the doctors assert, that ignorance thereof is not excused. For if
any one does what in him lies, he will be illuminated of God through either
the doctor that is within him or a doctor from without.”

Nevertheless, the conclusion above stated is entirely in accord with St.
Thomas’s doctrine. The proof of it is as follows: Such as have never heard
anything, however much they may be sinners in other respects, are under an
invincible ignorance; therefore, their ignorance is not sin. The antecedent
is evident from the passage (Romans, ch. 10): “How shall they believe in him
of whom they have not heard, and how shall they hear without a preacher?”
Therefore, if the faith has not been preached to them, their ignorance is
invincible, for it was impossible for them to know. And what Paul condemns
in unbelievers is not that they have not done what in them lies in order to
receive illumination from God, but that they do not believe after they have
heard. “Have they not heard?” says he, “Yes, verily, their sound went into
all the earth.” That is the ground of his condemnation, inasmuch as the
Gospel has been preached over all the earth; he would not otherwise condemn
them, whatever other sins they might have.

This shows that Adrian was also mistaken in another point, with regard to
the subject-matter of their ignorance; for in the same note he says, with
regard to the subject-matter of morals, that if a man bestows all industry
and diligence in getting to know that which behoves him, this is not enough
to procure him an excuse for his ignorance, unless by repentance of his sins
he specially prepares himself to be illuminated by God. Suppose, then, a man
is in doubt about a certain business arrangement and makes inquiry of
learned men and tries in other ways to find out the truth and thinks that
the thing is lawful; if it really is not lawful and he does it, he is
without excuse, if in another respect he is in sin, because he does not do
all that in him lies to conquer his ignorance, and although it be admitted
that were he to render himself amenable to grace he would not receive
illumination, still he is without excuse so long as he does not remove the
hindrance in question, that is, his sin. Accordingly, if Peter and John are
in doubt in the same case and business matter and bestow equal human
diligence, and each thinks the thing is lawful, but Peter is in grace, while
John is in sin, Peter’s ignorance is invincible, but John’s is vincible, and
if they both embark on the business, Peter is excused and John is not.
Adrian, I say, makes a mistake here, as I have shown at length in my
discussion on Prima Secundae on the topic of ignorance. For it would be
strange to say that there is no topic of the divine law on which an
unbeliever, aye, any one who is in mortal sin, can be invincibly ignorant.
Nay, it would follow in the case of the above-named Peter, who was in grace
and whose ignorance on some point about usury or simony was invincible, that
his ignorance would become vincible merely by his faffing into mortal sin,
which is absurd.

9. I say accordingly on this point that negligence with regard to the
subject-matter is requisite for ignorance, even though it be vincible, to
be imputed as, and to be, a sin, as, for example, that the man refused to
hear or did not believe what he did hear; and on the other band I say that
for invincible ignorance it is enough that the man bestowed human diligence
in trying to learn, even if in other respects he is in mortal sin. And so on
this point our judgment is the same concerning one in sin and one in grace,
both now and immediately after Christ’s coming or after His passion. Adrian
could not deny that after our Lord’s passion the Jews in India or in Spain
were invincibly ignorant of His passion, however much they were in mortal
sin; nay, he himself has expressly conceded this in his first quaestio,
fourth point, on the topic de observantia legalium. And it is certain that
the Jews who were away from Judaea, whether they were in sin or not, had
invincible ignorance about baptism and about the faith of Christ. Just as
there could at that time be a case of invincible ignorance on this matter,
so there may also be nowadays among those who have not had baptism declared
to them. But the mistake which the doctors in question make is in thinking
that when we postulate invincible ignorance on the subject of baptism or of
the Christian faith it follows at once that a person can be saved without
baptism or the Christian faith, which, however, does not follow. For the
aborigines to whom no preaching of the faith or Christian religion has come
will be damned for mortal sins or for idolatry, but not for the sin of
unbelief, as St. Thomas (Secunda Secundae, as above) says, namely, that if
they do what in them lies, accompanied by a good life according to the law
of nature, it is consistent with God’s providence and He will illuminate
them regarding the name of Christ, but it does not therefore follow that if
their life be bad, ignorance or unbelief in baptism and the Christian faith
may be imputed to them as a sin.

10. Second proposition: The Indians in question are not bound, directly the
Christian faith is announced to them, to believe it, in such a way that
they commit mortal sin by not believing it, merely because it has been
declared and announced to them that Christianity is the true religion and
that Christ is the Saviour and Redeemer of the world, without miracle or any
other proof or persuasion. This proposition is proved by the first:

For if before hearing anything of the Christian religion they were excused,
they are put under no fresh obligation by a simple declaration and
announcement of this kind, for such announcement is no proof or incentive to
belief. Nay, as Cajetan says (on Secunda Secundae, qu. 1, art. 4), it would
be rash and imprudent for any one to believe anything, especially in matters
which concern salvation, unless he knows that this is asserted by a man
worthy of credence, a thing which the aboriginal Indians do not know, seeing
that they do not know who or what manner of men they are who are announcing
the new religion to them. And this is confirmed by what St. Thomas says
(Secunda Secundae, qu. 1, art. 4, on obj. 2, and art. 5, on obj. 1), namely,
that matters of faith are seen and become evident by reason of their
credibility. For a believer would not believe unless he saw that the things
were worthy of belief either because of the evidence of signs or for some
other reason of this kind. Therefore, where there are no such signs nor
anything else of persuasive force, the aborigines are not bound to believe.
And this is confirmed by the consideration that if the Saracens were at the
same time to set their creed before them in the same way and without
anything more, like the Christians, they would not be bound to believe
them. as is certain. Therefore they are not bound to believe the Christians
either, when without any moving or persuasive accompaniments they set the
faith before them, for they are unable, and are not bound, to guess which of
the two is the truer religion, unless a greater weight of probability be
apparent on one side. For this would be to believe hastily, which is a mark
of levity of heart, as Ecclesiasticus, ch. 19, says. Further confirmation is
furnished by the passage in St. John, ch. 15: “If I had not wrought signs,”
etc., “they would not have had sin.” Therefore, where there are no signs,
and nothing to induce belief, there will be no sin.

11. From this proposition it follows that, if the faith be presented to the
Indians in the way named only and they do not receive it, the Spaniards can
not make this a reason for waging war on them or for proceeding against them
under the law of war. This is manifest, because they are innocent in this
respect and have done no wrong to the Spaniards. And this corollary receives
confirmation from the fact that, as St. Thomas lays it down (Secunda
Secundae, qu. 40, art. 1), for a just war “there must be a just cause,
namely, they who are attacked for some fault must deserve the attack.”
Accordingly, St. Augustine says (Liber 83 Quaestionum): “It is involved in
the definition of a just war that some wrong is being avenged, as where a
people or state is to be punished for neglect to exact amends from its
citizens for their wrongdoing or to restore what has been wrongfully taken
away.” Where, then, no wrong has previously been committed by the Indians,
there is no cause of just war. This is the received opinion of all the
doctors, not only of the theologians, but also of the jurists, such as
Hostiensis, Innocent, and others. Cajetan (Secunda Secundae, qu. 66, art. 8)
lays it down clearly and I know of no doctor whose opinion is to the
contrary. Therefore this would not be a legitimate title to seize the lands
of the aborigines or to despoil the former owners.

12. Third proposition: If the Indians, after being asked and admonished to
hear the peaceful preachers of religion, refused, they would not be excused
of mortal sin. The proof lies in the supposition that they have very grave
errors for which they have no probable or demonstrable reasons. Therefore,
if any one admonishes them to hear and deliberate upon religious matters,
they are bound at least to hear and to enter into consultation. Further, it
is needful for their salvation that they believe in Christ and be baptized
(St. Mark, last ch.), “Whoso believeth,” etc. But they can not believe
unless they hear (Romans, ch. 10). Therefore they are bound to hear,
otherwise if they are not bound to hear, they would, without their own
fault, be outside the pale of salvation.

13. Fourth proposition: If the Christian faith be put before the aborigines
with demonstration, that is, with demonstrable and reasonable arguments, and
this be accompanied by an upright life, well-ordered according to the law of
nature (an argument which weighs much in confirmation of the truth), and
this be done not once only and perfunctorily, but diligently and zealously,
the aborigines are bound to receive the faith of Christ under penalty of
mortal sin. This is proved by our third proposition, for, if they are bound
to hear, they are in consequence bound also to acquiesce in what they hear,
if it be reasonable. This is abundantly clear from the passage (St. Mark,
last ch.): “Go ye out into all the world, preach the Gospel to every
creature; whoso believeth and is baptized shall be saved, but whoso
believeth not shall be damned”; and by the passage (Acts, ch. 4): “No other
name is given unto man whereby we can be saved.”

14. Fifth proposition: It is not sufficiently clear to me that the
Christian faith has yet been so put before the aborigines and announced to
them that they are bound to believe it or commit fresh sin. I say this
because (as appears from my second proposition) they are not bound to
believe unless the faith be put before them with persuasive demonstration.
Now, I hear of no miracles or signs or religious patterns of life; nay, on
the the other hand, I hear of many scandals and cruel crimes and acts of
impiety. Hence it does not appear that the Christian religion has been
preached to them with such sufficient propriety and piety that they are
bound to acquiesce in it, although many religious and other ecclesiastics
seem both by their lives and example and their diligent preaching to have
bestowed sufficient pains and industry in this business, had they not been
hindered therein by others who had other matters in their charge.

15. Sixth proposition: Although the Christian faith may have been announced
to the Indians with adequate demonstration and they have refused to receive
it, yet this is not a reason which justifies making war on them and
depriving them of their property. This conclusion is definitely stated by
St. Thomas (Secunda Secundae, qu. 10, art. 8), where he says that
unbelievers who have never received the faith, like Gentiles and Jews, are
in no wise to be compelled to do so. This is the received conclusion of the
doctors alike in the canon law and the civil law. The proof lies in the fact
that belief is an operation of the will. Now, fear detracts greatly from the
voluntary (Ethics, bk. 3), and it is a sacrilege to approach under the
influence of servile fear as far as the mysteries and sacraments of Christ.
Our conclusion is also proved by the canon de Judaeis (can. 5, Dist. 45),
which says: “The holy synod also enjoins concerning the Jews that
thenceforth force be not applied to any of them to make him believe; ‘for
God has compassion on whom He wills, and whom He wills He hardens.'”[12]
There is no doubt about the doctrine of the Council of Toledo, that threats
and fears should not be employed against the Jews in order to make them
receive the faith. And Gregory expressly says the same in the canon qui
sincera (can. 3, Dist. 45): “Who with sincerity of purpose,” says he,
“desires to bring into the perfect faith those who are outside the Christian
religion should labor in a manner that will attract and not with severity;
… for whosoever does otherwise and under cover of the latter would turn
them from their accustomed worship and ritual is demonstrably furthering his
own end thereby and not God’s end.”

Our proposition receives further proof from the use and custom of the
Church. For never have Christian Emperors, who had as advisors the most holy
and wise Pontiffs, made war on unbelievers for their refusal to accept the
Christian religion. Further, war is no argument for the truth of the
Christian faith. Therefore the Indians can not be induced by war to
believe, but rather to feign belief and reception of the Christian faith,
which is monstrous and a sacrilege. And although Scotus (Bk. 4, dist. 4,
last qu.) calls it a religious act for princes to compel unbelievers by
threats and fears to receive the faith, yet he seems to mean this to apply
only to unbelievers who in other respects are subjects of Christian princes
(with whom we will deal later on). Now, the Indians are not such subjects.
Hence, I think that Scotus does not make this assertion applicable to their
case. It is clear, then, that the title which we are now discussing is not
adequate and lawful for the seizure of the lands of the aborigines.

Another, and a fifth, title is seriously put forward, namely, the sins of
these Indian aborigines. For it is alleged that, though their unbelief or
their rejection of the Christian faith is not a good reason for making war
on them, yet they may be attacked for other mortal sins which (so it is
said) they have in numbers, and those very heinous. A distinction is here
drawn with regard to mortal sins, it being asserted that there are some
sins, which are not against the law of nature, but only against positive
divine law, and for these the aborigines can not be attacked in war, while
there are other sins against nature, such as cannibalism, and promiscuous
intercourse with mother or sisters and with males, and for these they can be
attacked in war and so compelled to desist therefrom. The principle in each
case is that, in the case of sins which are against positive law, it can not
be clearly shown to the Indians that they are doing wrong, whereas in the
case of the sins which are against the law of nature, it can be shown to
them that they are offending God, and they may consequently be prevented
from continuing to offend Him. Further they can be compelled to keep the law
which they themselves profess. Now, this law is the law of nature.
Therefore. This is the opinion of the Archbishop of Florence (pt. 3, tit.
22, ch. 5, § 8), following Augustinus Anconitanus, and of Sylvester (under
the word Papa, § 7); and it is the opinion of Innocent in X, 3, 34, 8, where
he expressly says: “I hold that if the Gentiles who have no other law than
the law of nature break that law, they can be punished by the Pope. This is
shown by the case of the men of Sodom, who were punished by God (Genesis,
ch. 19). Now, the judgments of God are examples unto us, and so I do not see
why the Pope, who is the vicar of Christ, can not do this.” This is what
Innocent said. And on the same principle the Indians can be punished by
Christian princes under the authority of the Pope.

16. I, however, assert the following proposition: Christian princes can
not, even by the authorization of the Pope, restrain the Indians from sins
against the law of nature or punish them because of those sins. My first
proof is that the writers in question build on a false hypothesis, namely,
that the Pope has Jurisdiction over the Indian aborigines, as said above. My
second proof is as follows: They mean to Justify such coercion either
universally for sins against the law of nature, such as theft, fornication,
and adultery, or particularly for sins against nature, such as those which
St. Thomas deals with (Secunda Secundae, qu. 154, arts. 11, 12), the phrase
“sin against nature” being employed not only of what is contrary to the law
of nature, but also of what is against the natural order and is called
uncleanness in II Corinthians, ch. 12, according to the commentators, such
as intercourse with boys and with animals or intercourse of woman with
woman, whereon see Romans, ch. 1. Now, if they limit themselves to the
second meaning, they are open to the argument that homicide is just as grave
a sin, and even a graver sin, and, therefore, it is clear that, if it is
lawful in the case of the sins of the kind named, therefore it is lawful
also in the case of homicide. Similarly, blasphemy is a sin as grave and so
the same is clear; therefore. If, however, they are to be understood in the
first sense, that is, as speaking of all sin against the law of nature, the
argument against them is that the coercion in question is not lawful for
fornication; therefore not for the other sins which are contrary to the law
of nature. The antecedent is clear from I Corinthians, ch. 5: “I wrote to
you in an epistle not to company with fornicators,” and besides “If any
brother among you is called a fornicator or an idolater,” etc.; and lower
down: “For what have I to do to judge them also that are without?” Whereon
St. Thomas says: “The prelates have received power over those only who have
submitted themselves to the faith.” Hence it clearly appears that St. Paul
declares it not his business to pronounce judgment on unbelievers and
fornicators and idolaters. So also it is not every sin against the law of
nature that can be clearly shown to be such, at any rate to every one.

Further, this is as much as to say that the aborigines may be warred into
subjection because of their unbelief, for they are all idolaters. Further,
the Pope can not make war on Christians on the ground of their being
fornicators or thieves or, indeed, because they are sodomites; nor can he
on that ground confiscate their land and give it to other princes; were that
so, there would be daily changes of kingdoms, seeing that there are many
sinners in every realm. And this is confirmed by the consideration that
these sins are more heinous in Christians, who are aware that they are sins,
than in barbarians, who have not that knowledge. Further, it would be a
strange thing that the Pope, who can not make laws for unbelievers, can yet
sit in judgment and visit punishment upon them.

A further and convincing proof is the following: The aborigines in question
are either bound to submit to the punishment awarded to the sins in
question or they are not. If they are not bound, then the Pope can not award
such punishment. If they are bound, then they are bound to recognize the
Pope as lord and lawgiver. Therefore, if they refuse such recognition, this
in itself furnishes a ground for making war on them, which, however, the
writers in question deny, as said above. And it would indeed be strange that
the barbarians could with impunity deny the authority and jurisdiction of
the Pope, and yet that they should be bound to submit to his award. Further,
they who are not Christians can not be subjected to the judgment of the
Pope, for the Pope has no other right to condemn or punish them than as
vicar of Christ. But, the writers in question admit — both Innocent and
Augustinus of Ancona, and the Archbishop and Sylvester, too — that they can
not be punished because they do not receive Christ. Therefore not because
they do not receive the judgment of the Pope, for the latter presupposes the
former.

The insufficiency alike of this present title and of the preceding one, is
shown by the fact that, even in the Old Testament, where much was done by
force of arms, the people of Israel never seized the land of unbelievers
either because they were unbelievers or idolaters or because they were
guilty of other sins against nature (and there were people guilty of many
such sins, in that they were idolaters and committed many other sins against
nature, as by sacrificing their sons and daughters to devils), but because
of either a special gift from God or because their enemies had hindered
their passage or had attacked them. Further, what is it that the writers in
question call a profession of the law of nature? If it is mere knowledge,
they do not know it all; if it is a mere willingness to observe the law of
nature, then the retort is that they are also willing to observe the whole
divine law; for, if they knew that the law of Christ was divine, they would
be willing to observe it. Therefore, they make no more a profession of the
law of nature than they make of the law of Christ. Further, we certainly
possess clearer proofs whereby to demonstrate that the law of Christ is From
God and is true than to demonstrate that fornication is wrong or that other
things which are also forbidden by natural law are to be shunned.*

Therefore, if the Indians can be compelled to observe the law of nature
because it admits of proof, they can therefore, be compelled to observe the
Gospel law. There remains another, a sixth title, which is put forward,
namely, by voluntary choice. For on the arrival of the Spaniards we find
them declaring to the aborigines how the King of Spain has sent them for
their good and admonishing them to receive and accept him as lord and king;
and the aborigines replied that they were content to do so. Now, “there is
nothing so natural as that the intent of an owner to transfer his property
to another should have effect given to it” (Inst., 2, 1, 40). I, however,
assert the proposition that this title, too, is insufficient. This appears,
in the first place, because fear and ignorance, which vitiate every choice,
ought to be absent. But they were markedly operative in the cases of choice
and acceptance under consideration, for the Indians did not know what they
were doing; nay, they may not have understood what the Spaniards were
seeking. Further, we find the Spaniards seeking it in armed array from an
unwarlike and timid crowd. Further, inasmuch as the aborigines, as said
above, had real lords and princes, the populace could not procure new lords
without other reasonable cause, this being to the hurt of their former
lords. Further, on the other hand, these lords themselves could not appoint
a new prince without the assent of the populace. Seeing, then, that in such
cases of choice and acceptance as these there are not present all the
requisite elements of a valid choice, the title under review is utterly
inadequate and unlawful for seizing and retaining the provinces in
question.

There is a seventh title which can be set up, namely, by special grant from
God. For some (I know not who) assert that the Lord by His especial judgment
condemned all the barbarians in question to perdition because of their
abominations and delivered them into the hands of the Spaniards, Just as of
old He delivered the Canaanites into the hands of the Jews. I am loath to
dispute hereon at any length, for it would be hazardous to give credence to
one who asserts a prophecy against the common law and against the rules of
Scripture, unless his doctrine were confirmed by miracles. Now, no such are
adduced by prophets of this type. Further, even assuming that it is true
that the Lord had determined to bring the barbarians to perdition, it would
not follow, therefore, that he who wrought their ruin would be blameless,
any more than the Kings of Babylon who led their army against Jerusalem and
carried away the children of Israel into captivity were blameless, although
in actual fact all of this was by the especial providence of God, as had
often been foretold to them. Nor was Jeroboam right in drawing Israel away
from Rehoboam, although this was done by God’s design, as the Lord had also
threatened by his prophet. And, would that, apart from the sin of unbelief,
there might be no greater sins in morals among certain Christians than there
are among those barbarians! It is also written (I St. John, ch. 4): ”
Believe not every spirit, but try the spirits whether they be of God;” and
as St. Thomas says (Prima Secundae, qu. 68), “Gifts are given by the Holy
Spirit for the perfecting of virtues.” Accordingly, where faith or
authority or providence shows what ought to be done, recourse should not be
had to gifts.

Let this suffice about false and inadequate titles to seize the lands of
the Indians. But it is to be noted that I have seen nothing written on this
question and have never been present at any discussion or council on this
matter. Hence it may be that others may found a title and base the justice
of this business and overlordship on some of the passages cited and not lack
reason in so doing. I, however, have up to now been unable to form any other
opinion than what I have written. And so, if there be no other titles than
those which I have discussed, it would certainly be of ill omen for the
safety of our princes, or rather of those who are charged with the
discovery of these matters; for princes follow advice given by others, being
unable to examine into these matters for themselves. “What is a man
advantaged” so saith the Lord, “if he gain the whole world and lose himself,
or be cast away?” (St. Matthew, ch. 16; St. Mark, ch. 8; St. Luke, ch. 9.)

SUMMARY OF THE THIRD SECTION.

On the lawful titles whereby the aborigines of America could have cone into
the power of Spain.

1. How the aborigines might have come into the power of the Spaniards on the
ground of natural society and fellowship.

2. The Spaniards have a right to travel to the lands of the Indians and to
sojourn there so long as they do no harm, and they can not be prevented by
the Indians.

3. The Spaniards may carry on trade among the Indian aborigines, so long as
they do no harm to their own country, by importing the goods which the
aborigines lack, etc., and taking away gold and silver and other articles
in which the Indians abound; and the princes of the Indians can not prevent
their subjects from trading with the Spaniards, etc.

4. the Indians can not prevent the Spaniards from a communication and
participation in those things which they treat as common alike to natives
and to strangers.

5. Any children born to Spanish parents domiciled in those parts who wish to
become citizens thereof can not be excluded from citizenship or from the
advantages enjoyed by other citizens.

6. What course ought to be adopted if the aborigines desire to prevent the
Spaniards trading with there, etc.

7. If the Spaniards, after resort to all moderate measures, can not attain
security among the aborigines or Indians save by seizing their cities and
reducing them to subjection, whether they can lawfully do this.

8. When and in what case the Spaniards can resort to severe measures against
the Indians, treating them as faithless foes, and employ all the rights of
war against them and take away their property and even reduce them to
captivity, aye, and depose their former lords also and set up new lords.

9. Whether the Indians could have come under the sway of the Spaniards, in
the interest of the spread of Christianity. Christians have a right to
preach and publish the Gospel in the lands of barbarians.

10. The Pope could entrust to the Spaniards alone the task of converting
the Indian aborigines and could forbid to all others not only preaching, but
trade too, if the propagation of Christianity would thus be furthered.

11. The Indians are not to be warred into subjection or despoiled of their
property, if they give the Spaniards unhindered freedom to preach the
Gospel, and this whether they accept the faith or not.

12. How the aborigines who hinder the spread of the Gospel, whether it be
their lords or the populace, may be coerced by the Spaniards, so long as no
scandal is caused. And what is to be said of those who, while admitting
preaching, prevent conversion, either by killing or punishing or
terrorizing those who have been converted to Christianity?

13. How the Indians might have come under the sway of the Spaniards by the
fact that, when they had been converted and become Christians, their princes
desired to bring them back to idolatry by force or by fear, and so they were
taken into the protection and guardianship of the Spaniards.

14. The Indians might have come under the sway of the Spaniards by the fact
that, after the conversion of a large part of them to Christianity, the
Pope, either with or without a request on their part, might on reasonable
grounds have given them a Christian prince, such as the King of Spain, and
driven out their infidel lords.

15. Whether the Indians could have come under the sway of the Spaniards
because of the tyranny of their lords or because of tyrannical laws which
injured innocent folk.

16. The Indian aborigines could have come under the sway of the Spaniards
through true and voluntary choice.

17. The Indians might have come under the sway of the Spaniards by a title
of alliance and friendship.

18. Whether the Spaniards could have reduced the Indians into their power,
if it were certainly clear that they were of defective intelligence.

I will now speak of the lawful and adequate titles whereby the Indians
might have come under the sway of the Spaniards. (1) The first title to be
named is that of natural society and fellowship. And hereon let my first
conclusion be: (2) The Spaniards have a right to travel into the lands in
question and to sojourn there, provided they do no harm to the natives, and
the natives may not prevent them. Proof of this may in the first place be
derived from the law of nations (jus gentium), which either is natural law
or is derived from natural law (Inst., 1, 2, 1): “What natural reason has
established among all nations is called the jus gentium.” For, congruently
herewith, it is reckoned among all nations inhumane to treat visitors and
foreigners badly without some special cause, while, on the other hand, it is
humane and correct to treat visitors well; but the case would be different,
if the foreigners were to misbehave when visiting other nations.

Secondly, it was permissible from the beginning of the world (when
everything was in common) for any one to set forth and travel wheresoever he
would. Now this was not taken away by the division of property, for it was
never the intention of peoples to destroy by that division the reciprocity
and common user which prevailed among men, and indeed in the days of Noah it
would have been inhumane to do so.

Thirdly, everything is lawful which is not prohibited or which is not
injurious or hurtful to others in some other way. But (so we suppose) the
travel of the Spaniards does no injury or harm to the natives. Therefore it
is lawful.

Fourthly, it would not be lawful for the French to prevent the Spanish from
traveling or even from living in France, or vice versa, provided this in no
way enured to their hurt and the visitors did no injury. Therefore it is not
lawful for the Indians.

Further, fifthly, banishment is one of the capital forms of punishment.
Therefore it is unlawful to banish strangers who have committed no fault.

Further, sixthly, to keep certain people out of the city or province as
being enemies, or to expel them when already there, are acts of war.
Inasmuch, then, as the Indians are not making a just war on the Spaniards
(it being assumed that the Spaniards are doing no harm), it is not lawful
for them to keep the Spaniards away from their territory. Further,
seventhly, there is the Poet’s verse,

Quod genus hoc hominum? quaeve hunc tam barbara morem Permittit patria?
hospitio prohibemur arenae.

[What race of men is this? or what country is barbarous enough to allow
this usage? We are driven off from the hospitality of its shore.]

Also, eighthly, “Every animal loveth its kind” (Ecclesiasticus, ch. 15).
Therefore, it appears that friendship among men exists by natural law and
it is against nature to shun the society of harmless folk.

Also, ninthly, there is the passage (St. Matthew, ch. 25): “I was a
stranger and ye took me not in.” Hence, as the reception of strangers seems
to be by natural law, that Judgment of Christ will be pronounced with
universal application.

Tenthly, “by natural law running water and the sea are common to all, so
are rivers and harbors, and by the law of nations ships from all parts may
be moored there” (Inst., 2, 1); and on the same principle they are public
things. Therefore it is not lawful to keep any one from them. Hence it
follows that the aborigines would be doing a wrong to the Spaniards, if they
were to keep them from their territories.

Also, eleventhly, these very persons admit all other barbarians from all
parts. Therefore, they would be doing a wrong, if they were not to admit the
Spaniards.

Also, twelfthly, if it were not lawful for the Spaniards to travel among
them, this would be either by natural law or by divine law or by human law.
Now, it is certainly lawful by natural and by divine law. And if there were
any human law which without any cause took away rights conferred by natural
and divine law, it would be inhumane and unreasonable and consequently would
not have the force of law.

Thirteenthly, either the Spaniards are subjects of the Indians or they are
not. If they are not, then the Indians can not keep them away. If they are,
then the Indians ought to treat them well.

Also, fourteenthly, the Spaniards are the neighbors of the barbarians, as
appears from the Gospel parable of the Samaritan (St. Luke, ch. 10). But
they are bound to love their neighbors as themselves (St. Matthew, ch. 22).
Therefore they may not keep them away from their country without cause:
“When it is said ‘Love thy neighbour,’ it is dear that every man is our
neighbour” (St. Augustine’s De doctrina Christiana).

3. Second proposition: The Spaniards may lawfully carry on trade among the
native Indians, so long as they do no harm to their country, as, for
instance, by importing thither wares which the natives lack and by
exporting thence either gold or silver or other wares of which the natives
have abundance. Neither may the native princes hinder their subjects from
carrying on trade with the Spanish; nor, on the other hand, may the princes
of Spain prevent commerce with the natives. This is proved by means of my
first proposition.

Firstly, because it is an apparent rule of the jus gentium that foreigners
may carry on trade, provided they do no hurt to citizens.

Also, secondly, a similar proof lies in the fact that this is permitted by
the divine law. Therefore a law prohibiting it would undoubtedly not be
reasonable.

Also, thirdly, the sovereign of the Indians is bound by the law of nature
to love the Spaniards. Therefore the Indians may not causelessly prevent the
Spaniards from making their profit where this can be done without injury to
themselves.

A fourth reason is that such conduct would be against the proverb:

“Thou shall not do to another what thou wouldest not wish done to
thyself.”

And, in sum, it is certain that the aborigines can no more keep off the
Spaniards from trade than Christians can keep off other Christians. Now, it
is clear that if the Spaniards kept off the French from trade with the
Spaniards, and this not for the good of Spain, but in order to prevent the
French from sharing in some advantage, that practice would offend against
righteousness and charity. If, then, there can be no just legal ordinance
to this effect, it also can not be accomplished in actual fact (for the
injustice of a law consists solely in the execution of the law). And, as is
said in Dig., 1, 1, 3, “Nature has established a bond of relationship
between all men,” and so it is contrary to natural law for one man to
dissociate himself from another without good reason. “Man,” says Ovid, “is
not a wolf to his fellow man, but a man.”

4. Third proposition: If there are among the Indians any things which are
treated as common both to citizens and to strangers, the Indians may not
prevent the Spaniards from a communication and participation in them. If,
for example, other foreigners are allowed to dig for gold in the land of
the community or in rivers, or to fish for pearls in the sea or in a river,
the natives can not prevent the Spaniards from doing this, but they have the
same right to do it as others have, so long as the citizens and indigenous
population are not hurt thereby. This is proved by my first and second
propositions. For if the Spaniards may travel and trade among them, they may
consequently make use of the laws and advantages enjoyed by all foreigners.

Secondly, inasmuch as things that belong to nobody are acquired by the
first occupant according to the law of nations (Inst., 2, 1, 12), it follows
that if there be in the earth gold or in the sea pearls or in a river
anything else which is not appropriated by the law of nations those will
vest in the first occupant, just as the fish in the sea do. And, indeed,
there are many things in this connection which issue from the law of
nations, which, because it has a sufficient derivation from natural law, is
clearly capable of conferring rights and creating obligations. And even if
we grant that it is not always derived from natural law, yet there exists
clearly enough a consensus of the greater part of the whole world,
especially in behalf of the common good of all. For if after the early days
of the creation of the world or its recovery from the flood the majority of
mankind decided that ambassadors should everywhere be reckoned inviolable
and that the sea should be common and that prisoners of war should be made
slaves, and if this, namely, that strangers should not be driven out, were
deemed a desirable principle, it would certainly have the force of law, even
though the rest of mankind objected thereto.

5. Fourth proposition: If children of any Spaniard be born there and they
wish to acquire citizenship, it seems they can not be barred either from
citizenship or from the advantages enjoyed by other citizens — I refer to
the case where the parents had their domicile there. The proof of this is
furnished by the rule of the law of nations, that he is to be called and is
a citizen who is born within the state (Cod., 7, 62, 11). And the
confirmation lies in the fact that, as man is a civil animal, whoever is
born in any one state is not a citizen of another state. Therefore, if he
were not a citizen of the state referred to, he would not be a citizen of
any state, to the prejudice of his rights under both natural law and the law
of nations. Aye, and if there be any persons who wish to acquire a domicile
in some state of the Indians, as by marriage or in virtue of any other fact
whereby other foreigners are wont to become citizens, they can not be
impeded any more than others, and consequently they enjoy the privileges of
citizens just as others do, provided they also submit to the burdens to
which others submit. And the passages wherein hospitality is commended are
to the same effect (I St. Peter, ch. 4): “Use hospitality one to another”;
and (I Timothy, ch. 3, about a bishop): “A bishop must be given to
hospitality.” Hence, on the other hand, refusal to receive strangers and
foreigners is wrong in itself.

6. Fifth proposition: If the Indian natives wish to prevent the Spaniards
from enjoying any of their above-named rights under the law of nations, for
instance, trade or other above-named matter, the Spaniards ought in the
first place to use reason and persuasion in order to remove scandal and
ought to show in all possible methods that they do not come to the hurt of
the natives, but wish to sojourn as peaceful guests and to travel without
doing the natives any harm; -and they ought to show this not only by word,
but also by reason, according to the saying, “It behoveth the prudent to
make trial of everything by words first.” But if, after this recourse to
reason, the barbarians decline to agree and propose to use force, the
Spaniards can defend themselves and do all that consists with their own
safety, it being lawful to repel force by force. And not only so, but, if
safety can not otherwise be had, they may build fortresses and defensive
works, and, if they have sustained a wrong, they may follow it up with war
on the authorization of their sovereign and may avail themselves of the
other rights of war. The proof hereof lies in the fact that warding-off and
avenging a wrong make a good cause of war, as said above, following St.
Thomas (Secunda Secundæ, qu. 40). But when the Indians deny the Spaniards
their rights under the law of nations they do them a wrong. Therefore, if it
be necessary, in order to preserve their right, that they should go to war,
they may lawfully do so.

It is, however, to be noted that the natives being timid by nature and in
other respects dull and stupid, however much the Spaniards may desire to
remove their fears and reassure them with regard to peaceful dealings with
each other, they may very excusably continue afraid at the sight of men
strange in garb and armed and much more powerful than themselves. And
therefore, if, under the influence of these fears, they unite their efforts
to drive out the Spaniards or even to slay them, the Spaniards might,
indeed, defend themselves but within the limits of permissible
self-protection, and it would not be right for them to enforce against the
natives any of the other rights of war (as, for instance, after winning the
victory and obtaining safety, to slay them or despoil them of their goods or
seize their cities), because on our hypothesis the natives are innocent and
are justified in feeling afraid. Accordingly, the Spaniards ought to defend
themselves, but so far as possible with the least damage to the natives, the
war being a purely defensive one.

There is no inconsistency, indeed, in holding the war to be a just war on
both sides, seeing that on one side there is right and on the other side
there is invincible ignorance. For instance, just as the French hold the
province of Burgundy with demonstrable ignorance, in the belief that it
belongs to them, while our Emperor’s right to it is certain, and he may make
war to regain it, just as the French may defend it, so it may also befall in
the case of the Indians — a point deserving careful attention. For the
rights of war which may be invoked against men who are really guilty and
lawless differ from those which may be invoked against the innocent and
ignorant, just as the scandal of the Pharisees is to be avoided in a
different way from that of the self-distrustful and weak.

7. Sixth proposition: If after recourse to alt other measures, the
Spaniards are unable to obtain safety as regards the native Indians, save by
seizing their cities and reducing them to subjection, they may lawfully
proceed to these extremities. The proof lies in the fact that “peace and
safety are the end and aim of war,” as St. Augustine says, writing to
Boniface. And since it is now lawful for the Spaniards, as has been said, to
wage defensive war or even if necessary offensive war, therefore, everything
necessary to secure the end and aim of war, namely, the obtaining of safety
and peace, is lawful,

8. Seventh proposition: If, after the Spaniards have used all diligence,
both in deed and in word, to show that nothing will come from them to
interfere with the peace and well-being of the aborigines, the latter
nevertheless persist in their hostility and do their best to destroy the
Spaniards, then they can make war on the Indians, no longer as on innocent
folk, but as against forsworn enemies, and may enforce against them all the
rights of war, despoiling them of their goods, reducing them to captivity,
deposing their former lords and setting up new ones, yet withal with
observance of proportion as regards the nature of the circumstances and of
the wrongs done to them. This conclusion is sufficiently apparent from the
fact that, if it be lawful to declare the war, it is consequently lawful to
pursue the rights of war. And it is confirmed by the consideration that the
aborigines ought not to hold a better position merely because they are
unbelievers. But all the things enumerated would be lawful against
Christians, when once a just war has arisen. Therefore they are lawful
against the aborigines, too. Also, it is a universal rule of the law of
nations that whatever is captured in war becomes the property of the
conqueror, as is laid down in Dig., 49, 15, 28 and 24, and in Decretum, pt.
1, dist. 1, can. 9, and more expressly in Inst., 2, 1, 17, where it is said
that “by the law of nations whatever we take from the enemy becomes ours at
once, to such an extent that even men may be brought into slavery to us.
Further (as the doctors say on the topic of war), a prince who has on hand
a just war is ipso jure the judge of his enemies and can inflict a legal
punishment on them, condemning them according to the scale of their
wrongdoing. Everything said above receives confirmation from the fact that
ambassadors are by the law of nations inviolable and the Spaniards are the
ambassadors of Christian peoples. Therefore, the native Indians are bound to
give them, at least, a friendly hearing and not to repel them. This, then,
is the first title which the Spaniards might have for seizing the provinces
and sovereignty of the natives, provided the seizure be without guile or
fraud and they do not look for imaginary causes of war. For if the natives
allow the Spaniards to traffic peaceably among them, the Spaniards could not
allege in this connection any just cause for seizing their goods any more
than the goods of Christians.

9. Another possible title is by way of propagation of Christianity. In this
connection let my first proposition be: Christians have a right to preach
and declare the Gospel in barbarian lands. This proposition is manifest from
the passage: “Preach the Gospel to every creature,” etc.,[13] and also, “The
word of the Lord is not bound” (II Timothy, ch. 2). Secondly, our
proposition is dear from what has been already said, for if the Spaniards
have a right to travel and trade among the Indians, they can teach the
truth to those willing to hear them, especially as regards matters
pertaining to salvation and happiness, much more than as regards matters
pertaining to any human subject of instruction. Thirdly, because the natives
would otherwise be outside the pale of salvation, if Christians were not
allowed to go to them carrying the Gospel message. Fourthly, because
brotherly correction is required by the law of nature, just as brotherly
love is. Since, then, the Indians are all not only in sin, but outside the
pale of salvation, therefore, it concerns Christians to correct and direct
them; nay, it seems that they are bound to do so. Fifthly and lastly,
because they are our neighbors, as said above: “Now the Lord has laid a
command on everyone concerning his neighbour” (Ecclesiasticus, ch. 17).
Therefore it concerns Christians to instruct those who are ignorant of these
supremely vital matters.

10. Second proposition: Although this is a task common and permitted to all,
yet the Pope might entrust it to the Spaniards and forbid it to all others.
The proof is in the fact that, although (as said above) the Pope is not
temporal lord, yet he has power in matters temporal when this would subserve
matters spiritual. Therefore, as it is the Pope’s concern to bestow especial
care on the propagation of the Gospel over the whole world, he can entrust
it to the Spaniards to the exclusion of all others, if the sovereigns of
Spain could render more effective help in the spread of the Gospel in those
parts; and not only could the Pope forbid others to preach, but also to
trade there, if this would further the propagation of Christianity, for he
can order temporal matters in the manner which is most helpful to spiritual
matters. And if in this case that is how spiritual matters would be best
helped, it consequently falls within the authority and power of the supreme
Pontiff. But it seems that in this case this is the course most conducive to
spiritual welfare, because, if there was to be an indiscriminate inrush of
Christians from other parts to the part in question, they might easily
hinder one another and develop quarrels, to the banishment of tranquillity
and the disturbance of the concerns of the faith and of the conversion of
the natives. Further, inasmuch as it was the sovereigns of Spain who were
the first to patronize and pay for the navigation of the intermediate ocean,
and as they then had the good fortune to discover the New World, it is just
that this travel should be forbidden to others and that the Spaniards should
enjoy alone the fruits of their discovery. For, just as in the interests of
the preservation of the peace among princes and of the spread of religion
the Pope could make such a distribution of the land of the Saracens among
Christian princes as would prevent one from crossing over the lands of
another, so also for the good of religion he could appoint princes,
especially where there were aforetime no Christian princes.

11. Third proposition: If the Indians allow the Spaniards freely and
without hindrance to preach the Gospel, then whether they do or do not
receive the faith, this furnishes no lawful ground for making war on them
and seizing in any other way their lands. This has been proved above,[14]
where we confuted the fourth alleged title, and it is self-evident, seeing
that there can not be a just war where no wrong has previously been done
(Secunda Secundae, qu. 40, art. 1).

12. Fourth proposition: If the Indians — whether it be their lords or the
populace — prevent the Spaniards from freely preaching the Gospel, the
Spaniards, after first reasoning with them in order to remove scandal, may
preach it despite their unwillingness and devote themselves to the
conversion of the people in question, and if need be they may then accept or
even make war, until they succeed in obtaining facilities and safety for
preaching the Gospel. And the same pronouncement must be made in the case
where they allow preaching, but hinder conversion either by killing or
otherwise punishing those who have been converted to Christ or by deterring
others by threats and fears. This is clear, because herein the Indians would
be doing an injury to the Spaniards (as appears from what has already been
said) and these would have a just cause of war. A second reason is that an
obstacle would thereby be put in the way of the welfare of the Indians
themselves such as their princes have no right to put there. Therefore, in
favor of those who are oppressed and suffer wrong, the Spaniards can make
war, especially as such vitally important interests are at stake. This
proposition demonstrates that, if there is no other way to carry on the work
of religion, this furnishes the Spaniards with another justification for
seizing the lands and territory of the natives and for setting up new lords
there and putting down the old lords and doing in right of war everything
which it is permitted in other just wars, but always with a regard for
moderation and proportion, so as to go no further than necessity demands,
preferring to abstain from what they lawfully might do rather than
transgress due limits, and with an intent directed more to the welfare of
the aborigines than to their own gain.

Careful attention must, however, be paid to what St. Paul says (I
Corinthians, ch. 6): “All things are lawful unto me, but not all things are
expedient.” So everything said above must be taken as spoken absolutely. For
it may be that these wars and massacres and spoliations will hinder rather
than procure and further the conversion of the Indians. Accordingly, the
prime consideration is that no obstacle be placed in the way of the Gospel,
and if any such be so placed, this method of evangelization must be
abandoned and another one sought for. What we have been showing is what is
lawful in itself. I personally have no doubt that the Spaniards were Bound
to employ force and arms in order to continue their work there, but I fear
measures were adopted in excess of what is allowed by human and divine law.
The title under consideration might, then, be a second lawful title whereby
the Indians might fall into the power of Spain. But regard must ever be had
to what has just been said lest what in itself is lawful be made in the
circumstances wrong, for goodness springs from the one complete[15] cause,
but badness from individual defects, according to Aristotle (Ethics, bk. 3)
and Dionysius (De divinis nominibus, ch. 4).

13. Another title there may be, which is derived from the foregoing,
namely: If any of the native converts to Christianity be subjected to force
or fear by their princes in order to make them return to idolatry, this
would justify the Spaniards, should other methods fail, in making war and in
compelling the barbarians by force to stop such misconduct, and in employing
the rights of war against such as continue obstinate, and consequently at
times in deposing rulers as in other just wars. This can be reckoned a third
just title, a title based not only on religion, but on human friendship and
alliance, inasmuch as the native converts to Christianity have become
friends and allies of Christians and we are under an obligation to do “good
unto all men, especially unto such as are of the household of faith ”
(Galatians, ch. 6).

14. Another possible title is the following: Suppose a large part of the
Indians were converted to Christianity, and this whether it were done
lawfully or unlawfully (as by means of threats or fear or other improper
procedure), so long as they really were Christians, the Pope might for a
reasonable cause, either with or without a request from them, give them a
Christian sovereign and depose their other unbelieving rulers. The proof
hereof is in the fact that, if this were expedient in order to preserve
Christianity because of a fear that under unbelieving rulers converts would
apostatize, that is, would lapse from the faith, or that their rulers would
seize the opportunity to harass them, the Pope can change rulers in the
interests of the faith. And confirmation is found in the fact that, as the
doctors assert and as St. Thomas expressly says (Secunda Secundae, qu. 10.
art. 10), the Church could free all Christian slaves who are in bondage to
unbelievers even if that bondage was in other respects lawful. Innocent
expressly declares this, in the above-mentioned X, 3, 34, 8. Therefore much
more will he be able to free other Christians who have been reduced to
bondage but not as stringently as slaves. Confirmation hereof is also to be
found in the fact that a wife is as much bound to her husband as a bondsman
is to his lord, and even more so, seeing that marriage is a tie of the
divine law and bondage is not. But in the interests of the faith a believing
wife is freed from an unbelieving husband, if he persecutes her for her
religion, as appears from I Corinthians, ch. 7, and X, 4, 19, 7. Aye, the
custom now is that by the very fact of one spouse being converted to the
faith he or she is freed from the other who is an unbeliever. Therefore also
the Church, in the interests of the faith and to avoid risks, may free an
Christians from obedience and subjection to unbelieving lords, provided this
be done without scandal. So we justify this fourth legal title.

15. Another possible title is founded either on the tyranny of those who
bear rule among the aborigines of America or on the tyrannical laws which
work wrong to innocent folk there, such as that which allows the sacrifice
of innocent people or the killing in other ways of uncondemned. people for
cannibalistic purposes. I assert also that without the Pope’s authority the
Spaniards can stop all such nefarious usage and ritual among the
aborigines, being entitled to rescue innocent people from an unjust death.
This is proved by the fact that “God has laid a charge on every individual
concerning his neighbor,”[16] and they all are our neighbors. Therefore, any
one may defend them from such tyrannical and oppressive acts, and it is
especially the business of princes to do so. A further proof is given by
Proverbs, ch. 24: “Deliver them that are drawn unto death, and forbear not
to free those that are being dragged to destruction.” This passage is not to
be taken as applying only when victims are actually being dragged to death,
but the natives can also be compelled to abstain from such ritual. And if
they refuse, it is a good ground for making war on them and proceeding
against them under the law of war, and if such sacrilegious rites can not
otherwise be stopped, for changing their rulers and creating a new
sovereignty over them. In this connection we find the opinion of Innocent
and the Archbishop to be sound, namely, that punishment can be inflicted for
sins against nature. And it is immaterial that all the Indians assent to
rules and sacrifices of this kind and do not wish the Spaniards to champion
them, for herein they are not of such legal independence as to be able to
consign themselves or their children to death. So we may find a fifth lawful
title here.

16. Another possible title is by true and voluntary choice, as if the
Indians, aware alike of the prudent administration and the humanity of the
Spaniards, were of their own motion, both rulers and ruled, to accept the
King of Spain as their sovereign. This could be done and would be a lawful
title, by the law natural too, seeing that a State can appoint any one it
will to be its lord, and therefor the consent of all is not necessary, but
the consent of the majority suffices. For, as I have argued elsewhere, in
matters touching the good of the State the decisions of the majority bind
even when the rest are of a contrary mind; otherwise naught could be done
for the welfare of the State, it being difficult to get all of the same way
of thinking. Accordingly, if the majority of any city or province were
Christians and they, in the interests of the faith and for the common weal,
would have a prince who was a Christian, I think that they could elect him
even against the wishes of the others and even if it meant the repudiation
of other unbelieving rulers, and I assert that they could choose a prince
not only for themselves, but for the whole State, just as the Franks for the
good of their State changed their sovereigns and, deposing Childeric, put
Pepin, the father of Charlemagne, in his place, a change which was approved
by Pope Zacharias. This, then, can be put forward as a sixth title.

17. Another title may be found in the cause of allies and friends. For as
the Indians themselves sometimes wage lawful wars with one another and the
side which has suffered a wrong has the right to make war, they might summon
the Spaniards to help and share the rewards of victory with them. This is
what the Tlaxcaltecs are said to have done against the Mexicans, the former
arranging with the Spaniards to help them to overcome the latter and to
receive whatever could fall to them under the law of war. For there is no
doubt, as Cajetan also asserts (Secunda Secundae, qu. 40, art. 1), that the
cause of allies and friends is a just cause of war, a State being quite
properly able, as against foreign wrongdoers, to summon foreigners to punish
its enemies. And this is confirmed by the fact that this was a method very
much in vogue among the Romans for the extension of their Empire; that is,
they brought aid to their allies and friends and so making a just war came,
by right of war, into possession of fresh provinces. Yet the Roman Empire is
approved by St. Augustine (De civitate Dei, bk. 5) and by St. Thomas
(Opusculum 21) as a lawful one. And Sylvester reckoned Constantine the Great
as Emperor, as St. Ambrose did Theodosius. Now, there does not seem any
other juridic title whereby the Romans came into possession of the world,
save in right of war, and the most especial cause of their wars was the
defense and protection of their friends. In just the same way Abraham
championed the cause of the King of Salem and of other kings who had struck
a treaty with him, and he fought against four kings of that region, though
they had done him personally no wrong (Genesis, ch. 14). This is the seventh
and the last title whereby the Indians and their lands could have come or
might come into the possession and lordship of Spain.

18. There is another title which can indeed not be asserted, but brought up
for discussion, and some think it a lawful one. I dare not affirm it at
all, nor do I entirely condemn it. It is this: Although the aborigines In
question are (as has been said above) not wholly unintelligent, yet they are
little short of that condition, and so are unfit to found or administer a
lawful State up to the standard required by human and civil claims.
Accordingly they have no proper laws nor magistrates, and are not even
capable of controlling their family affairs; they are without any literature
or arts, not only the liberal arts, but the mechanical arts also; they have
no careful agriculture and no artisans; and they lack many other
conveniences, yea necessaries, of human life. It might, therefore, be
maintained that in their own interests the sovereigns of Spain might
undertake the administration of their country, providing them with prefects
and governors for their towns, and might even give them new lords, so long
as this was clearly for their benefit. I say there would be some force in
this contention; for if they were all wanting in intelligence, there is no
doubt that this would not only be a permissible, but also a highly proper,
course to take; nay, our sovereigns would be bound to take it, just as if
the natives were infants. The same principle seems to apply here to them as
to people of defective intelligence; and indeed they are no whit or little
better than such so far as self-government is concerned, or even than the
wild beasts, for their food is not more pleasant and hardly better than that
of beasts. Therefore their governance should in the same way be entrusted to
people of intelligence. There is clear confirmation hereof, for if by some
accident of fortune all their adults were to perish and there were to be
left boys and youths in enjoyment, indeed, of a certain amount of reason,
but of tender years and under the age of puberty, our sovereigns would
certainly be justified in taking charge of them and governing them so long
as they were in that condition. Now, this being admitted, it appears
undeniable that the same could be done in the case of their barbarian
parents, if they be supposed to be of that dullness of mind which is
attributed to them by those who have been among them and which is reported
to be more marked among them than even among the boys and youths of other
nations. And surely this might be founded on the precept of charity, they
being our neighbors and we being bound to look after their welfare. Let
this, however, as I have already said, be put forward without dogmatism and
subject also to the limitation that any such interposition be for the
welfare and in the interests of the Indians and not merely for the profit of
the Spaniards. For this is the respect in which all the danger to soul and
salvation lies. And herein some help might be gotten from the consideration,
referred to above, that some are by nature slaves, for all the barbarians in
question are of that type and so they may in part be governed as slaves are.

Now, it seems to follow from all this discussion that, if there be no force
in any of the titles which have been put forward, so that the native Indians
neither gave cause for just war nor wished for Spanish rulers, etc., all
the travel to, and trade with, those parts should be stopped, to the great
loss of the Spaniards and also to the grave hurt of the royal treasury (a
thing intolerable). My first answer to this is: There would be no obligation
to stop trade, for, as already said, there are many commodities of which the
natives have a superfluity and which the Spaniards could acquire by barter.
Also there are many commodities which the natives treat as ownerless or as
common to all who like to take them, and the Portuguese, to their own great
profit, have a big trade with similar people without reducing them to
subjection. Secondly, there would probably be no diminution in the amount of
the royalties, for a tax might quite fairly be placed on the gold and
silver which would be brought away from the Indians, as much as a fifth or
even more, according to quality, and it would be well-earned, inasmuch as
the maritime discovery was made by our sovereign and it is under his
authority that trade is carried on in safety. Thirdly, it is evident, now
that there are already so many native converts, that it would be neither
expedient nor lawful for our sovereign to wash his hands entirely of the
administration of the lands in question.

1. St. Thomas’ Conclusio here is “Justae leges humanae obligant homines, in
foro conscientiae ratione leges aeternae a qua derivantur.” — TRANSL.
2. This is founded on a mistranslation of the Hebrew; see A. V., Ps. 104,
v. 17. — TRANSL.
3. Victoria has Hieronymous here following the editio Romana of the Corpus
Juris Canonici, which attributes this to St. Jerome.
4. St. John, ch. 18, v. 36.
5. Psalm 24, v. l.
6. St. Matthew, ch. 28, v. 18.
7. I Pet., ch. 5.
8. St. John, ch. 21, v. 17.
9. St. Mark, ch. 16. v. 16.
10. Summa aurea sententiarum: Paris edition (1500), fol. CXXXV, col. 4 at
end.
11. De Sacramentis Christianae fidei.
12. Romans, ch. 9, v. 18.

• Otherwise to be blamed.

13. St. Mark, ch. 16, v. 15.
    14. In the immediately preceding section.
    15. The reference to Aristotle can not be traced with certainty; but the
    text follows Dionysius closely. He wrote, literally translated, “The good is
    from the one and complete (mia kai ol) cause but the bad from many and
    partial defects.” — TRANSL.
    16. Ecclesiasticus, ch. 17, v. 12.

De Indis De Jure Belli by Francisco de Vitoria
Part 3

 THE SECOND RELECTIO
OF THE REVEREND FATHER, BROTHER FRANCISCUS DE VICTORIA,
ON THE INDIANS, OR ON THE LAW OF WAR MADE BY THE SPANIARDS ON THE
BARBARIANS.

SUMMARY.
1. Christians may serve in war and make war.
2. In whose hands lies the authority to make or declare war?
3. Anyone, even a private person, can accept and wage a defensive war.
4. Whether one who is attacked by a robber or a foe may strike back the
Assailant, if able to escape by flight.
5. Every commonwealth has authority to declare and make war.
6. A prince has the same authority to declare and make war as a State has.
7. What a State is and who is properly styled a prince.
8. Whether several States or princes, when they have one common lord or
prince, may make war of themselves without the authority of the superior
lord.
9. Petty rulers or princes, who are not at the head of a complete State,
but are parts of another State, can not undertake or make war. And what
about cities?
10. What can be a reason or cause of just war? Proof that diversity of
religion is not a cause of just war.
11. Extension of an Empire is not a just cause of war.
12. The personal glory, or other advantage, of a prince is not a just cause
of war.
13. Wrong done is the sole and only just cause for making war.
14. Not every kind and degree of wrong suffices for making war.
15. When just war exists, everything is lawful which is necessary for the
defense of the public good.
16. In just war it is lawful to retake all things that have been lost, or a
part thereof.
17. In just war it is lawful to make good, out of the goods of the enemy,
all the cost of the war and all damages wrongfully caused by the enemy.
18. After property has been recaptured from an enemy in just war, what the
prince may then do.
19. It is lawful for a prince, after gaining the victory in a just war and
after retaking property, and even after the establishment of peace and
security, to avenge the wrongs done to him by the enemy and to take measures
against the enemy and punish them for these wrongs.
20. In order that a war be called just, it is not always enough that the
prince believes he has a just cause.
21. The justice of a war must be most thoroughly and carefully examined.
22. Whether subjects are bound to examine the cause of a war; and how, if a
subject is convinced of the injustice of a war, he may not serve in it,
even though his sovereign commands.
23. If subjects are conscientiously of opinion that a war is unjust, they
may not serve in it, whether their opinion be wrong or right.
24. Senators, petty rulers, and, in general, all who, either on summons or
coming of their own accord, are admitted to the public council or the
king’s council, are bound to examine the cause of an unjust war.
25. Who are not bound to examine the causes of war, but may lawfully serve
in it in reliance on the good faith of their betters.
26. When ignorance of the injustice of a war would not excuse subjects who
serve.
27. What is to be done, when there is doubt about the justice of a war; and
how if one prince be in lawful possession, so long as the doubt remains
another may not try to turn him out by war and armed force.
28. If there be a city or province concerning which it is doubtful whether
it has a lawful possessor, especially where there is a vacancy owing to the
death of the lawful lord, etc. — what is to be done in such a case.
29. How a person who is doubtful about his own title, even if he be in
peaceable possession, is bound to make careful examination of his case, if
perchance he can arrive at certainty either in his own favor or in favor of
another.
30. After the examination of a case, so long as a doubt reasonably
persists, a lawful possessor is not bound to quit possession, but may
lawfully retain it.
31. In a doubtful case, subjects may follow their prince to battle not only
in a defensive, but also in an offensive war.
32. Whether a war can be just on both sides, and how, apart from ignorance,
this can not happen.
33. Whether a prince or a subject, who in ignorance has prosecuted an unjust
war, is bound to make restitution, if afterwards he becomes convinced of its
injustice.
34. Whether it is lawful in war to kill the innocent.
35. Slaughter of the innocent is never lawful in itself and intentionally.
36. Whether it is lawful to kill women and children in a war against the
Turks; and what, among Christians, about farmers, civilians, foreigners,
strangers, and clergy.
37. The incidental killing of the innocent, even with knowledge, is
sometimes lawful, sometimes not.
38. Whether it is lawful to kill the innocent from whom danger in the
future is apprehended.
39. Whether it is lawful to despoil the innocent among the enemy, and what
things may be taken.
40. If war can be adequately conducted without despoiling farmers or other
innocent folk, it seems unlawful to despoil them; and what about foreigners
and strangers on enemy territory?
41. How, if the enemy refuse to restore the things which they have
wrongfully taken away, and the injured party can not recoup himself in any
other way, he can seek satisfaction where he will, whether from the guilty
or the innocent.
42. Whether the innocent and children, who are admittedly not to be killed,
may at least be led into captivity and slavery.
43. Whether hostages, taken from the enemy in time of truce or on the
termination of a war, may be put to death, if the enemy break faith and do
not abide by what has been agreed on.
44. Whether it is lawful in war to kill all the guilty.
45. It is lawful to kill without distinction all who resist in the actual
heat of battle either in the storming or in the defense of a city, and as
long as affairs are in peril.
46. It is lawful to kill the guilty, even after victory has been won and
danger has already been removed.
47. It is not always lawful to kill all the guilty, merely in order to
avenge a wrong.
48. At times it is both lawful and expedient to kill all the guilty,
especially in a war against unbelievers. And what in a war against
Christians?
49. Whether it is lawful to kill captives and those who have surrendered,
assuming them to have been guilty also.
50. Whether things captured in a just war belong to the captor and seizor;
and how these things vest in the seizor up to a sufficient satisfaction for
what has been wrongfully taken away and for expenses.
51. How all movables, by the law of nations, vest in the seizor, even
though their value more than compensates the wrong done.
52. Whether it is lawful to leave a city to the soldiery by way of booty;
and how this is not unlawful, but at times even necessary.
53. Soldiers may not loot or bum without authority; otherwise they are bound
to make restitution.
54. It is lawful to seize and hold the lands and fortresses and towns of
the enemy, so far as this is necessary by way of compensation for damages
done.
55. It is lawful to seize and hold an enemy fortress or city by way of
obtaining securely and avoiding danger or as a means of defense and in order
to take away from the enemy an opportunity to do harm, etc.
56. It is lawful to deprive the enemy of part of his territory on account
of the wrong he has done and by way of punishment, that is, revenge; and how
on this ground a fortress or town may be seized, so long as due limits are
observed.
57. Whether it is lawful to impose the payment of tribute on the conquered
enemy.
58. Whether it is lawful to depose the princes of the enemy and put new ones
over them or retain the sovereignty for oneself; and how it is not lawful to
do this indiscriminately and for every cause of just war whatsoever.
59. When the princes of the enemy may lawfully be deposed, is shown.
60. The canons or rules of belligerency are described.

Inasmuch as the seizure and occupation of those lands of the barbarians whom
we style Indians can best, it seems, be defended under the law of war, I
propose to supplement the foregoing discussion of the titles, some just and
some unjust, which the Spaniards may allege for their hold on the lands in
question, by a short discussion of the law of war, so as to give more
completeness to that relectio. As, however, the other claims on my time
will not allow me to deal with all the points which arise out of this topic,
the scope which I can give my pen must be proportionate, not to the
amplitude and dignity of the theme, but to the shortness of the time at my
disposal. And so I will merely note the main propositions of this topic,
together with very brief proofs, and will abstain from touching on the many
doubtful matters which might otherwise be brought into this discussion. I
will deal with four principal questions. First, Whether Christians may make
war at all; secondly, Where does the authority to declare or wage war
repose; thirdly, What may and ought to furnish causes of just war; fourthly,
What and how extensive measures may be taken in a just war against the
enemy?

As regards the first question, war might seem altogether prohibited to
Christians, for there is the prohibition of self-defense in the passage
(Romans, ch. 12), “Dearly beloved, avenge not yourselves, but give place
unto wrath,” and our Lord says in the Gospel (St. Matthew, ch. 5),
“Whosoever shall smite thee on the right cheek, turn to him the other also”
and “I say unto you not to resist evil,” and (St. Matthew, ch. 26), “All
they that take the sword shall perish by the sword.” And it is no sufficient
answer to say that all these matters are not of precept, but of counsel, for
it would be a grave enough impropriety if every war undertaken by Christians
was contrary to our Lord’s advice. The opinion of all the doctors is to the
contrary and so is the received usage of the Church.

In development of this question be it noted that, although Catholics are
fairly in accord on the matter, yet Luther, who left naught uncontaminated,
denies that Christians may take up arms even against the Turks, and he
relies not only on the above-cited texts of Scripture, but also on the fact
that if the Turks attack Christendom it is the will of God, which may not be
resisted. Herein, however, he had not as much success as in his other dogmas
in imposing on the Germans, who are born soldiers. Tertullian too, seems not
averse from this opinion, for in his De corona militis he discusses
“whether military service is at all right for a Christian,” and in the issue
he inclines to hold that military service is forbidden to a Christian, who,
says he, “may not even go to law.”

1. Passing over outside opinions, however, let my answer to the question be
given in the single proposition: Christians may serve in war and make war.
This is the conclusion of St. Augustine in the many passages where he
thoroughly considers the question, such as: (a) in his Contra Faustum, (b)
in his Liber 83 Quaestionum, (c) in his De verbis Domini, in his Contra
Secundinum Manichaeum, (d) in his sermon on the Centurion’s son, and (e) in
his Letter to Boniface. And, as St. Augustine shows, this is proved by the
words of John the Baptist to the soldiers (St. Luke, ch. 3), “Do violence to
no man, neither accuse any falsely.” “But,” says St. Augustine, (f) “if
Christian doctrine condemned war altogether, those looking for counsels of
salvation in the Gospel would be told to throw away their arms and give up
soldiering altogether; but what is said to them is, ‘Do violence to no man
and be content with your wages.'”

Secondly, there is proof in the reason of the thing (Secunda Secundae, qu.
40, art. 1). To draw the sword and use arms against internal wrongdoers and
seditious citizens is lawful according to Romans, ch. 13, “He beareth not
the sword in vain, for he is the minister of God, a revenger of wrath upon
him that doeth evil.” Therefore it is lawful also to use the sword and arms
against external enemies. Princes, accordingly, are told in the Psalms,1
“Deliver the poor and needy, rid them out of the hand of the wicked.”

Thirdly, this was also allowable by the law of nature, as appears from the
case of Abraham, who fought against four kings (Genesis, ch. 14), and also
by the written law, as appears from the cases of David and the Maccabees.
But the Gospel law forbids nothing which is allowed by natural law, as is
well shown by St. Thomas (Prima Secundae, qu. 107, last art.), and that is
why it is called the law of liberty (St. James, ch. 1 and 2). Therefore,
what was lawful under natural law and in the written law is no less lawful
under the Gospel law.

Fourthly, since there can be no doubt that in a defensive war force may be
employed to repel force (Dig., 1, 1, 3), this is also proved with regard to
an offensive war, that is, a war where we are not only defending ourselves
or seeking to repossess ourselves of property, but also where we are trying
to avenge ourselves for some wrong done to us. This, I say, is proved by the
authority of St. Augustine (Liber 83 Quastionum) in a passage also found in
can. dominus, C. 23, qu. 2, “Those wars are described as just wars which are
waged in order to avenge a wrong done, as where punishment has to be meted
out to a city or state because it has itself neglected to exact punishment
for an offense committed by its citizens or subjects or to return what has
been wrongfully taken away.”

A fifth proof with regard to an offensive war is that even a defensive war
could not be waged satisfactorily, were no vengeance taken on enemies who
have done or tried to do a wrong. For they would only be emboldened to make
a second attack, if the fear of retribution did not keep them from
wrongdoing.

A sixth proof is that, as St. Augustine says (De verbo Domini and Ad
Bonifacium), the end and aim of war is the peace and security of the State.
But there can be no security in the State unless enemies are made to desist
from wrong by the fear of war, for the situation with regard to war would
be glaringly unfair, if all that a State could do when enemies attack it
unjustly was to ward off the attack and if they could not follow this up by
further steps.

A seventh proof comes from the end and aim and good of the whole world. For
there would be no condition of happiness for the world, nay, its condition
would be one of utter misery, if oppressors and robbers and plunderers could
with impunity commit their crimes and oppress the good and innocent, and
these latter could not in turn retaliate on them.

My eighth and last proof is one which in morals carries the utmost weight,
namely, the authority and example of good and holy men. Such men have not
only defended their country and their own property in defensive wars, but
have also in offensive wars sought reparation for wrongs done or attempted
by their enemies, as appears from the case of Jonathan and Simon (I
Maccabees, ch. 9), who avenged the death of their brother John on the sons
of Jambri. And in the Christian Church we have the conspicuous examples of
Constantine the Great and Theodosius the Elder and other renowned and most
Christian Emperors, who made many wars of both kinds, although their
councils included bishops of great sanctity and learning.

2. Second question: In whose hands lies the authority to declare and to make
war?

3. Herein let my first proposition be: Any one, even a private person, can
accept and wage a defensive war. This is shown by the fact that force may be
repelled by force (Dig., as above). Hence any one can make this kind of war,
without authority from any one else, for the defense not only of his person,
but also of his property and goods.

4. A doubt, however, arises in connection with this proposition, namely,
whether one who is attacked by a robber or enemy can strike his assailant
back if escape by flight is possible. The Archbishop, indeed, says, No;
this being in excess of the limits of blameless self-defense, since everyone
is bound in the exercise of self-defense to do as little harm as possible to
his assailant. If, then, resistance would involve the death of or grievous
bodily harm to the assailant, but escape by flight is a possible thing, the
latter course ought to be adopted. Panormitanus, however, writing on X, 2,
13, 12, draws a distinction. If, says he, the victim would be seriously
disgraced by flight, he is not bound to fly, but may repel the wrong by
striking back, whereas if flight would not smirch his reputation or honor,
as when a monk or rustic is attacked by a noble and powerful man, he is
bound to fly instead. Bartolus, however, commenting on Dig., 48, 19, 1, and
48, 8, 9, holds without distinguishing that self-defense is lawful and that
there is no obligation to fly, the putting to flight being itself a wrong
(Dig., 47, 10, 15). If, then, armed resistance is permissible in defense of
property, as appears from X, 2, 13, 12, and from c. 6, tit. II, bk. 5 in VI,
much more is it permissible in order to protect the body from hurt, such
hurt being more serious than wrong to property (Dig., 48, 19, 10). This
opinion can be safely held and with possibility of demonstration, especially
as the civil law admits as much, as in Dig., 48, 8, 9. Now, no one sins who
acts under warrant of the law, inasmuch as the law affords justification in
the forum of conscience. Accordingly, even if natural law does not allow
killing in defense of property, this is rendered lawful by the civil law and
is available, so long as no scandal is caused, not only to laymen, but to
clerics and professed persons.

5. Second proposition: Every State has authority to declare and to make war.
In course of proof of this be it noted that the difference herein between a
private person and a State is that a private person is entitled, as said
above, to defend himself and what belongs to him, but has no right to
avenge a wrong done to him, nay, not even to recapt property that has been
seized from him if time has been allowed to go by since the seizure. But
defense can only be resorted to at the very moment of the danger, or, as the
jurists say, in continenti, and so when the necessity of defense has passed
there is an end to the lawfulness of war. In my view, however, one who has
been contumeliously assaulted can immediately strike back, even if the
assaulter was not proposing to make a further attack, for in the avoidance
of shame and disgrace one who (for example) has had his ears boxed might
immediately use his sword, not for the purpose of vengeance, but, as has
been said, in order to avoid infamy and disgrace. But a State is within its
rights not only in defending itself, but also in avenging itself and its
subjects and in redressing wrongs. This is proved by what Aristotle says in
the third book of his Politics, namely, that a State ought to be sufficient
unto itself. But it can not adequately protect the public weal and the
position of the State if it can not avenge a wrong and take measures against
its enemies, for wrongdoers would become readier and bolder for wrongdoing,
if they could do wrong with impunity. It is, therefore, imperative for the
due ordering of human affairs that this authority be allowed to States.

6. Third proposition: A prince has the same authority in this respect as
the State has. This is the opinion of St. Augustine (Contra Faustum): “The
natural order, best adapted to secure the peace of mankind, requires that
the authority to make war and the advisability of it should be in the hands
of the sovereign prince.” Reason supports this, for the prince only holds
his position by the election of the State. Therefore he is its
representative and wields its authority; aye, and where there are already
lawful princes in a State, all authority is in their hands and without them
nothing of a public nature can be done either in war or in peace.

7. Now, the whole difficulty is in the questions: What is a State, and who
can properly be called a sovereign prince? I will briefly reply to them by
saying that a State is properly called a perfect community. But the essence
of the difficulty is in saying what a perfect community is. By way of
solution be it noted that a thing is called perfect when it is a completed
whole, for that is imperfect in which there is something wanting, and, on
the other hand, that is perfect from which nothing is wanting. A perfect
State or community, therefore, is one which is complete in itself, that is,
which is not a part of another community, but has its own laws and its own
council and its own magistrates, such as is the Kingdom of Castile and
Aragon and the Republic of Venice and other the like. For there is no
obstacle to many principalities and perfect States being under one prince.
Such a State, then, or the prince thereof, has authority to declare war, and
no one else.

8. Here, however, a doubt may well arise whether, when a number of States of
this kind or a number of princes have one common lord or prince, they can
make war of themselves and without the authorization of their superior lord.
My answer is that they can do so undoubtedly, just as the kings who are
subordinate to the Emperor can make war on one another without waiting for
the Emperor’s authorization, for (as has been said) a State ought to be
self-sufficient, and this it would not be, if it had not the faculty in
question.

9. Hence it follows and is plain that other petty rulers and princes, who
are not at the head of a perfect State, but are parts of another State, can
not begin to carry on a war. Such is the Duke of Alva or the Count of
Benevento, for they are parts of the Kingdom of Castile and consequently
have not perfect States. As, however, these matters are for a great part
governed by the law of nations or by human law, Custom can give power and
authority to make war. And so if any State or prince has obtained by ancient
custom the right to make war of itself or himself, this authority can not be
gainsaid, even if in other respects the State be not a perfect one. So,
also, necessity can confer this license and authority. For if within one
and the same realm one city should take up arms against another, or one of
the dukes against another duke, and the king should neglect or should lack
courage to exact redress for the wrongs that have been done, the aggrieved
city or duke may not only resort to self-defense, but may also commence war
and take measures against the enemy and even kill the wrongdoers, there
being no other adequate means of self-defense. For the enemy would not cease
from outrage, if the victims thereof were content merely with self-defense.
On this principle a private person also may begin an attack on his foe, if
there is no other way of safeguarding himself from wrong. This is enough on
the present question.

10. Third question: What may be a reason and cause of just war? It is
particularly necessary to ask this in connection with the case of the
Indian aborigines, which is now before us. Here my first proposition is:
Difference of religion is not a cause of just war. This was shown at length
in the preceding Relectio, when we demolished the fourth alleged title for
taking possession of the Indians, namely, their refusal to accept
Christianity. And it is the opinion of St. Thomas (Secunda Secundae, qu. 66,
art. 8), and the common opinion of the doctors — indeed, I know of no one
of the opposite way of thinking.

11. Second proposition: Extension of empire is not a just cause of war.
This is too well known to need proof, for otherwise each of the two
belligerents might have an equally just cause and so both would be innocent.
This in its turn would involve the consequence that it would not be lawful
to kill them and so imply a contradiction, because it would be a just war.

12. Third proposition: Neither the personal glory of the prince nor any
other advantage to him is a just cause of war. This, too. is notorious. For
a prince ought to subordinate both peace and war to the common weal of his
State and not spend public revenues in quest of his own glory or gain, much
less expose his subjects to danger on that account. Herein, indeed, is the
difference between a lawful king and a tyrant, that the latter directs his
government towards his individual profit and advantage, but a king to the
public welfare, as Aristotle says (Politics, bk. 4, ch. 10). Also, the
prince derives his authority from the State. Therefore he ought to use it
for the good of the State. Also, laws ought “not to be enacted for the
private good of any individual, but in the common interest of all the
citizens,” as is ruled in can. 2, Dist. 4, a citation from Isadore.
Therefore the rules relating to war ought to be for the common good of all
and not for the private good of the prince. Again, this is the difference
between freemen and slaves, as Aristotle says (Politics, bk. I, ch. 3 and 4)
that masters exploit slaves for their own good and not for the good of the
slaves, while freemen do not exist in the interest of others, but in their
own interest. And so, were a prince to misuse his subjects by compelling
them to go soldiering and to contribute money for his campaigns, not for the
public good, but for his own private gain, this would be to make slaves of
them.

13. Fourth proposition: There is a single and only just cause for
commencing a war, namely, a wrong received. The proof of this rests in the
first place on the authority of St. Augustine (Liber 83 Quaestionum* “Those
wars are described as just wars,” etc., as above), and it is the conclusion
arrived at by St. Thomas (Secunda Secundae, qu. 40, art. 1) and the opinion
of all the doctors. Also, an offensive war is for the purpose of avenging a
wrong and of taking measures against an enemy, as said above. But there can
be no vengeance where there is no preceding fault and wrong. Therefore.
Also, a prince has no greater authority over foreigners than

over his own subjects. But he may not draw his sword against his own
subjects, unless they have done some wrong. Therefore not against foreigners
either. This is confirmed by the text already cited from St. Paul (Romans,
ch. 13) about a prince: “He beareth not the sword in vain: for he is the
minister of God, a revenger to execute wrath upon him that doeth evil.”
Hence it is clear that we may not turn our sword against those who do us no
harm, the killing of the innocent being forbidden by natural law. I omit
here any injunctions inconsistent herewith which God has given in special
cases, for He is the Lord of life and death and it is within His competence
to vary His dispositions.

14. Fifth proposition: Not every kind and degree of wrong can suffice for
commencing a war. The proof of this is that not even upon one’s own
fellow-countrymen is it lawful for every offense to exact atrocious
punishments, such as death or banishment or confiscation of property. As,
then, the evils inflicted in war are all of a severe and atrocious
character, such as slaughter and fire and devastation, it is not lawful for
slight wrongs to pursue the authors of the wrongs with war, seeing that the
degree of the punishment ought to correspond to the measure of the offence
(Deuteronomy, ch. 25).

15. The fourth question is about the law of war, namely, what kind and
degree of stress is lawful in a just war. Here let my first proposition be:
In war everything is lawful which the defense of the common weal requires.
This is notorious, for the end and aim of war is the defense and
preservation of the State. Also, a private person may do this in
self-defense, as has been proved. Therefore much more may a State and a
prince.

16. Second proposition: It is permissible to recapt everything that has
been lost and any part of the same. This is too notorious to need proof. For
war is -begun or undertaken with this object.

17. Third proposition: It is lawful to make good out of enemy property the
expenses of the war and all damages wrongfully caused by the enemy. This is
clear, for the enemy who has done the wrong is bound to give all this
redress. Therefore the prince can claim it all and exact it all by war.
Also, as before, there is the argument that, when no other way lies open, a
private creditor can seize the amount of his debt from the debtor. Also, if
there were any competent judge over the two belligerents, he would have to
condemn the unjust aggressors and authors of wrong, not only to make
restitution of what they have carried off, but also to make good the
expenses of the war to the other side, and also all damages. But a prince
who is carrying on a just war is as it were his own judge in matters
touching the war, as we shall forthwith show. Therefore he can enforce all
these claims upon his enemy.

18. Fourth proposition: Not only are the things just named allowable, but a
prince may go even further in a just war and do whatever is necessary in
order to obtain peace and security from the enemy; for example, destroy an
enemy’s fortress and even build one on enemy soil, if this be necessary in
order to avert a dangerous attack of the enemy. This is proved by the fact
that, as said above, the end and aim of war is peace and security.
Therefore a belligerent may do everything requisite to obtain peace and
security. Further, tranquillity and peace are reckoned among the desirable
things of mankind and so the utmost material prosperity does not produce a
state of happiness if there be no security there. Therefore it is lawful to
employ all appropriate measures against enemies who are plundering and
disturbing the tranquillity of the State. Also, all measures of this kind
may be taken against internal foes, that is, against bad citizens. Therefore
they are lawful against external foes. The antecedent is clear, for if one
citizen does a wrong to a fellow citizen, the magistrate not only compels
the wrongdoer to make amends to the injured party, but, if the former is a
source of fear to the latter, he is compelled to give bond or quit the city,
so as to remove the danger of which he is the cause. This shows that even
when victory has been won and redress obtained, the enemy may be made to
give hostages, ships, arms, and other things, when this is genuinely
necessary for keeping the enemy in his duty and preventing him from becoming
dangerous again.

19. Fifth proposition: Not only is all this permissible, but even after
victory has been won and redress obtained and peace and safety been secured,
it is lawful to avenge the wrong received from the enemy and to take
measures against him and exact punishment from him for the wrongs he has
done. In proof of this be it observed that princes have authority not only
over their own subjects, but also over foreigners, so far as to prevent them
from committing wrongs, and this is by the law of nations and by the
authority of the whole world. Nay, it seems to be by natural law also,
seeing that otherwise society could not hold together unless there was
somewhere a power and authority to deter wrongdoers and prevent them from
injuring the good and innocent. Now, everything needed for the government
and preservation of society exists by natural law, and in no other way can
we show that a State has by natural law authority to inflict pains and
penalties on its citizens who are dangerous to it. But if a State can do
this to its own citizens, society at large no doubt can do it to all wicked
and dangerous folk, and this can only be through the instrumentality of
princes. It is, therefore, certain that princes can punish enemies who have
done a wrong to their State and that after a war has been duly and justly
undertaken the enemy are just as much within the jurisdiction of the prince
who undertakes it as if he were their proper judge. Confirmation hereof is
furnished by the fact that in reality peace and tranquillity, which are the
end and aim of war, can not be had unless evils and damages be visited on
the enemy in order to deter them from the like conduct in the future. All
this is also proved and confirmed by the authority and examples of good men.
For, as said above, the Maccabees made war not only to recover the things
which they had lost, but also to avenge their wrongs. And some most
Christian princes and most religious Emperors have done the same thing.
Moreover, shame and disgrace are not wiped away from a State merely by its
rout of Its enemies, but also by its visiting severe punishment and
castigation on them. Now, among the things which a prince is bound to defend
and preserve for his State are its honor and authority.

20. Many doubts are suggested by what has just been said. In the first
place, there is a doubtful point in connection with the justice of a war,
whether it be enough for a just war that the prince believes himself to
have a just cause. On this point let my first proposition be: This belief is
not always enough. And for proof I rely, first, on the fact that in some
matters of less moment it is not enough either for a prince or for private
persons to believe that they are acting justly. This is notorious, for their
error may be vincible and deliberate, and the opinion of the individual is
not enough to render an act good, but it must come up to the standard of a
wise man’s judgment, as appears from Ethics, bk. 2. Also the result would
otherwise be that very many wars would be just on both sides, for although
it is not a common occurrence for princes to wage war in bad faith, they
nearly always think theirs is a just cause. In this way all belligerents
would be innocent and it would not be lawful to kill them. Also, were it
otherwise, even Turks and Saracens might wage just wars against Christians,
for they think they are thus rendering God service.

21. Second proposition: It is essential for a just war that an exceedingly
careful examination be made of the justice and causes of the war and that
the reasons of those who on grounds of equity oppose it be listened to. For
(as the comic poet says) “A wise man must make trial of everything by words
before resorting to force,” and he ought to consult the good and wise and
those who speak with freedom and without anger or bitterness or greed,
seeing that (as Sallust says) “where these vices hold sway, truth is not
easily distinguished.” This is self-evident. For truth and justice in moral
questions are hard of attainment and so any careless treatment of them
easily leads to error, an error which will be inexcusable, especially in a
concern of great moment, involving danger and calamity to many, and they our
neighbors, too, whom we are bound to love as ourselves.

22. Second doubt: Whether subjects are bound to examine the cause of a war
or whether they may serve in the war without any careful scrutiny thereof,
just as the lictors had to enforce the praetor’s decree without questioning.
On this doubt let my first proposition be: If a subject is convinced of the
injustice of a war, he ought not to serve in it, even on the command of his
prince. This is clear, for no one can authorize the killing of an innocent
person. But in the case before us the enemy are innocent. Therefore they may
not be killed. Again, a prince sins when he commences a war in such a case.
But “not only are they who commit such things worthy of death, but they,
too, who consent to the doing thereof” (Romans, ch. 1). Therefore soldiers
also are not excused when they fight in bad faith. Again, it is not lawful
to kill innocent citizens at the prince’s command. Therefore not aliens
either.

23. Hence flows the corollary that subjects whose conscience is against the
justice of a war may not engage in it whether they be right or wrong. This
is clear, for “whatever is not of faith is sin” (Romans, ch. 14).

24. Second proposition: Senators and petty rulers and in general all who
arc admitted on summons or voluntarily to the public council or the prince’s
council ought, and are bound, to examine into the cause of an unjust war.
This is clear; for whoever can save his neighbor from danger and harm is
bound to do so, especially when the danger is that of death and greater
ills, as is the case in war. But the persons referred to can avert the war,
supposing it to be unjust, if they lend their wisdom and weight to an
examination into its causes. Therefore they are bound so to do. Again, if
by their neglect an unjust war be entered on, they are consenting parties
thereto, for that which a man could and ought to prevent is imputed to him,
if he does not prevent it. Again, a ling is not by himself capable of
examining into the causes of a war and the possibility of a mistake on his
part is not unlikely and such a mistake would bring great evil and ruin to
multitudes. Therefore war ought not to be made on the sole judgment of the
king, nor, indeed, on the judgment of a few, but on that of many, and they
wise and upright men.

25. Third proposition: Other lesser folk who have no place or audience in
the prince’s council or in the public council are under no obligation to
examine the causes of a war, but may serve in it in reliance on their
betters. This is proved, first, by the fact that it is impossible and
inexpedient to give reasons for all acts of state to every member of the
commonalty. Also by the fact that men of the lower orders, even if they
perceived the injustice of a war, could not stop it, and their voice would
not be heeded. Therefore, any examination by them of the causes of a war
would be futile. Also by the fact that for men of this sort it is enough
proof of the justice of war (unless the contrary be quite certain) that it
is being waged after public counsel and by public authority. Therefore no
further examination on their part is needed.

26. Fourth proposition: Nevertheless the proofs and tokens of the injustice
of the war may be such that ignorance would be no excuse even to subjects of
this sort who serve in it. This is clear, because such ignorance might be
deliberate and adopted with evil intent towards the enemy. Also, were this
otherwise, unbelievers would be excused when they follow their chieftains
to war against Christians and it would be unlawful to kill them, it being
certain that they deem themselves to have a just cause of war. Also, the
soldiers who crucified Christ, ignorantly following Pilate’s order, would be
excused. Also, the Jewish mob would be excused which was led by the elders
to shout “Away with Him, crucify Him.”

27. Third doubt: What should be done when the justice of the war is
doubtful, that is, when there are apparent and probable reasons on both
sides. First proposition: As regards the princes themselves, it seems that
if one be in lawful possession, the other may not try to turn him out by war
and armed force, so long as the doubt remains. For example: Suppose the King
of France to be in lawful possession of Burgundy and that it be doubtful
whether he has or has not right thereto. The Emperor may not try to oust him
by arms; nor on the other hand may the French King seize Naples or Milan, if
there be doubt who is entitled to it. The proof is that in doubtful matters
the party in possession has the better position. Therefore it is not lawful
to dispossess the possessor in favor of a doubtful cause. Further, if the
matter were being heard by a lawful judge, he would never in case of doubt
dispossess the party in possession. Therefore, if we postulate that those
princes who are asserting a right are judges in their own cause, they may
not lawfully eject a possessor so long as there is any doubt about the
title. Further, in the suits and causes of private persons it is never
permissible in a doubtful matter to dispossess a lawful possessor. Therefore
not in the causes of princes; for the laws are the princes’ laws. Therefore,
if by human law it is not permissible in a doubtful matter to dispossess a
lawful possessor, it can quite validly be objected to princes, “Obey the law
thyself hast made, seeing that a man ought to adopt the same law for himself
which he has enjoined on others.” Also, were it otherwise, a war could be
just on both sides and would never be settled. For if in a doubtful matter
it were lawful for one side to assert his claim by force, the other might
make armed defense, and after the one had obtained what he claimed, the
other might afterwards claim it back, and so there would be war without end,
to the ruin and tribulation of peoples.

28. Second proposition: If the city or province in regard of which the
doubt arises has no lawful possessor, as, for instance, if it were open by
reason of the death of the lawful lord and there is a doubt whether the King
of Spain or the King of France be the heir and no certainty in point of law
can be attained, it seems that, if one party wants to settle and make a
division or compromise as to part of the claim, the other is bound to accept
his proposal, even if that other be the stronger and able to seize the whole
by armed force; nor would he have a just cause of war. The proof is that
when the merits of a quarrel are equal, one side does no wrong by claiming
an equal part of the thing in dispute. Further, in private disputes also,
where the matter is in doubt, one party may not seize the whole thing. Also,
in the same way the war would be just on both sides. Also, a just judge
would not decree and award the whole thing to either party.

29. Third proposition: He who is in doubt about his own title is bound,
even though he be in peaceable possession, to examine carefully into the
cause and give a quiet hearing to the arguments of the other side, if so be
he may thus attain certitude either in favor of himself or the other. This
is proved by the fact that a man who is in doubt and neglects to ascertain
the truth is not in possession in good faith. So also, in a matrimonial
cause, if the man who is in lawful possession entertains a doubt whether in
truth the woman is his or the other’s, it is certain that he is bound to
examine the question. Therefore the same principle applies in other causes.
Also, princes are judges in their own cases, inasmuch as they have no
superior. But it is certain that, if any one raises any objection to a
lawful possessor, the judge is bound to examine the case. Therefore in a
doubtful matter princes are bound to examine their own case.

30. Fourth proposition: After examination of the case the lawful possessor
is not bound to quit possession so long as the doubt reasonably persists,
but may lawfully retain it. This is manifestly so, for, firstly, no judge
could divest him of it. Therefore he is not bound to give it up, 441 either
the whole or part. Also, in a matrimonial cause where the matter is
doubtful, the man is under no obligation to give up his possession, as is
laid down in X, 5, 39, 44, and in X, 4, 21, 2. Therefore the like is not
required in other causes. And Adrian expressly holds (qu. 2, Quotlib. 2)
that a party in doubt may retain his possession, and he applys this rule to
princes in a doubtful matter. But concerning subjects who are in doubt with
regard to the justice of a war, Adrian indeed says (Quotlib. 2, on the first
principal argument) that a subject in such a case, that is, one who is in
doubt whether the alleged cause of a war is a sufficient one or simply
whether there exists some sufficient cause for declaring war, may not serve
in such a war, even at the command of his prince. The proof is that he
exposes himself to the danger of mortal sin. Also, what is not of faith is
sin, a doctrine which, according to the doctors and to truth, is to be
understood as condemnatory, not only where the conscience is assured or
based on opinion, but also where it is in doubt. Sylvester seems to hold the
same doctrine, under the word bellum, I, § 9.

31. But let this be my fifth proposition: In the first place, there is no
doubt that in a defensive war subjects may, even though the matter be
doubtful, follow their prince to the war; nay, that they are bound to follow
him, and also in an offensive war. The first proof is in the fact that, as
has been said, a prince is not able, and ought not, always to render reasons
for the war to his subjects, and if subjects can not serve in war except
they are first satisfied of its justice, the State would fall into grave
peril and the door would be opened to wrongdoing. Also, in doubtful matters
the safer course ought to be adopted. Now, if subjects in a case of doubt do
not follow their prince to the war, they expose themselves to the risk of
betraying their State to the enemy, and this is a much more serious thing
than fighting against the enemy despite a doubt. Therefore they ought rather
to fight. Also, this is manifestly proved by the fact that the lictor is
bound to carry out the decree of the judge, even though he has his doubts
about its justice, for there would be serious danger in the opposite course.
Also, St. Augustine writing against the Manichæans, defends this line of
argument, where he says:

“If a righteous person be in the military service of a sacrilegious king,
he may consistently go to war at his command, provided that it is certain
that the command laid on him is not contrary to the Divine precepts or that
it is not certain whether it be so” (C. 23, qu. 1, can. quid culpatur). Here
we have St. Augustine expressly declaring that if it is not certain — that
is, if there is a doubt — whether it be against God’s precepts, the subject
may lawfully go to the war. And however Adrian may twist and turn, he can
not free himself from the authority of St. Augustine, for our proposition
is, beyond cavil, the conclusion at which St. Augustine arrives. Nor does it
avail to say that such a person ought to get rid of his doubt and make his
conscience acquiesce in the justice of the war, for it remains that,
mortally speaking, this is impossible, as in other cases of doubt. Now,
Adrian’s mistake seems to be in thinking that, if I am in doubt whether this
war is just for my prince or whether there be a just cause for this war, it
immediately follows that I am in doubt whether or no I ought to go to this
war. I admit that I am no wise justified in doing what my conscience doubts
about and that, if I am doubtful about the lawfulness of doing any given
thing, I sin if I do it. But any doubt of mine about the justice of this war
does not necessarily involve a doubt whether I ought to fight or serve in
this war. Nay, it is quite the other way about. For although I may doubt
whether the war is just, yet the next point is that I may lawfully serve in
the field at my prince’s command. It is precisely the same as with a lictor
who has his doubts whether the judge’s decree is just, it does not follow
therefrom that he doubts whether or no he ought to carry it into execution;
he knows that he is bound to carry it into execution. So, also, if the doubt
be whether this woman be my wife; I am, consequent upon such doubt, bound to
render her conjugal rights.

32. The fourth doubt is: Whether a war can be just on both sides. The
following is my answer: First proposition: Apart from ignorance the case
clearly can not occur, for if the right and justice of each side be
certain, it is unlawful to fight against it, either in offense or in
defense. Second proposition: Assuming a demonstrable ignorance either of
fact or of law, it may be that on the side where true justice is the war is
just of itself, while on the other side the war is just in the sense of
being excused from sin by reason of good faith, because invincible ignorance
is a complete excuse. Also, on the side of the subjects at any rate, this
may often occur; for even if we assume that a prince who is carrying on an
unjust war knows about its injustice, still (as has been said) subjects may
in good faith follow their prince, and in this way the subjects on both
sides may be doing what is lawful when they fight.

33. Hence arises the fifth doubt: Whether one who has in ignorance gone in
an unjust war and subsequently is convinced of its injustice is bound to
make amends therefor. This may be asked both about a prince and about a
subject. My first proposition is: If the injustice of the war had been
within reach of proof by him, he is bound when he learns of its injustice to
give back what he has taken away and not yet consumed — that is, to the
extent to which he has been enriched; but he need make no amends as regards
what he has consumed, because the rule of law is that a person who is not
in fault ought not to be damnified, just as one who in good faith attended a
sumptuous banquet given by a thief where stolen things were consumed would
be under no obligation to give redress therefor, save perhaps up to the
amount that his meal would have cost him at home. Sylvester, however, says,
under the word bellum, I, § 9, that if our man was in doubt about the
injustice of the war yet followed his lord’s authority, he is liable to
make good everything, because it was with bad faith that he fought.

Now, let my second proposition, in conformity with the foregoing, be:

Our man is not bound to make good what has been consumed, any more than the
other side would be, because (as has been said) his fighting was lawful and
in good faith. Sylvester’s contention would, however, be sound if the man
had really been in doubt whether it was lawful for him to go to the war, for
he would then be acting against his conscience. Now, much attention must be
paid to the admitted fact that a war may be just and lawful in itself and
yet owing to some collateral circumstance may be unlawful. For it is
admitted that one may be entitled to recapture a city or a province and yet
that, because of some scandal, this may become quite unlawful. For inasmuch
as (according to what has been said before) wars ought to be waged for the
common good, if some one city can not be recaptured without greater evils
befalling the State, such as the devastation of many cities, great slaughter
of human beings, provocation of princes, occasions for new wars to the
destruction of the Church (in that an opportunity is given to pagans to
invade and seize the lands of Christians), it is indubitable that the prince
is bound rather to give up his own rights and abstain from war. For it is
clear that if the King of France, for example, had a right to retake Milan,
but by the war both the Kingdom of France and the Duchy of Milan would
suffer intolerable ills and heavy woes, it would not be right for him to
retake it. This is because that war ought to take place either for the good
of France or for the good of Milan. Therefore, when, on the contrary, great
ills would befall each side by the war, it could not be a just war.

34. With regard to another question, namely, what degree of stress is
lawful in a just war, there are also many doubts. The first is: Whether it
is lawful in war to kill the innocent. It seems that it is; because, in the
first place, the Sons of Israel slew children at Jericho, as appears from
Joshua, ch. 6, and afterwards Saul slew children in Amalek (I Samuel, ch.
15), and in both these cases it was by the authority and at the bidding of
God. “Now, whatever is written is written for our instruction,” as appears
from Romans, ch. 15. Therefore, if a war of the present day be just, it will
be lawful to kill the innocent.

35. With regard to this doubt, let my first proposition be: The deliberate
slaughter of the innocent is never lawful in itself. This is proved,
firstly, by Exodus, ch. 23: “The innocent and righteous slay thou not.”
Secondly, the basis of a just war is a wrong done, as has been shown above.
But wrong is not done by an innocent person. Therefore war may not be
employed against him. Thirdly, it is not lawful within a State to punish the
innocent for the wrongdoing of the guilty. Therefore this is not lawful
among enemies. Fourthly, were this not so, a war would be just on both
sides, although there was no ignorance, a thing which, as has been shown, is
impossible. And the consequence is manifest, because it is certain that
innocent folk may defend themselves against any who try to kill them. And
all this is confirmed by Deuteronomy, ch. 20, where the Sons of Israel were
ordered to take a certain city by force and to slay every one except women
and little ones.

36. Hence it follows that even in war with the Turks it is not allowable to
kill children- This is clear, because they are innocent. Aye, and the same
holds with regard to the women of unbelievers. This is clear, because so far
as the war is concerned, they are presumed innocent; but it does not hold in
the case of any individual woman who is certainly guilty. Aye, and this same
pronouncement must be made among Christians with regard to harmless
agricultural folk, and also with regard to the rest of the peaceable
civilian population, for all these are presumed innocent until the contrary
is shown. On this principle it follows that it is not lawful to slay either
foreigners or guests who are sojourning among the enemy, for they are
presumed innocent, and in truth they are not enemies. The same principle
applies to clerics and members of a religious order, for they in war are
presumed innocent unless the contrary be shown, as when they engage in
actual fighting.

37. Second proposition: Sometimes it is right, in virtue of collateral
circumstances, to slay the innocent even knowingly, as when a fortress or
city is stormed in a just war, although it is known that there are a number
of innocent people in it and although cannon and other engines of war can
not be discharged or fire applied to buildings without destroying innocent
together with guilty. The proof is that war could not otherwise be waged
against even the guilty and the justice of belligerents would be balked. In
the same way, conversely, if a town be wrongfully besieged and rightfully
defended, it is lawful to fire cannon-shot and other missiles on the
besiegers and into the hostile camp, even though we assume that there are
some children and innocent people there.

Great attention, however, must be paid to the point already taken, namely,
the obligation to see that greater evils do not arise out of the war than
the war would avert. For if little effect upon the ultimate issue of the war
is to be expected from the storming of a fortress or fortified town wherein
are many innocent folk, it would not be right, for the purpose of assailing
a few guilty, to slay the many innocent by use of fire or engines of war or
other means likely to overwhelm indifferently both innocent and guilty. In
sum, it is never right to slay the guiltless, even as an indirect and
unintended result, except when there is no other means of carrying on the
operations of a just war, according to the passage (St. Matthew, ch. 13)
“Let the tares grow, lest while ye gather up the tares ye root up also the
wheat with them.”

38. Here a doubt may arise whether the killing of guiltless persons is
lawful when they may be expected to cause danger in the future; thus, for
example, the children of Saracens are guiltless, but there is good reason to
fear that when grown up they will fight against Christians and bring on them
all the hazards of war. Moreover, although the adult male civilians of the
enemy who are not soldiers are presumed to be innocent, yet they will
hereafter carry a soldier’s arms and cause the hazard named. Now, is it
lawful to slay these youths? It seems so, on the same principle which
justifies the incidental killing of other guiltless persons. Also
(Deuteronomy, ch. 20) the Sons of Israel were ordered when assaulting any
city to slay “every adult male.” Now, it can not be presumed that all of
these would.

My answer is that although this killing may possibly be defended, yet I
believe that it is in no wise right, seeing that evil is not to be done
even in order to avoid greater evil still, and it is intolerable that any
one should be killed for a future fault. There are, moreover, other
available measures of precaution against their future conduct, namely,
captivity, exile, etc., as we shall forthwith show. Hence it follows that,
whether victory has already been won or the war is still in progress, if the
innocence of any soldier is evident and the soldiers can let him go free,
they are bound to do so.

To the argument on the opposite side my rejoinder is that the slaughter in
the instances named was at the special command of God, who was wroth against
the people in question and wished to destroy them utterly, just as he sent
fire on Sodom and Gomorrah which devoured both guiltless and guilty
together. He, however, is Lord of all and has not given this license as a
common law. And the same answer might be made to that passage in
Deuteronomy, ch. 20. But, inasmuch as what is there enjoined is in the form
of a common law of war for all future time, it would rather seem that the
Lord enjoined it because all adult males in an enemy State are deemed
guilty, and guiltless can not be distinguished from guilty. Therefore all
may be killed.

39. The second doubtful point is whether in a just war it is lawful to
despoil innocent enemy-subjects. Let my first proposition be: It is
certainly lawful to despoil the innocent of goods and things which the enemy
would use against us, such as arms, ships, and engines of war. This is
clear, because otherwise we could not gain the victory, which is the aim of
war. Nay, it is also lawful to take the money of the innocent and to burn
and destroy their grain and kill their horses, if this is requisite in order
to sap the enemy’s strength. Hence follows the corollary that if the war
goes on for an indefinitely long time it is lawful utterly to despoil all
enemy-subjects, guilty and guiltless alike, for it is from their resources
that the enemy is feeding an unjust war, and, on the other hand, his
strength is sapped by this spoliation of his citizens.

40. Second proposition: If a war can be carried on effectively enough
without the spoliation of the agricultural population and other innocent
folk, they ought not to be despoiled. Sylvester maintains this (under the
word bellum I, § 10) on the ground that war is founded on a wrong done, and
therefore the rights of war may not be enforced against the innocent if the
wrong can be redressed in another quarter. Aye, and Sylvester adds that,
even if there were good reason to despoil the innocent, yet when the war is
over the victor is bound to restore to them whatever is left. This,
however, I do not think necessary, because, as said above, whatever is done
in right of war receives the construction most favorable to the claims of
those engaged in a just war. Hence, whatever has been lawfully seized is not
in my opinion subject to restitution. All the same, Sylvester’s remark is a
pious one and not indefensible. But the spoliation of foreigners and
travelers on enemy soil, unless they are obviously at fault, is in no wise
lawful, they not being enemies.

41. Third proposition: If the enemy refuse to restore things wrongfully
seized by them and the injured party can not otherwise properly recoup
himself, be may do so wherever satisfaction is obtainable, whether from
guilty or from innocent. For instance, if French brigands made a raid into
Spanish territory and the French King would not, though able, compel them to
restore their booty, the Spanish might, on the authorization of their
sovereign, despoil French merchants or farmers, however innocent these might
be. This is because, although the French State or Sovereign might initially
be blameless, yet it is a breach of duty, as St. Augustine says, for them to
neglect to vindicate the right against the wrongdoing of their subjects, and
the injured sovereign can take satisfaction from every member and portion of
their State. There is, accordingly, no inherent injustice in the letters of
marque and reprisals which princes often issue in such cases, because it is
on account of the neglect and breach of duty of the other prince that the
prince of the injured party grants him this right to recoup himself even
from innocent folk. These letters are, however, hazardous and open the way
to plunder.

42. The third doubtful point is: Assuming the unlawfulness of the slaughter
of children and other innocent parties, is it permissible, at any rate, to
carry them off into captivity and slavery? This can be cleared up in a
single proposition, namely: It is in precisely the same way permissible to
carry the innocent off into captivity as to despoil them, liberty and
slavery being included among the good things of Fortune. And so when a war
is at that pass that the indiscriminate spoliation of all enemy-subjects
alike and the seizure of all their goods are justifiable, then it is also
justifiable to carry all enemy-subjects off into captivity, whether they be
guilty or guiltless. And inasmuch as war with pagans is of this type, seeing
that it is perpetual and that they can never make amends for the wrongs and
damages they have wrought, it is indubitably lawful to carry off both the
children and the women of the Saracens into captivity and slavery. But
inasmuch as, by the law of nations, it is a received rule of Christendom
that Christians do not become slaves in right of war, this enslaving is not
lawful in a war between Christians; but if it is necessary having regard to
the end and aim of war, it would be lawful to carry away even innocent
captives, such as children and women, not indeed into slavery, but so that
we may receive a money-ransom for them. This, however, must not be pushed
beyond what the necessity of the war may demand and what the custom of
lawful belligerents has allowed.

43. The fourth doubtful point is: Whether it is lawful at any rate to kill
hostages who have been taken from the enemy, either in time of truce or on
the conclusion of a war, if the enemy break faith and do not abide by their
undertakings. My answer is in a single proposition: If the hostages are in
other respects among the guilty, as, for instance, because they have borne
arms, they may rightfully be lulled in that case; if, however, they are
innocent, as, for instance, if they be children or women or other innocent
folk, it is obvious from what has been said above that they can not be
killed.

44. The fifth doubt is: Whether in a just war it is lawful to kill, at any
rate, all the guilty. Prefatory to an answer be it noted that, as is shown
by what has been said above, war is waged: Firstly, in defense of ourselves
and what belongs to us; secondly, to recover things taken from us; thirdly,
to avenge a wrong suffered by us; fourthly, to secure peace and security.

45. This premised, let my first proposition be: In the actual heat of
battle, either in the storming or in the defense of a city, all who resist
may be killed indiscriminately; and, briefly, this is so as long as affairs
are in peril. This is manifest, because combatants could not properly effect
their purpose save by removing all who hinder and resist them. All the doubt
and difficulty, however, is to know whether, when we have won our victory
and the enemy is no longer any danger to us, we may kill all who have borne
arms against us. Manifestly, yes. For, as shown above, one of the military
precepts given by the Lord (Deuteronomy, ch. 20) was that when a city of the
enemy had been taken all dwellers in it were to be killed. The words of the
passage are: “When thou comest nigh unto a place to fight against it, then
proclaim peace unto it. And it shall be if it make thee answer of peace, and
open unto thee, that all the people that is found therein shall be saved and
shall be tributaries unto thee and shall serve thee. But if it will make no
peace with thee, but will make war against thee, then thou shalt besiege it.
And when the Lord thy God hath delivered it into thine hands, thou shalt
smite every male thereof with the edge of the sword, but not the women and
the little ones.”

46. Second proposition: Even when victory has been won and no danger
remains, it is lawful to kill the guilty. The proof is that, as said above,
war is ordained not only for the recovery of property, but also for the
avenging of wrongs. Therefore the authors of a past wrong may be killed
therefor. Again, this is permissible against our own wrongdoing citizens.
Therefore also against foreigners; for, as said above, a prince when at war
has by right of war the same authority over the enemy as if he were their
lawful judge and prince. And a further reason is that, although there be no
present danger from the enemy, yet security for the future can not be had,
unless the enemy be restrained by the fear of punishment.

47. Third proposition: Merely by way of avenging a wrong it is not always
lawful to kill all the guilty. The proof is that even among citizens it
would not be lawful, not even where the wrong was done by the whole city or
district, to kill all the delinquents; nor in a common rebellion would it be
permissible to slay and destroy the whole population. Accordingly for such a
deed, St. Ambrose interdicted Theodosius from the church For such conduct
would not be for the public good, which is nevertheless the end and aim of
both war and peace. Therefore, it is not right to kill all the guilty among
the enemy. We ought, then, to take into account the nature of the wrong done
by the enemy and of the damage they have caused and of their other offenses,
and from that standpoint to move to our revenge and punishment, without any
cruelty and inhumanity. In this connection Cicero says (Offices, bk. 2) that
the punishment which we inflict on the guilty must be such as equity and
humanity allow. And Sallust says:

“Our ancestors, the most religious of men, took naught from those they
conquered save what was authorized by the nature of their offenses.”

48. Fourth proposition: Sometimes it is lawful and expedient to kill all
the guilty. The proof is that war is waged in order to get peace and
security. But there are times when security can not be got save by
destroying all one’s enemies: and this is especially the case against
unbelievers, from whom it is useless ever to hope for a just peace on any
terms. And as the only remedy is to destroy all of them who can bear arms
against us, provided they have already been in fault. That is how the
injunction in Deuteronomy, ch. 20, is to be interpreted. Otherwise, however,
in a war with Christians, where I do not think this would be allowable. For,
as it needs must be that scandals come (St. Matthew, ch. 18) and also wars
between princes, it would involve the ruin of mankind and of Christianity if
the victor always slew all his enemies, and the world would soon be reduced
to solitude, and wars would not be waged for the public good, but to the
utter ruin of the public. The measure of the punishment, then, must be
proportionate to the offense, and vengeance ought to go no further, and
herein account must be taken of the consideration that, as said above,
subjects are not bound, and ought not, to scrutinize the causes of a war,
but can follow their prince to it in reliance on his authority and on public
counsels. Hence in the majority of cases, although the war be unjust on the
other side, yet the troops engaged in it and who defend or attack cities are
innocent on both sides. And therefore after their defeat, when no further
danger is present, I think that they may not be killed, not only not all of
them, but not even one of them, if the presumption is that they entered on
the strife in good faith.

49. Sixth doubt: Whether it is lawful to slay those who have surrendered or
been captured, supposing them also to have been guilty. My answer is that,
speaking absolutely, there is nothing to prevent the killing of those who
have surrendered or been captured in a just war so long as abstract equity
is observed. Many of the rules of war have, however, been fashioned by the
law of nations, and it seems to be received in the use and custom of war
that captives, after victory has been won (unless perchance they have been
routed) and all danger is over, are not to be killed, and the law of
nations must be respected, as is the wont among good people. But I do not
read or hear of any such custom with regard to those who have surrendered;
nay, on the capitulation of a fortress or city it is usual for those who
surrender to try and provide for themselves in the conditions of the
capitulation, as that their heads shall be safe and that they shall be let
go in safety; that is, they fear that an unconditional surrender would mean
their deaths. We read of this being several times done. Accordingly, it does
not seem unjust that, if a city capitulates without taking any such
precautions, the more notorious offenders should be put to death on the
order of the prince or a judge.

50. Seventh doubt: Whether everything that is captured in a just war becomes
the property of the captor and seizor. My first proposition hereon is: There
is no doubt that everything captured in a just war vests in the seizor up to
the amount which provides satisfaction for the things that have been
wrongfully seized and which covers expenses also. This needs no proof, for
that is the end and aim of war. But, apart from all consideration both of
restitution and satisfaction, and looking at the matter from the standpoint
of the law of war, we must distinguish according as the things captured in
war are movables (like money, garments, silver, and gold), or are immovables
(like lands, cities, and fortresses).

51. This being assumed, let my second proposition be: All movables vest in
the seizor by the law of nations, even if in amount they exceed what will
compensate for damages sustained. This is clear from Dig., 49, 15, 28 and
24, and from can. 9, Dist. I, and it is more expressly laid down in Inst.,
2, 1, 17, where it is said that “by the law of nations whatever is taken
from the enemy immediately becomes ours, even so far as that free persons
may be made our slaves.” And St. Ambrose says (Liber de Patriarchis) that
when Abraham slew the four kings their spoil belonged to him as the
conqueror, although he refused to take it (Genesis, ch. 14, and can. 25, C.
23, qu. 5). And this is confirmed by the authority of the Lord (Deuteronomy,
ch. 20), where He says concerning the storming of a town:

“All the spoil thereof thou shalt divide with the army and thou shalt eat
of the spoil of thine enemies.” Adrian holds this opinion in his quaestio on
restitution, in the special quaestio on war. So, also, Sylvester, under the
word bellum, § 1 and § 9, where he says that he who fights a just cause is
not bound to give back his booty (can. 2, C. 23, qu. 7). “Hence it follows
that what is taken in war is not used as a set-off against the principal
debt, as the Archdeacon also holds (can. 2, C. 23, qu. 2).” And Bartolus is
of the same opinion, in his comment on Dig., 49, 15, 28. And this is
understood to be so even if the enemy be ready to make amends in other ways
for the damages and wrongs suffered. Sylvester, however, limits this, and
rightly, allowing it only until a satisfaction sufficient in equity has been
taken for the damages and wrongs suffered. For it is not to be imagined
that, if the French have ravaged some one district or insignificant town in
Spain, the Spanish might also, if they could, ravage the whole of France;
they can only retort in a manner proportionate in kind and degree to the
wrong done, according to the estimate of a good man.

52. But on this conclusion a doubt arises, namely, whether it is right to
give a city up to the soldiery to sack. My answer is, and let this be my
third proposition: This is not unlawful in itself, if necessary for the
conduct of the war or as a deterrent to the enemy or as a spur to the
courage of the troops. So Sylvester, under the word bellum, § 10. It is on
the same principle as that which justifies the burning of a city for
reasonable cause Nevertheless, inasmuch as such authorization to sack
results in many horrors and cruelties, enacted beyond all humane limits by a
barbarous soldiery, such as slaughter and torture of the innocent, rape of
virgins, dishonor of matrons, and looting of temples, it is undoubtedly
unjust in the extreme to deliver up a city, especially a Christian city, to
be sacked, without the greatest necessity and weightiest reason. If,
however, the necessities of war require it, it is not unlawful, even if it
be likely that the troops will perpetrate foul misdeeds of this kind, which
their generals are none the less bound to forbid and, as far as they can, to
prevent.

53. Fourth proposition: Despite all this, soldiers may not, without the
authority of their prince or general, go looting or burning, because they
are themselves not judges, but executive officers; and those who do
otherwise are bound to make restitution.

54. Now, with regard to immovable property and things, the difficulty is
greater, and let my fifth proposition be: There is no doubt about the
lawfulness of seizing and holding the land and fortresses and towns of the
enemy, so far as is necessary to obtain compensation for the damages he has
caused. For instance, if the enemy has destroyed a fortress of ours, or has
burnt a city or vineyards or olive gardens, we may in turn seize his land or
fortress or city and hold it. For if it is lawful to exact compensation
from the enemy for the things of ours which he has taken, it is certain that
by the divine law and natural law it is not more lawful to take recompense
therefore in movables than in immovables.

55. Sixth proposition: In order to obtain security and avoid danger from
our enemy it is also lawful to seize and hold a fortress or city belonging
to him which is necessary for our defense or for taking away from him an
opportunity of hurting us.

56. Seventh proposition: It is also lawful, in return for a wrong received
and by way of punishment, that is, in revenge, to mulct the enemy of a part
of his territory in proportion to the character of the wrong, or even on
this ground to seize a fortress or town. This, however, must be done within
due limits, as already said, and not as utterly far as our strength and
armed force enable us to go in seizing and storming. And if necessity and
the principle of war require the seizure of the larger part of the enemy’s
land, and the capture of numerous cities, they ought to be restored when the
strife is adjusted and the war is over, only so much being retained as is
just, in way of compensation for damages caused and expenses incurred and of
vengeance for wrongs done, and with due regard for equity and humanity,
seeing that punishment ought to be proportionate to the fault. Thus it would
be intolerable that, if the French raided the flocks of the Spanish or burnt
a single district, the latter should be allowed to seize the whole Kingdom
of France. Now, the lawfulness of seizing on this score either a part of
enemy territory or an enemy city appears from Deuteronomy, ch. 20, where
permission is granted in war to seize a city that has refused to accept
terms of peace. Again, internal wrongdoers may be punished in this way, that
is, they may be deprived of house or land or a fortress, in proportion to
the character of the circumstances. Therefore foreigner wrongdoers also.

Again, a superior judge has competence to mulct the author of a wrong by
taking away from him a city (for instance) or a fortress. Therefore a
prince who has suffered wrong can do this too, because by the law of war he
is put in the position of a judge. Again, it was in this way and by this
title that the Roman Empire grew and developed, that is, by occupation, in
right of war, of cities and provinces belonging to enemies who had injured
them, and yet the Roman Empire is defended as just and lawful by St.
Augustine, St. Jerome, St. Ambrose, St. Thomas, and other reverend doctors.
Nay, it might be held approved by God in the passage, “Render unto Caesar
the things that are Caesar’s,” and by St. Paul, who appealed unto Caesar and
who in Romans, ch. 13, gave an admonition to be subject to the higher powers
and to princes and to pay tribute to those who at that time, all of them,
derived their authority from the Roman Empire.

57. Eighth doubt: Whether it is lawful to impose a tribute on conquered
enemies. My answer is that it is undoubtedly lawful, not only in order to
recoup damages, but also as a punishment and by way of revenge. This is
clear enough from what has been said above and from the passage in
Deuteronomy, ch. 20, which says that when the Jews have approached a city
with good cause in order to attack it, if the city receives them and opens
its gates, all the people therm shall be saved and shall serve the Jews
with payment of tribute. And this law and usage of war has prevailed.

58. Ninth doubt: Whether it is lawful to depose the princes of the enemy
and appoint new ones or keep the princedom for oneself. First proposition:
This is not unqualifiedly permissible, nor for any and every cause of just
war, as appears from what has been said. For punishment should not exceed
the degree and nature of the offense. Nay, punishments should be awarded
restrictively, and rewards extensively. This is not a rule of human law
only, but also of natural and divine law. Therefore, even assuming that the
enemy’s offense is a sufficient cause of war, it will not always suffice to
justify the overthrow of the enemy’s sovereignty and the deposition of
lawful and natural princes; for these would be utterly savage and inhumane
measures.

59. Second proposition: It is undeniable that there may sometimes arise
sufficient and lawful causes for effecting a change of princes or for
seizing a sovereignty; and this may be either because of the number and
aggravated quality of the damages and wrongs which have been wrought or,
especially, when security and peace can not otherwise be had of the enemy
and grave danger from them would threaten the State if this were not done.
This is obvious, for if the seizure of a city is lawful for good cause, as
has been said, it follows that the removal of its prince is also lawful. And
the same holds good of a province and the prince of a province, if
proportionately graver cause arise.

Note, however, with regard to Doubts VI to IX, that sometimes, nay,
frequently, not only subjects, but princes, too, who in reality have no
just cause of war, may nevertheless be waging war in good faith, with such
good faith, I say, as to free them from fault; as, for instance, if the war
is made after a careful examination and in accordance with the opinion of
learned and upright men. And since no one who has not committed a fault
should be punished, in that case, although the victor may recoup himself for
things that have been taken from him and for any expenses of the war, yet,
just as it is unlawful to go on killing after victory in the war has been
won, so the victor ought not to make seizures or exactions in temporal
matters beyond the limits of just satisfaction, seeing that anything beyond
these limits could only be justified as a punishment, such as could not be
visited on the innocent.

60. All this can be summarized in a few canons or rules of warfare. First
canon: Assuming that a prince has authority to make war, he should first of
all not go seeking occasions and causes of war, but should, if possible,
live in peace with all men, as St. Paul enjoins on us (Romans, ch. 12).
Moreover, he should reflect that others are his neighbors, whom we are bound
to love as ourselves, and that we all have one common Lord, before whose
tribunal we shall have to render our account. For it is the extreme of
savagery to seek for and rejoice in grounds for killing and destroying men
whom God has created and for whom Christ died. But only under compulsion and
reluctantly should he come to the necessity of war.

Second canon: When war for a just cause has broken out, it must not be waged
so as to ruin the people against whom it is directed, but only so as to
obtain one’s rights and the defense of one’s country and in order that from
that war peace and security may in time result.

Third canon: When victory has been won and the war is over, the victory
should be utilized with moderation and Christian humility, and the victor
ought to deem that he is sitting as judge between two States, the one which
has been wronged and the one which has done the wrong, so that it will be as
judge and not as accuser that he will deliver the judgment whereby the
injured state can obtain satisfaction, and this, so far as possible should
involve the offending state in the least degree of calamity and misfortune,
the offending individuals being chastised within lawful limits; and an
especial reason for this is that in general among Christians all the fault
is to be laid at the door of their princes, for subjects when fighting for
their princes act in good faith and it is thoroughly unjust, in the words of
the poet, that —

Quidquid delirant reges, plectantur Achivi,

(For every folly their Kings commit the punishment should fall upon the
Greeks.)

1. Ps. 81, in Vulgate. In A. V. Ps. 82.