De Indis De Jure Belli/Introduction

by Francisco de Vitoria

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De Indis De Jure Belli by Francisco de Vitoria Introduction

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 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.