STEPHEN J. REIDY, O.P., S.T.Lr., Ph.L.

CIVIL AUTHORITY ACCORDING
TO FRANCIS DE VITORIA

apud

Pars dissertationis
ad Lauream
in Facultate Philosophiae
Pontificium Institutum “Angelicum*
de Urbe

THE AQUINAS LIBRARY
River Forest, Illinois

1959

ΑΜΜΜΜΒΜΜΜΜ

Vidimus et approbavimus,
Romae, apud Pont. Institutum “Angelicum":
Eugenius Toccafondi, O.P., S.T.M.
Paulus Zammit, O.P., S.T.M.
Revisores Provinciae S. Alberti M. in S.F.A.S.:
Alexius Driscoll, O.P., S.T.M.
Raphael Gillis, O.P., S.T.M.
Imprimi potest: Edmundus J. Marr, O.P., S.T.M.
Prior Provincialis

Imprimatur: «^Albertus G. Meyer, S.T.D., S.S.L.
Archiepiscopus Chicagiensis
Chicagiae, die 2S Februarii, 1959

JX
2.15e!

CONSPECTUS TOTIUS DISSERTATIONIS
CUJUS TITULUS FUIT
THE ΝΟΤΙΟΝ OF CIVIL AUTHORITY ACCORDING TO
FRANCIS DE VITORIA

7

Introduction

I. The Historical Background to the Problem of Civil
Authority
Aristotle
Roman Law
Early Christian teaching
1. St. Paul
2. St. Augustine
3. St. John Chrysostom
The problem during the conflict over investiture
The teaching of St. Thomas
Civil power and Protestantism

Chapter

I.
II.
III.

IV.
V.
VI.

II. Civil Authority according to Vitoria
I. The notion of the perfect community
II. The origin of civil society
1. The natural inclination to society
2. The origin of society in the concrete
HI. The origin of civil authority
1. The origin of power in the abstract
2. The origin of power in the concrete
IV. The subject of civil authority
V. The translation of power
1. Vitoria’s doctrine
2. Interpretations of Vitoria’s doctrine
a. Meditate divine right
b. The organic theory
c. Alienability and transfer of power
3. Criticism of these interpretations
a. Meditate divine right rejected
b. The organic theory rejected
c. The third interpretation represents the true doctrine of
Vitoria

Chapter

III. Vitoria’s Position in Relation to Bellarmine and Suarez
I. The notion of the perfect society according to Bellarmine and
Suarez
1. The nature of the perfect society
2. The origin of the perfect society
3. Necessity of authority
II. The divine origin of civil authority
1. Proof of divine origin of authority
2. Mode of divine causality according to Suarez
3. Role of the human will in the origin of power
III. The subject of civil authority
1. The community as the subject of authority
2. The natural democracy of Suarez
IV. The translation of power
1. According to Bellarmine
2. According to Suarez
V. Nature of the pact of subjection
1. Objections to the Suarezian contract
2. Examination of these objections
3. Comparison of the Suarezian contract with that of Vitoria
and Bellarmine

Chapter

Conclusion

Bibliography

ACKNOWLEDGMENT

The author wishes to express his sincere gratitude to all those
who have helped in any way to make this work possible. Thanks
are especially due to the Very Rev. E T Toccafondi, O.P., S.T.M.,
under whose direction this dissertation was written, and to the
Very Rev. E. S. Carlson, O.P., S.T.M., Regent of Studies, for his
invaluable assistance in the publication of this work.
vi

INTRODUCTION

The question of civil authority is one that has occupied the
minds of men down through the ages, and philosophers, theo­
logians, canonists and jurists have proposed a variety of solu­
tions to the problem ranging between the extreme theories of
state absolutism and inalienable popular sovereignty.
Among the great thinkers who have turned their minds to
the problem, Francis de Vitoria holds an eminent place. To
him belongs the distinction of being the first of the scholastic
tradition to develop, in systematic form, the principles of pub­
lic power enuntiated by St. Thomas Aquinas.

Vitoria, of course, was not the first to treat of the problem.
It had already been the subject of acrimonious debate for four
centuries, during the quarrel between the Popes and the Em­
perors over the right of investiture. But it remained for Vitoria
to pose the problem with exact precision and evolve the solu­
tion through a systematic analysis of the four causes of civil
authority. He is, in a sense, the founder of the traditional scho­
lastic teaching on civil power.
Francis de Vitoria takes his surname from the town of Vitoria,
in the province of Alava, Spain, where he was bom around the
year 1483. About the turn of the century, he entered the Order
of Preachers at the Convent of St. Paul, in the city of Burgos.
His great intellectual promise won for him the honor of being
sent by his superiors to study at Paris. He completed his course
of studies at the Dominican Convent of St. Jacques and at the
Sorbonne, where he had as a professor the celebrated Peter
Crockart, O.P. Altogether, he remained in Paris for eighteen
years as a student and as a professor of Sacred Theology.
Mi

Upon his return to Spain, he became professor of Theology
at Valladolid, a post which he held for three years. In 1526 he
was elected to fill the prima chair of Theology at the University
of Salamanca, the most famous seat of learning in all Spain.
Here Vitoria introduced the Summa Theologiae of St. Thomas
Aquinas as a classroom text, supplanting the traditional Senten­
tiae of Peter Lombard.1
Among the students of Vitoria during his professorship at
Salamanca were Melchior Cano, Peter Soto, Bartholomew de
Medina and Dominic Bafiez. The extraordinary excellence of
Vitoria as a philosopher and theologian is attested by the praise
of his students and his contemporaries.

With the happy advent of Vitoria to our midst, there dawned
for us a day worthy to be recorded in red letters, according to
the words of the wise Cano, who witnessed the consequent trans­
formation: 'Spain received, by special gift of God, the greatest
teacher of theology.’ Azpilcueta praises the lectiones of Vitoria
because of their great novelty and. utility. Bafiez divides Span­
ish theology into two epochs: before Vitoria and after Vitoria.
Nicolaus Antonius describes the subsequent theologians of Spain
—who were numerous, and indubitably great—as blossoms of
the Vitorian tree.2
Vitoria devoted the last twenty years of his life to teaching at
Salamanca, where he died on August 12, 1546.
The most famous of Vitoria’s political writings are the treat­
ises De Indis and De lure Belli, written in 1539.3 These works
1Cf. J., Brown Scott, The Spanish Origin of International Law, (Oxford, 1934),
I, p. 74: "It is evident that Vitoria had devoted himself—we might say conse­
crated himself—to St Thomas Aquinas, teaching the Sumina in Paris and in
Valladolid; and not withstanding the fact that the Sententiae of Peter Lombard
were prescribed, he was permitted to base his instruction upon the teaching of
the great Dominican Summist .... They were pleased—as well they might be—
with Vitoria’s exposition of the Summa, and he continued to base his instruction
on the Summa, with the result that the Sentences eventually gave way to the
Summa."
2Fram the address of Luis G. Alonso Getino, O.P., on the fourth centenary
of Vitoria’s appointment as prima professor of Theology at Salamanca. Trans­
lation from Scott, op. cit., p. 90.
®These tracts are called relectiones or lectures. They were public lectures
given during the semester. Cf. Scott, op. cit., p. 75. These two, and eleven
other public lectures of Vitoria are published under the title Relectiones Theo­
logicae tredecim partibus ...

viii

were occasioned by the controversial issue of the legitimacy of
the Spanish conquest of newly discovered America. In recent
times, these two works of Vitoria have come to be generally
recognized as the foundation of modem international law, and
to Vitoria is conceded the title “Father of International Law,”
in preference to Grotius, whom Vitoria preceded by almost a
century.4
No less important is Vitoria’s tract De Potestate Civili, in
which he constructs his theory of the state and of civil authori­
ty.5 This work finds its completion in the comparison between
civil and ecclesiastical authority, in the two tracts De Potestate
Ecclesiae.6 Much of Vitoria’s political thought is contained in
his commentaries on the Prima Secundae and the Secunda
Secundae of the Summa Theologiae of St. Thomas Aquinas.7
The scope of this work will be confined to an investigation
of Vitoria’s teaching on the precise point of civil authority, its
nature and causes, with a view to determining Vitoria’s position
in relation to the ancient scholastic teaching.
This investigation is prompted by the fact that there is a de­
cided lack of unanimity among the interpreters of Vitoria’s doc­
trine, to such an extent that he has been identified with directly
opposite theories of civil power.
Peter Soto8 and Dominic Bafiez®, disciples of Vitoria, call
upon his authority in support of the theory that the people are
die primary and original subject of power, and they transfer
that power to designated rulers.
4This honor was, for a long time, attributed to Grotius on the basis of his
work De iure belli et pacis, published in 1625. Cf. Scott, op cit., pp. 94, 160,
288.
BRelectio III, De Potestate Civili, in Relectiones Theologicae tredidim, Lyons,
1586.
^Relectiones I and II, 1532, 1533.
7The commentary on the I-Π of the Summa is as yet unedited. Two manu­
scripts are at the Vatican Library, Vat. Lat. 4. 630 and Ottob. Lat. 1. 000. Hie
commentary on the II-II has been edited by Beltran de Heredia, O.P.: Francisco
de Vitoria, O.P.·. Commentarios a la Secunda Secundae de Santo Tomas, (Sala­
manca, vol. I, 1932; vol. II, 1932; vol. Ill, 1934; vol. IV, 1934; vol. V, 1935).
We Justitia et lure, (Salamanca, 1562), IV, q. 2, a. 1.
Wecisiones de lure et lustitia (Venice, 1595), q. 62.

ix

Suarez, however, interprets Vitoria as holding for the theory
of immediate divine donation of power upon the ruler, presup­
posing his election by the community.10
Zigliara interprets Vitoria in a similar light. He holds that
the Vitorian theory of initial popular sovereignty is applicable
only in the abstract order. Consequently, he would have Vitoria
concede to the people, not a determined power which resides
in them as in a subject, but rather a constitutive right by which
they determine for themselves who the subject of power will be.
Once the subject is determined by the people, God directly
bestows authority upon him.11 Fabre12 and Beuve-Méry18 fol­
low this opinion.

On the other hand, Delos,1* and following him, Naszâlyi,15
are of the opinion that Vitoria considers the community as the
subject of power in the concrete, but deny that the theory
of translation of power is contained in the Vitorian doctrine.
They consider that any alienation of power is totally contrary
to Vitoria’s organic conception of the state, and they view the
theory of translation as the culmination of the voluntarism of
Suarez. Public power, being immanent to the community (as
Vitoria teaches), is the “vis ordinatrix’ of social life, and thus
cannot be alienated. The community always retains its power,
and exercises it through its organs, the prince and the magis­
trates.
Recasens Y Siches sees in Vitoria a champion of the con­
tractarian school, fully identified with the thought, not only
of Suarez, but of Hobbes, Locke and Rousseau.18
r»F. Suarez, De Legibus, (Lyons, 1619), HI, c. 4, n. 5.
1'T. M. Zigliara, O.P., Summa Philosophica, (Rome, 1867), ΠΙ, p. 196.
12L. Fabre, “L’origine du pouvoir,” Revue Augustinienne, (1910), XVH, p.
702.
r3H. Beuve-Méry, Le théorie des pouvoirs publics aapres Francois de Vitoria
et ses rapports avec le droit contemporain, (Paris, 1928), pp. 49 sq.
MJ. T. Delos, O.P., La société internationale et les Principes du droit public,
(Paris, 1929), pp. 204-211.
3SA. Nasâljd, S.O. Cist., Doctrina Francisci de Vitoria de Statu, (Rome, 1937),
pp. 203-312.
,
.
»
ieL. Recasens y Siches, “Las teorfas politicos de Fr. de Vitoria, Anuario
de la Asociacion Francisco de Vitoria, (1929-30), Π, pp. 175-222.

x

Urdânoz defends the viewpoint that Vitoria is the principal
representative of the classical scholastic opinion, the precursor
of Suarez and St. Robert Bellarmine.”
, It is evident that Vitoria could not be the protagonist of so
many diverse theories. What is his true doctrine? Is he a
contractarian and a champion of popular sovereignty? Is his
doctrine in conformity with that of Bellarmine and Suarez, or
is it directly opposed? Is his the organic theory, or the theory
of immediate divine right? Has he laid the groundwork for
the radical democracy of Rousseau and the modem liberalistic
doctrines of the state? These are the questions which we will
attempt to answer in the following pages by a critical examina­
tion of the Vitorian text.

”T. Urdânoz, O.P., "Vitoria y la concepciôn democrâtica dd pc^er pubhco
y dd estado,” Anuario de la Asociacion Francisco de Vitoria, (1947-48), Vlll,
pp. 261-332.

xi

Chapter I

THE PERFECT COMMUNITY

Any discussion of political authority must necessarily be­
gin with the notion of civil society, for authority is rooted in
the very nature of society, in such a way that a society with­
out authority cannot be conceived.1
Society in general is the moral union of many persons acting
together for a common end.2 We discern in the notion of
any society, therefore, the twofold aspect of multitude and
unity. The multitude constitutes the material element of so­
ciety, the aggregate of individuals who comprise the social
body. The formal element of society is the moral union which
binds men together to act for a common end. Society, then,
is not a simple collection of individuals or families, but an
organized collectivity, unified by the bonds of mutual rights
and duties relative to the common good.
A society is called natural when it has its source and specific
determination from human nature. The conjugal union, the
family and the state are natural societies. Of these, the state
alone is a juridically perfect society, because the state alone is
capable of fulfilling all the necessaries of human life.
Vitoria adopts the Aristotelian and Thomistic notion of a
perfect society or community, which is founded on self-suf­
ficiency.® He directly poses the question: “What is the repub1De Pat. Cio., n. 5: ............. societas nulla consistere potest sine vi aliqua
et potestate gubernante et providente.”
2Cf. St. Thomas Aquinas, Opusculum contra impugnantes Dei cultum et
religionem, ch. ΠΙ.
3Pol., 1, 2. lect. 1: “Primo ostendit ex quibus sit civitas. Quia sicut vicus
constituitur ex pluribus domibus, ita civitas ex pluribus vicis. Secundo dicit,
quod civitas est communitas perfecta: quod ex hoc probat, quia, cum omnis
communicatio omnium hominum ordinetur ad aliquid necessarium vitae, üla
erit perfecta communitas quae ordinatur ad hoc quod homo habeat sufficienter
quidquid est necessarium ad vitam: talis autem communitas est civitas.”

1

CIVIL· AUTHORITY ACCORDING TO FRANCIS DE VITORIA

lie?” and answers that it is “properly called the perfect com­
*
munity.
To be perfect is to be complete, lacking nothing
which is required for self-sufficiency.
A perfect republic or community is that which of itself is com­
plete, which is not a part of another republic, but which has
its own laws, its own councils and its own magistrates.®

The perfect community, first of all, must be intrinsically com­
plete and self-sufficient. The intrinsic self-sufficiency of the per­
fect community arises from its ability to provide thq means neces­
sary to attain the end of the community, which is the conser­
vation of the public good.® The public good cannot be main­
tained, however, unless there be a public power and authority
to direct and rule the community. It is public authority func­
tioning through its legislative, judicial and executive powers that
insures the conservation of the common good.8
A further note of the perfect community is its independence,
by which it is free of subjection to any other state, is not a
part of any other republic. Although Vitoria envisages the
state as a part of the international community, this fact does
not destroy the sovereignty of individual states.® In the inter­
national community of the Holy Roman Empire, Vitoria con­
siders the several states as sovereign and independent, with the
right to wage war even without the consent of the. Emperor.10
The Emperor does not have dominion and jurisdiction over the
whole world, neither by divine, nor natural, nor human law.11
*De lure Belli, n. 7.
sIbid: "Est ergo perfecta respublica aut communitas quae est per se totum,
id est, quae non est alterius reipublicae pars, sed quae habet proprias leges, pro­
prium concilium, et proprios magistratus.”
eComm. in ΪΙ-ΊΪ, q. 105, a. 5, ed. Heredia, V, p. 213, n. 2. ‘
TDe Potestate Civili, n. 5.
8De lure Belli, nn. 7, 19; De Pot. Civ., n. 15.
®De Pot. Civ., n. 21.
10De lure Belli, η. 8: “Nec enim obstat, quin sint plures principatus et respub­
licae perfectae sub uno principe . . . Sed ex hoc ipso dubitari merito potest, an
si plures hujusmodi respublicae aut principes habeant unum dormnum aut prin­
cipem, an possint per se inferre bellum, sine auctoritate superioris principis. Et
respondeo, quod sine dubio possunt; ut reges, qui sunt subjecti imperatori, pos­
sunt invicem bellare, non expectata authoritate imperatoris, quia (ut dictum est)
respublica debet sibi esse sufficiens, nec sufficeret sibi sine tali facultate.
uDe Indis, see. Π, η. 1.

THE PERFECT COMMUNITY

3

The perfect community, then, necessarily has the right of
waging war to preserve its independence. It must have the
power of “vindicating injuries, recovering its possessions, and
punishing its enemies.”12
All states, great and small, as perfect communities, are juri­
dically equal. Vitoria applies the principles of the perfect com­
munity to show that even the barbarian communities of the
Indies were republics in the real sense, and consequently, the
equal of the civilized states of Europe.18
The perfect community, according to the Vitorian concept,
is a sovereign state, intrinsically complete and self-sufficient,
extrinsically independent of any other community.14
In the abstract, the essence of the perfect political com­
munity consists in unity, the ordination to the common good.15
The unity of society is effected in the concrete by public au­
thority, for it is by authority that the citizens are actually di­
rected to the common good.
Vitoria conceives of public power as an essential property
flowing from the essence of the community already constituted
in the abstract. He makes a distinction between power (po­
testas) and potency (potentia). Power adds a new note to the
notion of potency, “a certain preeminence and authority.”18
Matter, the senses, the intellect and will are called potentiae,
but magistry, priesthood and kingship are properly called poin Π-Π, ed. cit., p. 281, n. 4: ". . . respublica debet esse sibi suf­
ficiens. Unde illa quae babet potestatem facienda illa tria, ilia est respublica.”
13 De Indis, sec. 1, η. 23: “Habent (barbari) ordinem aliquem in rebus suis,
post quam habent civitates, quae ordine constant, et habent matrimonia distincta,
magistratus, dominos, leges, opificia, commutationes.”
i^Cf. H. Wright, Vitoria and the State (Address commemorating the fourth
centenary of the lectures De Indis and De lure Belli), Washington, 1932, p. 30:
'The state of Vitoria comprised all the elements considered by modem writers
as essential, namely, a group of human beings, a more or less definite territory
upon which they reside, internal sovereignty and independence from foreign
control, and a political organization or agency through which the collective will
of the population is expressed and enforced.
15Comm. in ΙΙ-Π, q. 42, a. 2; ed. cit., p. 299, η. 1: “Unitas est tantum bonum,
quod sine eo civitas consisere non potest."
wDe Potestate Ecclesiae, I, sec. II, n. 2: Neque enim omnino idem videtur
esse potestas quod potentia .... videtur potestas praeter potentiam ad actionem
dicere praeeminentiam quandam et authoritatem;’

4

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

testates. Power presupposes an active potency and adds to it
the moral and juridical notion of right.
Vitoria divides power into dominion of ownership and do­
minion of authority.17 Whereas dominion of ownership may
be perfect dominion, perfect right over the use and disposition
of material goods, dominion of authority is an imperfect dominative right over persons, which cannot be exercised except
with proper regard for the natural rights of men as individuals.

Dominion of authority is either public or private.18 Private
authority is that which is proper to conjugal and familial so­
ciety, dominative power in the strict sense.19 Public power,
the power of jurisdiction, is that which is proper to a perfect
society, and is defined by Vitoria as “the faculty, authority or
right of governing the civil republic.”20
Vitoria is insistent on the point that authority is absolutely
necessary to any society, and where there is no authority, the
community would perish.21 Authority is a necessary means to
the attainment of the end of society; therefore, in the order of
nature, at least, it presupposes society already constituted in
its formal essence, with an end already determined. A society
does not received its specification from the authority inherent
in it, but rather authority takes its form from the end of the
society to which it pertains.
Authority, therefore, has the nature of a property consequent
upon the essence of society.22 God, says Vitoria, has created
man of such a nature and disposition that he must live in so­
ciety. Society, however, cannot exist without authority. There­
fore, just as society is from divine and natural law, so authority
must be traced to the same source, “for who gives the species
i7De Indis, sec. I, n. 4.
isjpe Pot. Civ., n. 2.
iaIbid. n. 24.
z0Ibid. n. 10: “Potestas publica est facultas, authoritas, sive ius gubernandi
rempublicam civilem.”
zlIbid., nn. 5, 8, 10.
zzIbid., n. 6.

THE PERFECT COMMUNITY

5

or the form, as Aristotle says, gives to that species or form its
consequences.”23
Public power is a necessary consequence of man’s nature,
not as he is an individual, but as he is a social and political
animal; and authority comes into being only when men have
actualized their social inclination by uniting in a perfect com­
munity.
Authority is the principle that conserves, governs and directs
the community to its end. Even without a prince, the republic,
of itself, has unity, because man is a social and political animal.24
The act of congregation in a political community establishes the
first bond of unity among men in the new society, a unity which
reduces the aggregate of individuals to a moral whole.

We can distinguish in Vitoria’s idea of the perfect society a
double perfection: its fundamental and essential unity, and its
operation for the common good. The first perfection is effected
by the union of intellects and wills ordained to the common
good. Once men join together in this common purpose, they
are no longer an amorphous mass of individuals, but become
an organized unit, the corpus mysticum of the medieval theo­
logians.

But a further perfection is required, a principle of operation
which directs the community in its actual striving to attain the
common end. That principle is public authority.25 The inten­
tion of the end alone is not sufficient to attain it. Authority is
the executive faculty which coordinates the activities of the
citizens and directs them to a harmonious striving for the com­
23Loc. cit., “Si ergo Deus necessitatem istam atque inclinationem hominibus
dedit, ut in societate et sub alia potestate regente degere non possent, hoc ipsum
Deo auctori acceptum referre necesse est. Quae enim apud omnes naturalia sunt,
a Deo naturaliter sine dubio sunt; qui enim dat speciem, seu formam: ut idem
Aristoteles ait: dat ad speciem seu formam consequentia."
2*Comm. in Il-II, q. 47, a. 10, ed. cit, II, p. 368.
2sDe Pot. Cio., n. 5: "Sicut corpus humanum in sua integritate conservari
non posset, nisi esset aliqua vis ordinatrix, quae singula membra in usus aliorum
membrorum, maxime in commodum totius hominis, componeret: sane ita in
civitate contingere necesse esset, si unusquisque civis publicum bonum negligeret.”

6

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

mon goal. It is in this sense that Vitoria likens authority to a
vis ordinatrix.
Some students of Vitoria, proceeding from the notion of power
as the immanent form of the state, attribute to him the organic
theory of the perfect community and state personality. They
conceive power as a vital force, an energy which informs the
social body and gives it an activity and a personality distinct
from that of the members.26
But Vitoria does not conceive of society as an organism and a
person in the univocal sense. The unity which pertains to the
political body is only analogous to the unity of the human body.
Whereas man is a substantial unity, unum per se, the social body
is merely an accidental union, a unity of order, which, in the
words of St. Thomas, is “the least of unities.”27
Vitoria expressly follows the doctrine of St. Thomas on this
point:

As Aristotle says, parables and analogies ought not, nor cannot,
be similar in an things: otherwise it would not be a parable, but
the very thing itself. And therefore, as St. Thomas says in the
Third Part, although the natural body and the mystical body
have many similarities, yet they are not entirely the same, and
differ in many ways.”28
The organic unity and the personality of the state, as a mys­
tical body, are no more than analogous, indeed, metaphorical
concepts. The community, considered as a moral person cannot
possess a substantial unity nor a personality in the proper sense.
2eCf. J. T. Delos, O.P., La société internationale et les principes du droit
public, (Paris, 1929), pp. 204-211; p. 251: “Ainsi au terme de cette analyse, nous
ne craignons pas de dire que l’homme et l’Etat sont tous deux, très axactement,
et très rigoureusement, des Personnes.” Cf. also Naszâlyi, op. cit., p. 223: “Huic
corpori agere, jamvero agere est personae, quae quidem debet esse independens
et in se completa, nam communitas perfecta non gerit res suas cum afia qua­
cumque.”
2îCon. Gen., TV, c. 35: “Fit autem unum ex multis, uno quidem modo,
secundum ordinem tantum: sicut ex multis domibus fit civitas.” Ibid., II, c.
58: “Esse unum secundum ordinem non est esse unum simpliciter: cum unitas
ordinis sit minima unitatum.”
2»De Pot. Ecc., II, sec. 1, n. 4: “Sicut Arisot. dicit, parabola et analogia non
oportet nec potest per omnia esse similis: alias iam non parabola sed ipsa eadem
res esset. Et ideo, ut dicit S. Tho. 3 parte, licet corpus naturale et mysticum
multa habeant similia, non tamen omnia, sed differunt non paucis.

Chapter

II

THE ORIGIN OF CIVIL SOCIETY

Vitoria, following the teachings of Aristotle and St. Thomas,
traces the origin of civil society to the natural sociability of
man.29 Proceeding in a logically ascending order, he shows
that man’s nature, corporeal, spiritual and moral, imposes upon
him the natural necessity of living in society.
On the physical side, nature leaves man the most destitute
of all the animals. Other animals are generously provided by
nature with means necessary tor self preservation: for protec­
tion against the elements, a natural covering; for defense against
enemies, natural weapons, or velocity in fleeing dangers. Man,
although endowed with the highest gifts of reason, wisdom and
speech, is left by nature weak, needy and destitute. The physi­
cal needs of man can be adequately supplied only by living in
a community.30
Man’s spiritual nature also argues for his natural sociability.
Only through learning and experience can man’s intellectual
capacities be developed and perfected, and this would be im­
possible in a solitary state. The gift of speech would be a use­
less faculty outside the society of other men.31
Finally, the human will, “whose ornaments are justice and
friendship,” would be distorted without human society. For the
virtue of justice can be exercised only in social life, and friend­
ship, without communication among men, would perish.32
Man’s whole nature, therefore, can find its complete perfec­
tion only in the society of men. Society, therefore, is not an
29Cf. Pol., I, c. 1; Ethic, I lect. 1, n. 4; De Reg. Prin., I, c. 1; Summa Theol.,
I. q. 96, a. 4; I-II, q. 72, a. 4; etc.
30De Pot. Civ n. 4.
31Loc. cit.
32Loc. cit.

7

8

ανπ. AUTHORITY ACCORDING TO FRANCIS DE VITORIA

artificial invention, but has its roots in nature. Man is impelled
to join with his fellow men in society by a natural inclination,
motivated by a desire to satisfy his necessities and to develop to
the full his spiritual and moral capacities.”
The existence of this natural inclination and moral necessity
to form a civil community does not, of itself, fully explain the
origin of society. This inclination must be reduced to act, and
the actualization of this propensity is the proximate efficient
cause of society as it exists in the concrete.
The political community has its origin in a pact of association
and subjection, by which men form an organized society and
elect their rulers. This appears in Vitoria’s doctrine on the
first division of goods among men.84 Permanent dominion over
these goods by individual men could be acquired in either of
two ways: by a voluntary transfer on the part of the possessor,
or by an act of public authority on the part of the ruler.85
In the beginning, Adam could have made the first division
of property on his own authority as head of the family, or with
the consent of his sons.8® It is a question here of goods already
accumulated by the family, in which case Adam could make
the division as an act of private dominion. Vitoria does not
attribute princely power to Adam, but his position as head of
the human race gives him preeminence over the rest of men.
By reason of his singular position, Adam had dominion over
all things, and had the authority to divide them among his
sons. The same was not true of Noe. After the flood, Noe made
flie distribution of goods among his sons in virtue of public au­
thority, for he was the ruler of the political community.81.
The first division of property in particular primitive societies
was made by a ruler elected by the common consent of the
33Op. cit., n. 5: “Patet ergo fontem et originem civitatum rerumque publi­
carum non inventum esse hominum, neque inter artificiata numerandum, sed
tamquam a natura profectum, quae ad mortalium tutelam et conservationem hanc
rationem mortalibus suggessit.
3<Cf. Naszâlyi, op. cii., pp. 138-140.
35ln ΙΙ-Π. 4. 62, 2.1, ed. cit., ΙΠ, p. 81, n. 27.
3«Ibid., III, p. 78, n. 21.
,
.
STLoc. cit.: Et ita etiam Noe post diluvium potuisset facere divisionem filiis
suis; habebat enim authoritatem principis.”

i

£
THE ORIGIN OF CIVIL SOCIETY

9

people.38 The election of the prince is the first foundation of
the political society in the concrete. The civil community is
not a mere extension and evolution of the familial society, but
the two are specifically distinct. Political society is built on the
family; although founded in nature, it is proximately constituted
by human law.39
The political community has its origin in the common consent
of the people, uniting in a pact of association and electing their
ruler.49
Although Vitoria admits that some communities had their
origin through tyrannical usurpation of power,41 he does not
admit the legitimacy of the tyrant’s title except by the consent
of the people.42
Vitoria does not clearly distinguish between the pact of asso­
ciation, by which men form a political group, and the pact of
subjection, by which they choose a prince to rule them. The
formation of civil society appears to coincide in time with the
choice of a political regime. By one and the same act, society
is bom and the prince elected. But we can distinguish two
logical moments in this single act. The institution of the body
politic precedes, in the order of nature, the election of the prince.
For “the prince has all his authority from the republic.”43 But
in order for the prince to receive his power from the republic,
the latter must already exist and possess the power.
38In 11-11, q. 62, a. 1, ed. cit., Ill, n. 21, p. 78: “Secundo . . . quia homines
ex consensu omnium potuerunt eligere principem, nam statim in principio fue­
runt principes post diluvium, ut patet de Nembrot filio Noe et aliis. Fateor tamen
quadringentos annos forte manserunt omnia communia; sed post ex consensu
omnium, potuerunt eligere principem qui dividere et appropriare potuit illis res
omnes.”
39De Indis, see. Π, n. 1: "Duplex est potestas. Una familiaris ... et haec
est naturalis. Alia est civilis, quae licet a natura quidem habet ortum, non tamen
natura, sed lege constituta est."
40Z.oc. cit.: "Certe post Noe orbis fuit divisus in diversas provincias et regna
. . . sive convenientibus in unum aliquibus in imam rempublicam, ex consenu
communi sibi constituerunt principem.’
41Loc. cit.: “In aliquibus regionibus primo inceperint esse domini per tyrannidem."
42De pot. Cio., n. 23: “Certe videtur quod leges, quae sunt convenientes
reipublicae obligent, etiamsi ferantur a tyranno: non quidem quia a tyranno
latae, sed ex consensu reipublicae.”
43Zn II-II, q. 62, a. 1, ed. cit., ΙΠ, p. 81, n. 27.

ü

Chapter

III

THE ORIGIN OF CIVIL AUTHORITY

The question of the origin of civil authority must be con­
sidered under two aspects: first, in its abstract essence, and
secondly, in the concrete, as it is realized in a determined sub­
ject.44
Having established the necessity of public power and its end,
Vitoria proceeds to the consideration of its efficient cause, and
reasserts the Catholic doctrine that public power is from God,
and cannot be the creation of men.45
The proof of the divine origin of civil power is based on the
fact that this power has its roots in the natural law. Authority
is absolutely essential to the conservation of society, and since
society has its origin in the law of nature, authority likewise
must have the same source.48 Since God alone is the author of
the natural law, He alone is the immediate efficient cause of
public power.4*

Vitoria then goes on to explain the mode in which God is the
immediate cause of civil authority. Since God is the author of
44Cf. Crahay, La politique de Saint Thomas d’Aquin, (Louvain, 1896), p. 45:
Έ11β vise dabord 1 autorité considérée abstraitement, c’est-à-dire l'institution,
la chose; elle vise ensuite les pouvoirs concrètement réalisés, c’est-à-dire l’auto­
rité considérée dans les personees qui en sont revêtues.”
45De Pot. Cio., n. 6: “Manifestum evadit potestatem publicam a Deo esse,
nec hominum conditione, aut iure aliquo positivo contineri.”
i8Loc. cit.: "Et si respublicae societatesque iure divino seu naturali sunt con­
stitutae, potestates eiam, sine quibus respublicae stare non possent."
47Loc. cit.: “Si enim publicam potestatem ordinemus constitutam iure naturali,
ius autem naturale Deum solum auctorem cognoscit: manifestum evadit potesta­
tem publicam a Deo esse, nec hominum conditione, aut iure aliquo positivo
contineri"

10

THE ORIGIN OF CIVIL AUTHORITY

11

man’s natural inclination to live in society, He must also be the
cause of all the consequences which naturally and necessarily
result from the institution of society, “for he who gives the form,
gives the consequences of the form.” Therefore, since authority
is naturally necessary to the conservation of the community, it
is a natural consequence of man’s social nature, and thus has
the same natural, and therefore, divine source.

A further proof of the divine origin of public power lies in
its transcendence over private authority. The prince has the
power of binding his subjects in conscience, a power that he
cannot receive from men, but only in virtue of divine ordina­
tion.48 The laws of the prince can also establish the just mean
of certain virtues.49 Finally, the republic has the power of life
and death over malefactors, a power which belongs to no pri­
vate individual. Therefore, the state has this power by divine
law.60
Since public power is constituted in its essence by God alone,
it follows as a logical consequence that its existence in the con­
crete order, in a determined subject, depends also upon the
divine will. The power of all princes is derived from God Him­
self.61 On this basis, the doctrine of the divine right of kings
was evolved. Since God alone is the efficient cause of power,
He alone can confer it on a ruler, and the king, having received
his power from God, is responsible to Him alone, and not to
his subjects. This doctrine of royal absolutism was held by King
4SDe Pot. Civ., n. 15: “Principum leges et constitutiones ita obligant, ut
transgressores in foro conscientiae culpae rei sunt”

49Ibid., n. 16: “Conveniunt autem in hoc, quod lex divina constituit aliquid
in esse et genere virtutis aut vitii ... Ita etiam lex humana habet vim consti­
tuendi aliquid in esse virtutis, et eius contrarium in esse vitii.”
s0Ibid, n. 7: Homini privato non licet occidere hominem, quamvis crimino­
sum; ergo aliquam authoritatem habet respublica occidendi hominem, quam non
habet privatus homo: et illa non potest esse iure positivo, ergo iure divino.”

silbid., n. 8: “Ideo nos cum sapientibus melius dicimus, monarchiam sive
regiam potestatem non solum iustam esse et legitimam, sed dico reges etiam a
iure divino et^naturali habere potestatem, et non ab ipsa republica, aut prorsus
ab hominibus.”

12

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

James I of England, and also by the kings of France, with
strong support from Bossuet and the Sorbonne.82

The origin of civil power was hotly debated during the con­
flict between the Popes and the Emperors over the right of in­
vestiture. On the principle that Church and Empire were united
in the one body of Christendom, and that the spiritual power
has primacy over the temporal, Pope Gregory VII claimed su­
preme authority in both spiritual and temporal affairs. Conse­
quently, the Emperor does not receive his power directly from
God, but through the Church.83 This opinion was supported
by theologians generally during this period.84
The early scholastic opinion recognizes the people as the
natural subject of political power, which they receive imme­
diately from God. The power of the prince is derived from the
people by way of translation or transference.85
Some modem scholastics, seeking a middle course between
the teaching of the early schoolmen and the contractual theories
of Hobbes and Rousseau, concede to the people only the right
««Bossuet J. B., Politique tirée de PEcriture Sainte, (Paris, 1709), L. IV, a.
k autorité royale est absolue » . . Sass cette autorité absolue, il ne peut ni
faire le bien, ne reprimer le mal.
**
n Ιο JS63 tîle So;boi)ne approved royal absolutism. Cf. DTC, XII, p. Π, col.
2760: * Doctrinam facultatatis esse quod. subditi fidem et obedientiam régi Christiamssismo ita debent, ut ab iis nullo prétexta dispensari possint.
**
53S. Gregory VII, Registrant, Lib. Π, Dictatus Papae, PL, CXLVIII, col. 408.
S4Cf. Hugh of St Victor, De Sacramentis, Lib. Π, c. 4, PL CLXXVI, col.
418; Vincent of Beauvais, Speculum Doctrinale, (Duaci, 1624), Lib. VII, c. 32,
col. 579; John of Salisbury, Polycraticus, L. IV, c. 3, PL, CXCIX, col. 516.

««Cf. Cajetan, Comm, in II-JJ, q. 50, a. 1: “Regimen autem regium a populi
quidem electione dependet qui vota sua et potestatem in eum transtulerunt; et
propterea vices populi gerere dicitur.”
Cf. also Soto, De justitia et jure (Salamanca, 1562), I. q. 1, a. 3: “Reges ac
principes a populo creati sunt in quos suum transtulit imperium et potestatem”;
Banez, Decisiones de iure et justitia (Venice, 1595), q. 62: “Cum autem creat
(respublica) talem gubernatorem vel gubernatores, transfert in illum vel in illos
suam potestatem.”
This doctrine was adopted and developed by Suarez and St. Robert Bellarmine. Cf. Suarez, De legibus, (Lyons, 1619); De opere sex dierum, (Lyons, 1635);
Defensio Fidei Catholicae, (Naples, 1872). Bellannine, De laids; De S. Pontif,,
in Omnia Opera, (Naples, 1857).

THF. ORIGIN OF CIVIL AUTHORITY

13

of designating the concrete subject of authority, upon whom
God immediately confers the power.6®
Many of the modem scholastics adhere to the theory of historico-natural right, according to which the subject of political
power is determined by a certain natural right belonging to a
particular individual by reason of some historical fact or cir­
cumstance.67
These authors admit a multiple title to authority: title aris­
ing from a just war, title by right of property, title by right of
natural talent and preeminence of one individual over the rest
of the community, and especially, the title founded on the pre­
existing right of domestic authority. As the family is the seed
of the political community, so the paternal authority is the
foundation of civil power, and as the family naturally and spon­
taneously evolves into a perfect society, so domestic authority
spontaneously evolves into civil authority. The civil communi­
ty, then, is not the original and natural subject of power, and
does not transfer authority to its rulers. There is no free pact
of subjection on the part of the people. Authority, being of
divine origin, is granted to the prince directly by God in ac­
cordance with the natural law.
The variety of opinions, even among the scholastics, indi­
cates the importance and the difficulty of the problem of the
origin of power in the concrete. Where does Vitoria stand on
the question? Although he has asserted the divine authorship
of power, he gives to men, nevertheless, a role in determining
the subject of power in the concrete. Power naturally results
in an organized civil community, but the proximate efficient
cause of the community is the consent of men. By forming the
political body, men may be said to intervene in the bestowal of
56Cf. Zigliara, Summa philosophica, (Rome, 1878), vol. Ill, p. 194: Billot,
De Ecclesia Christi (Prato, 1909), pp. 495 seq; Schwalm, Leçons de philosophie
sociale, (Paris, 1911), vol Π, p. 505.
s7Cf. Cathrefn, Philosophia moralis, (Barcelona, 1945), p. 401; Liberatore,
Institutiones Philosophicae, (Naples, 1871), vol. ΠΙ, p. 275; Meyer, Institutiones
iuris naturalis, (Friburg, 1906), p. 341; Schiffini, Disputationes philosophiae moral­
is, (Turin, 1891), vol. II, p. 424.

14

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

power by disposing the matter, or the subject capable of power.58
This does not prejudice the teaching of the immediate divine
causality of power, for men have no part in its creation. Once
the political community is formed, power is immediately present,
not by a new and direct intervention on the part of God, but
as a property necessarily inhering in the society.59 Not only has
the human will no part in the creation of power, but it is ab­
solutely unable to impede or destroy that power without de­
stroying society itself.80

r,8Cf. Urdânoz, op cit., p. 280.
s9De Pot. Civ., n. 6.

MIbid., n. 8: “Constituta est enim in republica omnibus etiam civibus invitis
potestas seipsam ministrandi.” Ibid., n. 10: “Si cives omnes in hoc convenirent,
ut omnes has potestates ammitterent, ut nullis tenerentur legibus, nulli imparerent, pactum esset nullum et invalidum, utpote contra ius naturale."

Chapter

IV

THE SUBJECT OF CIVIL AUTHORITY

After consideration of the efficient cause of civil authority,
Vitoria proceeds to the determination of its material cause, that
is, the subject in which it resides by divine and natural law.
That subject, Vitoria says, is the republic itself, which has the
power to “govern and administer itself and direct all its power
to the common good.”61
This conclusion is deduced from the premises of the natural
necessity of power to the community and the natural freedom
of man. If natural law places this power in the community, it
must determine also the natural and original depositary of that
power. But natural law does not single out any individual as
the subject of power, for by natural law all men are bom politi­
cally free.®2 Therefore, the community itself must be the first
and the natural subject of power.

If we lay aside all human positive law, no man is entitled
to civil authority in preference to another. Before men united
in a social body, none was superior in authority to another; con­
sequently, there is no reason why, in the organized political so­
ciety, anyone should arrogate this power to himself. Such a
61 Ibid., n. 7: “Constitutione ergo divina, respublica hanc potestatem habet:
cause vero materialis in qua huiusmodi potestas residet iure naturali et divino
est ipsa respublica, cui de se competit gubernare seipsum, et administrare, et
omnes potestates suas in commune bonum dirigere.”

®2De Indis, see. Π, n. 1: “In iure naturali homines liberi sunt, excepto dominio
paterno et maritali.” In II-II, q. 47, a. 10, ed. cit., II, p. 368: “De iure naturali
nullus sit rex nec praepositus aliis, quia de iure naturali libera nata sunt.”

15

16

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

procedure Vitoria considers as unjust force, and may be resisted
with force.83
Some authors disagree with Vitoria’s reasoning. Vitoria argues
that, in the absence of any dominative power of one individual
over another, nature assigns the title to authority to the com­
munity itself. The dissenting authors, however, conclude from
this that there is no naturally determined subject of civil au­
thority.84
Vitoria holds, however, that given a natural right, there must
be given a natural subject of that right; accidents do not exist
without a subject. The theory of the constitutive right of desig­
nation or election eliminates a natural subject of power, for the
prince elect would be the subject of power in virtue of “positive
and human law.” Nor would the patriarchal authority constitute
a natural title to civil authority, for the patriarchial society is
specifically distinct from the political society.88
For those who hold for the theory of designation, no perfect
society can exist without a determined mode of regime. But in
the Vitorian notion, we have seen, there is a double perfection
attributed to the political society, and two logical moments in
its complete formation: the initial constitution of society in its
essential perfection, and the choice of a regime and a ruler,
which constitutes the society in its full perfection. In the order
of nature, at least, the existence of the perfect society in its
e3De Pot. Civ., n. 7: “Nam cum de iure naturali et divino est aliqua potestas
gubernandi rempublicam, et sublato communi iure positivo et humano, non sit
maior ratio ut potestas illa sit in uno quam in alteri, necesse est ut ipsa com­
munitas sit sibi sufficiens et habet potestatem gubernandi se. Si enim prius
quam in civitatem homines convenirent, nemo erat aliis superior, non est aliqua
ratio cur in ipso coetu seu conventu civili quisque sibi super alios potestatem
vindicaret: maxime cum quilibet homo iure naturali habet potestatem et ius de­
fendendi se, nihilque sit magis naturale quam vim vi repellere.”
®4Cf. Bo, “II pensiero di S. Tommaso d’Aquino sull’ origine della sovranità,”
La Scuola Cattolica, XVI, p. 403: “La divina institutione della sovranità non è
solo indiretta ma diretta e immediata; che . . . v’ha in senso assoluto, un solo
necessario detentore della sovranità, l’Autore della natura e nella convivenza
umana manca un qualunque depositario (individuale o collettivo, società o singolo individuo), per diritto naturale, dei potere che promana di Dio”
Cf also Zigliara, op cit., p. 194; Billot, De Ecclesia Christi (Prato, 1909),
p. 495.
e5Cf. De Indis, sec. II, a 1.

THE SUBJECT OF CIVIL AUTHORITY

17

essential unity is presupposed to the choice of a ruler. And since
society cannot exist even for a moment without its essential
property of authority, that authority must belong from the be­
ginning to the community as a whole.
Does the Vitorian notion of initial popular sovereignty con­
clude to a natural, initial democratic society?66 This question
must be answered in the negative, for Vitoria establishes the
foundation of all determined forms of power to be in virtue of
positive law.67 Natural law determines no more than that the
multitude, constituted in a perfect society and considered as a
moral whole, enjoys the sovereign power of governing itself.
The mode of that regime and the particular individuals who
exercise its functions are left to the choice of the people.68 A
democratic society, as such, is not the immediate subject of
power, but rather the multitude organized in society, a society
as yet indifferent to any form of regime. This is the proper
sense of Vitoria’s use of the term “republic” as the material
cause of power.69
Political authority, as such, pertains to the first perfection of
the political community, its substantial unity; authority as qualieeCf. P. Leon, “L’évolution de l’idée de la souveraineté avant Rousseau,” in
Archives de philosphie du droit et de sociologie juridique, (Paris, 1937), VI, p.
165. Leon asserts that the medieval idea of the mixed regime seems to disap­
pear, and “Vitoria lui substitue une démocratie initiale, orientée vers une indi­
vidualisme égalitaire.”
e7De Indis, sec. II, n. 1: “Alia (potestas) est civilis, quae licet a natura habet
ortum . . . non tamen natura, sed lege constituta est.”
β8Ιη II-II, q. 104, a. 1, ed cit., V., p. 203, n. 2: “In qua republica necessari­
um est quod sint aliqui superiores . . . quia respublica nullo modo posset guber­
nari, si non esset aliquis superior. Et sic totum hoc est de iure naturali; non
quod habeat iste vel ille hanc superioritatem.”
e9We can distinguish three senses of the term “republic” in Vitoria’s writings.
He uses it to signify:
1) An organized multitude, previous to the election of the prince. Cf. De
Pot. Civ., n. 14: “Major pars reipublicae regem supra totam rempublicam con­
stituere potest.” Also, De lure Belli, n. 6, In II-II, q. 104, a. 5, etc.
2) A political society in general, abstracting from any particular mode of
regime. Cf. De Pot. Civ., n. 13: “cum una respublica sit pars totius orbis:” De
Pot. Ecc., I, sec. VI, n. 9.
3) The people taken collectively. Cf. De Pot. Civ., n. 14: “In regio principatu
rex est non solum supra singulos, sed etiam supra totam rempublicam, id est,
etiam supra omnes.

18

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

fied by a specific form of government pertains to its second
perfection, the actual operation toward its goal. Only if the
multitude chooses to exercise the functions of government itself
will it be a democratic regime.70
The Vitorian notion of public power as being initially invested
in the people leads to the concept of the immanence of power
to the social body.71 Public power is a natural concomitant of
civil society, necessary to, and inseparable from, the body politic.
It is not the creation of men, and it is not in the power of men
to abolish it or dispense with it.72
From Vitoria’s conception of the immanence of power to the
community arises the most controversial issue in the whole Vi­
torian philosophy of authority, the problem of the translation of
power. If the community is the natural and primary subject of
power, how does this power come to reside in kings, princes
and assemblies? If power is immanent to the community, how
can it be alienated? Do the people retain their power and trans­
fer only its exercise? Or do they renounce their sovereignty
completely? “A crucial point in the theory of the state,” says
Delos,73 a point which we shall attempt to clarify in the follow­
ing section.

70Compare Cajetan, in ΙΙ-Π, q. 50, a. 1: ‘Ordine generationis . . . regimen
populare secundum actum electionis est prius regimine regis ... sed si dili­
genter consideretur quod electio regiminis non est pars regiminis, sed praevium
ad omnem speciem regiminis, ad electionem siquidem populi spectat, secundum
naturale ius, an populare an optimatum an regale sit futurum regimen; mani­
feste patet quod nec etiam secundum ordinem generationis ordinem regalis
Srincipatus dependet a populari, qui in littera populus vocatur; magis autem
istinguendum est de populi significatione. Quandoque enim sumitur populus
pro regimine populari; quandoque autem pro ipso populo. Regimen autem
regium a populo quidem electione dependet, qui vota sua et potestatem in eum
transtulerunt: et propterea vices populi gerere dicitur. Non dependet autem
a regimine populari, sed e contra, ut in littera dicitur; nec vices illius gerit.”
uCf. Delos, op. cit., p. 206; NaszAlyi, op. cit., p. 203; Urdânoz, op. dt.,
p. 298.
iWe Pot. Cio, nn. 8, 10.
73Op. cit., p. 207.

Chapter

V

THE TRANSLATION OF POWER

Having determined that political power is intrinsic to the
perfect community and that it resides in the community immedi­
ately in virtue of natural law, Vitoria now turns to the problem
of how this power originates in a particular subject other than
the community itself, under a specifically determined mode of
regime. He excludes a discussion of aristocratic and democratic
forms of government, and limits himself to a consideration of
the origin of royal power. The reason for this approach is that
the same principles are applicable to all legitimate forms of
government, but the most common form of regime in Vitoria’s
day was that of monarchy.74 A further urgent reason for a spe­
cial discussion of royal power was the position held by some,
“even among Christians, who not only deny that royal power is
from God, but assert that all kings, dukes and princes are ty­
rants and robbers of liberty.”75 The only dominion these recog­
nize is that of the republic.
Vitoria's Solution and Its Interpretations

Vitoria states his conclusion that royal power is not only just
and legitimate, but that kings have their power by divine and
natural law, and not from the republic.76

19

M*

7iDe Pot. Civ., n. 7: “Et quia haec potestas principaliter est in regibus,
quibus respublica commisit vices suas, de regio principatu et potestate dispu­
tandum est.”
T5Loc. cit: “De qua non desunt aliqui, etiam de numero Christianorum,
qui non solum negant regiam potestatem esse a Deo, sed etiam omnes reges,
duces, principes dicunt esse tyrannos, et huius libertatis esse praedones, adeo
insensi sunt omnibus dominationibus et potestatibus, una dumtaxat respublica
excepta.”
7eDe Pot. Cio., n. 8: "Ideo nos cum omnibus sapientibus melius dicimus
monarchiam sive regiam potestem non solum iustam esse et legitimam, sed
dico reges etiam a iure divino et naturali habere potestatem, et non ab ipsa
republica, aut prorsus ab hominibus.”

20

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

He proves this conclusion from the authority of Holy Scrip­
ture and from historical tradition. His rational proof proceeds
from the premise that the republic has power over its members,
but cannot conveniently exercise that power. It is necessary,
therefore, that the administration of that power should be com­
mitted to a single person or to a group of persons who can more
readily exercise the functions of authority. Since this power is
the very same as that of the republic, it follows that, in the case
of a monarchy, “the royal power is not from the republic,
but from God Himself, according to the opinion of Catholic
doctors.”77
This text, in itself and in relation to other texts, offers several
difficulties, and consequently has been interpreted in various
ways.
Although Vitoria has assigned the community as the immedi­
ate subject of power, he now says that the power of kings is
of divine and natural law, which seems to exclude the com­
munity as the natural subject of power. On the other hand,
Vitoria has stated that all men are bom free, and no one has
political dominion over another; yet, he says, kings have power
by natural law. How is the apparent contradiction to be re­
conciled?
Cardinal Zigliara finds the solution in the theory of mediate
divine right, according to which Vitoria would make the com­
munity the subject of power only in the abstract order.78 The
community is not the depositary of power in itself, but rather
enjoys a constitutive right to determine the form of government
and to designate, by direct or indirect election, the person of
it Loe. cit.: “Quia cum respublica potestatem habet in reipublicae partes,
haec autem potestas per ipsam multitudinem exerceri non potest (non enim
commode posset leges condere, atque edicta proponere, lites derimere et trans­
gressores punire) necesse ergo fuit ut potestatis administratio alicui, aut ali­
quibus, commendaretur, qui huiusmondi curam gererent: et nihil refert uni aut
pluribus commendetur: ergo potuit commendari potestas, quae eadem est, quae
reipublicae ... Videtur ergo quod regia potestas sit non a republica, sed ab
ipso Deo, ut Catholici doctores sentiunt.”
TSZigliara, op. cit., p. 196: Consideraverunt ergo ipsi (Vitoria et veteres scho­
lastici) societatem in abstracto, et consequenter individua in abstracto, et in
abstracto auctoritatem ipsam.”

THE TRANSLATION OF POWER

21

the ruler.’9 As soon as he is designated by the people, the ruler
receives his power directly from God.80
On the other hand, the Vitorian concept of the immanence
of public power to the social body and the organic construction
of the state has given foundation to a theory directly opposed
to that of Zigliara. According to the organic theory, defended
by Delos and Naszâlyi, the community is the subject of power
in the concrete, not merely in the abstract order. But since this
power is a vis-ordinatrix immanent to the community, it is in­
alienable and cannot be transferred to any other subject.81 Rulers
are nothing more than the organs oi the personalized social body,
ministers of the people, administrators of the public power,
which is the power of the people.82 The essence of power re­
mains with the people, and only its exercise is transferred to
the prince.
A third interpretation of Vitoria’s doctrine makes the com­
munity the subject of power in the concrete, but considers this
power to be an alienable right which the people transfer to the
prince by a true donation.83
nLoc. cit.: “In multitudine igitur ut in subjecto non est potestas; et tamen
auctor (Vitoria) addit quod creat respublica non potestatem sed regem, nempe
determinatam subjectum. Vult ergo in multitudine non esse potestatem deter­
minatam, ut in subjecto, sed potestatem determinandi subjectum politicae auc­
toritatis.”
80Ibid., p. 197. Cf. Fabre, “L’origin du pouvoir, scholastiques anciens et
modéras,” Reçue Auguttinienne, XVII, p. 702: “La communauté n’a joué
qu’um râle: elle a désigné, et en designant a confié un titre a l'autorité mais
pas plus, le pouvoir est venu de Dieu ... Le Peuple n’est pas plus un canal,
dans ce cas.
*
81Cf. Delos, op. cit., p. 209: "Ce pouvoir—potestas—ne peut donc être
donné, aliéné, transféré, comme le pensera Suarez."
Naszâlyi, op. cit., p. 204: “Haec potestas alteri proprie donari, id est sensu
vero et stricto transferri, propriissime alienari nequit. Ibid., p. 208: “Non potest
(populus) in eum ipsam suam potestatem transferre, quia ipsa inalienabilis est”
88Delos, op. cit., p. 208: “En réalité, il n y a qu’une seule Puissance, un
seul Pouvoir: celui du corps social . . . qui s'exerce par des organes.”
Naszâlyi, op cit., p. 211: "Princeps est organum status seu potestatis civilis.
Jam, quando primo affirmat Magister, exercitium potestatis per multitudinem
fieri non posse, loquitur de potestatis "administratione." Exinde jam deduci
potest, quod ille, qui hoc facit, qui curam gerit administrationis, aliquo modo
ministeriale officium implet”
MSoto, foc. cit.: Bafiez, loc. cit.; Urdânoz, op. cit., pp. 304-315.

I

ova. AUTHORITY ACCORDING TO FRANCIS DE VITORIA

The Theory of Mediate Dioine Right

The theory of mediate divine right is not a true reflection of
the mind of Vitoria. There is no doubt that Vitoria intends the
people to be the subject of power, not only in the abstract order,
but also in a concrete, organized, perfect community. This is
evident from the very opening sentence of the discussion of the
subject of power.

By divine constitution, therefore, the republic, (in the abstract)
has this power: but the material cause in which this power re­
sides, by divine and natural law, is the republic itself (in the
concrete).84
And Vitoria goes on to say that it belongs to the republic of
itself, to govern and administer itself, and direct its powers to
the common good.88
Furthermore, the republic commits to the king the very same
power that it possesses.8® Consequently, there are not two dis­
tinct powers, one of the king and another of the republic, but a
single power, which, in virtue of an act of translation from the
people, now resides in a new subject and is denominated royal
power.87 Vitoria’s terminology patently refers to the concrete,
real order: the republic commends,88 gives,80 concedes,80 trans­
fers,91 retains92 its power.
Finally, the subject of civil power is distinguished from the
subject of ecclesiastical power by reason of the fact that civil
«De Pot. Cio.» n. 7. Parentheses mine.
85Loc. cit. Compare St. Thomas, Summa Theologiae, I-Π q. 90, a. 3: "Ordi­
nare autem aliquid in bonum commune est vel totius multitudinis, vel alicuius
gerentis vicem totius multitudinis.”
Pot. Cio., n. 11: “Potuit commendari potestas quae eadem est quae
reipublicae.”
«Ubid., n. 9.
®®Loc. cit.
8»In Il-II, q. 104, a. 5, ed. cit., V., p. 212, n. 2.

wLoc. cit.
«De Pot. Cio., n. 8.
«De Pot. Ecc., Π, sec. 1, n. 1.

THE TRANSLATION OF POWER

23

power is per se immediately in the community, while ecclesi­
astical power is not subjected in the whole Church, but in cer­
tain individuals. The civil power can be retained by the whole
community, or committed to others, totally or partially, but the
power of the Church was committed by Christ directly to cer­
tain individuals.®3 .
Power, then, resides immediately in the community as its
natural subject. How must we explain Vitoria’s assertion that
royal power is not from the republic, but “of divine and natural
law?” It is evident, from the preceding argument, that Vitoria
does not mean that God directly intervenes by a positive act
of donation of power to the king, or that the king, from the very
nature of things, is the subject of power.
The solution lies in the presentation of the problem. Vitoria
is arguing against those who deny the divine origin of royal
power and classify kings and princes as tyrants and usurpers.
Vitoria is defending the legitimacy of the monarchical regime,
and he bases his proof on the proposition that royal power is
the selfsame power as that of the republic. In fact, the power
of any legitimate regime is nothing more than the identical
power of the republic as it now resides in a new subject.94 Con­
sequently, since the power of the republic has its source in God,
(which Vitoria’s adversaries admit), the power of kings, being
nothing more than the power of the republic, is from God.
When Vitoria says that kings have their power from God,
he is speaking of die creation of power, not its translation or
®3Loc. cit.: "Ante omnia ergo quaeritur: an potestas Ecclesiae sit per se in
tota Ecclesia, distinguendo Ecclesiam universalem a singularibus personis eo
modo quo concedunt tum philosophi tum theologi, et verum est, quod civilis
potestas est immediate in tota republica.”
Ibid., n. 4: “Quod autem ipse non dederit immediate et primo Ecclesiae,
sed certis suppositis et personis . . . Signum apertum est hanc potestatem
(spiritualem) non residere immediate et primo apud Ecclesiam, quod Ecclesia
non potest sibi retinere, nec duobus aut tribus committere, quod tamen posset
respublica ad administrationem civilium, vel retinere sibi regimen, vel creare
consules, vel tribunos etiam supra potestatem regiam, sicut erant Ephori apud
Lacedaemonios, et senatores supra principem apud Venetos.
«De Pot. Cio., n. 8: “Et nihil refert uni aut pluribus (potestas) commendetur:
ergo potuit commendari potestas, quae eadem est que reipublicae.”

24

CIVIL AUTHORITY ACCORDING TO FRANC» DE VITORIA

direct donation. The power of the king is the creation of God,
not the work of men. This is clear from Vitoria’s final argu­
ment, in which he declares that if men or the republic did not
have power from God, but agreed, for the common good, to
constitute a supreme power over themselves, that power would
be of human, not divine, institution.” But such is not the case.
The human will plays no part in the creation of power, for
power would belong to the community even if all the citizens
were unwilling to have it”
Royal power, qua royal, is not immediately from God: inso­
far as power is specified by royalty, it depends upon the will
of the people, “for the republic creates the king.”” The power
of the king, considered in itself, is of immediate divine origin;
as it resides in the king as in a concrete subject, power is from
God through the people. For God immediately creates power,
and immediately confers it on the community; the community,
by transferring that same God-given power to the king, is the
proximate cause of royal power. God and nature determine only
that there should be power in the community; it is left to the
discretion of the community whether to retain the power or to
transfer it to others.”

The Organic Theory
The organic theory, according to which power, because of its
immanent quality, cannot be alienated but remains permanently
in the people as in its only subject, is an exaggerated interpre­
tation of Vitoria’s concept of the state as an organic body. The
notion of the state as an organism is merely a metaphorical con­
"IbicL, n. 8: “Quod si homines vel respublica non haberent potestatem a
Deo sed ex condicto omnes convenirent, et pro bono publico vellent potestatem
conta se constituere, illa quidem esset ab hominibus.
"Loc. cit.: “Non ita vero est: constituta est enim in repuHica, omnibus
civibus invitis, potestas seipsam ministrandi.
"Loc cit.: “Creat enim respublica regem."
•«In Π-Π, q. 104, a. 1, ed. cit., V., p. 203.

THE TRANSLATION OF POWER

25

cept; the properties of physical bodies cannot be predicated
univocally of moral bodies. Nowhere in his writing is Vitoria
an advocate of the doctrine of state personality. His “republic”
which is the subject of power, which can administer and govern
itself, is an organized multitude, the “mystical body” which re­
mains nothing more than an accidental union, a union of order,
“the least of all unities.”
That Vitoria considers the power of the people to be an alien­
able right is already evident, for not only do they possess the
power, but actually transfer it to the king. In fact, there is a
moral necessity that they relinquish their power to someone who
can more conveniently direct the community to the common
good.09
But if power is immanent to the community, how can it be
at the same time an alienable right, to be transferred to an­
other? The defenders of the theory of inalienability find con­
firmation of this view in the Vitorian text in which he draws
an analogy between public power and man’s natural right of
defending himself. Just as the right to self-defense is an inalien­
able right, so public power, which is intrinsic to the community,
is also inalienable and under no conditions transferable.10®
From the context of the passage, however, it is evident that
Vitoria is concerned, not with the translation of power, but with
its abrogation: power is inherent to the community by natural
necessity, and men cannot abolish it. This is the thesis that Vi­
toria is defending, that civil power “cannot be abrogated by the
consent of men.”101 He concludes with the statement that if all
the citizens of a community agreed to abolish public power so
"De Pot. Civ., n. 9.
looibid., n. 10: “Si enim homo cedere non potest iuri et facultati se de­
fendendi, propriisque membris ex commode suo utendi: ergo nec etiam potestati,
cum hoc illi naturali et divino iure competat. Itidem etiam respublica nullo
modo potest privari buiusmodi potestate tuendi se, et administrandi adversus
Muriam et suorum et exteriorum, quod sine publicis potestatibus facere non
potest.”
lOtLoc. cit.

26

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

that they would be subject to no laws, that pact would be nuB
and void, as being contrary to the natural law.102 Certainly it
is not the mind of Vitoria that the translation of power is con­
trary to natural law; indeed, it is morally necessary to transfer
this power in order that the end of society be attained.103
But how can we explain the paradox that power, even though
alienated by the people, remains immanent to the community?
Vitoria does not mean that the people transfer their power to
a person who is, and afterwards remains, outside the com­
munity, thus establishing a supreme power which is not only
above them, but against them. The king, according to Vitoria,
although in a certain sense above the community, remains a
part of it.104 The king is above the community because he has
been constituted by the community as such.105 He has the power
to enact laws and exact obedience on his own authority. On
the other hand, he is part of the republic, because the republic
is a whole, integrally composed of members who are divided
into rulers and subjects. The ruler, as part of the community,
is bound to the observance of the laws.100
The translation of power from the people to the king, there­
fore, in no way destroys its immanence to the community, for
power is still subjected in a member of the community. Where
power formerly was dispersed, it becomes, upon translation,
102Loc. cit.: “Atque ita si cives omnes in hoc convenirent, ut omnes has
potestates ammitterent, ut nullis tenerentur legibus, nulli imperarent, pactum
esset nullum et invalidum, utpote contra ius naturale.”
103The transfer of power does not involve the renunciation of the right of
self-defense on the part of the citizens, individually or collectively, for this right
is natural and inalienable. But the people do transfer the right of providing
for the common defense.
1MDe Pot. Ecc., I, sec. Π, n. 10: “Nam regia potestas continet omnem
potestatem civilem: hoc enim importat rex, quod sit unus super omnes in
republica.”
De Pot. Cio., n. 14: “In regio principatu rex est non solwn, supra singulos,
sed etiam supra totam rempublicam; id est, supra omnes simul.”
Ibid., n. 21: “Ipse (legislator) est pars reipublicae.
De Pot. Pap. et Con., n. 7: "Princeps non est a lege solutus ... cum ipse
princeps sit membrum reipublicae.”
105De Pot. Cio., n. 14: "Item respublica potest dare potestatem alicui, non
solum supra singulos, sed etiam supra omnes simul, et ule haberet potestatem
regiam.”
n. 21: De Pot. Pap. et Con., n. 7.

THE TRANSLATION OF POWER

27

concentrated in a single member, thus remaining inherent in
the community.107
In another sense, also, it may be said that power remains im­
manent to the whole community, for even in the case of a total
transfer of power, it remains radically in the hands of the
people.108 If a legitimately constituted king becomes a tyrant,
he loses the right to authority, and his laws (even though they
may be just in themselves) have no binding force, except by
reason of the consent of the people.109 Radically, then, power,
even after total translation, remains immanent to the communi­
ty as a whole.
It cannot be denied that Vitoria considers the rulers of states
as the ministers of the people. He asserts that the administra­
tion of power is committed to princes, and that kings are con­
stituted in the office of administering the affairs of the repub­
lic.110 These texts are brought forward as a further confirmation
of the organic theory, that kings and rulers are the organs of
the social body, functionaries of the state, fulfilling only a
ministerial capacity. The people retain the substance of power,
transferring to the prince only its exercise.111
But this idea is far from Vitoria’s mind. He expressly holds
that royal power contains all civil power, that the king is above
10TCf. Delos, op cit., p. 208: “Π y a concentration du pouvoir, immanent
au corps politique, en la personne des gouvernants.”
loscf. Urdânoz, op. cit., p. 313.
iO9De Pot. Civ., n. 23: “Certe videtur quod leges quae sunt convenientes
reipublicae obligent, etiamsi ferantur a tyranno: non quidem quia a tyranno
latae, sed ex consensu reipublicae.”
nope pot. Civ., n. 8: “Necesse ergo fuit ut potestatis administratio alicui
aut aliquibus commendaretur . . . Constituta est enim in republica . . . potestas
seipsam administrandi, in quo officio civiles reges constituti sunt.”
luNaszâlyi, op. cit., p. 211: “Princeps est organum status. Jam, quando
primo affirmat Magister, exercitium potestatis per multitudinem fieri non posse,
loquitur de potestatis “administratione.” Exinde jam deduci potest quod ille,
qui hoc facit, qui curam gerit administrationis, aliquo modo ministeriale offi­
cium implet.”
Cf. also Delos, op. cit., p. 208. Leon, op. cit., p. 165, although not expressly
holding the organic theory, asserts that, according to Vitoria, the people retain
the substance of power (majestas reads), while the king has merely the exercise
of power, (majestas personalis).

28

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

the whole republic, that legitimate princes have the plentiude
of authority, both in war and in peace.112
If kings, princes and other rulers were merely the ministers
of the people, and enjoyed only the exercise of the functions of
authority, we are forced to conclude that their power would
be no more than a delegated power. The legitimate exercise of
any function presupposes the right and the power of exercise,
which, if it is not ordinary, must be merely delegated. But since
the king is a legislator in his own right, and can pass laws which
bind the citizens in conscience, and inflict punishment on trans­
gressors, it is evident that he has the ordinary power of juris­
diction. For, if the people retained the power and merely dele­
gated its administration to the prince, it would be ridiculous to
suppose that they, as having the superior power, would be bound
by the laws of their own delegate. By the mere revocation of
the delegated power, or by popular veto of the king’s law, the
people could effectively dispense with any and all legislation.
A public power which is always subject to the discretion or the
caprices of thé multitude was certainly never envisaged by
Vitoria.118
The power of the king is the same as the power of the repub­
lic, not only specifically, but also numerically. In the case of
a total transfer of power, the power ceases entirely to be in the
community, and resides, numerically the same, in the king.
Since, then, there are not two powers, but only one, and since

ll2De Pot. Ecc., 1, sec. II, n. 10: “Nam regia potestas continet omnem
potestatem civilem.”
De Pot. Cio, n. 14: “Rex est supra totam rempublicam.”
De lure Belli, n. 6: “Princeps non est nisi ex electione reipublicae, ergo
gerit vices et authoritatem illius: imo iam ubi sunt legitimi principes in re­
publics, tota authoritas resident penes principes, neque sine illis aliquid publice
aut bello aut pace geri potest."113
*

113Cf. Urdânoz, op. cit., p. 311: “Pero esa interpretaciôn que tiende a concebir el poder civil como un simple mandato revocable en todo momento por
el pueblo, sujeto a los caprichos de la multitud y a su control constante, no
parece reflejar bien la mente de Vitoria.”

THE TRANSLATION OF POWER

29

that single power has its origin in God, kings are called min­
isters of God rather than ministers of the people.114

I

I
■

j
I
i

Princes and rulers can be called “ministers of the people,”
or “public servants,” for they do not have perfect dominion over
their power, and cannot use it for personal advantage, but for
the utility of the whole community. The royal authority is not
absolute and unlimited, but is restricted by the preestablished
end of all civil authority, the common good.115 Since kings are
created by the people, and since their power is not absolute,
but circumscribed by the exigencies of the common good, they
are responsible to the people for good government, and truly
must be the "ministers of the people.
*
11®
Our conclusion, therefore, in regard to Vitoria’s concept of
the state as an organism is that this notion is not to be taken
univocally, but in a metaphorical sense. The rulers of the community, although they may be called “organs” of the social body, .
enjoy the ordinary power of jurisdiction, not merely delegated
power.

!
i
,
j
>.
:

The People as the Subject of Power
From the foregoing criticisms, it is clear that Vitoria s doc­
trine must be interpreted according to the third theory proposed
above. To sum up Vitoria’s teaching, civil power, first of all, has
its origin in God. The people are the original and natural sub­
ject of power, which they receive immediately from God, the
Pot. Civ., n. 8: “Atque ideo sicut potestatem reipublicae a Deo et
iure naturali constitutam esse dicimus, idem prorsus de regia potestate dicamus
necesse est, quod satis consonum Scripturae videtur consuetudinque, quae prin­
cipes Dei, non ministros reipublicae appelât."
115De Iure Belli, n. 12: "Nam princeps debet et bellum et pacem ordinare
ad bonum commune reipublicae, nec publicos redditus pro propria gloria aut
commodo erogare, et multo minus cives suos periculos exponere. Hoc enim
interest inter regem legitimum et tyrannum, quod tyrannus ordinat regimen
ad proprium quaestum et commodum; rex autem ad bonum publicum . . . Item
habet authontatem a republics, ergo debet uti illa ad bonum reipublicae.”
w«Cf. St Tho mas, in II Sent, d. 44. q. 1, a. 3, ad Im: “Subditi ad bonum
praepositi non ordinantur, sed e converso regimen praepositi ad bonum sub·
ditorum; unde non incongrue se eorum servos appelant.”

;

30

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

author of nature. But because it is morally impossible for the
multitude as a whole to exercise this power, it is necessary to
transfer it to a person or a group who can more conveniently
direct and govern the community. The people have the right
to choose any mode of regime they wish, and may alienate their
power totally, or retain part of it for themselves. The power of
rulers, then, is nothing more than the power of the republic it­
self, and as such, is of divine origin. The rulers receive their
power directly from the people, who first receive it immediate­
ly from God.

However, this interpretation of Vitoria’s doctrine is called into
doubt on the strength of a greatly disputed passage, in which
Vitoria seems to deny that the power of the people is trans­
ferred to the king. In the tract on the constitution of royal
power, Vitoria says:

It is apparent, therefore, that royal power is not from the re­
public, but from God Himself, according to the opinion of Catho­
lic doctors. For, although it is constituted by the republic (for
the republic creates the king), nevertheless the republic trans­
fers to the king, not the power, but its own proper authority;
nor are there two powers, one of the king, the other of the com­
munity.11*

The difficulty revolves about the distinction between power
and authority. These two words are often used interchange­
ably to signify the same thing, and Vitoria himself uses them
indiscriminately.
Urddnoz, recalling the identification of the two words in
the same passage, would find no hidden meaning behind the
terms.118 Yet, the disjunction of the terms in the same sentence
For. Civ., n. 8: "Videtur ergo quod regia potestas sit non a repulica,
sed ab ipso Deo, ut Catholici doctores sentiunt. Quamvis enim a republica
constituatur (creat enim respublica regem), non potestatem, sed propriam authoritatem in regem transfert; nec sunt duae potestates, una regia, altera com­
munitatis.”
usUrdânoz, op. cit., p. 291: “Si bien en otro pasaje controvertido Vitoria
distingue ambas voces, no parece tenga ningûn misterioso sentido tal diferencia
verbal, pues in realidad alii mismo les identifica.”

i
i
I

j
I
I

j

I
I

THE TRANSLATION OF POWER

I
;
I

indicates a distinction between them. And so, the same author
concludes that these words signify the separation of the idea
of public power from the concept of force.119

31

The validity of this distinction is admissable, but does not
seem to be applicable according to the context. Vitoria is speaking of the transfer of a power to which the community has a
right. No one has a right to unjust violence, nor is able to con­
fer that right on someone else.
Zigliara sees in the disputed passage the doctrine of immediate divine causality in the bestowal of power upon the
king. The people do not transfer the power, because they
never possessed it; they merely designate the ruler, upon whom
God bestows the power.120
Again, this does not seem to be Vitoria’s mind. We have
established that the community is the immediate subject of
power in the Vitorian teaching, and that kings have their power
directly from the people.
Delos follows Vitoria’s distinction between potency and power.
Potency is a generic term, to which power adds the idea of a
moral right, in this case, the right to oblige free men. This
power (potestas) cannot be alienated, says Delos, since it is the
very life of the social body.121 Public officials are invested, not
with power (which is the vital energy of the social body), but
with authority, which is nothing more than a “qualification of
right, a spiritual note” of psychological power, by which an
p. 292: “El sentido profundo que tiene esto en el maestro salmantino
es de separar la idea del poder publico del concepto de fuerza bruta, como
previendo el peligro de las modernas téorias quoe identifican el poder y el
derecho con la posesiôn de la fuerza bruta.”
isoZigliara, op. cit., p. 196.

iziDelos, op. cit., p. 209: “La ‘potestas’Ie pouvoir, precise a l’idée de pure
puissance en celle de pouvoir moral . . . a la notion de puissance, le mot ’pouvoir ajoute l iaée ae Droit. G est SjjAn veuJ, non une puissance quelconque,
asŒKt
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32

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CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

individual becomes “the interpreter and minister of the com­
mon good.”122
This distinction between power and authority seems to be
a consequence of the attempt to reconcile this text of Vitoria
to conform to the concept of the state as an organism. The dis­
tinction between potency and power is the distinction of St.
Thomas and Vitoria. But to conceive of authority as the simple
right to interpret the collective will of the social body is to
distort the meaning of the word. Certainly ecclesiastical au­
thority, conjugal authority, parental authority, import some­
thing more than the right to interpret the will of the faithful,
the spouse, or the family.
Further, the conception of power as a “psychological energy,”
the “vouloir-vivre” of the social body is nothing more than an
analogous notion. The author himself asserts that power is a
moral right of inducing an obligation. As such, it belongs to
the category of relation, and consists in a relation between a
superior and an inferior, by which the superior can morally
oblige the inferior in regard to certain actions.123 And it is
certain, in the Vitorian doctrine, that this power of obliging
the citizens rests, not with the community, (except in a popular
regime), but with the lawfully constituted rulers.
Naszalyi departs from Delos slightly, retaining the notion of
power as a psychological energy, but making of authority a
preeminent note or property of power, which signifies the right
122Ibid., p. 209: “Le pouvoir d’obliger les membres du corps social, et donc
de créer du Droit à leur égard, reside dans le corps social et ne peut cesser d y
demeurer.”
Ibid., p. 210: “De quoi donc est investi l’individu que le corps social prépose
a son service? De l’autorité—auctoritas—non pas d’un pouvoir psychologique
réel, de l’energie voluntaire que les associés ou membres de l’Etat portent en eux
et qui ne les peut abandonner, étant le vouloir-vivre social lui-même—mais d’une
qualifation du droit, d’une note spirituelle. Elle résulte de la designation volun­
taire d’un individu privé comme interprète et ministre de Bien commun, de la
‘commission’ qui l’institue organe du corps social.”
123Cf. De Pot. Eco., I, sec. Il, n. 13: "Nam ut ipse Arist. (I PoL) expedire
ait, in omni multitudine recte composita, ut aliquis praeciperetur, caeteri pareant,
in quo consistit ratio potestatis.”
Ibid., sec. VI, η. 9: "Maneret aliquis ordo principatus et subditorum, sine
quo non esset propria respublica.”

i..

THE TRANSLATION OF POWER

33

of inducing obligation. The people transfer to the prince this
authority, the right of obliging, but retain the intrinsic vis ordi­
natrix which is the essence of power.124
This does not appear to be a happy distinction, based as it
is on the univocal notion of power as a social energy. Vitoria
calls civil power “the faculty, authority or right of governing
the civil republic.”125 As such, power belongs to the category
of relation, and consists in the moral faculty of inducing an
obligation. Superiors are thus distinguished from inferiors; the
superior is a principle of action in relation to the inferiors, who
are morally bound to obey. To say, then, that the people trans­
fer to the prince the power of obliging them is to admit that
they transfer the very essence of power, and in this sense,
power and authority are identical terms.
The explanation of Vitoria’s distinction must be sought else­
where, and it is St. Thomas who provides the answer. Accord­
ing to the Angelic Doctor, authority is distinguished from power
as principal cause from instrumental cause. Speaking of the
power of Christ to forgive sins, St. Thomas says:
The Son of Man has power on earth to forgive sins, not in virtue
of His human nature, but of His divine nature; in which divine
nature exists the power of forgiving sins through authority; but
in His human nature, it exists instrumentally and ministerially.12®
124Naszâlyi, op- ctt., p. 208: "Respublica possidet potestatem, scilicet faculta­
tem cum illa praeeminentia, quae jus vel auctoritas vocari potest . . . Sed po­
testas civilis non est tantum quaedam facultas psychologica seu physica, est enim
insuper quaedam praeeminetia, quoddam jus seu facultas moralis, quaedam com­
petentia ad aliquid temporale. Haec praeeminentia non est ipsa potestas, sed
ejus nota vel proprietas includens quamdam superioritatem ad aliquid, quae est
idea juridica, in primis enim significat jus ohlgiandi . . . Sic potestas civilis, in
quantum est jus obligandi, transfertur in regem, non tamen potestas ipsa, vis
intrinseca, ordinatrix Status. Respublica commit curam suam regi, eo ipso in
eum transfert 'auctoritatem’ sed non potest in eum ipsam suam potestem trans­
ferre, quia ipsa inalienabilis est.”
izspe Pot. Cio, n. 10; “Potestas publica est facultas, authoritas, sive ius
gubernandi rempublicam civilem."
_ rzeSumme, ΙΠ, q. 16, a. II, ad 2: Filius hominis habet in terra potestatem
dimittendi peccata, non virtute humanae naturae, sed divinae: in qua quidem
divina natura consistit potestas dimittendi peccata per auctoritatem; in humana
autem natura consistit instrumentaliter et per ministerium."

34

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

Again, in the question of Christ’s causality in regard to the
interior effects of the Sacraments, he says:
Christ operates in the interior effects of the sacraments both as
God and as Man, but in different ways. As God, he operates
in the sacraments through authority. But as He is Man, He
operates in the interior effects of die sacraments meritoriously
and efficiently, but instrumentally.12T

Power and authority are thus clearly distinguished. Power
is a generic term, signifying an active potency with a certain
preeminence.128 This preeminence, in the moral order, consists
in a right, die right of inducing an obligation. This power, ac­
cording to St. Thomas, is either the power of authority, which
is exercised by an agent in the manner of a principal cause, or a
ministerial power, which is exercised by an agent acting as an
instrument of the principal cause.12*

St. Thomas’ distinction between authority and power is the
same distinction that Vitoria uses, transferred from the order
of physical causality to the order of moral causality. The com­
munity transfers to the king not a mere instrumental or minis­
terial power, but its own proper authority, its right to govern
itself as a principal and independent agent.
But how can we be certain that Vitoria, by the word “power”
means ministerial power? He uses the generic term without any
qualification. However, this is not an extraordinary usage. St.
Thomas uses the word “power” in the qualified sense of in­
strumental power, when he says that the bishop has power in
the conferring of the sacrament of Orders, but does not have
WIbid., ΙΠ, q. 64, a. 3: "Respondeo dicendum quod interiorem sacramen­
torum effectum operatur Christus et secundum quod est Deus, et secundum
quod est homo: aliter tamen et aliter. Nam secundum quod est Deus, operatur
in sacramentis per auctoritatem. Secundum autem quod est homo, operatur
ad interiores effectus sacramentorum meritorie et efficaciter, sed instrumentaliter.”

128St. Thomas in IV Sent., d. 24, q. I, a. 1, ql. 2, and 3: "Potestas autem
proprie nominat potentiam activam cum aliqua praeeminentia.”

12&Cf. Summa, III, q. 64, a. 1: "Nam eadem ratio est ministri et instrumenti.”

35

THE TRANSLATION OF POWER

authority.130 But the power of ministers of the sacraments is
an instrumental power.

The appropriation of the generic name to the imperfect spe­
cies is common, and in conformity with logical usage.
In those things in which something is the most perfect, the
common name of the genus is appropriated to those things
which defect from the most perfect, but some other special
name is adapted for the most perfect, as is dear in logic?
*
1

There is ample justification, then to interpret Vitoria’s dis­
tinction between authority and power in terms of principal and
ministerial power. It is a distinction common to theologians,
and it is the only distinction between power and authority
which is found in St. Thomas. Further, it is the only distinc­
tion that gives a logical interpretation to the disputed passage
in Vitoria, both in the passage itself and in relation to Vitoria’s
doctrine in general. The examination of the text in the light
of this distinction clarifies the whole difficulty, and this text,
instead of being a stumbling-block, proves to be the key to the
whole of Vitoria’s doctrine on secular power; it conforms, we
think, with our interpretation of Vitoria’s teaching on the. sub­
ject of power and its alienation.
The distinction occurs, as we have seen, in the tract in which
Vitoria proves the divine origin of royal power. The particular
point which he wishes to establish is this: that even though the
republic is in some way the cause of the king’s power, it does
not create that power, but simply transfers it.
An examination of Vitoria’s text shows that the Thomistic
distinction between power and authority is not only logically
suitable to the text, but essential to the proof of the proposition.
130In IV Sent., d. 44, q. .1, a. 1, s. 4, ad 1: “Quamvis enim in Episcopo qui
est minister huius sacramenti, non sit auctoritas respectu collationis huius sacra­
menti, tamen habet aliquam potestatem respectu potestatis ordinis que confertur
per ipsum, inquantum a sua potestate derivatur.”
isi/n Summa, Π-Π, q. 0, a. 2: “In his autem in quibus aliquid est perfectis­
simum, none commune generis appropriatin' his quae deficiunt a perfectissimo,,
ipsi autem perfectissimo adaptatur aliud speciale nomen: ut patet in logicis.”

11

'Fwwigÿiii J,

1

36

i
ί
i
t
>
<
5.

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

1) “It is apparent, therefore, that royal power is not from
the republic, but from God Himself.”132
As we demonstrated above, Vitoria is arguing concerning the
origin of power in itself. Such power has its source in divine
and natural law, and as such cannot come “directly from men.”
Royal power, being nothing more than a qualified form of publie power, has its source in God and cannot have a human
origin, since it flows as a natural consequence from a constituted perfect society.
2) “Although royal power is constituted by the republic (for
the republic creates the king) . . .”m

Vitoria here explains the role of the human will in the con­
stitution of royal power. The people are the cause of royal
power by the very fact that they create a king. They do not
create the power of the king, but rather the qualification of
power which is royalty. Power, as it resides immediately in
the community, is indifferent to any mode of regime. All modes
of regime are of human origin. By transferring their power
to a king, the people add to the notion of power the particu­
lar qualification of royalty. They may just as well have created
an aristocratic or a democratic mode of regime. The people
may be said to be the cause of royal power qua royal.
3) “(The republic) transfers to the king, not power, but its
own proper authority.”13*
The republic does not commit to the king a mere ministerial
function, but gives to him the very power which it has received
directly from God, the power to direct and govern the com­
munity sui furis as a principal and independent agent, subject
to no other human power.
i32De Pot. Civ., n. 8: "Videtur ergo quod regia potestas sit non a republica,
sed ab ipso Deo.”
133£oc. cit.: "Quamvis enim a republica constituatur (creat enim respublica

regem)."
13<Loc. cit.: ". . . non potestatem, sed propriam authoritatem in regem
transfert."

THE TRANSLATION OF POWER

37

That this is the proper interpretation of the text is confirmed
in the light of the whole context. Royal power is the creation
of God alone. Yet, (in answer to the authors adversaries) it
must be admitted that the republic has something to do with
the establishment of royal power, for the republic creates the
power of the king. And why? Because the republic transfers
to the king its own God-given authority, and not a ministerial
power. A royal power, distinct from, subordinate to, and caused
by, the republic, would not be of divine, but of human origin.
To be of divine origin, says Vitoria, royal power must be iden­
tical with the power of the community, the authority of the
republic.
4) “Nor are there two powers, one of the king, the other of
the community.’™
There not two powers, because there is a total alienation of
power on the part of the people. There is only one authority—
that of the republic—which, upon transfer to the king, ceases
to be in the people and resides in a new subject, and is de­
nominated royal power.
The defenders of the organic theory interpret this text to
mean that there is only one power—that of the community—
which remains subjected in the community, but is exercised by
the king as an organ of the social body. The king is an instru­
ment of the people, dependent upon them at every moment
for his power.
This interpretation appears to be the exact opposite of Vito­
ria’s thesis. Vitoria would invest the king with all the preroga­
tives that formerly belonged to the community, and the king
replaces the community as the supreme legislator and governor,
and acts for the community on his own authority as principal
agent in the direction of the political body in the pursuit of the
common good. For Vitoria, authority is the essence of power,
and not its mere exercise. He expressly distinguishes between
Loc. cit..

Nec sunt duae potestates, una regia, altera communitatis.”

38

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

the authority of power and the exercise of power. The Pope,
he says, does not have temporal power, neither as to exercise
nor as to authority.18®
The Vitorian teaching of a true translation of power is re­
flected in the writings of one of his most famous disciples,
Dominic Soto.187
5) Therefore, just as we say that the power of the republic
is constituted by God and the natural law, so we must neces­
sarily say the same of royal power.188
This is Vitoria’s conclusion to the argument. Royal power
has its source in God because it is nothing more than the power
of the republic, which has been transferred from the people to
the king. For this reason, longs are properly called “ministers
of God, not of the republic.”
Vitoria then presents a final confirmation of his argument. If
men did not have power from God, if power were not inherent
in the perfect community, then men, for the common good,
could constitute a power above themselves. This power would
then be the creation of man. But such is not the case. Power
inheres in the perfect community regardless of the willingness
13eDe Pot. Ecc., I, sec. VI, n. 5: “Dico Papain non habere hanc potestatem,
non solum quantum ad usum et executionem, sed nec quantum ad authoritatem.
Qui enim sunt defensores temporalis potestatis in Papa, fatentur quidem Papam
non habere usum et executionem ordinariam huius potestatis, sed hoc non defectu
authoritatis, sed quia ipse dedit et transtulit potestatem et usum eius in principes.
Ego vero dico ipsum nec habere usum nec potestatem.”
137Soto, De Jure et Justitia, I, q. I, a. 3: “Reges ac principes a populo creati
sunt, in quos suum transtulit imperium ac potestatem ... Unde verbum illud
apud sapientem ex Proverb: ‘Per me reges regunt,’ etc., non aliter intelligendum
est quam quod ab ipso, tamquam naturalis juris autore, donatum mortalibus est,
ut unaquaequae respublica seipsam regendi habeat arbitrium; ac subinde, ubi
Tatio, quae spiramen etiam est divini numinis, postulaverit, in alium suam trans­
mittit potestatem, cuius legibus providentius gubernetur.”
Ibid, III, q. 6, a. 4: “Rex enim non tamquam dispensator, sed tamquam ipsa
eadem respublica reputandus est. Enim vero non est aestimandus tamquam
reipublicae vicarius, sicuti Venetorum Dux, qui semper est a republica depend­
ens, sed tamquam plenissimam habens potestatem reipublicae, eamdem scilicet
quam ipsa habebat . . . Itaque regnum est suum sicut cuiusve civis sua, est
domus: atque adeo quaecumque facultas et ius reipublicae penes ipsum est.”
138De Pot. Cit>., n. 8: “Atque ideo sicut potestatem reipublicae a Deo et a
iure naturali constitutam esse dicimus, idem prorsus de regia potestate dicamus
necesse est.”

THE TRANSLATION OF POWER

39

or unwillingness of men, and it is this power which is given to
the king?39
The reality of a translation of power in the Vitorian teaching
is now quite apparent. Vitoria’s position is midway between
the theory of mere designation of the person of the prince, in
which the people have no claim to power, and the organic the­
ory, in which the people are invested with inalienable, perpet­
ual sovereignty?40
The juridical act by which this translation of power is effected
is a pact of subjection, either explicit or implicit Vitoria at­
tributes the political power of all rulers to the voluntary consent
of the people?41 Although he considers other titles to power­
colonization, tyranny, conquest in war—these titles must be le­
gitimized by popular consent?42 Power is a natural right of the
community, and the people can be deprived of it only by their
own consent. And usurpation of authority can be rendered legal
by a post-factum consent of the populace.
While admitting that many regimes had their origin in this
manner, Vitoria teaches that the ideal expression of popular
consent ought to be the election of the prince, decided by the
will of the majority?43 The majority represents the will of the
moral body as a whole, and this, according to Vitoria, in virtue
of the natural law and right reason?44 For if the majority did
not prevail, it would be detrimental to the welfare of the state.
issLoc. cit.: “Quod si homines vel respublica non haberent potestatem a
Deo, sed ex condicto omnes convenirent, et pro bono publico vellent potestatem
contra se constituere, illa quidem esset ab hominibus, sicut est quam religiosi
tribuunt abbati. Non ita vero est: constituta est enim in republica, omnibus
etiam civibus invitis, potestas seipsam administrandi, in quo officio reges con­
stituti sunt."
t*°C£. Urdânoz, op. cit., p. 315.
i«In II-II, q. 104, a. 5, ed cit.. V, p. 212: “De potestate civili dico, quod
omnis talis dependent a republica, id est, non habent magistratus civiles et rectores
et principes majorem authoritatem et potestatem quam illis dedit et concessit
respublica.”
i<2Cf. De Indis, see. Π, n. 1.
usjDe lure Belli, n. 6: "Princeps non est nisi ex electione reipublicae."
1MIn II-II, q. 62, a. 1, ed. cit., IU, p. 79: "Et patet, quia hoc est de iure
naturae quod maior pars semper vincat in consilio. Et illud est necessarium ad
pacem, quod praevaleat et superet. Et hoc est de iure naturale, quod etiamsi
nollent alii, quod maior pars dixit, illud teneatur."

40

CIVIL AUTHORITY ACCORDING TO FRANCIS DE VITORIA

Since unanimous consent is impossible in a large multitude, right
reason dictates that the will of the majority should be followed.145
Election by the majority, or the common consent of the mul­
titude, is the juridical act by which a prince is constituted in
power, and this act is equivalent to a pact of subjection. By
transferring their power to the king, the people deprive them­
selves of the right of self-government, and subject themselves
to the rule of the prince.
The pact of subjection is a quasi-contract, with obligations
on the part of both the rulers and the people. The conditions
of the pact, however, are not absolutely free, but are to a large
extent predetermined by the natural law and the common good.
The power of the prince and the obligations of the citizens
do have their origin by virtue of a mutual pact. The end of
authority and the obligations of obedience are already prede­
termined by the nature of the political society. The pact de­
termines the person of the ruler and effects a transfer of authority
from people to prince.
The transfer of power does not have to be total and uncon­
ditional. On this part, the people are free to choose any kind
of a legitimate regime. The people may limit the power of the
ruler and retain part of it themselves.146 Even though the pow­
ers granted to rulers in a non-monarchical form of government
are limited, they cannot be abrogated, once given. A total trans­
fer of its nature is irrevocable and absolute.147

Pot. Cit., n. 14.
Pot. Ecc., Π, sec. I, n. 4.
i«In II-II, q. 104, a. 5, ed. dt, V, p. 213.

CONCLUSION

Francis de Vitoria is the principal representative of the tra­
ditional scholastic teaching on civil authority. Long before
Suarez and Bellannine he evolved the solution of the problem
from the principles of St. Thomas.
His philosophy of authority is based on the nature of man
in relation to the finality of social life. The end of public power
must conform to the end of society, the common good. The
social nature of man imposes on him the necessity of authority.
The source of authority, therefore, is traced to God, the author
of nature.
Although authority comes immediately from God, Vitoria re­
jects the theory of the divine right of kings by proving that the
political community itself is the primary and natural subject of
power.
Yet, he does not thereby become the champion of inalienable
popular sovereignty. The primacy of the common good, domi­
nant in Vitoria’s political philosophy, again asserts itself, and
demands the transfer of power to particular organs. Kings and
princes, then, have their power from God through the people.
Although created by the people, rulers are not mere manda­
tories or delegates, ever dependent on the capricious will of the
multitude, but enjoy the sovereign power of the republic.
This is the classical scholastic doctrine, and Vitoria is justly
called its first and foremost protagonist

41

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THE AQUINAS LIBRARY

A Series of Books on Scholarly Subjects Published by the
Dominican Fathers of the Province of St. Albert the Great
The Virtue of Humility
by Sebastian Carlson, O.P., S.T.D.

Unless They Be Sent
by Augustine Rock, O.P., S.T.D.

Science

in

Synthesis

by Kane-Corcoran-Ashley-Nogar, O.P.

The Patronage of St. Michael

the

Archangel

by Andrew A. Bialas, C.S.V., S.T.D.

A Philosophical Study

of the

International Military Tribunal

by John P. Kenny, O.P., Ph.D.

Nature

and

Gravitation

by J. Athanasius Weisheipl, O.P., Ph.D.

The Notion of Quantity in a Thomistic Evaluation of the
Sciences
by Bertrand Mahoney, OJP., Ph.D.

The Manner

of

Demonstrating in Natural Philosophy

by Melvin A. Glutz, C.P., Ph.D.

Aristotle’s Sluggish Earth—Problematics of the “De Coelo”
by Benedict M. Ashley, O.P., Ph.D.

Truth

or Absolute Nothing—A Critique
Jules Lacheuer

of the

Philosophy

by Ralph A. Powell, O.P., Ph.D.
qvil

Authority According to Francis De Vitoria

by Stephen J. Reidy, O.P., Ph.D.

DOMINICAN HOUSE OF STUDIES
River Forest, Illinois

of