TRANSLATOR’S NOTE ON CITATIONS.
1. Bible.—The references made in the original to the Vulgate are given
in the translation in terms of the English Authorized Version of the reign
of James I.
2. Canon law books.—The references in the translation are given in the
following abbreviated manner: (a) Decretum, pt. i, by number of Canon and
number of Distinctio, e. g., can. 6, Dist. 96: (b) Decretum, pt. ii, by number
of Canon, number of Causa, number of Quaestio, e. g., can. 41, C. 7, qu. 1:
(c) Decretales, by X (for extra Decretum) then number of book, title and
chapter, thus X, 5, 6,6: (d) Liber Sextus, by the number of book, title and
chapter, followed by “in vi,” thus 5, 2, 19 in VI.
3. Civil law books.—The references in the translation are to Mommsen’s
edition of the Corpus Juris Civilis.
In addition to the above-named books the author cites or refers to
writings of the following:
Adnan VI, Pope
Almain, Jacques.
Altissiodocensis (i. t-, of \iatrre], Gulidmus.
Ambrose, St.
Anconitanus (i. e., of Ancona), Agostino Trionfi.
Aodrae, Joannes.
Angdus of Chiavasso.
Antoninus, St., Archbishop of Florence.
Aquinas, St. Thomas.
Archbishop, the, jet Antoninus
Aristotle.
Annachanus (Û e., of Armagh), see Fitiralph, Rich­
ard.
Augustine, St.
Baptista de Salis.
Banoius.
Bernard, St.
Caietan, Cardinal (Thomas deVio).
Cicero.
Conrad.
Dionysus Areopagiticus.
Durandus.
Eymenci, Nicholas.
IOS

Fitzralph, Richard, Archbishop of Armagh.
Gandavensis (t. e., of Ghent), Henricus.
Gerson.
Hostiensis (Henry of Susa, Cardinal, Bishop of
Ostia).
Hugo, set de Sancto Victore.
Lombard, Peter.
Luther, Martin.
Natalis, Herveus.
Ovid.
Paludanus, Petrus.
Panormitanus (i. t., of Palermo), Nicolo Tudeschi.
Parisiensis (i. e., of Paris), Gulielmus.
Sallust.
de Sancto Victore, Hugo.
Scotus, Duns.
Sylvester of Prierio.
Terence.
Tertullian.
deTorquemada (Turrecremata), Juan.
Vergil.
Waldensis(i. e.,ofWalden, Essex), Thomas Netter.

{The Title-Page of the Edition of i6q6)

THE RELECTIONES IN MORAL THEOLOGY OF THE
VERY CELEBRATED SPANISH THEOLOGIAN,
FRANCISCUS DE VICTORIA,
comprised in two volumes, in the order shown overleaf,

Formerly published at Ingolstadt, and now,
because of the lack of copies and the nobility of their contents,
revised and furnished with a twofold index by the toil of
Johann Georg Simon, J. U. D.,
Counsellor and Professor of Halle.

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

Cologne and Frankfort,
At the cost of AUGUST BOETIUS.
1696.

103

{Overleaf of the Edition of 1696)

Volume I.
On the Power of the Church, part 1.
On the Power of the Church, part 2.
On Civil Power.
On the Power of the Pope and Council.
Part I, or on the Indians lately discovered.
Part 2, or on the Law of War.
On Marriage.

I.
II.
III.
IV.
V.
VI.
VII.

Volume II.
VIII.
IX.
X.
XI.
XII.
XIII.

On the Increase of Charity.
On Temperance.
On Homicide.
On Simony.
On the Magic Art.
On the Obligations of a man attaining the use of reason.

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

1C4

'

TO THE CHRISTIAN READER, GREETING1:
It having been decided to reprint here, at Ingolstadt, these thirteen
Relediones of Franciscus de Victoria, who was by far the most learned
theologian of the highly flourishing University of Salamanca within the
memory of our fathers, I undertook the task of correcting them at the
instance of certain doctors, who, on account of the celebrity of his repu­
tation, were glowing with fervent admiration of so great a man. Now
in this business so entrusted to me, I see that there are a few items con­
cerning which it is worth while that you have an accurate account: these
are, the amount of labor and toil expended by me in correcting and preparing
the publication; the character and greatness of the man who composed
these Relediones; and the amount of advantage and profit which the perusal
of them will bring even to Germans, who seem to be somewhat strange to
the gymnastic and scholastic form of discussion therein employed.
Well, reader, you will scarcely believe how much labor we have expended
on this business, unless either you make a careful comparison of this edition
of ours with the Lyons and Salamanca editions or realize in some fashion
by our description the character of each of these editions. For I had
at first the use of the Lyons edition only, in clearing the blunders from
a good part of the first volume, and the printer had already finished striking
off the first five sheets of it, when, beyond my hope and belief (for I did not
think such a thing existed here), a copy of the much more correct Salamanca
edition came into my hands in the manner following: The Reverend Father
Gregorius Rosephius, a preacher of Augsburg,2 when on a visit to us, had
perceived the extremely wearisome nature of the task, which I had under­
taken in correcting the Lyons copy (I seemed indeed to be cleansing the
Augean stable), and had noticed that some of the passages pointed out by
me were hopelessly corrupt, and by his courteous intervention with the
well-bom gentleman, Marcus Fugger (on whom the desire of the public
welfare had such a hold), he procured me the Ioan, from the well-known
library' of the Fugger family, of a copy of the Salamanca edition. How
faulty and corrupt the Lyons copy was, I would rather that you, my reader,
should learn from the Letter to the Reader, which Brother Alonso Munoz
placed at the beginning of the Salamanca copy, than from me. A part of
that Letter it has seemed advisable to insert in this, because it, too, con­
tains the praises of the author, and because some of the disciples of that
most erudite man are mentioned by name there.
•This preface, which Simon prefixes to his edition, is a copy of the preface to the edition which
appeared at Ingolstadt in 1580, and is in the form of a letter "To the Christian Reader” from the editor,
who describes himself as “one of the Doctors of Sacred Theology at Ingolstadt.” The black figures
in the inside margin of pages 115-187 indicate the corresponding pages of the Photographic Reproduc­
tion included in this edition. The pages of the Photographic Reproduction corresponding to pages
105-114 are unnumbered in the original.
Or some other “Augusta.”—Transl.
iOS

io6

To the Christian Reader, Greeting.

“When, honest reader, I was busy at Salamanca, trying to help Brother
Domingo Soto with the correction of the proof of the fourth volume of the
Sententiae, then in the press, there appeared a little book with a most imposing
title, but containing countless horrible misprints, absurdities which were disgraceful
and insulting to the author as well as to the whole theological school. It made
one aghast to behold in the tiny body of so small a book so unbelievable an offscouring of dose-packed blunders, and ashamed and sorrowful that rascals should
seem to have such license towards the master-pieces of most distinguished men,
and with impunity, too. This was the title of the book: “The Relectiones of
the Reverend Father, Brother Franciscus de Victoria, of the Order of Preachers,
formerly Primary Professor of Sacred Theology in the University of Salamanca.”
You observe how fair and full of promise the inscription is; and indeed for this,
in Pliny’s words, its bail could be forfeited.
‘ ‘When, then, at Salamanca I came across this very book, newly issued from
the press, I began to read it with the utmost avidity, and I had barely cast my
eyes upon the first page that presented itself, when, lo, there lighted on my very
eyes some impious error on the topic of Simony, which stirred my spleen marvel­
lously. I made no tarrying, however, the matter being one which could easily be
detected by anyone of even moderate learning; I go on, and the farther I went,
the more mistakes I kept finding, and even some mutilations. Perceiving that the
thing was by no means to be borne, I laid it before the very Reverend Fathers,
Brother Domingo Soto and Brother Melchior Cano, who prompted me to take
on myself my present charge, namely, the correction of that book according to
the most exact copies. Master Franciscus Sanctius, Canon of the Cathedral of
Salamanca and Moderator of the chair of Moral Philosophy in the gymnasium
likewise of Salamanca and therefore administer of the Holy Inquisition in the
business of examining books for admission or rejection, learnt of this. He came
to Brother Domingo Soto to discuss the matter with him, and at the suggestion
of the same Franciscus I was summoned and received afresh from the twain the
injunction “to adorn this Sparta.”
“Now, although I was aware how unpleasant a business it was, how hard and
wearisome the affair, how inglorious the labor of correcting and restoring the
monuments of others, especially those so ulcerous, so altogether deranged, so
piteously (I had almost said) and hostilely regarded, as these were, yet, moved by
the authority of my preceptors as well as induced by love of a very fine work and of
its author, Victoria, who was also my dearest of teachers, I put my shoulders under
a burden which I have loved.”

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

From this, my reader, you will perceive, without any words of ours,
how faulty and corrupt was the Lyons edition, and how much more correct
is that of Salamanca \of the year 1565, to wit). But I do not know by what

To the Christian Reader, Greeting.

107

ill-chance it has happened that into this Salamanca edition, so clean, so
clear, so gilded, have crept blunders and faults neither few nor trivial. It
labors at times under the same faults as the Lyons edition; sometimes
under faults of its own, which needs must be corrected either by reference
to the Lyons edition or in some other way. What, then, my reader, was
I to do, there being so many faults even in the Salamanca copy, in which
I had placed my hopes of correcting the other copy? Was I to make a
transcript of the whole of the Salamanca copy (for the well-born man who
had loaned it to us had stipulated that it was not to be entrusted to any
printer or have any marks made on it) and send the transcript to the printer
to be printed? But I had no leisure for that, and if I had had, it would
not have helped towards a correct edition of the work because of the faults
and blunders, which, we have said, had crept into the edition in question.
Was I to correct the whole of the Lyons text, just as I had corrected it in
part, before I had that of Salamanca, and so corrected give it to the printer?
That, too, was impracticable, because the former was blemished by many
more and graver faults than the latter, and because, unless we corrected the
former by the Salamanca text, we should seem to have borrowed the lastnamed to no purpose.
Accordingly I settled the matter as follows. From the place where
the printer had stopped printing (he happened to have stopped after the
fifth sheet, usually marked by the letter E) I and a wise colleague, whom
I had joined with me, made a very careful collation of the two texts, and to
the best of our ability, corrected that of Lyons, which was to be sent to the
printer, by that of Salamanca, wherever the latter had no obvious error.
But wherever a serious and manifest fault occurred in the Salamanca text
(for I thought that I could rely on my own judgment in the removal of the
more trifling blunders) I took counsel with the most skilful theologians and
philosophers, in order that the fault might be corrected by the common
judgment of many, after considering in the two copies all the words and
opinions of the author, which seemed to conduce to an understanding of
his mind. It happened sometimes that all of us together could hardly find
a principle or method for the restoration of some corrupt passage. Let
any incredulous person take the two editions and read just one passage in
the “Relectio on the Increase of Charity,” about No. 10, and if he can
extract therefrom the sure meaning of the author while retaining the iden­
tical words, then he may indeed charge us with falsehood or ignorance.
When, then, on this principle we had collated the two editions right to
the end, we carefully corrected by the Salamanca text the five sheets also,
which, we have said, had been struck off, in order that nothing might be
wanting for the absolute and complete expurgation of the entire work. As
we could not remove from these sheets themselves the errors which occurred
in them, we noted them at the end among the rest of the Errata.

io8

To the Christian Reader, Greeting.

This indeed was a big and tedious task, but bigger and more tedious
was that which we undertook, in regard of the whole work now emended
according to the Salamanca text, of simply correcting, repurging, and illus­
trating it with scholia throughout. This was the more toilsome and difficult
in proportion as the two editions were more corrupt and as the author—
owing to the strength of his very acute intelligence, which, according to
the wont of highly learned men, he directs upon the matters before him—
seems less careful of his words, less mindful of order or of the things initially
propounded for discussion. Hence it happens that sometimes he might
appear to use an overconcise and scholastic mode of discourse; sometimes,
to omit answering arguments which have been propounded; sometimes, to
give one answer to many things at the same time; sometimes, when dis­
cussing a mooted question or refuting an argument, to insert questions and
doubts which he meets upon his way; sometimes, to omit altogether some
of the questions to be discussed, which he has propounded at the beginning
of the relectio (as is evident in the ‘ ‘Relectio on Marriage” and the “Relectio
on Temperance”).
Nor did our labor stop here, but in the third place we had to go over
the whole work after it was in type, both to make a complete alphabetical
index and to correct the misprints. While attempting to accomplish this
latter task, we bestowed equal diligence upon the former, so that we have
left in this edition of ours a text much more correct than had previously
been published, by the removal of a large number of faults and blunders,
which either had come in afterwards or had not previously presented them­
selves. Of these, a few indeed, but the more important, however, we have
noted down among the Errata at the end of the book. From this, my
reader, you will understand that not all the errors noted at the end of the
book are due to either the carelessness or ignorance of the printer, but they
may have crept in (especially in the first five sheets, because we did not
have the Salamanca copy) either because of the currupt state of both the
editions which we used or even because of our own inability to make an
exhaustive scrutiny and examination. We have, however, left untouched
not a few passages, which seemed susceptible of emendation, had we labored
on them, because they ran in that way in both editions or at any rate in the
Salamanca edition and in order that no one might charge us with excessive
freedom in the correction of another’s work.
About the author of these Relectiones, I have ascertained this much:
that he lived in the reign of the Emperor Charles V, King of Spain; that
he belonged to the Order of St. Dominic; that he was a shining light and
ornament of that Order; that he flourished especially in the praise accorded
to a very acute intelligence, to judgment, and to sound doctrine, and in the
number and glory of his most learned disciples (some of whom are very
well-known because of their published books, such as Melchior Cano and

To the Christian Reader, Greeting.

109

Domingo Soto); further, that his universal authority was so great and his
name so outstanding that he seemed to his hearers a second Pythagoras;
that he was reckoned by the most learned theologians and philosophers to
be the alpha and prince of the theologians and philosophers of his day, and
that (I) *
the Catholic Sovereigns of Spain brought to him cases affecting
their conscience (such as (a) that of the conquered provinces of the New
World, and (b) that of the divorced wife of the King of England, both of
which are discussed in this book), desiring instruction on these matters
from him especially, with the result that he himself, relying on this very
authority, of which he was not unaware, gave the freest judgment, just as
the principles of his conscience demanded, in the causes of Sovereigns and
even (II) of the Supreme Pontiff. When I carefully consider this, I am
wont to doubt which of the two is the more praiseworthy: in this man, a
certain freedom of speech, buttressed by his authority and surpassing
erudition, or, in the Sovereigns of Spain and even in the Supreme Pontiff,
a singular moderation of mind and a desire to learn and uphold justice and
truth. Hence it comes about that with equanimity, aye, pleasure, they
silently allow themselves to be chided by this learned man and to be rebuked
(when the principle of the doctrines which he had to deliver so requires).
*
For those extremely wise Sovereigns bear in mind what another Sovereign
has left in writing: “The righteous shall rebuke me in compassion and
shall upbraid me; but the oil of the sinner shall not fatten my head.”1
Wherefore it is an injustice for the heretics of our day to ridicule the
monastic orders everywhere on the ground that they are rude and unlearned
and flatterers alike of Popes and princes. Surely, if these heretics be com­
pared with our Franciscus de Victoria, they will neither be worthy of the
name of theologian nor found to say or write aught in conformity with
truth, but in everything to fawn on princes. Now how great a debt the
University of Salamanca, and therefore Spain, owes to this man, the afore­
named Alonso Munoz, in a Letter to the Most Serene King Charles of Spain,
testifies in the following words:
“The whole of Spain owes much to this excellent man, for, while he has
deserved well of it on many grounds, he has especially done so in respect of this,
that whereas Theology among the Spaniards lay in confusion and covered with
dust, or rather with mud, tattered and tom, dumb and almost tongueless, it was
restored by his exertions alone to clarity, splendor, and its native beauty, to purity
and dignity, comeliness, grace, and soundness, as if in virtue of a tardy postliminy.
In witness of the truth of this are not merely the centuriae,2 but also the Iliadi of
his diciples, wbon his school has poured out in all directions.”
*The part between these asterisks is marked as a quotation in the original.—Transl.
*Ps. 140 (Vulgate).
•Such as were compiled by people like the Magdeburg centuriator? (whom the writer would
naturally dislike).—Tkansl.
•Reading Iliadtr for Hiader. ’lAias has a way of being used in Greek as equivalent to a vast
string of things, e.g., ’IXfos cexcLv*—Traxsl.

I io

To the Christian Reader, Greeting.

Now, my reader, lest the word relectio be unfamiliar to you, you should
realize that at Salamanca it meant a kind of theological exercise not very
unlike those disputations which are known to have been in vogue in the
days of our ancestors in the most celebrated universities under the name
of quodlibeticae quaestiones. The seemingly more difficult of those quaes­
tiones, which had been discussed in the daily prelections of a whole year,
were also reconsidered in these relectiones in a public assembly of the most
learned, and by the same doctor, so that they might be much more accurately
decided than theretofore and receive as it were the finishing touches. And
since our author was, beyond controversy, the prince of theologians of that
time, especially among the Spaniards, you will perceive that whatever
conclusions have been arrived at after discussion in these Relectiones have
all been tested and weighed by the judgment of the most learned theologian,
as if in the scales of the most skilful goldsmith, and that, therefore, they
ought to adjudged much more solid and firm than the things superficially
discussed by the heretics of today, men, forsooth, devoid of learning and
judgment.
Now, although these Relectiones may seem suited to the bent of
Spaniards rather than of Germans, seeing that the former prefer to cultivate
a gymnastic and concise manner of theologizing and the latter a sedate
and rhetorical manner, yet if we look at both the manner of disputation
and the fruits of the learning handed on in these Relectiones, it seems that
they will bring much advantage and profit to Germans. For if we atten­
tively consider that from the time when the waves of false opinions and
heresies began here to buffet the ship of the Church, Theology has been
denuded by almost everyone (fearing, perhaps, the insults directed by
heretics against the philosophers and theologians of the School) of the
protection and arris of the philosophical and theological school and been
called back into a rhetorical, or rather, a grammatical mode of reasoning,
and that for this reason either those who have thus approached sacred
literature with unwashed hands have made no further advance in that
pursuit than has been made by a clever grammarian or rhetorician or that,
because they are ignorant and unaccustomed to the exercises of disputation
and judgment, wrong opinions have either been begotten or defended, we
shall, above all, be led into that opinion (into which Cicero testifies that
he was led in a similar case) and come to think that theological doctrine is
not of much good to the Christian Republic without eloquence, but that
eloquence without doctrine brings very often over much hurt, never any
good. And so if anyone (to use the words of that same Cicero with little
alteration) omits those most befitting and unerring studies of theology and
divine doctrine and spends all his energy upon the exercise of speech and
writing, he is being bred to be useless to himself, a dangerous citizen of his
country and a parricide of his Mother Church. He, however, who so arms

I

To the Christian Reader, Greeting.

111

himself with eloquence as to be incapable of fighting against the good of
his country and the doctrine of the Church, but able to fight in their behalf,
will in our view be a man of the highest usefulness alike to his own and his
country’s interests, the best-affected citizen, and the dearest son of his
Mother Church.
I have mentioned these matters, my reader, not because I think that,
in their mode of transmitting theology, either this Franciscus de Victoria
and the other Spaniards are deficient in grace or in faculty of speech or
the Germans are devoid and destitute of solid doctrine (for I know both
that this Victoria in his Relectiones is eloquent to the limit of his theme
and that other Spaniards, especially when they are pleased to drop the
scholastic habit of speech, can both speak and write with polish, and also
that no small number of Germans have been perfectly trained in the
doctrines of philosophy and theology, but because I think that German
theologians will best consult their own country’s interests, if they studiously
conjoin the solid and scholastic kind of theologizing, such as is that of this
Victoria and of the Spaniards in common, with that sedate and rhetorical
kind, which they themselves generally adopt.
Further, the fruits of these Relectiones are both abundant and manifold,
and both they who are teachers of others and all other persons will be able
to gather them. This indeed we can make plain by reference to the
Relectiones one by one.
In the first relectio it is shown that there are in the Church two dis­
tinct powers, the ecclesiastical and the civil, and that the former is stronger
than the latter; accordingly, the false doctrine of the Lutherans and of
those who equate the two powers or subordinate the ecclesiastical to the
civil is overthrown.
In the second relectio, which also bears the title “On the Power of the
Church,” two dogmas of the heretics are refuted; the one, that the strictly
ecclesiastical and spiritual power is initially and of itself existent in the whole
of the Church universal in the same way as the civil power is in the civil
State; and the other, that all Christians are priests, and all equal, and that
there is no order and are no certain grades in ecclesiastical power.
In the third the necessity, origin, and force of the civil power and its
authority are so established and confirmed that the pernicious dogma of
Luther, which has brought destruction to an almost innumerable number
of simple folk, falls to the ground of itself.
The fourth relectio contains a very fine discussion ‘ ‘On the Power of the
Pope and Council,” which, though it may seem of less use to those engaged
in strife with heretics or tainted with heretical practices, is nevertheless
useful and fruitful even for them. For, while the scope of the general power
alike of the Pope and of the Council is explained, at the same time the
sovereignty of the power and authority of each, but in its own measure, is

112

To the Christian Reader, Greeting.

asserted. Now, if the authority of the Supreme Pontiff and Councils were
established and were in the ascendency among the Germans, it would
obviously result both that no sects would be propagated among them and
that all heresies would be dispelled, not otherwise than darkness before
the rays of the sun.
The fifth relectio is entitled “Of the Indians” (that is, of the barbarians
of the New World commonly called Indians). Now, although this appears
to be the answer given by the author to the Catholic Sovereigns of Spain,
it nevertheless contains many things useful and wholesome for everyone
who is in a case the same as or like to that in which those Sovereigns were.
Among these things are: how a person in doubt on any matter of consciense
ought to take the advice of those who are learned and wise in that kind of
matter; how he ought to follow what they have laid down, even if, as may
happen, they are in error; and how many unlawful, how many lawful, titles
there may be, by which those Sovereigns might claim to reduce foreign
provinces and populations into their power. After a careful discussion and
settlement of these points, the conscience of those concerned is openly
taught what to abstain from doing in this business and what to do.
In the sixth, “A Further Relectio on the Indians, or on the Law of
War,” much, and this useful, instruction is delivered, which ought to be
observed by kings and princes, in order that they may make or wage war
in a lawful manner, and by all other persons, in order that they may in
lawful manner serve as soldiers under their own or a foreign prince. Mean­
while a refutation is given of that dogma of the heretics, that it is not lawful
for Christian princes to fight either with other Christians or with the Turks.
In the seventh, which seems to be the author’s answer in the cause of
the Queen of England who had been divorced by the King, her husband,
a strenuous attack is made upon that false dogma of the Lutherans that all
the degrees forbidden in Leviticus 18 and 20 are still forbidden by divine
law. The heretics, further, get a shrewd knock, when it is convincingly
shown in this relectio that matrimonial causes are rightly and properly
brought before ecclesiastical judges.
The eighth, in which the topic is “The Increase and Decrease of Charity,”
contains a discussion pertaining indeed rather to the school of theologians
than to a public assembly or to other folk, yet one very helpful to these
same theologians, both in the sharpening of their wits and in its harvest of
very' beautiful and genuinely theological matter. We may also add that
here there is a condemnation of that conjecture of the heretics that all
righteous persons are equals in charity and grace before God and that, as
Luther asserts, the ever Blessed Virgin, the Mother of Christ, in no respect
surpasses any woman from the midst of the people.

To the Christian Reader, Greeting.

113

The ninth contains a varied and interesting disputation "On Tem­
perance,” which will probably be pleasing to most folk here because of the
controversy about the pleasures of the table. Those barbarians, the
cannibals, are here condemned, and those who sacrifice men to God.
There is also a defense of the Carthusians, who prepetually abstain from
flesh, and of other religious, who seem to shorten their days by other forms
of abstinence. We should have had in this relectio more numerous defenses
against heretics, had not the author absolutely passed over one or another
of the quaestiones propounded at the beginning.
The tenth, in which there is a discussion "On Homicide,” is of use in
many ways; but more conclusions are arrived at in it than we can set out
in summary form.
The eleventh, containing a discussion “On Simony and the Punishment
of Simoniacs,” may seem to be not only useful, but even necessary here,
where this stain is so inveterate and so wide-spread as scarcely to be reckoned
a vice. Nor are the heretics free from this vice, though cut off from the
body of the Church.
Not less useful and necessary is the twelfth, in which there is a dis­
putation “On Magic,” seeing that we have often heard by sure report, nay,
we assuredly know, that, after the new Gospel had been introduced by
Martin Luther, it obtained such a hold especially in the regions of the
North that, in proportion as the doctrine of Christ was gradually failing
and dying away in the minds of men, so Magic was gradually gaining in
strength, with the result that, when the former was quite extinct, the latter
seemed to reign alone with her partner, Heresy. Nor are the Anabaptists
and Calvinists altogether destitute and devoid of this Magic and of the
Pythoness’ breath, nay rather they breathe that breath in their words,
writings, manners, face and eyes.
In the last relectio a topic is treated which is most worthy of a Christian,
namely, what are the obligations of everyone on first arriving at the use
of reason. For what more befitting can be taught or learnt by a man, and
especially by a Christian, than the condition or manner, in which he should
turn himself to God as his ultimate end and highest good, for the enjoyment
of which he has been created?
It is now your part, Christian reader, to receive with gratitude and
pleasure this work—on the correction of which we have bestowed so much
toil and time, which has been lucubrated by such and so great a man, and
which contains doctrine so sure and solid, so useful and necessary—and by
reading it and meditating on it rouse your zeal for the knowledge of the
highest things. It will be an abundant recompense to us, if by reading it
you become both wiser and better. Farewell.
At Ingolstadt, on the day of St. Lawrence, Martyr,
in the year 1580.

To the Reader.

114

A Poem

Reader in Praise of the Work
by an Unknown Author.1

to the

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

Another Extemporaneous Poem Comprising as Briefly as Possible
the Subjects of both Volumes.2
What are the powers of Holy Mother Church and of the Popes this book
teaches; what is the power of the Fathers when duly assembled in their Great
Council; at the same time, too, the civil laws and the laws of war (for even Mars
is not lawless); and it treats of the lawful bed and marriage of men. This,
Franciscus de Victoria, is the first part of thy work, and that is so far, too, the
cost of our gratitude for thy deed.
What a delight of piety and how fair a virtue it is to have abstained from good
things and to impose a law on luxury, but how great an impiety to pollute the
hand with human blood, and to take away a life, which, once lost, is irrecoverable
either with gold or prayers or an abundant price! Alas, he must carry a hard
flint in his breast, who goes against his own entrails with the dread sword. Nor
does the pious Church sell for a price its prebends, but gives them free to
well-deserving persons, and she drives off evil spirits, nor may any of her affairs
prosper by magic arts, arts summoned from the one3 dungeon of the abyss. In
the last threshold of the book, too, Victoria, worthy of eternal life, teaches the
conduct which befits those who come to the true use of reason.
Nor are slight thanks thine for so great a work, who art so ready to bring forth
both from darkness and from rust the writings of so great a man, because, if God is
propitious to the daring, thou shalt live eternally, and after paying the debt of
death thou shalt live, and God will place thy soul, when freed from the body, in
the ethereal heaven, and thou shalt appear among the gods. Only go on in thy
well-deserving and spare not thy hard toil.
•This is a literal prose translation of a laudatory poem, which Simon reproduces after the preface.
It probably appeared in the Ingolstadt edition (1580), which Simon professes to reproduce. It also
appears in the edition of Munoz (1565) and it may be that Munoz was its author.
*This is a literal prose translation of a laudatory poem, which Simon reproduces after the first
laudatory poem. It probably appeared in the Ingolstadt edition (1580), which Simon professes to
reproduce.
’Reading ano for anr; but the latter may be an extemporized genitive, "the dungeon of the
one abyss.”—Trahsl.

THE FIRST RELECTIO
Of the Reverend Father, Brother Franciscus de Victoria,

ON THE INDIANS LATELY DISCOVERED.
The passage to be discussed is from St. Matthew’s Gospel: “ Teach all
nations, baptizing them in the name of the Father and Son
and Holy Spirit,” last chapter.
SUMMARY OF THE FIRST SECTION.
1. How a person in doubt on any matter, to obtain safety of conscience, should
consult those whose business it is to give instruction in such matters.
2. After one in doubt has taken such advice he ought to follow what the wise have
laid down, else he will not be safe.
3. Whether one in doubt ought, consistently with safety of conscience, to follow the
advice given by the wise in a doubtful matter when they lay down that to
303
be now lawful which in other circumstances is unlawful.
^4. Whether the Indian aborigines before the arrival of the Spaniards were true
owners in public and in private law; and whether there were among them
any true princes and overlords.
5. Examination of the error of those who assert that persons living in mortal sin
can not have ownership of anything at all.
6. Mortal sin does not preclude civil ownership of the true kind.
Whether ownership is lost by reason of unbelief.
8. The divine law does not make heresy a cause of forfeiture of the heretic’»
property.
9. Whether heresy causes loss of ownership by human law.
10. A heretic incurs the penalty of confiscation of his property as from the date
of the commission of his offense.
11. But although the heretic’s offense is patent, the fisc may not seize his property
before condemnation.
304 12. Even though condemnation issues after the heretic’s death, confiscation of
property dates back to the time of the commission of the offense, no
matter who is vested with the property.
13. Sales, gifts, and all other modes of alienation by a heretic are void as from the
date of the commission of the offense, etc.
14. Whether a heretic before condemnation is the owner of his property in the forum
of conscience.
15. A heretic may lawfully live of his own property.
16. A heretic may make a gratuitous conveyance of his property, as byway of gift.
17. A heretic whose offense has rendered him liable to process may not convey his
property for value, as by way of sale or dowry.
18. In what case a heretic may lawfully alienate his property for value.
^jg. Barbarians are note preluded by the sin of unbelief or by any other mortal sins
from being true owners alike in public and in private law.
«*■20. Whether the use of reason is a pre-requisite of capacity for ownership.
21. Whether a boy can be an owner before he has the use of reason.
30i^2. Whether a person of unsound mind can be an owner.
--23. Inasmuch as the Indian aborigines were not of unsound mind, they are not
precluded from being true owners on the pretext of unsoundness of mind.
—24. These aborigines were true owners alike in public and in private law before the
advent of the Spaniards among them.
nc

ιι6

Franciseus de Victoria

“Teach all nations, baptizing them in the name of the Father and Son
and Holy Spirit ” (St. Matthew, last chap.). This passage raises the question
whether the children of unbelievers may be baptized against the wishes of
their parents. This question is discussed by the doctors on the fourth book
of the Sententiae, dist. 4, and by St. Thomas, Secunda Secundae, qu. 10, art.
12, and Tertia Pars, qu. 68, art. 10. The whole of this controversy and dis­
cussion was started on account of the aborigines of the New World,
commonly called Indians, who came forty years ago into the power of the
Th5eefo*<1... Spaniards, not having been previously known to our world. This present
discussion,
disputation about them will fall into three parts. In the first part we
shall inquire by what right these Indian natives came under Spanish
sway. In the second part, what rights the Spanish sovereigns obtained
over them in temporal and civil matters. In the third part, what rights 306
these sovereigns or the Church obtained over them in matters spiritual
and touching religion, in the course of which an answer will be given to
the question before us.
inquiry'is S’
As regards the first part, it might seem at the very outset that the whole
tireiy useless, of this discussion is useless and futile, not only for us who have no concern
either to inquire whether the men in question have conducted their adminis­
tration with propriety in every detail or to raise any doubts about that
business or to correct any fault that may have been committed, but also
for those whose concern it is to attend to and administer these matters.
Firstly, this may so seem because neither the sovereigns of Spain nor those
at the head of their councils are bound to make completely fresh and
exhaustive examination of rights and titles which have already been else­
where discussed and settled, especially as regards things of which the sov­
ereigns are in Iona fide occupation and peaceful possession; this is so because,
• as Aristotle says (Ethics, bk. 3), “if any one were to be continually inquir­
ing, settlement would be indefinitely postponed”; and sovereigns and their
advisers could not attain security and certitude of conscience, and, if they
had to trace the title of their rule back to its origin, they could not keep
anything they had discovered. Moreover, inasmuch as our sovereigns,
namely Ferdinand and Isabella, who were the first to occupy those regions, 307
were most Christian, and the Emperor Charles V was a most just and
scrupulous sovereign, it is not to be believed that they did not make a
thoroughly complete and exact investigation into everything that could
affect the security of their estate and conscience, especially in such a great
matter. On these accounts, then, it may seem not only useless but also
presumptuous to raise any question about the matter; it is like looking for
a knot in a bulrush and for wickedness in the abode of the righteous.
Lengthy rejiy
Jn meeting this objection we must bear in mind what Aristotle says
o the an
5^ j), namely, that just as there can be no questioning or
deliberation about matters either impossible or necessary, so also there
can be no moral investigation about those which are certainly and notori­
ously lawful and seemly, or, on the other hand, about those which are
certainly and notoriously unlawful and unseemly. For no one can prop-

On the Indians, Sect. I.

117

erly raise a question whether we ought to live a temperate and brave and
upright life or a wicked and base life, nor whether we ought to commit
adultery or perjury, or cherish our parents, and other matters of this kind.
Certainly such discussion would not be Christian. When, however, some
nutter·
project is on foot concerning which there is a genuine doubt whether it be
308 good or bad, just or unjust, it is then advantageous to take advice and to
deliberate and to abstain from premature action before finding out and
determining how far it is or is not lawful. Such is the case with matters
which, when viewed from different sides, look good or bad, as happens in
many kinds of barter and contract and other businesses. And in all these in doubtful
cases the circumstances are such that, even if the thing in question were
in itself lawful, it would be sinful for any one to do it before deliberating and fou until its
assuring himself of its lawfulness; and he would not be excused on the uTeruüted"
ground of ignorance, for the ignorance would manifestly not be invincible, to ect othersince he does not do what in him lies to inquire into the lawfulness or
**t0
unlawfulness of the matter. For in order that an act, the goodness of which
is otherwise uncertain, be good, it must be done in accordance with the
investigation and determination of the wise, it being {Ethics, bk. 2) one of
the conditions of a good act that it be done in accordance therewith.
Accordingly, when, in a doubtful case, the doer omits to take the advice of
the wise, he is without excuse. Nay, even if we grant that the act in
question is lawful in itself, yet, if there be any doubt thereon, the doer is
bound to take the advice, and to act in accordance with the award, of the
wise, even though they be themselves in error.
309
Accordingly, if anyone, without consulting the doctors, were to make Consult th· *
a contract, concerning the lawfulness or unlawfulness of which men were ô«yknow°U
doubtful, he would undoubtedly sin, even though the contract were other- wfotu lawful
wise lawful and even if the doer thought so, not, however, on the authority
of the wise, but of his own inclination and judgment. And on the same accord with
principle, were one in a doubtful matter to consult the wise and they
were to rule against its lawfulness and yet he were to follow his own
judgment and do the thing, he would sin even though the thing were other- sinful to do
wise lawful in itself. For example, suppose a man is in doubt whether
so-and-so is his wife and he seeks advice whether he is bound to render the matter» withmarital debt or whether it is right for him to do so, or whether he may ^sl'even
exact it from her, and the doctors reply that it is not at all right, and yet though the act
he be led by his wife’s affection and his own desire to refuse to accept that
reply and thinks that his act is lawful, it is certainly sinful for him to
approach his wife, although such approach be lawful in itself (as it really
is), because he is acting contrary to the conscience which he ought to
have. For in those matters which belong to his salvation a man is bound
to yield credence to the teachers appointed by the Church, and in a doubtful
matter their ruling is law. For just as in the contentious forum the judge
is bound to judge in accordance with what is alleged and proved, so in the
forum of conscience a man is bound to base his judgment, not on his own
sentiments, but on demonstrable reason or on the authority of the wise;

ιι8

Franciscus de Pictoria

else his judgment is presumptuous and exposes him to the risk of going 310
wrong, and indeed he does err in the very fact. This accords with what was
laid down in the Old Testament {Deuteronomy, ch. 17) :
“If there arise a matter too hard for thee in judgment, between blood
and blood, between plea and plea, between leprosy and not leprosy, being
matters of controversy within thy gates (saith the Lord), thou shalt arise
and get thee up to the place which the Lord thy God shall choose, and thou
shalt come unto the priests the Levites and unto the judges that shall be
in those days and enquire, and they shall show thee the sentence of judg­
ment, and thou shalt do according to the sentence which they of authority
in that place shall show thee, and according to the judgment which they
shall tell thee thou shalt do, not declining to the right hand or to the left.”
I accordingly assert that in doubtful matters a man is bound to seek
the advice of those whom the Church has appointed for that purpose, such
as prelates, preachers, and confessors, who are people skilled in divine and
human law. For in the Church some are eyes, some feet, and so on (I Corin­
thians, ch. 12); and in Ephesians, ch. 4, “And he gave some, apostles;
. . . some, evangelists; and some, pastors and teachers,” and in St.
Matthew, ch. 23, “The Scribes and the Pharisees sit in Moses’ seat; all
therefore whatsoever they bid you observe, that observe and do.” And
Aristotle {Ethics, bk. 1) lays this down as a precept, following Hesiod,
“The man who is ignorant in himself, yet does not listen to another in order 311
to know what is good, is a foolish and empty person.”
Let mer­
It is, therefore, not enough for security of life and conscience that a
chants take
man
should deem himself to be doing right, but in doubtful matters he must
heed hereto.
needs rely on the authority of others whose business is therewith. For it
is not enough that merchants should abstain from doing what they them­
selves deem wrong, if they nevertheless enter into illegal contracts without
. Cajetan criti­ the advice of the wise. And so I do not agree with Cardinal Cajetan when
cized.
he says that if a doubt arises about something which really is lawful in itself
and some preachers or confessors who otherwise have authority to pronounce
thereon declare it unlawful or declare it mortal sin when it is venial, yet
the man who, following his own inclination in the matter, disbelieves them
and determines in his own conscience that it is not a mortal sin, does not sin.
Let women As an example, Cajetan takes the use by women of paint and other super­
heed thia.
fluous adornments, a thing reallynot a mortal sin, but which he assumes might
be pronounced a mortal sin by preachers and confessors. If, says he, a woman
is so given to such adornment that she does not yield assent to them, but
thinks it lawful or not a mortal sin, she does not commit a mortal sin when she 312
He who fol­ resorts to such adornment. Now this I declare dangerous. For in those
lows the ad­ matters which are necessary to salvation a woman is bound to yield assent
vice of the
wise is safe in to the wise and she exposes herself to danger if contrariwise she does what the
<
W’Se Pronounce to be a mortal sin. And, on the other hand, if in a doubtful
long as he has
rMson
for
matter a man has taken counsel with the wise and has accepted their ruling
no 1
doubting or that the thing is lawful, he is safe in conscience—at any rate until he receives
believing the
a second opinion and is driven to doubt or to believe the contrary by a
contrary.

On the Indians, Sect. I.

119

person of such authority, or by reasons of such cogency, as ought to affect
his judgment. This is notorious, for he does all that in him lies and so his
ignorance is invincible.
The premises, then, establish the following propositions:
py·· propoFirst. In doubtful matters a man is bound to seek the advice of those
whose business it is to give it, otherwise he is not safe in conscience, whether pr»mUe·.
the doubt be about a thing in itself lawful or unlawful.
Proportion l
Second. If after a consultation in a doubtful matter it be settled by Ρτορ°“ύοηΠ·
the wise that the thing is unlawful, a man is bound to follow their opinion,
and if he act contrary thereto he is without excuse, even if the thing be
otherwise lawful.
Third. On the other hand, if after such consultation it be settled by
.
313 the wise that the thing is lawful, he who follows their opinion is safe, even
if it be otherwise unlawful.
When, then, we return to the question before us, namely, the matter
of the barbarians, we see that it is not in itself so evidently unjust that no foregoing to
question about its justice can arise, nor again so evidently just that no doubt
is possible about its injustice, but that it has a look of both according to the Indian·,
the standpoint. For, at first sight, when we see that the whole of the “d«“wer»
business has been carried on by men who are alike well-informed and upright,
we may believe that everything has been done properly and justly. But
then, when we hear of so many massacres, so many plunderings of otherwise
innocent men, so many princes evicted from their possessions and stripped
of their rule, there is certainly ground for doubting whether this is rightly
or wrongly done. And in this way the discussion in question does not seem
at all superfluous and so we get a clear answer to the objection. Moreover,
even if it be granted that there is no doubt about the whole question, it is
no novelty for theological discussions to be instituted on points of certainty.
For we discuss about the Incarnation of our Lord and other articles of
faith. For not always are theological discussions of the deliberative sort,
but frequently they are of the demonstrative sort, that is, entered upon,
not for purposes of deliberation, but of instruction.
314
But some one may come forward and say: Although there were at one
time some elements of doubt in this business, yet they have now been
discussed and settled by the wise and so everything is now being admin­
istered in accordance with their advice and we have no need of a fresh
enquiry. To such a person I answer first, God be blessed if it is so; Fir,ür
our discussion raises no obstacle thereto; nor would I raise any new com­
plaints. 1 Secondly, I assert that it is not for jurists to settle this question Second*y·
or at any rate not for jurists only, for since the barbarians in question, as
I shall forthwith show, were not in subjection by human law, it is not by
human, but by divine law that questions concerning them are to be deter- u not tar
mined. Now, jurists are not skilled enough in the divine law to be able by
themselves to settle questions of this sort. Nor am I sure that in the dis­
cussion and determination of this question theologians have ever been called
competent to pronounce on so grave a matter. And as the issue concerns

120

Francisais de Victoria

the forum of conscience, its settlement belongs to the priests, that is, to the
Church. Accordingly in Deuteronomy, ch. 17, it is enjoined on the king
that he take a copy of the law from the hand of the priest. Thirdly, in
order that the whole of the matter be adequately examined and assured,
is it not possible that so weighty a business may produce other special
doubts deserving of discussion? Accordingly I think I shall be doing some- 315
thing which is not only not futile and useless, but well worth the trouble, if
I am enabled to discuss this question in a manner befitting its importance.
The first
Fourth. Returning now to our main topic, in order that we may
question
proceed in order, I ask first whether the aborigines in question were true
about the
Indians.
ownejs in both private and public law before the arrival of the Spaniards;
that is, whether they were true owners of private property and possessions
and also whether there were among them any who were the true princes and
Case for a
overlords
of others. The answer might seem to be No, the reason being that
negative an­
slaves own no property, “for a slave can have nothing of his own” {Inst., 2,
swer.
9, 3, and Dig., 29, 2, 79), and so all his acquisitions belong to his master
{Inst., I, 8, 1). But the aborgines in question are slaves. Therefore the
matter is proved; for as Aristotle {Politics, bk. 1) neatly and correctly says,
“Some are by nature slaves; those, to wit, who are better fitted to serve
than to rule.” Now these are they who have not sufficient reason to gov­
ern even themselves, but only to do what they are bidden, and whose
strength lies in their body rather than in their mind. But, of a surety, if
there be any such, the aborigines in question are preeminently such, for
they really seem little different from brute animals and are utterly incapable 316
of governing, and it is unquestionably better for them to be ruled by others
than to rule themselves. Aristotle says it is just and natural for such to
be slaves. Therefore they and their like can not be owners. And it is
immaterial that before the arrival of the Spaniards they had no other
masters; for there is no inconsistency in a slave having no master, as the
glossator on Dig., 40, 12, 23, notes. Nay, the statement is expressly made
in that passage of the Digest and it is the expressed case set out in Dig.,
45, 3, 36, pr., where it is said that a slave who has been abandoned by his
master and not taken into possession by any one else can be taken into
possession by any one. If, then, these were slaves they could be taken
into possession by the Spaniards.
Case for an
On the opposite side we have the fact that the people in question were
affirmative
in peaceable possession of their goods, both publicly and privately. There­
answer.
fore, unless the contrary is shown, they must be treated as owners and not
be disturbed in their possession unless cause be shown.
A distinction.
In aid of a solution I am loath to recall to notice the numerous utterances
if the barb·- of the doctors on the natureof dominion. I have set them out at length when
“ot commenting on Restitution, 4, dist. 15, and on Prima Secundae, qu. 62, and I
different
pass them by here for fear they should lead me to omit things ofgreater moment. 317
And so let me pass them over in order to observe that, if the aborigines had
signed there- not dominion, it would seem that no other cause is assignable therefor except
that they were sinners or were unbelievers or were witless or irrational.
And therefore
thauiuorthe
church.

On the Indians, Sect. I.

121

Fifth. Now, some have maintained that grace is the title to dominion Error of the
and consequently that sinners, at any rate those in mortal sin, have no wydifeVùd
dominion over anything. That was the error of the poor folk of Lyons, or Armichauus
Waldenses, and afterwards of John Wycliffe. One error of his, namely, that
*
“no one is a civil owner, while he is in mortal sin,” was condemned by the ®n.
Council of Constance. This opinion was also held by Armachanus (bk. io,
Adversus errores Armenorum, c. 4) and in the Dialogue, Defensorium pacis;
and Waldensis wrote to controvert him in his Doctrinale antiquitatum fidei,
vol. I, bk. 2, ch. 81 and 82, and vol. II, ch. 3. Armachanus relies on the infirorofth·
fact that such dominion is reprobated by God: “They have set up Kings
but not by me; they have made princes and I knew it not” {Hosea, ch. 8); and the other»
and then is added the indictment, “Of their silver and their gold have they “med
made them idols that they may be cut off.” And so, says he, such persons
have no lawful dominion in the eyes of God. It is certain, however, that all Argument 1.
dominion is by divine authority, for God himself is the creator of every318 thing, and none but they to whom He has given dominion can have it. Now
it is not agreeable to reason that He should give it to the disobedient
and transgressors of his commandments, just as human princes do not give
their property, such as towns and strongholds, to rebels, and if they have
given it to them, they confiscate it. But we ought to judge about divine
things through the medium of human things {Romans, ch. 1). Therefore
God does not give dominion to the disobedient. And in token hereof God
at times removes such from their exalted position, as in the cases of Saul
(I Sam., ch. 15 and 16), and of Nebuchadnezzar and Balthazar {Daniel,
ch. 4 and 5). Again {Genesis, ch. 1), “Let us make man in our own image Argument 1.
and likeness that he may have dominion over the fish of the sea,” etc. It
appears therefore that dominion is founded on the image of God. But the
sinner displays no such image. Therefore he has no dominion. Further, Argument}
such a one commits the crime of treason. Therefore he deserves to lose
his dominion. Likewise, St. Augustine says that the sinner is not worthy of
the bread he eats. Also, the Lord had given our first parents dominion over Argument *.
paradise and then deprived them of it because of their sin {Genesis, ch. 1).
Therefore, etc.
It is true that both Wycliffe and Armachanus speak without distin­
guishing and seem to be speaking rather of the dominion of sovereignty
319 which belongs to princes. But because their reasoning appEes equally to
all dominion, they seem to have in view all kinds of dominion generally.
And that is how Conrad (bk. 1, qu. 7) understands their teaching, and
Armachanus is sufficiently clear in that sense. Those who would follow
their teaching may, therefore, say that the barbarians had no dominion,
because they were always in mortal sin.
Sixth. But against this doctrine I advance the proposition that mortal Thelothor
sin does not hinder civil dominion and true dominion. Although this
proposition was established in the Council of Constance, yet Almain (4, Aimum’s re·Dist. 15, qu. 2), following Ailly, bases an argument in favor of it, on the
fact that a person already in mortal sin who finds himself in extreme need

122

The author1»
proofr. 8

Proof

a.

Proof 3-

Proof 4-

Proof

s-

Proof 6-

Proof 7-

Proof 8-

Franciscus de Victoria.

would be in a dilemma, inasmuch as he must eat bread, and if he can not
own any himself he takes another’s. Therefore he can not escape mortal
sin. This reasoning is, however, unsatfactory, in the first place, because
neither Armachanus nor Wycliffe seems to be speaking of natural domin­
ion, but of civil; and, secondly, the consequence is denied, it being retorted
that in case of necessity a man could take what is another’s; and, thirdly,
he is in no dilemma, because he can repent. The argument, therefore, must
be differently framed.
First, if a sinner has not civil dominion (which is what they seem to 320
be speaking of), he, therefore, has not natural dominion; but the conse­
quent is untrue; therefore, etc. I prove the consequence; for natural
dominion is a gift of God, just as civil dominion is, nay, more so, for civil
dominion seems an institute of human law. Therefore, if for an offense
against God a man loses civil dominion, he would for the same reason lose
his natural dominion also. But the falsity of the consequent is demon­
strated by the fact that the man in question does not lose dominion over his
own acts and over his own limbs, for a sinner has a right to defend his own
life.
Secondly, Holy Scripture often names as kings those who were wicked
and sinners, as appears in the case of Solomon and Ahab and many others;
but one can not be a king without having dominion; therefore, etc.
Thirdly, I employ against the opposing party their own argument :
Dominion is founded on the image of God; but man is God’s image by
nature, that is, by his reasoning powers; therefore, dominion is not lost by
mortal sin. The minor is proved from St. Augustine (De Trinitate, bk. 9),
and from the doctors.
Fourthly, David called Saul his lord and king even when he was
persecuting him (I Sam., ch. 16, and elsewhere). Nay, David himself
sinned at times, yet did not lose his kingdom on that account.
Fifthly (Genesis, ch. 49), “The sceptre shall not depart from Judah, 321
nor a leader from between his feet, until he that is to be sent shall come,”
etc.; yet there were many bad kings; therefore, etc.
Sixthly, spiritual power is not lost by mortal sin; therefore not civil,
for it seems much less assuredly to be founded in grace than spiritual power
is. Now, the antecedent is obvious, because a bad priest consecrates the
Eucharist and a bad bishop consecrates a priest, beyond all doubt.
Although Wycliffe denies this, Armachanus admits it.
Seventhly, it is not at all likely, seeing that we are bidden to obey
princes (Romans, ch. 13 ; and I Peter, ch. 2 : “ Be subject to your masters, not
only to the good but also to the forward”), and not to take what belongs
to another, that God meant that there should be any uncertainty as to
who were true princes and owners.
And, in sum, this is a manifest heresy. And in the same way that God
makes His sun to rise on the good and on the bad and sends His rain on the
just and on the unjust, so also He has given temporal goods alike to good and
to bad. Nor is this subject discussed, because it is in doubt, but in order

«

On the Indians, Sect. I.

123

that from one crime, to wit, from this insensate heresy, we may learn the
character of all heretics.
Seventh. Now it remains to consider whether at any rate dominion Th· second
322 may be lost by reason of unbelief. It might seem to be so, on the ground
that heretics have no dominion, and therefore other unbelievers have not, io» i» now
inasmuch as their condition is not better than that of heretics. The antecequestion
dent is evident from the chapter cum secundum leges (5, 2, 19, in vx), where i» whether it
it is ruled that the goods of heretics are confiscated by the very fact. My ζζΰζ’*. bThe
answer is in the following propositions: The first proposition is that unbelief tuthorfives
does not prevent anyone from being a true owner. This is the conclusion ”Ons uirep*y'
of St. Thomas Aquinas (Secunda Secundae, qu. 10, art. 12). It is proved Proposition 1
also, firstly, by the fact that Scripture gives the name of king to many s^”pturf™m
unbelievers, such as Sennacherib and Pharaoh and many other kings. Also
by the fact that hatred of God is a graver sin than unbelief; but through
hatred, etc. Also, St. Paul (Romans, ch. 13) and St. Peter (I Peter, ch. 2)
enjoin obedience to princes, all of whom at that time were unbelievers,
and slaves are there bidden to obey their masters. Also, Tobias ordered
that a kid which had been taken from the Gentiles should be restored as
having been stolen (Tobias, ch. 2); now, this would not be the case, if the
Gentiles had no ownership. Also, Joseph made all the land of Egypt
tributary to Pharaoh, who was an unbeliever (Genesis, ch. 47). The propoto *
sition is also supported by the reasoning of St. Thomas, namely: Unbelief
323 does not destroy either natural law or human law; hilt ownership and
dominion are based either on natural or on human law; therefore they are
not destroyed by want of faith. In fine, this is as obvious an error as
the foregoing. Hence it is manifest that it is not justifiable to take anything coroiitry..
that they possess from either Saracens or Jews or other unbelievers as such,
that is, because they are unbelievers; but the act would be theft or robbery
no less than if it were done to Christians.
Eighth. But because heresy presents peculiar difficulties, let a second Prey­
proposition be: From the standpoint of the divine law a heretic does not
lose the ownership of his property. This is generally accepted and is
notorious. For since loss of property is a penalty and no penalty is
ordained by the divine law for that condition, it is clear that from the
standpoint of the divine law property is not forfeited on the ground of
heresy. Further, this proposition is evident from the first proposition.
For if ownership be not forfeited on the ground of any other unbelief, it
follows that it is not forfeited on the ground of heresy, seeing that no
special rules upon this point are enacted about heresy in the divine law.
Ninth. But what about human law in this regard? Conrad, indeed
324 (bk. I, qu. 7, con. 2 and 3), seems to hold that a heretic by the very fact
loses the ownership of his property, and so in the forum of conscience he
ceases to be capable of dominion. Hence he infers that a heretic can not
alienate and that any alienation made by him is void. This is proved by
the afore-mentioned chapter cum secundum leges, wherein the Pope premises
that for certain crimes wrongdoers by the very fact lose the ownership of

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Proposi­
tion III.

Proposi­
tion IV.

Corollary I.

Corollary IL

Proposi­
tion V.

Proof i.

Prod 3.

Franciscus de Victoria

their property by civil law, and the Pope rules that the same is to hold for
the crime of heresy. And Joannes Andreae seems to hold the same opinion,
in his comment on the afore-mentioned chapter cum secundum leges. And
it seems to be had from the law Manichaeos {.Cod., 1, 5,4), whereby heretics
are precluded from sale or gift or any dealing with their property. Also,
civil laws bind in the forum of conscience, as St. Thomas teaches {Prima
Secundae, qu. 96, art. 4).1
Tenth. Let the third proposition in the course of our exposition be:
A heretic incurs confiscation of his property from the day of the com­
mission of his offense. This is commonly held by the doctors and is the
ruling in the Directorium inquisitorum (bk. 3, tit. 9), and also in the Summa
of Baptista de Salis on the word absolutio (§ 17), and it seems settled in the
afore-mentioned chapter cum secundum leges and in the afore-mentioned law
Manichaeos {Cod., I, 5, 4).
Eleventh. A fourth proposition: Nevertheless, although the offense 325
be manifest, the fisc can not seize the property of a heretic before con­
demnation. This is also generally received, and is the ruling of the afore­
named chapter cum secundum leges. Nay, it would be contrary to the
divine law and to natural law for a penalty to be enforced before con­
demnation has issued.
Twelfth. It follows from the third conclusion that, when condemna­
tion has taken place, even though this be after death, the confiscation dates
back to the time of the commission of the offense, no matter into whose
control the property has come. This corollary is also generally admitted
and especially by Panormitanus in his comment on 3, 5, 1 in vi.
Thirteenth. And a second consequence is that every sale or gift of or
other dealing with such property is void as from the day of the commission
of the offense. And so, when condemnation has taken place, all such dealings
are rescinded by the fisc and the property is taken by the same fisc, even
without any repayment of the price to the purchasers. This, too, is generally
admitted, and expressly so by Panormitanus in the passage just named,
and is manifest from the afore-named law Manichaeos {Cod., 1, 5, 4).
Fourteenth. A fifth proposition: Nevertheless a heretic continues to 326
be owner in the forum of conscience until he is condemned. This propossition seems to be at variance with Conrad and with the Directorium inquisi­
torum and Joannes Andreae; it is, however, the proposition of Sylvester,
under the word haeresis, I, § 8. Adrian also maintains it, discussing the
matter at some length {Quotlibeta, 6, qu. 2), and Cajetan seems to hold the
same view in his Summa, under the word -poena. The proposition is proved,
first, by the fact that this deprivation in the forum of conscience is a
penalty; therefore, it ought in no wise to be inflicted before condemnation.
Nor am I sure whether human law could effect this at all. It is also
proved by what is clear from the above-named chapter cum secundum
leges, namely, that property is confiscated in the same way by the very
‘St. Thomas' Condusio here is “Justae leges humanae obligant homines in foro conscientiae
ratione leges aeternae a qua derivantur.”—Transi.

On the Indians, Sect. I.

125

fact of an incestuous marriage; as also when a free woman who has been
ravished marries her ravisher. Nay, if any one fails to pay the accustomed
dues on imported merchandise, the goods are forfeit by the very fact; as
also in the case of an exporter of contraband merchandise, such as arms
and iron, to the Saracens. All the details will be found in the above-named
chapter cum secundum leges and in Cod., 5, 5, 3, and Cod., 9, 13, I, and in
327 X, 5, 6, 6, and in Dig., 39, 4, 16 (?). Aye, and the Pope expressly says
in the afore-named chapter cum secundum leges that, just as confiscation
takes place in the cases named, so he intends it to take place in a case
of heresy. But no one denies that an incestuous person and a ravisher
and one who supplies the Saracens with arms and one who does not pay
customs remain true owners of their property in the forum of conscience.
Why, then, does not a heretic also? Conrad himself treats as identical
the cases named and the case of a heretic. It would, moreover, be over
severe to require a man who has just been converted from heresy to give
up ms property to the fisc.
Fifteenth. It follows as a corollary that a heretic may lawfully live These four
ofi his own property.
b. noted.
Sixteenth. Secondly, it follows also that he can make a gratuitous
conveyance of his property, as by way of gift.
Seventeenth. It follows, thirdly, that if his offense can be brought
before the tribunals, he can not convey his property for value, as by way of
sale or dowry. This is manifest, because he would defraud the buyer,
making him incur the risk of loss of both the thing and the price, should
he, the seller, be condemned.
Eighteenth. Lastly, it follows that, if there were in fact no risk of
confiscation, he might even make a conveyance for value. Thus, if some
328 heretic were in Germany, a Catholic could lawfully buy from him. For it
would be oppressive if a Catholic could not buy land from a heretic
or sell land to him in a Lutheran state; yet it would be necessary to say this,
if a heretic were utterly disabled from ownership in the forum of conscience.
Nineteenth. From all this the conclusion follows that the barbarians τι>· principal
in question can not be barred from being true owners, alike in public and
in private law, by reason of the sin of unbelief or any other mortal sin, nor
does such sin entitle Christians to seize their goods and lands, as Cajetan c«j«un.
proves at some length and neatly {Secunda Secundae, qu. 66, art. 8).
Twentieth. It remains to ask whether the Indians lacked ownership Qneetien
because of want of reason or unsoundness of mind. This raises the quesground:
tion whether the use of reason is a precondition of capacity for ownership in *· ··>
general. Conrad, indeed (bk. 1, qu. 6), propounds the conclusion that uckTTswownership is competent to irrational creatures, alike sensible and insensible.
329 The proof consists in the fact that ownership is nothing more than theown­
right to put a thing to one’s own use. But brutes have this right over ionofConr*1’
the herbs and plants {Genesis, ch. 1): “Behold I have given you every
herb bearing seed which is upon the face of all the earth and every tree in
the which is the fruit of a tree yielding seed; to you it shall be for meat

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Franciscus de Victoria

and to every beast of the earth.” The stars, too, have the right to shine
for light (Genesis, ch. 1), “And God set them in the firmament of the
heaven to give light upon the earth and to rule over the day and over the
night.” And the lion has dominion over all animals that walk, whence he
is called the king of beasts. And the eagle is lord among the birds whence
And of Syl­
in Psalm 103 the verse about his house being their leader.1 Sylvester
vester.
(under the word dominium, at the beginning) is of the same opinion as
Conrad, saying that the “elements exercise dominion one over the other.”
The author
I answer by the following propositions:
answers by
First: Irrational creatures can not have dominion. This is clear,
■ certain propo­
sitions.
because dominion is a right, as even Conrad admits. But irrational
Proposition I.
creatures can not have a right. Therefore they can not have dominion.
Proof I.
Con-ad'and^
Pro°^
the minor is that they can not suffer a wrong and thereSyivester r·- fore can have no right.
The proof of this assumption is that he who 330
jected.
kept off a wolf or a lion from its prey or an ox from its pasture would
not do it a wrong, nor would he who shut a window to prevent the sun
from shining in do the sun a wrong. And this is confirmed by the fact
that, if the brutes have dominion, he who took away the grass from a stag
would commit theft, for he would be taking what belongs to another against
the owner’s will.
Proof 2.
Also, wild beasts have not dominion over themselves. Therefore much
less over other things. The proof of the assumption is that they may
be killed with impunity, even for pleasure; and so Aristotle (Politics, 1)
says that the chase of wild beasts is just and natural.
Proof 3.
Also, wild beasts themselves and all irrational animals are more fully
within the ownership of man than slaves are. Therefore, if slaves can not
have anything of their own, much less can irrational animals.
Our proposition is also confirmed by the authority of St. Thomas Aquinas
(Prima Secundae, qu. I, art. 1 and 2, and qu. 6, art. 2, and Contra Gentiles,
bk. 3, c. no), to the effect that only rational creatures have dominion over
their acts, the test of a man’s being master of his acts being (as St. Thomas
says, Prima Pars, qu. 82, art. I, on obj. 3) that he has the power of
choice. Hence (as he says in the same place) we are not masters of our
appetite as regards its final end. If, then, the brutes have not dominion 331
over their acts, they have it not over other things. And although this
seems to be a dispute about a name, it is assuredly a highly improper and
unusual mode of speech to attribute dominion to things irrational. For we
do not ordinarily say that a man has dominion save over that which is
placed within his control. For when we have not dominion, we speak
thus: “It is not within my control,” “It is not in my power.” Now, as
the brutes are rather moved than move themselves, as St. Thomas says
(Prima Secundae, as above), they for that reason have no dominion.
Sylvester1·
Nor is there any force in Sylvester’s remark that dominion sometimes
reasoning re­
does
not signify right, but only power, in which sense we say that fire has
jected.
dominion over water. For, if this is enough to confer dominion, a robber
This is founded on a mistranslation of the Hebrew; see A. V., Ps. 104, v. 17.—Transl

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127

has dominion over his victim even up to death, because he has power to
kill him, and a thief has power to seize his victim’s money. Further, as
regards the statement that the stars exercise dominion and that the lion is
king of beasts, obviously this is said metaphorically and by way of figure.
332
Twenty-first. There might seem some doubt whether a boy, who has
not yet the use of reason, can have dominion, inasmuch as he seems to to whom dodiffer little from irrational animals. And the Apostle says (Galatians, ch.
4): “The heir, as long as he is a child, differeth nothing from a slave”; belong before
but a slave has not dominion; therefore, etc. But let our second proposi°l
tion be: Boys, even before they have the use of reason, can have dominion, attained.
This is manifest, because they can suffer wrong; therefore they have rights £j’J^tionI1·
over things; therefore also they have dominion, which is naught else than
a right. Also, the property of wards is not part of the guardian’s property;
but it has owners and no others are its owners; therefore the wards are the
owners. Also, boys can be heirs; but an heir is one who succeeds to the Proof 3.
rights of the deceased and who has dominion over the inheritance (Dig.,
44, 3, II, and Inst., 2, 19, 7). Also, as already said, the basis of dominion Pfoof 4
is in the possession of the image of God, and children already possess that
image. The Apostle, moreover, says in the passage of Galatians just cited,
“The heir, as long as he is a child, differeth nothing from a slave, though
he be lord of all.” The same does not hold good of an irrational creature,
for a boy does not exist for the sake of another, as does a brute, but for
his own sake.
333
Twenty-second. But what about those suffering from unsoundness of
mind? I mean a perpetual unsoundness whereby they neither have nor is propoeithere any hope that they will have the use of reason. Let our third propo- ***“ ra·
sition be: It seems that they can still have dominion, because they can
suffer wrong; therefore they have a right, but whether they can have civil
dominion is a question which I leave to the jurists.
Propo«iTwenty-third. However this may be, let our fourth proposition be:
The Indian aborigines are not barred on this ground from the exercise ^e· of th·
of true dominion. This is proved from the fact that the true state of the ff,w Worid
case is that they are not of unsound mind, but have, according to their kind, without ,·*the use of reason. This is clear, because there is a certain method in their •maffairs, for they have polities which are orderly arranged and they have
definite marriage and magistrates, overlords, laws, and workshops, and a
system of exchange, all of which call for the use of reason; they also have
a kind of religion. Further, they make no error in matters which are selfevident to others; this is witness to their use of reason. Also, God and
nature are not wanting in the supply of what is necessary in great measure
for the race. Now, the most conspicuous feature of man is reason, and
334 power is useless which is not reducible to action. Also, it is through no
fault of theirs that these aborigines have for many centuries been outside
the pale of salvation, in that they have been born in sin and void of baptism
and the use of reason whereby to seek out the things needful for salvation.
Accordingly I for the most part attribute their seeming so unintelligent and

128

Franciscus de Fictoria, On the Indians, Sect. I.

stupid to a bad and barbarous upbringing, for even among ourselves we find
many peasants who differ little from brutes.
Principal conTwenty-fourth. The upshot of all the preceding is, then, that the
ducedtrom aborigines undoubtedly had true dominion in both public and private
the foregoing, matters, just like Christians, and that neither their princes nor private
persons could be despoiled of their property on the ground of their not being
true owners. It would be harsh to deny to those, who have never done
any wrong, what we grant to Saracens and Jews, who are the persistent
enemies of Christianity. We do not deny that these latter peoples are true
owners of their property, if they have not seized lands elsewhere belonging
to Christians.
Answer to the
ft remains to reply to the argument of the opposite side to the effect 335
the'negaüve that the aborigines in question seem to be slaves by nature because of their
side adduced incapability of self-government. My answer to this is that Aristotle
above,where- certainly did not mean to say that such as are not over-strong mentally
in a passage are by nature subject to another’s power and incapable of dominion alike
PohticOk. i, over themselves and other things; for this is civil and legal slavery, wherein
is expounded. none are slaves by nature. Nor does the Philosopher mean that, if any by
nature are of weak mind, it is permissible to seize their patrimony and
enslave them and put them up for sale; but what he means is that by
defect of their nature they need to be ruled and governed by others and
that it is good for them to be subject to others, just as sons need to be
subject to their parents until of full age, and a wife to her husband. And
that this is the Philosopher’s intent is clear from his corresponding remark
that some are by nature masters, those, namely, who are of strong intelli­
gence. Now, it is clear that he does not mean hereby that such persons
can arrogate to themselves a sway over others in virtue of their superior
wisdom, but that nature has given them capacity for rule and government. 336
Accordingly, even if we admit that the aborigines in question are as inept
and stupid as is alleged, still dominion can not be denied to them, nor are
they to be classed with the slaves of civil law. True, some right to reduce
them to subjection can be based on this reason and title, as we shall show
below. Meanwhile the conclusion stands sure, that the aborigines in
question were true owners, before the Spaniards came among them, both
from the public and the private point of view.

337

SUMMARY OF THE SECOND SECTION.

On the illegitimate titles for the reduction of the aborigines of the New
World into the -power of the Spaniards.
1. The Emperor is not the lord of the whole world.
2. Even if the Emperor were the lord of the world, that would not entitle him to
seize the provinces of the Indian aborigines and to erect new lords and
Îut down the former lords or to levy taxes.
ope is not civil or temporal lord of the whole world, in the proper sense
of civil lordship and power.
4. Even if the Supreme Pontiff had secular power over the world, he could not
give that power to secular princes.
5. The Pope has temporal power, but only so far as it subserves things spiritual.
6. The Pope has no temporal power over the Indian aborigines or over other
unbelievers.
338 7. A refusal by these aborigines to recognize any dominion of the Pope is no reason
for making war on them and for seizing their goods.
8. Whether these aborigines were guilty of the sin of unbelief, in that they did not
believe in Christ, before they heard anything of Christianity.
9. What is required in order that ignorance may be imputed to a person as, and
be, sin, that is, vincible ignorance. And what about invincible ignorance?
10. Whether the aborigines are bound to hearken to the first messengers of
Christianity so as to commit mortal sin in not believing Christ’s Gospel
merely on its simple announcement to them.
ii. If the faith were simply announced and proposed to them and they will not
straightway receive it, this is no ground for the Spaniards to make war
on them or to proceed against them under the law of war.
12. How the aborigines, if they refuse when asked and counselled to hear peaceably
preachers of religion, can not be excused from mortal sin.
13. When the aborigines would be bound to receive Christianity under penalty of
mortal sin.
14. In the author’s view it is not sufficiently clear whether Christianity has been
so proposed and announced to these aborigines that they are bound to
believe it under the penalty of fresh sin.
339 15. Even when Christianity has been proposed to them with never so much suffi­
ciency of proof and they will not accept it, this does not render it lawful
to make war on them and despoil them of their possessions.
16. Christian princes can not, even on the authority of the Pope, restrain these
aborigines from sins against the law of nature or punish them therefor.
acthor
It being premised, then, that the Indian aborigines are or were true The
propose* to
owners, it remains to inquire by what title the Spaniards could have come set out the
titiet, both
into possession of them and their country.
legitimate
And first, I shall advert to the titles which might be alleged, but which and noalegitimate,
are not adaquate or legitimate.
by which the
Secondly, I shall set out the legitimate titles under which the abo­ Spaniards
might have
rigines could have come under the sway of the Spaniards.
seized the
Now, there are seven titles, which might be alleged, but which are not territory of
the aborigi­
adequate, and seven or eight others, which are just and legitimate.
nes.
The first title that might be alleged, then, is that the Emperor is the The first nonlord of the world, and in such a way that, even if it be granted that in time legitimate
tide.
past there was a defect in his claim, it would by now be purged as regards

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our present, most Christian Emperor. For, even if we assume that the ·
Indian aborigines may be true owners, yet they might have superior lords,
just as inferior princes have a king and as some kings have the Emperor 340
over them. There can in this way be many persons having dominion over
the same thing; and this accounts for the well-worn distinction drawn by
the jurists between dominion high and low, dominion direct and available,
dominion pure and mixed. The question, therefore, is whetherthe aborigines
had any superior lord. And, as this question can only arise with regard
to either the Emperor or the Pope, let us speak of these.
^ror tort of
The first allegation to consider is that the Emperor is lord of the whole
the whole
world and therefore of these barbarians also. This is supported, firstly, by
thfaffirM r^e aPPefiati°n> “Lord of the world,” commonly given to the late Emperor
tire.
Maximilian or to the present Emperor Charles, ever August. Also (Luke,
Argument 2 c^· 2^’ 'There went out a decree from Caesar Augustus that a census should
be taken of all the world”; but Christian Emperors ought not to be in any
Argument3. worse condition than he; therefore, etc. Also, our Lord seems to have pro­
nounced Caesar to be the true lord of the Jews. “ Render unto Caesar,”
said he, “the things that are Caesar’s,” etc. (St. Luke, ch. 20). But it does
not seem that Caesar could have this right, save as Emperor. Therefore
Bartoius °and Bart0^us> commenting on the Extravagans of Henry VII, Ad reprimendum,
the gloss*expressly holds that “the Emperor is the rightful lord of the whole world.”
a^metive
18 a^so
°pini°n
tLe glossator on X, 4, 17, 13. So, too, the
glossator on X, 1, 6, 34.
Proof i.
And they prove the allegation first from can. 41, C. 7, qu. I, where
Gregory1 says that there is one king among bees, and in the world one 341
Emperor, and also from Dig., 14, 2, 9, where the Emperor Antoninus says:
“I indeed am lord of the earth,” and Cod., 7, 37, 3, § 1, “everything is
understood to belong to the Emperor.”
The allegation might also be supported by the fact that Adam first and
then Noah seem to have been lords of the world: “ Let us make man in our
image, after our likeness, and let them have dominion over the fish of the sea
and over the fowl of the air and over all the earth,” etc. (Genesis, ch. 1),
and a little later on, “Be fruitful and multiply and replenish the earth and
subdue it,” etc.; and therelis a similar pronouncement made to Noah
(Genesis, ch. 8). But these two had successors. Therefore.
Proof 3Also, there is a proof in the incredibility of God’s having instituted in
the world anything but the best system of government: “In wisdom hast
thou made them all (Psalm 104). But monarchy is the best system, as
St. Thomas admirably shows (De regimine principum, bk. 1, ch. 2), and as
Aristotle seems to hold (Politics, bk. 3). Therefore, it seems to be in
accordance with divine institution that there should be one Emperor in the
world.
Also, the things which are outside nature ought to imitate things
^natural. But in things natural there is always one governor; as in the
'Victoria has Hieronymus here following the editio Romana of the Corpus luris Canonici, which
atrnbutes this to bt. Jerome.
F J

On the Indians, Sect. II.

’3’

body, it is the heart; in the soul, it is reason. Therefore in the world there
ought to be one governor, just as there is one God.
I. Now, this contention is baseless. Let our first conclusion, then, be: θ
342 The Emperor is notthe lord of the whole earth. This is proved from the rejected.
fact that dominion must be founded either on natural or divine or human
1
law; but there is no lord of the earth in any of these; therefore, etc. The
minor is proved, first as regards natural law, by what St. Thomas well says Proof that
(Prima Pars, qu. 92, art. I, on obj. 2, and qu. 96, art. 4), namely, that
by natural law mankind is free save from paternal and marital dominion— whole world
for the father has dominion over his children and the husband over the wife
by natural law; therefore no one by natural law has dominion over the n«tur»i lew.
world. And, as St. Thomas also says (Secunda Secundae, qu. 10, art. 10),
dominion and preëminence were introduced by human law; they, therefore,
were not by natural law. Nor would there be any greater reason why this
dominion should be more proper for Germans than for Gauls. And Aristotle
(Politics, bk. 1) says, Power is of two kinds, the one originates in the family,
like that of the father over his sons and that of the husband over the ,
wife, and this is a natural power; the other is civil, for, although it may take
its rise in nature and so may be said to be of natural law, as St. Thomas
says (De regimine principum, bk. I, ch. 2), yet, man being a political
animal, it is founded not on nature, but on law.
Now, as regards divine law, we do not read that before the coming of Proof
our Saviour Christ the Emperors were lords of the whole world, although not ford of
in the gloss mentioned on the Extravagans, Ad reprimendum, Bartolus
343 adduces the passage in Daniel, ch. 2, about Nebuchadnezzar, of whom it ^Tine
is said: “Thou, O King, art a Kang of Kings; for the God of Heaven hath v™* t.
given thee a Kingdom and power and strength and glory. And whereso­
ever the children of men dwell, He hath given thee all.” It is, however,
certain that Nebuchadnezzar received his sovereignty from God by no uto betaken,
special grant, but in the same way as other princes (Romans, ch. 13):
“There is no power but of God”; and (Proverbs, ch. 8): By me kings
reign and princes decree justice.” Further, Nebuchadnezzar had not a
legal rule over the whole earth, as Bartolus thinks, for the Jews were not
legal subjects of his.
Another proof that there was by divine law no ruler over the whole proof aworld lies in the fact that the Jewish nation was free from the foreigner;
nay, the Jews were forbidden by their law to have any foreigner as their
lord (Deuteronomy, ch. 17): “Thou mayest not set a stranger to be king
over thee.” And, although St. Thomas (De regimine principum, bk. 3, ch. 4
θ
and 5) says that the Romans were entrusted with empire by God because given empire
of their justice and their patriotism and the excellence of their laws, yet
this is not to be taken to mean that they had their empire by divine grant
or institution, as St. Augustine also says (De civitate Dei, ch. 18), but that
in the divine providence it befell that they should obtain the sovereignty
344 of the world. This, however, was not in the way in which Saul or David
had his kingdom from God, but in some other way, such as by just war or
other title.

132
Proof 3.

Reason for
saying that
after Christ’s
coming, the
Emperor is
lord of the
whole earth.

The author
demolishes
this reason­
ing.

Fran cisens de Victoria

This will be plain to any one who considers the titles and modes of
succession whereby sovereignty and lordship in the world have come down
to our own day. For, to omit everything that happened before the flood,
the world was certainly divided after Noah into different provinces and
kingdoms, whether this were by ordinance of Noah himself—for he survived
the flood three hundred and fifty years {Genesis, ch. 9), and sent colonies
into different regions, as appears in Berosus of Babylon—or whether, as
is more likely, different family-groups by the common agreement of man­
kind occupied different provinces, as {Genesis, ch. 13) “Abram said unto
Lot: ‘ ... Is not the whole land before thee? ... If thou wilt take the
left hand, then I will go to the right, or if thou depart to the right hand,
then I will go to the left.” We are, accordingly, told {Genesis, ch. 10) that
through the descendants of Noah came diversities of peoples and countries,
whether in some regions they first assumed lordship by usurpation, as
Nimrod seems to have done, of whom Genesis, ch. 10, v. 8, says that he
was the first to be a mighty one in the earth, or whether by accord of sev­
eral to unite in one State they appointed a prince over themselves by
common agreement. For it is sure that either in these or in other like
modes sovereignty and lordship began in the world and that afterwards,
either by right of inheritance or of war or by some other such title, they 345
were continued unto our own day, or at any rate up to the time of the
Saviour’s coming. Herein it is manifest that before the coming of Christ
no one was vested with world-wide sway by divine law and that the Emperor
can not at the present day derive therefrom a title to arrogate to himself
lordship over the whole earth, and consequently not over the barbarians.
It might, however, be alleged that after our Lord’s coming there was
one Emperor over the world by express grant of Christ, in that He, as
regards His manhood, was Lord of the world, according to St. Matthew,
ch. 28: “All power is given unto me,” etc.,which, according to St. Augustine
and St. Jerome, is to be understood as regards His manhood. Also, as the
Apostle declares (I Corinthians, ch. 15), “He hath put all things under
his feet.” Therefore, just as He left on earth one vicar in matters spiritual,
so also in matters temporal, and in the latter case it is the Emperor. St.
Thomas, too, says {De regimine principum, bk. 3, ch. 13) that Christ was
from His nativity the true Lord and monarch of the world and that Augustus
though unwitting thereof, was acting as His deputy. Now, it is clear that
this deputyship was not in matters spiritual, but in matters temporal.
Seeing, then, that Christ’s Kingdom, if it were temporal, was over the whole
world, Augustus was, on that showing, lord of the world and so on the
same principle his successors were.
This reasoning is, however, quite inadmissible : In the first place, 346
because of the doubt attaching to the statement that Christ as regards His
manhood was temporal Lord of the world. The probability indeed is that He
was not, and our Lord seems to have asserted as much in the passage: “My
Kingdom is not of this world.”1 Accordingly, St. Thomas remarks in this

On the Indians, Sect. II.

133

connection that Christ’s dominion is directly appointed for the soul’s salva­
tion and for spiritual profit, although it is not excluded in matters temporal
in the same fashion as it is appointed in matters spiritual. This shows that
in St. Thomas’s view His Kingdom was not of the same sort as a civil and
temporal kingdom, but that, while He had all kinds of power, even in matters
temporal, which would subserve the aim of redemption, yet apart from that
aim He had none. Further, even if we grant that He was temporal Lord,
it is guess-work to say that He bequeathed that power to the Emperor, there
being no mention of any such thing in the whole Bible. And as regards
St. Thomas’s statement that the Emperor Augustus was Christ’s vicegerent,
firstly, he does indeed make it in the passage referred to, but in his Tertia
Pars, where he is professedly discussing the power of Christ, he makes no
mention of this temporal power.
Secondly, St. Thomas’s meaning is that the Emperor was Christ’s
vicegerent to the extent that temporal power is subordinate and subservient
347 to spiritual power. In this sense, of a truth, kings are the servants of
bishops, just as the smith’s art is subject to the knight’s and the soldier’s,
while all the time neither the soldier nor his superior officer is a smith, but
is only concerned to give the smith orders about the making of armor.
Again, St. Thomas, writing on that passage in St. John, ch. 18, expressly
says that Christ’s Kingdom is not temporal or such a kingdom as Pilate
conceived, but a spiritual kingdom, inasmuch as our Lord declares in that
passage: “Thou sayest that I am a King. To this end was I bom and for
this cause came I into the world, that I should bear witness unto the truth.”
This shows it to be a mere fiction to say that by express grant of Christ
there is one Emperor and lord of the world.
A consideration which palpably confirms this is the following: If there
had been any such institution by divine law, how comes it that the Empire confirmation
was divided into Eastern and Western, first among the sons of Constantine * propo"‘
the Great and then, later, by Pope Stephen, who conferred the Empire of Th· Pop·,
the West on the Germans, as is held in X, I, 6, 34? For the assertion that p1*0*”?**4
the Greeks thereafter were not Emperors is inept and ignorant, as the to Mid to
glossator hereon points out, seeing that the German Emperors never claimed
in virtue of this grant to be Lords of Greece, and John Palaeologus, Emperor
of Constantinople, was held to be lawful Emperor at the Council of Florence.
348 Moreover, the patrimony of the Church (as the jurists themselves, and even
Bartolus, confess) is not subject to the Emperor. Now, if all things were
subject to the Emperor by divine law, no imperial gift or any other title
could divest the Emperors of them, any more than the Pope can release
any one from the power of the Popes. Also, the Kingdom of Spain is not
subject to the Emperor, nor is France, as is also held in X, I, 6, 34 abovementioned, although the glossator adds out of his own head that this is not
so much a matter of law as of fact. Also, the doctors agree that States,which
have in times past been subject to the Empire, might be freed from that
subjection by prescription; which would not be the case, if this subjection
were in virtue of a divine law.

134

Franciscus de Victoria

The author
proves that
the Emperor
is not lord of
the world by
* human law
either.

Now, in point of human law, it is manifest that the Emperor is not
lord of the world, because either this would be by the sole authority of some
law, and there is none such; or, if there were, it would be void of effect,
inasmuch as law presupposes jurisdiction. If, then, the Emperor had no
jurisdiction over the world before the law, the law could not bind one who
was not previously subject to it. Nor, on the other hand, had the Emperor
this position by lawful succession or by gift or by exchange or by purchase
or by just war or by election or by any other legal title, as is admitted.
Therefore the Emperor never was the lord of the whole world.
Secondpropo2. Second conclusion: Granted that the Emperor were the lord of the 349
sition. As
the gloss on world, still that would not entitle him to seize the provinces of the Indian
the preface to aborigines and erect new lords there and put down the former ones or take
the Digest.
taxes. The proof is herein, namely, that even those who attribute lordship
over the world to the Emperor do not claim that he is lord in ownership,
but only in jurisdiction, and this latter right does not go so far as to warrant
him in converting provinces to his own use or in giving towns or even estates
away at his pleasure. This, then, shows that the Spaniards can not justify
on this ground their seizure of the provinces in question.

Discussion
of the second
title whereby

A second alleged title to the lawful possession of these lands, and one
which is vehemently asserted, is traced through the Supreme Pontiif. For
couid^btain
5
1S c^aime^ that the Pope is temporal monarch, too, over all the world and
could obtain
possession
1
--------------of that he could consequently make the Kings of Spain sovereign over the
the barba­
aborigines in question, and that so it has been done.
rians.
__
matter
there
are some jurists, who hold that the Pope has full
The opinion
of some juris- jurisdiction in temporal matters over the whole earth, and they even add
consults.
consults.
that tjie pOWer of au secular princes comes to them from the Pope. This is
the tenet of Hostiensis on X, 3, 34, 8; also of the Archbishop (pt. 3, tit. 22,
ch. 5, § 8) ; and also of Augustinus Anconitanus. Sylvester holds the same 350
doctrine, making a much more ample and liberal concession of this power
to the Pope, under the word infidelitas (§ 7) and under the word Papa
(§§ 7> IO> 11 and 14), and under the word legitimus (§ 4). He has some
singular remarks on this topic in the passages mentioned, as, for example,
that “the power of the Emperor and all other princes is sub-delegated as
regards the Pope, being derived from God through the medium of the Pope,”
and that “all their power is dependent on the Pope,” and that “Constantine
gave lands to the Pope in recognition of his temporal power,” and on the
other hand that “the Pope gave the Empire to Constantine to his use and
profit,” nay, that “Constantine’s act was really not a gift, but merely the
return of what had previously been taken away,” and that, “if the Pope does
not exercise jurisdiction in temporal matters outside the patrimony of the
Church, this is not for want of authority, but in order to avoid the scandal
of the Jews and in order to promote peace”; and many other things even
more empty and absurd than these. The sole proof that he gives herefor
is in the passages “The earth is the Lord’s and the fulness thereof,”1 and
“All power is given unto me, both in heaven and in earth,”2 and the Pope
1Psalm 24, v. I.

’St. Mattkea, ch. 28, v. 18.

On the Indians, Sect. II.

135

is the vicar of God and of Christ, and (Philippians, ch. 2) Christ “for our
sake became obedient even unto death,” etc. Bartolus, too, seems to be
of this opinion in his comment on the Extravagans, Ad reprimendum, and
351 St. Thomas seems to favor it at the end of the second book of the Sententiae,
the closing words of which are by way of solution of the fourth argument,
which is the last of the whole book, namely, that the Pope holds the
summit of both kinds of power, both secular and spiritual, and Herveus
is of the same opinion in his De potestate Ecclesiae.
This, then, being laid as a basis, the authors of this opinion say as tShUe”™iniIa°0f
follows: In the first place, that the Pope has free power, on the footing of theaforesupreme temporal lord, to make the Kings of Spain rulers over the Indian “eatio,ie4·
aborigines. Secondly, they say that, even if it be assumed that he could not
do this, at any rate if these aborigines refused to recognize the temporal
power of the Pope over them, this would warrant him in making war on
them and in putting rulers over them. Now, each of these things has been
done. For, first, the Supreme Pontiff granted the provinces in question to
the Kings of Spain. Secondly, the aborigines were notified that the Pope .
is the vicar of God and His vicegerent on earth and it was claimed that they
should, therefore, recognize him as their superior, and their refusal furnishes
a good ground for making war on them and seizing their lands, etc. Hostiensis, place cited, expressly makes this point, so does Angelus in his Summa.
Now, inasmuch as I have fully discussed the temporal power of the
Pope in my Relectio de Potestate Ecclesiastica, I will put my answer to the
propo®352 above into a few brief propositions:
3. First: The Pope is not civil or temporal lord of the whole world in P™?®»'1015I· ·
the proper sense of the words “lordship” and “civil power.” This is the
conclusion arrived at by Torquemada (bk. 2, ch. 113), and by Joannes
Andreae and by Hugo, on can. 6, Dist. 96. And the most learned Innocent
admits, in the above cited X, 1, 6, 34, that he has not temporal power over
the Kingdom of France. And it seems the definite opinion of St. Bernard
in the second book of his De consideratione, addressed to Pope Eugenius III.
The opposite opinion seems contrary to the precept of our Lord who,
(St. Matthew, ch. 20, and St. Luke, ch, 22), says, “Ye know that the princes
of the Gentiles exercise lordship over them,” etc. “But it shall not be
so among you.” And contrary also to the precept of the Apostle Peter,
“neither as being lords over [God’s] heritage but being ensamples to the
flock.”1 And if Christ the Lord had not temporal power, as has been shown
in the foregoing discussion to be more probable and as is also the opinion
of St. Thomas, much less has the Pope it, he being Christ’s vicar. The
above-mentioned thinkers attribute to the Pope that which he has never
claimed for himself; nay, he admits the contrary in many passages, as I
have shown in the Relectio referred to. And the proof is sufficient, like
that given above concerning the Emperor, for no lordship can come to him
save either by natural law or by divine law or by human law. Now, it is
certain that none comes to him by natural or by human law, and none is
>1 Ρλ, ch. 5.

136

Franciscus de Victoria

shown to come to him by divine law. Therefore the assertion is ungrounded
and arbitrary.
The author
Further, our Lord’s injunction to Peter, “Feed my sheep,”1 clearly 353
arguments^! shows that power in spiritual and not in temporal matters is meant. It is,
the opposite moreover, demonstrable that the Pope has not the whole world for his
sphere. For our Lord said (St. John, ch. 10) that there should be “one flock
. and one shepherd ” at the end of the age. This is sufficient proof that at
the present day all are not sheep of this flock. Again, assuming that Christ
had this power, it is manifest that it has not been entrusted to the Pope.
This appears from the fact that the Pope is no less vicar of Christ in spiritual
than in temporal matters. But the Pope has no spiritual jurisdiction over
unbelievers, as even our opponents admit, and, as seems (I Corinthians,
ch. 5) to have been the express teaching of the Apostle: “For what have
I to do to judge them also that are without?” Therefore he has it not also
in temporal matters. And of a truth there is nothing in the argument that,
as Christ had temporal power over the world, therefore the Pope also has
it. For Christ undoubtedly had spiritual power over the whole world, not
less over believers than over unbelievers and could make laws which bound
the whole world, as he did with regard to baptism and the articles of
faith. And yet the Pope has not that power over unbelievers and may
not excommunicate them or forbid their marriage within the degrees per­
mitted by the divine law. Therefore. Also, the fact that, according to
the doctors, Christ did not entrust supremacy in power even to the Apostles 354
shows that there is no force in the consequence: Christ had temporal power
over the world; therefore the Pope has it too.
Propoei4. Second proposition: Even assuming that the Supreme Pontiff had
this secular power over the whole world, he could not give it to secular
princes. This is obvious, because it would be annexed to the Papacy. Nor
can any Pope sever it from the office of Supreme Pontiff or deprive his
successor of that power, for the succeeding Supreme Pontiff can not be less
than his predecessor; and, if some one Pontiff had made a gift of this power,
either the grant would be null or the succeeding Pontiff could cancel it.
Propoei5. Third proposition: The Pope has temporal power only so far as it is
in subservience to matters spiritual, that is, as far as is necessary for the
administration of spiritual affairs. This is also the view of Torquemada
(as above, ch. 114), and of all the doctors. And the proof of it lies in the
fact that an art to which a higher end pertains is imperative and preceptive
as regards the arts to which lower ends pertain (Ethics, bk. 1). But the
end of spiritual power is ultimate felicity, while the end of civil power is
political felicity. Therefore, temporal power is subject to spiritual power.
This is the reasoning adopted by Innocent in X, 1, 33, 6; and it receives 355
confirmation from the consideration that, whenever anybody is entrusted
with the charge of any office, he is impliedly granted everything without
which the duties of the office can not rightly be discharged (X, 1, 29, 1).
Inasmuch, then, as the Pope is a spiritual pastor by Christ’s commission
‘St. John, ch. 21, v. 17.

On the Indians, Sect. II.

137

and the discharge of the duties of this office can not be hindered by the
civil power (there being no lack in the provision of things necessary either
by God or by Nature), it is beyond doubt that power over things temporal
has also been left to him so far as is necessary for the government of things
spiritual. And on this principle the Pope can infringe civil laws which tend
to breed sinners, just as he has infringed the laws with regard to prescription
by a party acting in bad faith, as is clear from X, 2, 26, 20. And on this
principle also, when princes are at variance with one another about some
right of sovereignty and are rushing into war, he can act as judge and
inquire into the claims of the parties and deliver judgment, a judgment
which the princes are bound to respect, lest those numerous spiritual evils
should befall which are~the inevitable results of a war between Christian
princes. And although the Pope does not do this or does not do it often,
it is not because he can not, as Master Durandus says, but because, for fear „
of scandal, he wishes to prevent the princes from thinking his motive is ambi­
tion or because he is afraid of a revolt from the Apostolic See on the part of
356 the princes. And on this principle the Pope can sometimes depose kings and
even set up new kings, as at times has been done. And certainly no one
rightly calling himself Christian should deny this power to the Pope. This
is the view held by Paludanus and Durandus {De jurisdictione ecclesiastica),
and by Henricus Gandavensis {QuocUibeta, 6, art. 23). It is in this sense, also,
that those numerous rules are to be interpreted which say that the Pope has
both swords. The earlier doctors make the same assertion, as also does
St. Thomas in the second book of the Sententiae, as above quoted.
Aye, and there is no doubt that in this way bishops have temporal J;'*
authority within their bishoprics on the same principle that the Pope has l*y princ»«
authority in the world. And so they err in speech and in deed, whether “*· th“princes or magistrates, who strive to prevent bishops from deterring lay­
men from sin by fines or exile or other temporal punishments. For this is not
in excess of their power, provided they do not do it from greed or for gain,
but of necessity and for profit in things spiritual. And herein we find a
further argument in support of our first conclusion; for if the Pope were
lord of the world, a bishop would also be temporal lord in his bishopric,
seeing that within his bishopric he also is a vicar of Christ, but this our
opponents deny.
357
6. Fourth conclusion: The Pope has no temporal power over the Proj»«Indian aborigines or over other unbelievers. This is clear from proposi,
rions I and III. For he has no temporal power save such as subserves
spiritual matters. But he has no spiritual power over them (I Corinth., ch.
5, v. 12). Therefore he has no temporal power either.
7. The corollary follows that even if the barbarians refuse to recognize CoroU«ry.
any lordship of the Pope, that furnishes no ground for making war on them
and seizing their property. This is clear, because he has no such lordship.
And it receives manifest confirmation from the fact (as will be asserted
below and as our opponents admit) that, even if the barbarians refuse to
accept Christ as their lord, this does not justify making war on them or

138
Absurdity of
the opposite
opinion.

Confirma­
tion 2.

Proof 2, and
with author­
ity.

Proof 3.

Proof 4-

Third Tid*.

Franciscus de Victoria

doing them any hurt. Now, it is utterly absurd for our opponents to say
that, while the barbarians go scatheless for rejecting Christ, they should be
bound to accept His vicar under penalty of war and confiscation of their
property, aye, and penal chastisement. And a second confirmation is
furnished by the fact that the ground, according to the persons in question,
for disallowing compulsion, even if they refuse to accept Christ or His faith,
is that it can not be evidently proved to them by natural reasoning. But
the lordship of the Pope admits of this proof still less. Therefore they
can not be compelled to recognize this lordship.
Again, although Sylvester discourses at great length on the power of
the Pope, yet, under the word infideles (§ 7), he expressly maintains against 358
Hostiensis that unbelievers can not be compelled by arms to recognize this
lordship and can not be deprived of their property on this pretext. And
Innocent maintains the same in X, 3, 34, 8. There is also no doubt that
this was the opinion of St. Thomas too (Secunda Secundae, qu. 66, art. 8,
on obj. 2); Cajetan is express thereon, in his comment on the passage where
St. Thomas says that unbelievers cannot be deprived of their property,
save only that the subjects of temporal princes can be deprived for reasons
known to the law and rendering their subjects in general liable to depriva­
tion. Of a truth, Saracens dwelling among Christians have never been
deprived of their property on any such pretext or made to suffer any harm.
Why, if this pretext be enough to justify making war on them, it is as much
as to say that they can be deprived by reason of their unbelief. For it is
certain that none of the unbelievers recognize this lordship. But there is
no doctor even among our opponents who would allow that they can be
deprived on the mere ground of unbelief. Therefore the allegation of the
doctors in question is utterly sophistical, namely, that if the unbelievers
recognize the lordship of the Roman Pontiff, war can not be made on them,
but that it may if they do not recognize it; for none of them does recognize it.
This shows that the title under discussion can not be set up against 359
the barbarians and that Christians have no just cause of war against them
either on the ground that the Pope has made a gift of their lands on the
footing of absolute lord or that they do not recognize the lordship of the
Pope. This is the opinion maintained by Cajetan at considerable length,
on Secunda Secundae, qu. 66, art. 8, on obj. 2. And the authority of the
canonists to the contrary ought not to weigh much, because, as said above,
these matters are to be discussed with reference to the divine law, and the
majority in numbers and weight hold the contrary view, and among the latter
is Joannes Andreae. Our opponents have no text in their favor. And even
the weighty authority of the Archbishop of Florence is not to be admitted
here, for he followed Augustinus Anconitanus, just as in other places he
usually follows the canonists. What has been said demonstrates, then,
that at the time of the Spaniards’ first voyages to America they took with
them no right to occupy .the lands of the indigenous population.
Accordingly, there is another title which can be set up, namely, by
right of discovery; and no other title was originally set up, and it was in

On the Indians, Sect. II.

*

.

B9

virtue of this title alone that Columbus the Genoan first set sail. And
this seems to be an adequate title because those regions which are deserted
become, by the law of nations and the natural law, the property of the first
360 occupant (Inst., 2, 1, 12). Therefore, as the Spaniards were the first to
discover and occupy the provinces in question, they are in lawful posses­
sion thereof, just as if they had discovered some lonely and thitherto unin­
habited region.
Not much, however, need be said about this third title of ours, because,
as proved above, the barbarians were true owners, both from the public
and from the private standpoint. Now the rule of the law of nations is
that what belongs to nobody is granted to the first occupantes is expressly
laid down in the aforementioned passage of the Institutes. And so, as the
object in question was not without an owner, it does not fall under the
title which we are discussing. Although, then, this title, when conjoined
with another, can produce some effect here (as will be said below), yet in
and by itself it gives no support to a seizure of the aborigines any more
than if it had been they who had discovered us.
Accordingly, a fourth title sis set up, namely, that they refuse to Fourth tide
accept the faith of ChristTâlthough it is set before them and although they·/diKtused.
have been adjured and advised to accept it. This title might seem to be Its lawfulness
a lawful one for occupying the lands of the barbarians, firstly, on the ground proven.
Argument 1.
that the obligation of the aborigines to receive the faith of Christ results from
the passage: “Whoso believeth and is baptized shall be saved, but he who
believeth not shall be damned.”1 But damnation is not visited on any one
except for a mortal sin, and “There is no other name given among men
whereby we must be saved ” (Acts, ch. 4). Therefore, as the Pope is the
361 minister of Christ, at least in things spiritual, it would appear that at any
rate by the authority of the Pope they can be compelled to receive the
faith of Christ, and if they reject the demand to receive it they may be
proceeded against under the law of war. Nay, it would seem that princes
may do this on their own authority also, seeing that they are God’s minis­
ters (Romans, ch. 13), and “revengers [to execute] wrath upon them that
do evil.” But those, indeed, do evil who do not accept the faith of Christ.
Therefore they can be coerced by princes.
A second argument is: If the French refused to obey their King, the Ar,nn“,rt
King of Spain could cojnpel them to obedience. Therefore, if the Indian
aborigines refuse to obey God, who is their true and supreme Lord, Christian
princes can compel them to obedience; for the cause of God ought not to
be in worse condition than the cause of men. And this is confirmed, as
Scotus (bk. 4, dist. 4, qu. 9) argues about the baptism of the children of
unbelievers, by the fact that persons ought to be compelled to obey a
superior lord rather than an inferior lord. If, then, compulsion may be
employed to make these aborigines obey their chiefs, much more may it
be employed to make them obey Christ and God.
lSt. Mark. ch. 16, V. 16.

DF Compressor Pro

140

Francisais de Victoria

A third argument is: If the barbarians publicly blasphemed Christ,
they could be compelled by war to cease from such blasphemies, as the
doctors admit and as is true. For we could take measures of war against
them, if they made a mock of the crucifix or in any other way abused
Christian practices by way of insult, as by jesting imitation of the Sacra- 362
ments of the Church or the like conduct. This is obvious; for if they
outraged a Christian sovereign, even one now dead, we could avenge the
outrage; much more, then, if they outrage Christ, who is the living King
of Christians. This is indubitable; for if Christ were alive in the flesh and
pagans wrought an outrage on Him, there is no doubt that we could
avenge the outrage by war. So, therefore, in this case. But unbelief is
a greater sin than blasphemy, for, as St. Thomas asserts and proves
(Secunda Secundae, qu. 10, art. 3), unbelief is the gravest of the sins which
lie in moral perversity, because it is directly opposed to faith, while blas­
phemy is not directly opposed to faith, but to the confession of faith.
Unbelief cuts at the root of turning to God, that is, at faith, while blas­
phemy does not. Therefore, seeing that Christians can proceed by war
against unbelievers for their blasphemy of Christ, so they can for their
Confirmation, unbelief itself. And the contention that blasphemy is not so great a sin
as unbelief is confirmed by the fact that unbelief, is, in a Christian, a capital
crime by the civil laws, while blasphemy is not.
Certain
8. By way of answer let my first proposition be: Before the barbarians
propositions
heard anything about Christianity, they did not commit the sin of unbelief 363
in reply.
Proposi­
by not believing in Christ. This proposition is precisely that of St. Thomas
tion I.
in Secunda Secundae, qu. 10, art. I, where he says that in those who have not
heard of Christ unbelief does not wear the guise of sin, but rather of punish­
ment, such ignorance of things divine being a consequence of the sin of our
first parent. “Such unbelievers as these,” says he, “are indeed open to
condemnation for other sins, . . . but not for the sin of unbelief.” Accord­
ingly our Lord says (St. John, ch. 15): “If I had not come and spoken
unto them, they had not had sin.” St. Augustine, in his exposition of
this passage, says it refers to the sin of unbelief in Christ. St. Thomas
says the same (Secunda Secundae, qu. 10, art. 6, and qu. 34, art. 2, on obj. 2).
The contrary
This proposition is opposed to the teaching of many doctors and
opinion of
especially
to that of Altissiodorensis, 3 p.,1 on the question, Utrum fidei
Altissiodorensis, and
possit subesse falsum, where he says that ignorance not only of Christ, but
William of
of any article of faith is not invincible ignorance in any one, for if a man
Paris, and
Gerson, sc.
does what in him lies, God will illuminate him either through the doctor
that unbelief
that is within him or through
and so it is always a mortal
is always a
_ a doctor outside,
_
sin, quoted, sin to believe anything contrary to articles of faith. He takes an illustra­
tion from an old woman to whom a bishop might preach something contrary
to an article of faith. And he lays down the general proposition that 364
ignorance of divine law excuseth none. William of Paris was of the same
opinion and supported it by the same kind of argument. For either, says
he, such an one does what in him lies and therefore will receive illuminaArgument 3.
St. Thomas,
Secunda Se­
cundae,
qu. 10, art. 8.

'Summa aurea sententiarum : Paris edition (1500), fol. cxxxv, col. 4 at end.

On the Indians, Sect. II.

141

tion, or if he does not this, he is without excuse. And Gerson {De spirituali
vita animae, lect. 4) appears to be of the same view. “ Doctors are unani­
mous,” says he, “that in matters of the divine law there is no room for
invincible ignorance, seeing that God will always help him who does what
in him lies, and He is ready to enlighten the mind as far as will be necessary
for salvation and the avoidance of error.” And Hugo de Sancto Victore
fbk. 2, pt. 6, ch. 5) says that none is excused by ignorance for breach of
the command to receive baptism, for he could have heard and known, had
it not been for his own fault, as was the case with Cornelius {Acts, ch. 10).
Adrian gives precision to this doctrine, in his Quodlibeta, qu. 4.
“There is,” says he, “a two-fold distinction in matters of the divine law.
There are some matters to the knowledge of which God does not oblige
every one universally, such as the nice problems of the divine law and
difficulties with regard to this law and with regard to Holy Scripture and
the Commandments; in these matters there may well be a case of invincible
ignorance, even if a man does all that in him lies. There are other matters
to the knowledge of which God obliges all men generally, such as the articles
of faith and the universal commandments of the law; of these it is true, as
365 the doctors assert, that ignorance thereof is not excused. For if any one
does what in him lies, he will be illuminated of God through either the
doctor that is within him or a doctor from without.”
Nevertheless, the conclusion above stated is entirely in accord with
St. Thomas’s doctrine. The proof of it is as follows: Such as have never
heard anything, however much they may be sinners in other respects, are
under an invincible ignorance; therefore, their ignorance is not sin. The
antecedent is evident from the passage {Romans, ch. 10): “How shall they
believe in him of whom they have not heard, and how shall they hear with­
out a preacher?” Therefore, if the faith has not been preached to them,
their ignorance is invincible, for it was impossible for them to know. And
what Paul condemns in unbelievers is not that they have not done what in
them lies in order to receive illumination from God, but that they do not
believe after they have heard. “Have they not heard?” says he, “Yes,
verily, their sound went into all the earth.” That is the ground of his
condemnation, inasmuch as the Gospel has been preached over all the
earth; he would not otherwise condemn them, whatever other sins they
might have.
This shows that Adrian was also mistaken in another point, with regard
to the subject-matter of their ignorance; for in the same note he says, with
regard to the subject-matter of morals, that if a man bestows all industry
and diligence in getting to know that which behoves him, this is not enough
to procure him an excuse for his ignorance, unless by repentance of his sins
366 he specially prepares himself to be illuminated by God. Suppose, then, a
man is in doubt about a certain business arrangement and makes inquiry
of learned men and tries in other ways to find out the truth and thinks that
the thing is lawful; if it really is not lawful and he does it, he is without
■De Saeramentis Christianae fidei.

the unit
0pi“10”·

so also in
partAdn*n

Rejecting the

peJons/the*
«uthor prove·
^η°οζη protH
»

Adrian’s

matter of

,<nor*nce-

14

Francisais de Pictoria

excuse, if in another respect he is in sin, because he does not do all that in
him lies to conquer his ignorance, and although it be admitted that were he to
render himself amenable to grace he would not receive illumination, still he
is without excuse so long as he does not remove the hindrance in question,
that is, his sin. Accordingly, if Peter and John are in doubt in the same
case and business matter and bestow equal human diligence, and each thinks
the thing is lawful, but Peter is in grace, while John is in sin, Peter’s igno­
rance is invincible, but John’s is vincible, and if they both embark on the
The author’s business, Peter is excused and John is not. Adrian, I say, makes a mistake
reasoning
here, as I have shown at length in my discussion on Prima Secundae on the
against
Adrian.
topic of ignorance. For it would be strange to say that there is no topic of
the divine law on which an unbeliever, aye, any one who is in mortal sin,
can be invincibly ignorant. Nay, it would follow in the case of the abovenamed Peter, who was in grace and whose ignorance on some point about
usury or simony was invincible, that his ignorance would become vincible
merely by his falling into mortal sin, which is absurd.
The author's
9. I say accordingly on this point that negligence with regard to the 36"
opinion what
ignorance is subject-matter is requisite for ignorance, even though it be vincible, to be
sin, what is imputed as, and to be, a sin, as, for example, that the man refused to hear
not. The
author again or did not believe what he did hear; and on the other hand I say that for
confirms his invincible ignorance it is enough that the man bestowed human diligence
proposition.
in trying to learn, even if in other respects he is in mortal sin. And so on
this point our judgment is the same concerning one in sin and one in grace,
both now and immediately after Christ’s coming or after His passion.
Adrian could not deny that after our Lord’s passion the Jews in India or
in Spain were invincibly ignorant of His passion, however much they were
in mortal sin; nay, he himself has expressly conceded this in his first quaestio,
fourth point, on the topic de observantia legalium. And it is certain that
the Jews who were away from Judaea, whether they were in sin or not, had
invincible ignorance about baptism and about the faith of Christ. Just as 368
there could at that time be a case of invincible ignorance on this matter, so
there may also be nowadays among those who have not had baptism declared
The mistake to them. But the mistake which the doctors in question make is in think­
of the afore­ ing that when we postulate invincible ignorance on the subject of baptism
named au­
or of the Christian faith it follows at once that a person can be saved without
thors ex­
plained.
baptism or the Christian faith, which, however, does not follow. For the
aborigines to whom no preaching of the faith or Christian religion has come
will be damned for mortal sins or for idolatry, but not for the sin of unbelief,
as St. Thomas (Secunda Secundae, as above) says, namely, that if they do
what in them lies, accompanied by a good life according to the law of nature,
it is consistent with God’s providence and He will illuminate them regarding
the name of Christ, but it does not therefore follow that if their life be bad,
ignorance or unbelief in baptism and the Christian faith may be imputed to
them as a sin.
Proposi­
10. Second proposition: The Indians in question are not bound,
tion IL
directly the Christian faith is announced to them, to believe it, in such a

way that they commit mortal sin by not believing it, merely because it has
-*been declared and announced to them that Christianity is the true religion
and that Christ is the Saviour and Redeemer of the world, without miracle
or any other proof or persuasion. This proposition is proved by the first: pr00t *
For if before hearing anything of the Christain religion they were excused,
they are put under no fresh obligation by a simple declaration and announce­
ment of this kind, for such announcement is no proof or incentive to belief.
Nay, as Cajetan says (on Secunda Secundae, qu. I, art. 4), it would be rash
369 and imprudent for any one to believe anything, especially in matters which
concern salvation, unless he knows that this is asserted by a man worthy
of credence, a thing which the aboriginal Indians do not know, seeing that
they do not know who or what manner of men they are who are announcing
the new religion to them. And this is confirmed by what St. Thomas says
(Secunda Secundae, qu. 1, art. 4, on obj. 2, and art. 5, on obj. 1), namely,
that matters of faith are seen and become evident by reason of their credi­
bility. For a believer would not believe unless he saw that the things were
worthy of belief either because of the evidence of signs or for some other
reason of this kind. Therefore, where there are no such signs nor anything
else of persuasive force, the aborigines are not bound to believe. And this coo^nxis confirmed by the consideration that if the Saracens were at the same time
to set their creed before them in the same way and without anything more,
like the Christians, they would not be bound to believe them, as is certain.
Therefore they are not bound to believe the Christians either, when without
any moving or persuasive accompaniments they set the faith before them,
for they are unable, and are not bound, to guess which of the two is the
truer religion, unless a greater weight of probability be apparent on one
side. For this would be to believe hastily, which is a mark of levity of
heart, as Ecclesiasticus, ch. 19, says. Further confirmation is furnished by
the passage in St. John, ch. 15: “If I had not wrought signs,” etc., “they
would not have had sin.” Therefore, where there are no signs, and nothing
to induce belief, there will be no sin.
370
h. From this proposition it follows that, if the faith be presented to Coroiurythe Indians in the way named only and they do not receive it, the Spaniards
can not make this a reason for waging war on them or for proceeding against
them under the law of war. This is manifest, because they are innocent
in this respect and have done no wrong to the Spaniards. And this corollary
receives confirmation from the fact that, as St.Thomas lays it down (Secunda
Secundae, qu. 40, art. 1), for a just war “there must be a just cause, namely,.
they who are attacked for some fault must deserve the attack.” Accord­
ingly, St. Augustine says (Liber 83 Quaestionum}: “It is involved in the
definition of a just war that some wrong is being avenged, as where a
people or state is to be punished for neglect to exact amends from its
citizens for their wrongdoing or to restore what has been wrongfully taken Ρη>ροϊιηοη
away.” Where, then, no wrong has previously been committed by the proved from
Indians, there is no cause of just war. This is the received opinion of all
the doctors, not only of the theologians, but also of the jurists, such as doctor».

RDF Compressor Pro

144

Proposi­
tion ΠΙ.

Proof I.

Proof 3.

Proposi­
tion IV.

Proposi­
tion V.

proposi­
tion VI·

Proof I-

Francisais de Victoria

Hostiensis, Innocent, and others. Cajetan {Secunda Secundae, qu. 66,
art. 8) lays it down clearly and I know of no doctor whose opinion is to
the contrary. Therefore this would not be a legitimate title to seize the
lands of the aborigines or to despoil the former owners.
12. Third proposition: If the Indians, after being asked and admonished 371
to hear the peaceful preachers of religion, refused, they would not be excused
of mortal sin. The proof lies in the supposition that they have very grave
errors for which they have no probable or demonstrable reasons. There­
fore, if any one admonishes them to hear and deliberate upon religious
matters, they are bound at least to hear and to enter into consultation.
Further, it is needful for their salvation that they believe in Christ and be
baptized (St. Mark, last ch.), “Whoso believeth,” etc. But they can not
believe unless they hear (Romans, ch. 10). Therefore they are bound to
hear, otherwise if they are not bound to hear, they would, without their
own fault, be outside the pale of salvation.
13. Fourth proposition: If the Christian faith be put before the
aborigines with demonstration, that is, with demonstrable and reasonable
arguments, and this be accompanied by an upright life, well-ordered accord­
ing to the law of nature (an argument which weighs much in confirmation
of the truth), and this be done not once only and perfunctorily, but diligently
and zealously, the aborigines are bound to receive the faith of Christ under
penalty of mortal sin. This is proved by our third proposition, for, if they
are bound to hear, they are in consequence bound also to acquiesce in what
they hear, if it be reasonable. This is abundantly clear from the passage
(St. Mark, last ch.): “Go ye out into all the world, preach the Gospel to
every creature; whoso believeth and is baptized shall be saved, but whoso 372
believeth not shall be damned”; and by the passage (Acts, ch. 4): “No
other name is given unto man whereby we can be saved.”
14. Fifth proposition: It is not sufficiently clear to me that the
Christian faith has yet been so put before the aborigines and announced to
them that they are bound to believe it or commit fresh sin. I say this
because (as appears from my second proposition) they are not bound to
believe unless the faith be put before them with persuasive demonstration.
Now, I hear of no-miracles or signs or religious patterns of life; nay, on the
the other hand, I hear of many scandals and cruel crimes and acts of impiety.
Hence it does not appear that the Christian religion has been preached
to them with such sufficient propriety and piety that they are bound to
acquiesce in it, although many religious and other ecclesiastics seem both
by their lives and example and their diligent preaching to have bestowed
sufficient pains and industry in this business, had they not been hindered
therein by others who had other matters in their charge.
15. Sixth proposition: Although the Christian faith may have been
announced to the Indians with adequate demonstration and they have
refused to receive it, yet this is not a reason which justifies making war on
them and depriving them of their property. This conclusion is definitely
stated by St. Thomas (Secunda Secundae, qu. 10, art. 8), where he says that

On the Indians, Sect. II.

1+5

373 unbelievers who have never received the faith, like Gentiles and Jews, are
in no wise to be compelled to do so. This is the received conclusion of the Pro<rf 2·
doctors alike in the canon law and the civil law. The proof lies in the fact
that belief is an operation of the will. Now, fear detracts greatly from
the voluntary {Ethics, bk. 3), and it is a sacrilege to approach under the
influence of servile fear as far as the mysteries and sacraments of Christ.
Our conclusion is also proved by the canon de Judaeis (can. 5, Dist. 45),
which says: “The holy synod also enjoins concerning the Jews that thence­
forth force be not applied to any of them to make him believe; ‘for God has
compassion on whom He wills, and whom He wills He hardens.’”1 There is
no doubt about the doctrine of the Council of Toledo, that threats and fears
should not be employed against the Jews in order to make them receive the
faith. And Gregory expressly says the same in the canon qui sincera (can. 3,
Dist. 45): "Who with sincerity of purpose,” says he, “desires to bring into
the perfect faith those who are outside the Christian religion should labor
in a manner that will attract and not with severity; ... for whosoever
does otherwise and under cover of the latter would turn them from their
accustomed worship and ritual is demonstrably furthering his own end
thereby and not God’s end.”
Our proposition receives further proof from the use and custom of the Pr®»' ♦·
Church. For never have Christian Emperors, who had as advisors the
most holy and wise Pontiffs, made war on unbelievers for their refusal
374 to accept the Christian religion. Further, war is no argument for the truth Pro®* s·
of the Christian faith. Therefore the Indians can not be induced by war
to believe, but rather to feign belief and reception of the Christian faith,
which is monstrous and a sacrilege. And although Scotus (Bk. 4, dist. 4, The opinion
last qu.) calls it a religious act for princes to compel unbelievers by threats
and fears to receive the faith, yet he seems to mean this to apply only to forth,
unbelievers who in other respects are subjects of Christian princes (with
whom we will deal later on). Now, the Indians are not such subjects.
Hence, I think that Scotus does not make this assertion applicable to their
case. It is clear, then, that the title which we are now discussing is not
adequate and lawful for the seizure of the lands of the aborigines.
__
Another, and a fifth, title is seriously put forward, namely, the sins of J*'
thesêTndian aborigines. Forrt+s-alleged that, though their unbelief or their
rejection of the Christian faith is not a good reason for making war on
them, yet they may be attacked for other mortal sins which (so it is said)
they have in numbers, and those very heinous. A distinction is here drawn
with regard to mortal sins, it being asserted that there are some sins, which
are not against the law of nature, but only against positive divine law, and
375 for these the aborigines can not be attacked in war, while there are other
sins against nature, such as cannibalism, and promiscuous intercourse with
mother or sisters and with males, and for these they can be attacked in
war and so compelled to desist therefrom. The principle in each case is
that, in the case of sins which are against positive law, it can not be clearly
'■ftortans, ch. 9, ▼. 18.

Francisais de Victoria

shown to the Indians that they are doing wrong, whereas in the case of the
sins which are against the law of nature, it can be shown to them that they
are offending God, and they may consequently be prevented from continuing
to offend Him. Further they can be compelled to keep the law which they
themselves profess. Now, this law is the law of nature. Therefore. This
Statement
is the opinion of the Archbishop of Florence (pt. 3, tit. 22, ch. 5, § 8),
and explana­
following Augustinus Anconitanus, and of Sylvester (under the word Papa,
tion of the
opinion'of the § 7); and it is the opinion of Innocent in X, 3, 34, 8, where he expressly
Archbishop,
says: “I hold that if the Gentiles who have no other law than the law of
Augustinus
of Ancona,
nature
break that law, they can be punished by the Pope. This is shown
Sylvester
and Innocent by the case of the men of Sodom, who were punished by God {Genesis,
that this is a ch. 19). Now, the judgments of God are examples unto us, and so I do not
lawful title.
see why the Pope, who is the vicar of Christ, can not do this.” This is
what Innocent said. And on the same principle the Indians can be
punished by Christian princes under the authority of the Pope.
The author’s
16. I, however, assert the following proposition: Christian princes can
answer. j
nq£, even by the authorization of the Pope, restrain the Indians from
Proof I.
sins against the law of nature or punish them because of those sins. My 376
first proof is that the writers in question build on a false hypothesis, namely,
that the Pope has jurisdiction over the Indian aborigines, as said above.
My second proof is as follows: They mean to justify such coercion either
Proof 2.
universally for sins against the law of nature, such as theft, fornication,
and adultery, or particularly for sins against nature, such as those which
St. Thomas deals with {Secunda Secundae, qu. 154, arts. 11, 12), the phrase
“sin against nature” being employed not only of what is contrary to the
law of nature, but also of what is against the natural order and is called
uncleanness in II Corinthians, ch. 12, according to the commentators, such
as intercourse with boys and with animals or intercourse of woman with
woman, whereon see Romans, ch. I. Now, if they limit themselves to the
second meaning, they are open to the argument that homicide is just as
grave a sin, and even a graver sin, and, therefore, it is clear that, if it is
lawful in the case of the sins of the kind named, therefore it is lawful also
in the case of homicide. Similarly, blasphemy is a sin as grave and so the
same is clear; therefore. If, however, they are to be understood in the first
sense, that is, as speaking of all sin against the law of nature, the argument
against them is that the coercion in question is not lawful for fornication;
therefore not for the other sins which are contrary to the law of nature.
The antecedent is dear from I Corinthians, ch. 5: “I wrote to you in an
epistle not to company with fornicators,” and besides “If any brother
among you is called a fornicator or an idolater,” etc.; and lower down:
“For what have I to do to judge them also that are without?” Whereon 377
St. Thomas says: “The prelates have received power over those only who
have submitted themselves to the faith.” Hence it clearly appears that
St. Paul declares it not his business to pronounce judgment on unbelievers
and fornicators and idolaters. So also it is not every sin against the law
of nature that can be dearly shown to be such, at any rate to every one.

On the Indians, Sect. II.

H?

Further, this is as much as to say that the aborigines may be warred into
subjection because of their unbelief, for they are all idolaters. Further, the
Pope can not make war on Christians on the ground of their being forni­
cators or thieves or, indeed, because they are sodomites; nor can he on that
ground confiscate their land and give it to other princes; were that so, there
would be daily changes of kingdoms, seeing that there are many sinners in
every realm. And this is confirmed by the consideration that these sins cooflmutioa.
are more heinous in Christians, who are aware that they are sins, than in
barbarians, who have not that knowledge. Further, it would be a strange proof 3.
thing that the Pope, who can not make laws for unbelievers, can yet sit in
judgment and visit punishment upon them.
A further and convincing proof is the following: The aborigines in Proof 4question are either bound to submit to the punishment awarded to the sins
in question or they are not. If they are not bound, then the Pope can not
award such punishment. If they are bound, then they are bound to recognize
the Pope as lord and lawgiver. Therefore, if they refuse such recogni378 tion, this in itself furnishes a ground for making war on them, which,
however, the writers in question deny, as said above. And it would indeed
be strange that the barbarians could with impunity deny the authority and
jurisdiction of the Pope, and yet that they should be bound to submit to his
award. Further, they who are not Christians can not be subjected to the Proof 5judgment of the Pope, for the Pope has no other right to condemn or punish
them than as vicar of Christ. But, the writers in question admit—both
Innocent and Augustinus of Ancona, and the Archbishop and Sylvester,
too—that they can not be punished because they do not receive Christ.
Therefore not because they do not receive the judgment of the Pope, for
the latter presupposes the former.
The insufficiency alike of this present title and of the preceding one, 8«fouuon
is shown by the fact that, even in the Old Testament, where much was done ,hi. «nd th·
by force of arms, the people of Israel never seized the land of unbelievers
pr«»deither because they were unbelievers or idolaters or because they were
t,d*
guilty of other sins against nature (and there were people guilty of many
such sins, in that they were idolaters and committed many other sins against
nature, as by sacrificing their sons and daughters to devils), but because of
either a special gift from God or because their enemies had hindered their
passage or had attacked them. Further, what is it that the writers in 3.
question call a profession of the law of nature? If it is mere knowledge,
379 they do not know it all; if it is a mere willingness to observe the law of
nature, then the retort is that they are also willing to observe the whole
divine law; for, if they knew that the law of Christ was divine, they would
be willing to observe it. Therefore, they make no more a profession of the
law of nature than they make of the law of Christ. Further, we certainly 3possess clearer proofs whereby to demonstrate that the law of Christ is
from God and is true than to demonstrate that fornication is wrong or that
other things which are also forbidden by natural law are to be shunned.·
‘Otherwise to be blamed.

τ 48

Franciscus de Victoria

Therefore, if the Indians can be compelled to observe the law of nature
because it admits of proof, they can therefore, be compelled to observe the
Gospel law.
sixth title set
There remains another, a sixth title, which is put forward, namely, by
voluntary choice. For on the arrival of the Spaniards we find them declar­
ing to the aborigines how the King of Spain has sent them for their good
and admonishing them to receive and accept him as lord and king; and
the aborigines replied that they were content to do so. Now, “there is
nothing so natural as that the intent of an owner to transfer his property
The author’s to another should have effect given to it” {Inst., 2, I, 40). I, however,
ProoZi’.
assert the proposition that this title, too, is insufficient. This appears,
in the first place, because fear and ignorance, which vitiate every choice,
ought to be absent. But they were markedly operative in the cases of
choice and acceptance under consideration, for the Indians did not know
what they were doing; nay, they may not have understood what the 380
Proof a.
Spaniards were seeking. Further, we find the Spaniards seeking it in
armed array from an unwarlike and timid crowd. Further, inasmuch as
Proof 3.
the aborigines, as said above, had real lords and princes, the populace could
not procure new lords without other reasonable cause, this being to the hurt
of their former lords. Further, on the other hand, these lords themselves
could not appoint a new prince without the assent of the populace. Seeing,
then, that in such cases of choice and acceptance as these there are not
present all the requisite elements of a valid choice, the title under review is
utterly inadequate and unlawful for seizing and retaining the provinces in
question.
Seventh
There is a seventh title which can be set up, namely, by special grant
from God. For some (I know not who) assert that the Lord by His especial
judgment condemned all the barbarians in question to perdition because of
their abominations and delivered them into the hands of the Spaniards,
The author’s jUst as of old He delivered the Canaanites into the hands of the Jews. I
refutation.
loath to dispute hereon at any length, for it would be hazardous to give
credence to one who asserts a prophecy against the common law and against
the rules of Scripture, unless his doctrine were confirmed by miracles. Now,
a no such are adduced by prophets of this type. Further, even assuming
that it is true that the Lord had determined to bring the barbarians to 381
perdition, it would not follow, therefore, that he who wrought their ruin
would be blameless, any more than the Kings of Babylon who led their
army against Jerusalem and carried away the children of Israel into captivity
were blameless, although in actual fact all of this was by the especial provi­
dence of God, as had often been foretold to them. Nor was Jeroboam right
in drawing Israel away from Rehoboam, although this was done by God’s
3 design, as the Lord had also threatened by his prophet. And, would that,
apart from the sin of unbelief, there might be no greater sins in morals
4. among certain Christians than there are among those barbarians! It is
also written (I St. John, ch. 4) : “ Believe not every spirit, but try the spirits
whether they be of God;” and as St. Thomas says {Prima Secundae, qu. 68),

On the Indians, Sect. II.

149

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

SUMMARY OF THE THIRD SECTION.

On the lawful titles whereby the aborigines of America could have come
into the -power of Spain.
1. How the aborigines might have come into the power of the Spaniards on the
ground of natural society and fellowship.
2. The Spaniards have a right to travel to the lands of the Indians and to sojourn
there so long as they do no harm, and they can not be prevented by the 383
Indians.
3· The Spaniards may carry on trade among the Indian aborigines, so long as
they do no harm to their own country, by importing the goods which the
aborigines lack, etc., and taking away gold and silver and other articles in
which the Indians abound; and the princes of the Indians can not prevent
their subjects from trading with the Spaniards, etc.
4· The Indians can not prevent the Spaniards from a communication and partici­
pation in those things which they treat as common alike to natives and to
strangers.
5· Any children bom to Spanish parents domiciled in those parts who wish to
become citizens thereof can not be excluded from citizenship or from the
advantages enjoyed by other citizens.
6. What course ought to be adopted if the aborigines desire to prevent the Spaniards
trading with them, etc.
If the Spaniards, after resort to'all moderate measures, can not attain security
among the aborigines or Indians save by seizing their cities and reducing
them to subjection, whether they can lawfully do this.
8. When and in what case the Spaniards can resort to severe measures against the 384
Indians, treating them as faithless foes, and employ all the rights of war
against them and take away their property and even reduce them to
captivity, aye, and depose their former lords also and set up new lords.
1· 9· W hether the Indians could have come under the sway of the Spaniards, in
the interest of the spread of Christianity. Christians have a right to
reach and publish the Gospel in the lands of barbarians.
ope could entrust to the Spaniards alone the task of converting the Indian
aborigines and could forbid to all others not only preaching, but trade too,
if the propagation of Christianity would thus be furthered.
ii. The Indians are not to be warred into subjection or despoiled of their property,
if they give the Spaniards unhindered freedom to preach the Gospel, and
this whether they accept the faith or not.
_ 12. How the aborigines who hinder the spread of the Gospel, whether it be their
Λ
lords or the populace, may be coerced by the Spaniards, so long as no
scandal is caused. And what is to be said of those who, while admitting
preaching, prevent conversion, either by killing or punishing or terrorizing 385
those who have been converted to Christianity?
I j. How the Indians might have come under the sway of the Spaniards by the fact
5
that, when they had been converted and become Christians, their princes
desired to bring them back to idolatry by force or by fear, and so they were
taken into the protection and guardianship of the Spaniards.
j. 14. The Indians might have come under the sway of the Spaniards by the fact that,
after the conversion of a large part of them to Christianity, the Pope,
either with or without a request on their part, might on reasonable grounds
have given them a Christian prince, such as the King of Spain, and driven
out their infidel lords.

Î

150

On the Indians, Sect. III.

151

cC'i 5. Whether the Indians could have come under the sway of the Spaniards because
of the tyranny of their lords or because of tyrannical laws which injured
innocent folk.
16. The Indian aborigines could have come under the sway of the Spaniards through
true and voluntary choice.
y. 17. The Indians might have come under the sway of the Spaniards by a title of
.
alliance and friendship.
$ 18. Whether the Spaniards could have reduced the Indians into their power, if it
were certainly clear that they were of defective intelligence.

I will now speak of the lawful and adequate titles whereby the Indians
might have come under the sway of the Spaniards. .(1) The first title to be fuI'titie. *
named is that of natural society and fellowship. And hereon let my first Proportion 1.
conclusion be: (2) The Spaniards have a right to travel into the lands
in question and to sojourn there, provided they do no harm to the natives,
and the natives may not prevent them. Proof of this may in the first place
*’
be derived from the law of nations (jus gentium), which either is natural
law or is derived from natural law (Inst., 1, 2, 1): “What natural reason
has established among all nations is called the jus gentium.” For, con­
gruently herewith, it is reckoned among all nations inhumane to treat visitors
and foreigners badly without some special cause, while, on the other hand,
it is humane and correct to treat visitors well; but the case would be different,
if the foreigners were to misbehave when visiting other nations.
Secondly, it was permissible from the beginning of the world (when Pr®041everything was in common) for any one to set forth and travel wheresoever
he would. Now this was not taken away by the division of property, for „
it was never the intention of peoples to destroy by that division the reci­
procity and common user which prevailed among men, and indeed in the
days of Noah it would have been inhumane to do so.
Thirdly, everything is lawful which is not prohibited or which is not Pro<rf 3.
387 injurious or hurtful to others in some other way. But (so we suppose)
the travel of the Spaniards does no injury or harm to the natives. There­
fore it is lawful.
Fourthly, it would not be lawful for the French to prevent the Spanish Proof ♦·
from traveling or even from living in France, or vice versa, provided this
in no way enured to their hurt and the visitors did no injury. Therefore it
is not lawful for the Indians.
Further, fifthly, banishment is one of the capital forms of punishment.
*
Therefore it is unlawful to banish strangers who have committed no fault.
Further, sixthly, to keep certain people out of the city or province as
being enemies, or to expel them when already there, are acts of war.
Inasmuch, then, as the Indians are not making a just war on the
Spaniards (it being assumed that the Spaniards are doing- no harm), it
is not lawful for them to keep the Spaniards away from their territory.
Further, seventhly, there is the Poet’s verse,
Prooi 7’

386

Quod genus hoc hominum? quaeve hunc tam barbara morem
Permittit patria ? hospitio prohibemur arenae.
[What race of men is this? or what country is barbarous enough to allow this
usage? We are driven off from the hospitality of its shore.]

152
Proofs.

Proofs».

Proof 10.

Proof ii.

Proof 12.

Proof 13.

Proof M-

t

Propo»-

Proof »·
Proof

2. %

Proof 3.

**

Franciscus de Victoria

Also, eighthly, “Every animal loveth its kind” {Ecclesiasticus, ch. 15).
Therefore, it appears that friendship among men exists by natural law and
it is against nature to shun the society of harmless folk.
Also, ninthly, there is the passage (St. Matthew, ch. 25): “I was a
stranger and ye took me not in.” Hence, as the reception of strangers
seems to be by natural law, that judgment of Christ will be pronounced
with universal application.
388
Tenthly, “by natural law running water and the sea are common to all,
so are rivers and harbors, and by the law of nations ships from all parts
may be moored there” (Inst., 2,1); and on the same principle they are public
things. Therefore it is not lawful to keep any one from them. Hence it
follows that the aborigines would be doing a wrong to the Spaniards, if they
were to keep them from their territories.
Also, eleventhly, these very persons admit all other barbarians from all
parts. Therefore, they would be doing a wrong, if they were not to admit
the Spaniards.
Also, twelfthly, if it were not lawful for the Spaniards to travel among
them, this would be either by natural law or by divine law or by human
law. Now, it is certainly lawful by natural and by divine law. And if
there were any human law which without any cause took away rights
conferred by natural and divine law, it would be inhumane and unreason­
able and consequently would not have the force of law.
Thirteenthly, either the Spaniards are subjects of the Indians or they
are not. If they are not, then the Indians can not keep them away. If
they are, then the Indians ought to treat them well.
Also, fourteenthly, the Spaniards are the neighbors of the barbarians,
as appears from the Gospel parable of the Samaritan (St. Luke, ch. 10).
But they are bound to love their neighbors as themselves (St. Matthew,
ch. 22). Therefore they may not keep them away from their country without
cause: “When it is said ‘Love thy neighbour,’ it is clear/hat every man is 389
our neighbour” (St. Augustine’s De doctrina Christiana^.
3. Second proposition: The Spaniards may lawfully carry on trade
among the native Indians, so long as they do no harm to their country, as,
for instance, by importing thither wares which the natives lack and by
exporting thence either gold or silver or other wares of which the natives
have abundance. Neither may the native princes hinder their subjects from
carrying on trade with the Spanish; nor, on the other hand, may the princes
of Spain prevent commerce with the natives. This is proved by means of
my first proposition.
Firsdy, because it is an apparent rule of the jus gentium that foreigners
may carry on trade, provided they do no hurt to citizens.
Also, secondly, a similar proof lies in the fact that this is permitted by
the divine law. Therefore a law prohibiting it would undoubtedly not be
reasonable.
Also, thirdly, the sovereign of the Indians is bound by the law of nature
to love the Spaniards. Therefore the Indians may not causelessly prevent

On the Indians, Sect. III.

153

the Spaniards from making their profit where this can be done without
injury to themselves.
A fourth reason is that such conduct would be against the proverb: Proo<*·
“Thou shalt not do to another what thou wouldest not wish done to thyself.”
And, in sum, it is certain that the aborigines can no more keep off the Pre<rf s‘
Spaniards from trade than Christians can keep off other Christians. Now,
it is clear that if the Spaniards kept off the French from trade with the Span­
iards, and this not for the good of Spain, but in order to prevent the French
390 from sharing in some advantage, that practice would offend against right­
eousness and charity. If, then, there can be no just legal ordinance to this
effect, it also can not be accomplished in actual fact (for the injustice of a
law consists solely in the execution of the law). And, as is said in Dig., 1,1,3,
“Nature has established a bond of relationship between all men,” and so it
is contrary to natural law for one man to dissociate himself from another
without good reason. “Man,” says Ovid, “is not a wolf to his fellow man,
but a man.”
4. Third proposition: If there are among the Indians any things which
are treated as common both to citizens and to strangers, the Indians may
not prevent the Spaniards from a communication and participation in them.
If, for example, other foreigners are allowed to dig for gold in the land of the
community or in rivers, or to fish for pearls in the sea or in a river, the natives
can not prevent the Spaniards from doing this, but they have the same right
to do it as others have, so long as the citizens and indigenous population
are not hurt thereby. This is proved by my first and second propositions. Proof r.
For if the Spaniards may travel and trade among them, they may conse­
quently make use of the laws and advantages enjoyed by all foreigners.
Secondly, inasmuch as things that belong to nobody are acquired by Proci ’·
the first occupant according to the law of nations {Inst., 2, 1, 12), it follows
that if there be in the earth gold or in the sea pearls or in a river anything
391 else which is not appropriated by the law of nations those will vest in the
first occupant, just as the fish in the sea do. And, indeed, there are many
things in this connection which issue from the law of nations, which, because
it has a sufficient derivation from natural law, is clearly capable of conferring
rights and creating obligations. And even if we grant that it is not always
derived from natural law, yet there exists clearly enough a consensus of the
greater part of the whole world, especially in behalf of the common good of
all. For if after the early days of the creation of the world or its recovery
from the flood the majority of mankind decided that ambassadors should
everywhere be reckoned inviolable and that the sea should be common find
that prisoners of war should be made slaves,! and if this, namely, that
strangers should not be driven out, were deemed a desirable principle, it would
certainly have the force of law, even though the rest of mankind objected
thereto.
5. Fourth proposition: If children of any Spaniard be born there and
they wish to acquire citizenship, it seems they can not be barred either from
citizenship or from the advantages enjoyed by other citizens—I refer to the

154

Franciscus de Victoria

case where the parents had their domicile there. The proof of this is fur­
nished by the rule of the law of nations, that he is to be called and is a citizen
Confirmation, who is bom within the state (Cod., 7, 62, ïi). And the confirmation lies in
the fact that, as man is a civil animal, whoever is born in any one state is not
* a citizen of another state. Therefore, if he were not a citizen of the state
referred to, he would not be a citizen of any state, to the prejudice of his rights
corollary.
under both natural law and the law of nations. Aye, and if there be any per- 392
sons who wish to acquire a domicile in some state of the Indians, as by marri­
age or in virtue of any other fact whereby other foreigners are wont to become
citizens, they can not be impeded any more than others, and consequently
they enjoy the privileges of citizens just as others do, provided they also
submit to the burdens to which others submit. And the passages wherein
hospitality is commended are to the same effect (I St. Peter, ch. 4) : “Use hos­
pitality one to another”; and (I Timothy, ch. 3, about a bishop): “A bishop
must be given to hospitality.” Hence, on the other hand, refusal to receive
strangers and foreigners is wrong in itself.
Proposi6. Fifth proposition: If the Indian natives wish to prevent the Span­
iards from enjoying any of their above-named rights under the law of nations,
for instance, trade or other above-named matter, the Spaniards ought in
the first place to use reason and persuasion in order to remove scandal and
ought to show in all possible methods that they do not come to the hurt of
the natives, Jiut wish to sojourn as peaceful guests and to travel without
doing the natives any harm; and they ought to show this not only by word,
but also by reason, according to the saying, “It behoveth the prudent to
make trial of everything by words first.” But if, after this recourse to
reason, the barbarians decline to agree and propose to use force, the Span* lards can defend themselves and do all that consists with their own safety,
• it being lawful to repel force by force. And not only so, but, if safety can not
otherwise be had, they may build fortresses and defensive works, and, if they
have sustained a wrong, they may follow it up with war on the authorization 393
Proof.
of their sovereign and may avail themselves of the other rights of war. The
proof hereof lies in the fact that warding-off and avenging a wrong make a
good cause of war, as said above, following St. Thomas (Secunda Secundes,
* qu. 40). But when the Indians deny the Spaniards their rights under the
law of nations they do them a wrong. Therefore, if it be necessary, in
order to preserve their right, that they should go to war, they may lawfully
do so. j
Bote!
It is, however, to be noted that the natives being timid by nature
and in other respects dull and stupid, however much the Spaniards may
desire to remove their fears and reassure them with regard to peaceful
dealings with each other, they may very excusably continue afraid at the
sight of men strange in garb and armed and much more powerful than
themselves. And therefore, if, under the influence of these fears, they
unite their efforts to drive out the Spaniards or even to slay them, the
Spaniards might, indeed, defend themselves but within the limits of per­
missible self-protection, and it would not be right for them to enforce against
Proof.

On the Indians, Sect. III·,.,...... ...

1.55

the natives any of the other rights of war (as, for instance, after winning
the victory and obtaining safety, to slay them or despoil them of their goods
or seize their cities), because on our hypothesis the natives are innocent and
are justified in feeling afraid. Accordingly, the Spaniards ought to defend
themselves, but so far as possible with the least damage to the natives,
the war being a purely defensive one.
There is no inconsistency, indeed, in holding the war to be a just war
394 on both sides, seeing that on one side there is right and on the other side
there is invincible ignorance. For instance, just as the French hold the
province of Burgundy with demonstrable ignorance, in the belief that it
belongs to them, while our Emperor’s right to it is certain, and he may
make war to regain it, just as the French may defend it, so it may also
befall in the case of the Indians— a point deserving careful attention. For
the rights of war which may be invoked against men who are really guilty
and lawless differ from those which may be invoked against the innocent
and ignorant, just as the scandal of the Pharisees is to be avoided in a
different way from that of the self-distrustful and weak.
7. Sixth proposition: If after recourse to all other measures, the
Spaniards are unable to obtain safety as regards the native Indians, save
by seizing their cities and reducing them to subjection, they may lawfully
proceed to these extremities. The proof lies in the fact that “peace and
safety are the end and aim of war,” as St. Augustine says, writing to
Boniface. And since it is now lawful for the Spaniards, as has been said,
to wage defensive war or even if necessary offensive war, therefore, every­
thing necessary to secure the end and aim of war, namely, the obtaining of
safety and peace, is lawful.
8. Seventh proposition: If, after the Spaniards have used all diligence,
both in deed and in word, to show that nothing will come from them to
interfere with the peace and well-being of the aborigines, the latter
395 nevertheless persist in their hostility and do their best to destroy the
Spaniards, then they can make war on the Indians, no longer as on innocent
folk, but as against forsworn enemies, and may enforce against them all the
rights of war, despoiling them of their goods, reducing them to captivity,
deposing their former lords and setting up new ones, yet withal with
observance of proportion as regards the nature of the circumstances and of
the wrongs done to them. This conclusion is sufficiently apparent from
the fact that, if it be lawful to declare the war, it is consequently lawful to
pursue the rights of war. And it is confirmed by the consideration that
the aborigines ought not to hold a better position merely because they are
unbelievers. But all the things enumerated would be lawful against
Christians, when once a just war has arisen. Therefore they are lawful
against the aborigines, too. Also, it is a universal rule of the law of nations
that whatever is captured in war becomes the property of the conqueror,
as is laid down in Dig., 49, 15, 28 and 24, and in Decretum, pt. I, dist. I,
can. 9, and more expressly in Inst., 2, I, 17, where it is said that “by the
law of nations whatever we take from the enemy becomes ours at once,

Sometime·*
oAotb'
·***»·

Propo«in

Proof-

P"®* »·

Proof 2.

J.5Î?

. Franciscus de Victoria

ΪΟ such an extent that even men may be brought into slavery to us.”
Proof 3.
Further (as the doctors say on the topic of war), a prince who has on hand
a just war is ipso jure the judge of his enemies and can inflict a legal
punishment on them, condemning them according to the scale of their
confirmation, wrongdoing. Everything said above receives confirmation from the fact
that ambassadors are by the law of nations inviolable and the Spaniards 396
are the ambassadors of Christian peoples. Therefore, the native Indians
are bound to give them, at least, a friendly hearing and not to repel them.
This, then, is the first title which the Spaniards might have for seizing the
provinces and sovereignty of the natives, provided the seizure be without
guile or fraud and they do not look for imaginary causes of war. For if the
natives allow the Spaniards to traffic peaceably among them, the Spaniards
could not allege in this connection any just cause for seizing their goods any
more than the goods of Christians.
9. Another possible title is by way of propagation of Christianity. In
Second law­
ful title.
this connection let my first proposition be: Christians have a right to preach
Proposition I.
/’and declare the Gospel in barbarian lands. This proposition is manifest
Proof x. .
• from the passage: “Preach the Gospel to every creature,” etc.,1 and also,
“The word of the Lord is not bound” (II Timothy, ch. 2). Secondly, our
Proof 2.
proposition is clear from what has been already said, for if the Spaniards
have a right to travel and trade among the Indians, they can teach the
truth to those willing to hear them, especially as regards matters pertaining
to salvation and happiness, much more than as regards matters pertaining
Proof 3.
to any human subject of instruction. Thirdly, because the natives would
otherwise be outside the pale of salvation, if Christians were not allowed
to go to them carrying the Gospel message. Fourthly, because brotherly 397
correction is required by the law of nature, just as brotherly love is. Since,
then, the Indians are all not only in sin, but outside the pale of salvation,
therefore, it concerns Christians to correct and direct them; nay, it seems
Proof 5.
that they are bound to do so. Fifthly and lastly, because they are our
neighbors, as said above: “Now the Lord has laid a command on everyone
concerning his neighbour” {Ecclesiasticus, ch. 17). Therefore it concerns
Christians to instruct those who are ignorant of these supremely vital
matters.
10. Second proposition: Although this is a task common and per­
Proposi­
mitted to all, yet the Pope might entrust it to the Spaniards and forbid it
tion Π.
to all others. The proof is in the fact that, although (as said above) the
Pope is not temporal lord, yet he has power in matters temporal when this
Proof ΐwould subserve matters spiritual. Therefore, as it is the Pope’s concern to
bestow especial care on the propagation of the Gospel over the whole world,
he can entrust it to the Spaniards to the exclusion of all others, if the sov­
ereigns of Spain could render more effective help in the spread of the Gospel
in those parts; and not only could the Pope forbid others to preach, hut
also to trade there, if this would further the propagation of Christianity, for
he can order temporal matters in the mannerwhich is most helpful to spiritual
'Se. Λ/ari, ch. 16, v. 15.

On the Indians, Sect. III.

157

matters. And if in this case that is how spiritual matters would be best
helped, it consequently falls within the authority and power of the supreme
398 Pontiff. But it seems that in this case this is the course most conducive
to spiritual welfare, because, if there was to be an indiscriminate inrush of
Christians from other parts to the part in question, they might easily hinder
one another and develop quarrels, to the banishment of tranquillity and
the disturbance of the concerns of the faith and of the conversion of the
natives. Further, inasmuch as it was the sovereigns of Spain who were the Proof ».
first to patronize and pay for the navigation of the intermediate ocean, and
as they then had the good fortune to discover the New World, it is just
that this travel should be forbidden to others and that the Spaniards should
enjoy alone the fruits of their discovery. For, just as in the interests of
the preservation of the peace among princes and of the spread of religion
the Pope could make such a distribution of the land of the Saracens among
Christian princes as would prevent one from crossing over the lands of
another, so also for the good of religion he could appoint princes, especially
where there were aforetime no Christian princes.
11. Third proposition: If the Indians allow the Spaniards freely and
*
without hindrance to preach the Gospel, then whether they do or do not
receive the faith, this furnishes no lawful ground for making war on them
and seizing in any other way their lands. This has been proved above,1
where we confuted the fourth alleged title, and it is self-evident, seeing
399 that there can not be a just war where no wrong has previously been done
(Secunda Secundae, qu. 40, art. 1).
12. Fourth proposition :£If the Indians—whether it be their lords Propon­
or the populace—prevent the Spaniards from freely preaching the Gospel, Uon IV’
the Spaniards, after first reasoning with them in order to remove scandal, ’
may preach it despite their unwillingness and devote themselves to the
conversion of the people in question, and if need be they may then accept
or even make war, until they succeed in obtaining facilities and safety
for preaching the Gospel.J And the same pronouncement must be made in
the case where they allow preaching, but hinder conversion either by killing
or otherwise punishing those who have been converted to Christ or by
deterring others by threats and fears. This is clear, because herein the
,
Indians would be doing an injury to the Spaniards (as appears from
what has already been said) and these would have a just cause of war. A PrtX)i t
second reason is that an obstacle would thereby be put in the way of the
welfare of the Indians themselves such as their princes have no right to put
there. Therefore, in favor of those who are oppressed and suffer wrong, the
Spaniards can make war, especially as such vitally important interests are
at stake. This proposition demonstrates that, if there is no other way to Coronarycarry on the work of religion, this furnishes the Spaniards with another »
justification for seizing the lands and territory of the natives and for setting
400 up new lords there and putting down the old lords and doing in right of war
everything which it is permitted in other just wars, but always with a regard
'In the immediately preceding section.

ISS

Franciseus de Victoria

for moderation and proportion, so as to go no further than necessity demands,
preferring to abstain from what they lawfully might do rather than trans­
gress due limits, and with an intent directed more to the welfare of the
aborigines than to their own gain.
Hotel
Careful attention must, however, be paid to what St. Paul says (I
Corinthians, ch. 6): “All things are lawful unto me, but not all things are
expedient.” So everything said above must be taken as spoken absolutely.
For it may be that these wars and massacres and spoliations will hinder
rather than procure and further the conversion of the Indians. Accordingly,
the prime consideration is that no obstacle be placed in the way of the
Gospel, and if any such be so placed, this method of evangelization must
be abandoned and another one sought for. What we have been showing
is what is lawful in itself. I personally have no doubt that the Spaniards
were bound to employ force and arms in order to continue their work there,
I but I fear measures were adopted in excess of what is allowed by human and
divine law. The title under consideration might, then, be a second lawful
title whereby the Indians might fall into the power of Spain. But regard
must ever be had to what has just been said lest what in itself is lawful be
made in the circumstances wrong, for goodness springs from the one com­
plete1 cause, but badness from individual defects, according to Aristotle 401
{Ethics, bk. 3) and Dionysius {De divinis nominibus, ch. 4).
Third lawful
13. Another title there may be, which is derived from the foregoing,
title.
namely: If any of the native converts to Christianity be subjected to force
or fear by their princes in order to make them return to idolatry, this would
justify the Spaniards, should other methods fail, in making war and in com­
pelling the barbarians by force to stop such misconduct, and in employing
the rights of war against such as continue obstinate, and consequently at
Proof.
times in deposing rulers as in other just wars. This can be reckoned a third
just title, a title based not only on religion, but on human friendship and
alliance, inasmuch as the native converts to Christianity have become
friends and allies of Christians and we are under an obligation to do “good
unto all men, especially unto such as are of the household of faith ”
{Galatians, ch. 6).
Fourth lawful
14. Another possible title is the following: Suppose a large part of the
title.
Indians were converted to Christianity, and this whether it were done
' lawfully or unlawfully (as by means of threats or fear or other improper
procedure), so long as they really were Christians, the Pope might for a
reasonable cause, either with or without a request from them, give them a
Proof.
Christian sovereign and depose their other unbelieving rulers. The proof
hereof is in the fact that, if this were expedient in order to preserve Christi- Wanity because of a fear that under unbelieving rulers converts would aposta­
tize, that is, would lapse from the faith, or that their rulers would seize
the opportunity to harass them, the Pope can change rulers in the interests
‘The reference to Aristotle can not be traced with certainty; but the text follows Dionysius
closely. He wrote, literally translated, “The good is from the one and complete (/ui tai v)Uf) cause,
but the bad from many and partial defects.”—TaANSt.

On the Indians, Sect. III.

159

of the faith. And confirmation is found in the fact that, as the doctors Confirm»-»
assert and as St. Thomas expressly says (Secunda Secundae, qu. 10. art. a°“ *’
10), the Church could free all Christian slaves who are in bondage to
unbelievers even if that bondage was in other respects lawful. Innocent
expressly declares this, in the above-mentioned X, 3, 34, 8. Therefore
much more will he be able to free other Christians who have been reduced
to bondage but not as stringently as slaves. Confirmation hereof is also
to be found in the fact that a wife is as much bound to her husband as a
bondsman is to his lord, and even more so, seeing that marriage is a tie of
the divine law and bondage is not. But in the interests of the faith a
believing wife is freed from an unbelieving husband, if he persecutes her for
her religion, as appears from I Corinthians, ch. 7, and X, 4, 19, 7. Aye, the
custom now is that by the very fact of one spouse being converted to the
faith he or she is freed from the other who is an unbeliever. Therefore also
the Church, in the interests of the faith and to avoid risks, may free all
Christians from obedience and subjection to unbelieving lords, provided
this be done without scandal. So we justify this fourth legal title.
403
15. Another possible title is founded either on the tyranny of those
who bear rule among the aborigines of America or on the tyrannical laws
which work wrong to innocent folk there, such as that which allows the
sacrifice of innocent people or the killing in other ways of uncondemned
people for cannibalistic purposes. I assert also that without the Pope’s
authority the Spaniards can stop all such nefarious usage and ritual among
the aborigines, being entitled to rescue innocent people from an unjust death.
This is proved by the fact that “God has laid a charge on every individual Proo< *’
concerning his neighbor,”1 and they all are our neighbors. Therefore, any
one may defend them from such tyrannical and oppressive acts, and it is
especially the business of princes to do so. A further proof is given by Proof ».
Proverbs, ch. 24: “Deliver them that are drawn unto death, and forbear not
to free those that are being dragged to destruction.” This passage is not
to be taken as applying only when victims are actually being dragged to
death, but the natives can also be compelled to abstain from such ritual.
And if they refuse, it is a good ground for making war on them and pro­
ceeding against them under the law of war, and if such sacrilegious rites can
not otherwise be stopped, for changing their rulers and creating a new sov­
ereignty over them. In this connection we find the opinion of Innocent and
the Archbishop to be sound, namely, that punishment can be inflicted for
sins against nature. And it is immaterial that all the Indians assent to
404 rules and sacrifices of this kind and do not wish the Spaniards to champion
them, for herein they are not of such legal independence as to be able to
consign themselves or their children to death. So we may find a fifth
lawful title here.
16. Another possible title is by true and voluntary choice, as if the sixth Uwfni
Indians, aware alike of the prudent administration and the humanity of the
Spaniards, were of their own motion, both rulers and ruled, to accept the
lEcdisiastwus, ch. 17, v. ix

ι6ο

Franciscus de Victoria

King of Spain as their sovereign. This could be done and would be a lawful
’ title, by the law natural too, seeing that a State can appoint any one it will
to be its lord, and herefor the consent of all is not necessary, but the consent
of the majority suffices. For, as I have argued elsewhere, in matters touch­
ing the good of the State the decisions of the majority bind even when the
rest are of a contrary mind; otherwise naught could be done for the welfare
of the State, it being difficult to get all of the same way of thinking. Accord­
ingly, if the majority of any city or province were Christians and they, in
the interests of the faith and for the common weal, would have a prince who
was a Christian, I think that they could elect him even against the wishes
of the others and even if it meant the repudiation of other unbelieving rulers,
and I assert that they could choose a prince not only for themselves, but for
the whole State, just as the Franks for the good of their State changed their 405
sovereigns and, deposing Childeric, put Pepin, the father of Charlemagne,
in his place, a change which was approved by Pope Zacharias. This, then,
can be put forward as a sixth title.
Seventh law­
17. Another title may be found in the cause of allies and friends. For
ful title.
as the Indians themselves sometimes wage lawful wars with one anotherand
the side which has suffered a wrong has the right to make war, they might
summon the Spaniards to help and share the rewards of victory with them.
This is what the Tlaxcaltecs are said to have done against the Mexicans,
the former arranging with the Spaniards to help them to overcome the
latter and to receive whatever could fall to them under the law of war.
Proof.
For there is no doubt, as Cajetan also asserts (Secunda Secundae, qu. 40,
art. 1), that the cause of allies and friends is a just cause of war, a State
being quite properly able, as against foreign wrongdoers, to summon
confirmation, foreigners to punish its enemies.
And this is confirmed by the fact that
this was a method very much in vogue among the Romans for the extension
of their Empire; that is, they brought aid to their allies and friends and so
making a just war came, by right of war, into possession of fresh provinces.
Yet the Roman Empire is approved by St. Augustine (De civitate Dei, 406
bk. 5) and by St. Thomas (Opusculum 21) as a lawful one. And Sylvester
reckoned Constantine the Great as Emperor, as St. Ambrose did Theodosius.
Now, there does not seem any other juridic title whereby the Romans came
into possession of the world, save in right of war, and the most especial
cause of their wars was the defense and protection of their friends. In
just the same way Abraham championed the cause of the King of Salem
and of other kings who had struck a treaty with him, and he fought against
four kings of that region, though they had done him personally no wrong
(Genesis, ch. 14). This is the seventh and the last title whereby the
Indians and their lands could have come or might come into the possession
and lordship of Spain.
Eighth title
18. There is another title which can indeed not be asserted, but brought
is doubtful.
up for discussion, and some think it a lawful one. I dare not affirm it at
all, nor do I entirely condemn it. It is this: Although the aborigines in
question are (as has been said above) not wholly unintelligent, yet they are
Proof·

On the Indians, Sect. III.

161

little short of that condition, and so are unfit to found or administer a law­
ful State up to the standard required by human and civil claims. Accord­
ingly they have no proper laws nor magistrates, and are not even capable
407 of controlling their family affairs; they are without any literature or arts,
not only the liberal arts, but the mechanical arts also; they have no careful
agriculture and no artisans; and they lack many other conveniences, yea
necessaries, of human life. It might, therefore, be maintained that in Prri°n^*b1le'
their own interests the sovereigns of Spain might undertake tl|e_a^ministration of their country, providing them with prefects and governors for
their towns, and might even give them new lords, so long as this was clearly
for their benefit. I say there would be some force in this contention; for
iLthey were all wanting in intelligence, there is no doubt that this would
not only be a permissible, but also a highly proper, course to take; nay,
our sovereigns would be bound to take it, just as if the natives were infants.
The same principle seems to apply here to them as to people of defective
intelligence; and indeed they are no whit or little better than such so far as
self-government is concerned, or even than the wild beasts, for their food is
not more pleasant and hardly better than that of beasts. Therefore their
governance should in the same way be entrusted to people of intelligence.
There is clear confirmation hereof, for if by some accident of fortune all confirmation,
their adults were to perish and there were to be left boys and youths in enjoy­
ment, indeed, of a certain amount of reason, but of tender years and under
the age of puberty, our sovereigns would certainly be justified in taking
408 charge of them and governing them so long as they were in that condition.
Now, this being admitted, it appears undeniable that the same could be
done in the case of their barbarian parents^ they be supposed to be of that
dullness of mind which is attributed to them by those who have been
among them and which is reported to be more marked among them than
even among the boys and youths of other nations. And surely this
might be founded on the precept of charity, they being our neighbors and
we being bound to look after their welfare. Let this, however, as I have
already said, be put forward without dogmatism and subject also to the
Xhmitation that any such interposition be for the welfare and in the interests
of the Indians and not merely for the profit of the Spaniards. For this is
the respect in which all the danger to soul and salvation lies. And herein
some help might be gotten from the consideration, referred to above, that
some are by nature slaves, for all the barbarians in question are of that
type and so they may in part be governed as slaves are.
Now, it seems to follow from all this discussion that, if there be no
force in any of the titles which have been put forward, so that the native
Indians neither gave cause for just war nor wished for Spanish rulers, etc.,
all the travel to, and trade with, those parts should be stopped, to the great
loss of the Spaniards and also to the grave hurt of the royal treasury (a
thing intolerable). My first answer to this is: There would be no obliga- Fi™t *“·■*«.
409 tion to stop trade, for, as already said, there are many commodities of which
the natives have a superfluity and which the Spaniards could acquire by

l__ a.____

162

Second
answer.

Third
answer.

Francisc-us de Victona. On the Indians, Sect. III.

barter. Also there are many commodities which the natives treat as owner­
less or as common to all who like to take them, and the Portuguese, to their
own great profit, have a big trade with similar people without reducing them
to subjection. Secondly, there would probably be no diminution in the
amount of the royalties, for a tax might quite fairly be placed on the gold
and silver which would be brought away from the Indians, as much as a
fifth or even more, according to quality, and it would be well-earned, inas­
much as the maritime discovery was made by our sovereign and it is under
his authority that trade is carried on in safety. Thirdly, it is evident, now
that there are already so many native converts, that it would be neither
expedient nor lawful for our sovereign to wash his hands entirely of the
administration of the lands in question.

410

THE SECOND RELECTIO
Of the Reverend Father, Brother Franciscus de Victoria,

·-·/'S,·

ON THE INDIANS, OR ON THE LAW OF WAR
MADE BY THE SPANIARDS ON THE
BARBARIANS.

.. '.I

’
>t

I

' i. Christians may serve in war and make war.
In whose hands lies the authority to make or declare war?
3· Anyone, even a private person, can accept and wage a defensive war.
4· Whether one who is attacked by a robber or a foe may strike back the assailant,
if able to escape by flight.
Every
commonwealth has authority to declare and make war.
5·
6. A prince has the same authority to declare and make war as a State has.
7· What a State is and who is properly styled a prince.
8. Wliether several States or princes, when they nave one common lord or prince,
may make war of themselves without the authority of the superior lord.
411 9· Petty rulers or princes, who are not at the head of a complete State, but are
parts of another State, can not undertake or make war. And what about
cities?
ίο. What can be a reason or cause of just war? Proof that diversity of religion is
not a cause of just war.
Λ11* Extension of an Empire is not a just cause of war.
, 12. The personal glory, or other advantage, of a prince is not a just cause of war.
Ι3· Wrong done is the sole and only just cause for making; war.
Not every kind and degree of wrong suffices for making war.
15 When just war exists, everything is lawful which is necessary for the defense
of the public good.
i6. In just war it is lawful to retake all things that have been lost, or a part thereof.
*7- In just war it is lawful to make good, out of the goods of the enemy, all the
cost of the war and all damages wrongfully caused by the enemy.
ι8. After property has been recaptured from an enemy in just war, what the prince
may then do.
Î9- It is lawful for a prince, after gaining the victory in a just war and after retaking
property, and even after the establishment of peace and security, to avenge
the wrongs done to him by the enemy and to take measures against the
412
enemy and punish them for these wrongs.
20. In order that a war be called just, it is not always enough that the prince
believes he has a just cause.
21. The justice of a war must be most thoroughly and carefully examined.
22. Whether subjects are bound to examine the cause of a war; and how, if a sub­
ject is convinced of the injustice of a war, he may not serve in it, even
though his sovereign commands.
If
subjects
are conscientiously of opinion that a war is unjust, they may not
»3·
serve in it, whether their opinion be wrong or right.
Senators, petty rulers, and, in general, all who, either on summons or coming of
their own accord, are admitted to the public council or the king’s council,
are bound to examine the cause of an unjust war.
l6j

f 4·'>-LS'

SUMMARY.

rPQ

164

Franciscus de Victoria

25. Who are not bound to examine the causes of war, but may lawfully serve in it
in reliance on the good faith of their betters.
26. When ignorance of the injustice of a war would not excuse subjects who serve
in it.
J 27. What is to be done, when there is doubt about the justice of a war; and how if
one prince be in lawful possession, so long as the doubt remains another 413
may not try to turn him out by war and armed force.
28. If there be a city or province concerning which it is doubtful whether it has a
lawful possessor, especially where there is a vacancy owing to the death
of the lawful lord, etc.—what is to be done in such a case.
29. How a person who is doubtful about his own title, even if he be in peaceable
possession, is bound to make careful examination of his case, if perchance
he can arrive at certainty either in his own favor or in favor of another.
30. After the examination of a case, so long as a doubt reasonably persists, a lawful
possessor is not bound to quit possession, but may lawfully retain it.
31. In a doubtful case, subjects may follow their prince to battle not only in a
■—
defensive, but also in an offensive war.
32. Whether a war can be just on both sides, and how, apart from ignorance, this
can not happen.
33. Whether a prince or a subject, who in ignorance has prosecuted an unjust war,
is bound to make restitution, if afterwards he becomes convinced of its
'
injustice.
34. Whether it is lawful in war to kill the innocent.
35. Slaughter of the innocent is never lawful in itself and intentionally.
36. Whether it is lawful to kill women and children in a war against the Turks; 414
and what, among Christians, about farmers, civilians, foreigners, strangers,
and clergy.
37- The incidental killing of the innocent, even with knowledge, is sometimes lawful,
sometimes not.
38. Whether it is lawful to kill the innocent from whom danger in the future is
apprehended.
39. Whether it is lawful to despoil the innocent among the enemy, and what things
may be taken.
40. If war can be adequately conducted without despoiling farmers or other innocent
folk, it seems unlawful to despoil them; and what about foreigners and
strangers on enemy territory?
41 · How, if the enemy refuse to restore the things which they have wrongfully taken
away, and the injured party can not recoup himself in any other way, he
can seek satisfaction where he will, whether from the guilty or the innocent.
42. Whether the innocent and children, who are admittedly not to be killed, may
at least be led into captivity and slavery.
43. Whether hostages, taken from the enemy in time of truce or on the termination
of a war, may be put to death, if the enemy break faith and do not abide
by what has been agreed on.
44. Whether it is lawful in war to kill all the guilty.
415
45- It is lawful to kill without distinction all who resist in the actual heat of battle
either in the storming or in the defense of a city, and as long as affairs are
in peril.
46. It is lawful to kill the guilty, even after victory has been won and danger has
already been removed.
47. It is not always lawful to kill all the guilty, merely in order to avenge a wrong.
48. At times it is both lawful and expedient to kill all the guilty, especially in a
war against unbelievers. And what in a war against Christians?
49. Whether it is lawful to kill captives and those who have surrendered, assuming
them to have been guilty also.

On the Law of War.

16$

,✓50. Whether things captured in a just war belong to the captor and seizor; and
how these things vest in the seizor up to a sufficient satisfaction for what
has been wrongfully taken away and for expenses.
^, -51. How all movables, by the law of nations, vest in the seizor, even though their
value more than compensates the wrong done.
416 52. Whether it is lawful to leave a city to the soldiery by way of booty; and how
this is not unlawful, but at times even necessary.
53. Soldiers may not loot or bum without authority; otherwise they are bound to
make restitution.
/54· It is lawful to seize and hold the lands and fortresses and towns of the enemy,
so far as this is necessary by way of compensation for damages done.
/SS- It *s lawful to seize and hold an enemy fortress or city by way of obtaining
z
securety and avoiding danger or as a means of defense and in order to
take away from the enemy an opportunity to do harm, etc.
6. It is lawful to deprive the enemy of part of his territory on account of the wrong
he has done and by way of punishment, that is, revenge; and how on this
Sround a fortress or town may be seized, so long as due limits are observed,
er it is lawful to impose the payment of tribute on the conquered enemy.
.58. Whether it is lawful to depose the princes of the enemy and put new ones over
/
them or retain the sovereignty for oneself; and how it is not lawful to do
this indiscriminately and for every cause of just war whatsoever.
59. When the princes of the enemy may lawfully be deposed, is shown.
60. The canons or rules of belligerency are described.

/

Z

Inasmuch as the seizure and occupation of those lands of the bar­
barians whom we style Indians can best, it seems, be defended under the law
of war, I propose to supplement the foregoing discussion of the titles, some
just and some unjust, which the Spaniards may allege for their hold on the
lands in question, by a short discussion of the law of war, so as to give
more completeness to that relectio. As, however, the other claims on my
time will not allow me to deal with all the points which arise out of this
topic, the scope which I can give my pen must be proportionate, not to the
amplitude and dignity of the theme, but to the shortness of the time at my
disposal. And so I will merely note the main propositions of this topic,
together with very brief proofs, and will abstain from touching on the many
doubtful matters which might otherwise be brought into this discussion. I Toer principe»
will deal with four principal questions. First, Whether Christians may
make war at all; secondly, Where does the authority to declare or wage
war repose; thirdly, What may and ought to furnish causes of just war;
fourthly, What and how extensive measures may be taken in a just war
against the enemy?
As regards the first question, war might seem altogether prohibited to me ir»t
418 Christians, for there is the prohibition of self-defense in the passage (Romans,
ch. 12), “Dearly beloved, avenge not yourselves, but give place unto wrath,” mnargnand our Lord says in the Gospel (Si. Matthew, ch. 5), “Whosoever shall smite ment on one
thee on the right cheek, turn to him the other also" and “I say unto you
not to resist evil,” and (Si. Matthew, ch. 26), “All they that take the sword
shall perish by the sword.” And it is no sufficient answer to say that all
these matters are not of precept, but of counsel, for it would be a grave
enough impropriety if every war undertaken by Christians was contrary to

417

166

Franciscus de Victoria

our Lord’s advice. The opinion of ail the doctors is to the contrary and
so is the received usage of the Church.
Luther’s
In development of this question be it noted that, although Catho­
opinion.
lics are fairly in accord on the matter, yet Luther, who left naught uncon­
taminated, denies that Christians may take up arms even against the Turks,
and he relies not only on the above-cited texts of Scripture, but also
on the fact that if the Turks attack Christendom it is the will of God, which
may not be resisted. Herein, however, he had not as much success as in his
Tertnllian,
other
dogmas in imposing on theGermans,who are born soldiers. Tertullian
too, inclines
too, seems not averse from this opinion, for in his Di corona militis he discusses
to same
opinion.
“whether military service is at all right for a Christian,” and in the issue he 419
inclines to hold that military service is forbidden to a Christian, who, says
he, “may not even go to law.”
The author
I. Passing over outside opinions, however, let my answer to the question
gives his
be
given
in the single proposition: Christians may serve in war and make
opinion in a
single propo­ war. This is the conclusion of St. Augustine in the many passages where he
sition.
(a) Especially thoroughly considers the question, such as : (a) in his Contra Faustum, (b) in
book 23.
his Liber 83 Quaestionum, (c) in his De verbis Domini, in his Contra Secundi(b) Quest. 31.
num
Manichaeum, (d) in his sermon on the Centurion’s son, and (i) in his
<c) Serm. 19.
Proof I.
Letter to Boniface. And, as St. Augustine shows, this is proved by the
(d) It is in the
words of John the Baptist to the soldiers (S/. Luke, ch. 3), “Do violence
Sermones
De verbis
to no man, neither accuse any falsely.” “But,” says St. Augustine, (/)
Domini.
(e) Letter 205 “if Christian doctrine condemned war altogether, those looking for counsels
to Count
of salvation in the Gospel would be told to throw away their arms and give
Boniface.
up soldiering altogether; but what is said to them is, ‘Do violence to no
(f> Passage
seems to be man and be content with your wages.’”
in bk. 23
Secondly, there is proof in the reason of the thing {Secunda Secundae,
Contra Faus­
tum, ch. 74. qu. 40, art. 1). To draw the sword and use arms against internal wrong­
Proof 2.
doers and seditious citizens is lawful according to Romans, ch. 13, “He
beareth not the sword in vain, for he is the minister of God, a revenger of
wrath upon him that doeth evil.” Therefore it is lawful also to use the
sword and arms against external enemies. Princes, accordingly, are told
in the Psalms,1 “Deliver the poor and needy, rid them out of the hand of 420
the wicked.”
Proof 3.
Thirdly, this was also allowable by the law of nature, as appears from
*
the case of Abraham, who fought against four kings (Genesis, ch. 14), and
also by the written law, as appears from the cases of David and the Macca­
bees. But the Gospel law forbids nothing which is allowed by natural law,
as is well shown by St. Thomas (Prima Secundae, qu. 107, last art.), and
that is why it is called the law of liberty (St. James, ch. 1 and 2). Therefore, what was lawful under natural law and in the written law is no less
lawful under the Gospel law.
Proof 4 and
Fourthly, since there can be no doubt that in a defensive war force may
be employed to repel force (Dig., I, I, 3), this is also proved with regard to
war.
an offensive war, that is, a war where we are not only defending ourselves
1Pi. 81, in Vulgate.

In A. V. Pi. 82.

On the Law of War.

167

or seeking to repossess ourselves of property, but also where we are trying
to avenge ourselves for some wrong done to us. This, I say, is proved by
i· in
the authority of St. Augustine {Liber 83 Questionum) in a passage also Thii
extract from
found in can. dominus, C. 23, qu. 2, “Those wars are described as just wars Quieationei
•uper Jotue,
which are waged in order to avenge a wrong done, as w'here punishment qu.
10.
has to be meted out to a city or state because it has itself neglected to
exact punishment for an offense committed by its citizens or subjects or to
return what has been wrongfully taken away.”
A fifth proof with regard to an offensive war is that even a defensive Proof 5.
war could not be waged satisfactorily, were no vengeance taken on enemies *
who have done or tried to do a wrong. For they would only be embold421 ened to make a second attack, if the fear of retribution did not keep them
from wrongdoing.
A sixth proof is that, as St. Augustine says {De verbo Domini and Ad Proof 4.
Bonifacium), the end and aim of war is the peace and security of the State.
But there can be no security in the State unless enemies are made to desist cited.
from wrong by the fear of war, for the situation with regard to war would be
glaringly unfair, if all that a State could do when enemies attack it unjustly
was to ward off the attack and if they could notfollowthis up by further steps.
A seventh proof comes from the end and aim and good of the whole Proof 7.
world. For there would be no condition of happiness for the world, nay,
its condition would be one of utter misery, if oppressors and robbers and
plunderers could with impunity commit their crimes and oppress the good
and innocent, and these latter could not in turn retaliate on them.
My eighth and last proof is one which in morals carries the utmost Proof 8.
weight, namely, the authority and example of good and holy men. Such
men have not only defended their country and their own property in
defensive wars, but have also in offensive wars sought reparation for
wrongs done or attempted by their enemies, as appears from the case of
Jonathan and Simon (I Maccabees, ch. 9), who avenged the death of their
brother John on the sons of Jjmbri. And in the Christian Church we have
the conspicuous examples of Constantine the Great and Theodosius the
422 Elder and other renowned and most Christian Emperors, who made many
wars of both kinds, although their councils included bishops of great sane*
tity and learning.
2. Second question: In whose hands lies the authority to declare and to second
make war?
3. Herein let my first proposition be: Any one, even a private person, Proposition 1.
can accept and wage a defensive war. This is shown by the fact that force
may be repelled by force {Dig., as above). Hence any one can make this
kind of war, without authority from any one else, for the defense not only
of his person, but also of his property and goods.
4. A doubt, however, arises in connection with this proposition, namely, Doul>twhether one who is attacked by a robber or enemy can strike his assailant
back if escape by flight is possible. The Archbishop, indeed, says, No; 2?cehb:tliop,t
this being in excess of the limits of blameless self-defense, since everyone opinion.

168

Panormi­
tanus’
opinion.

— Bartolus’
opinion.

The author
adopts
Bartolus*
opinion.

Proposi* tion IL
Distinction
between a
private
person and
a State.

* The anther’s
* opinion.

Proposi­
tion in.

Franciscus de Fictoria

is bound in the exercise of self-defense to do as little harm as possible to his
assailant. If, then, resistance would involve the death of or grievous bodily
harm to the assailant, but escape by flight is a possible thing, the latter
course ought to be adopted. Panormitanus, however, writing on X, 2, 13,
12, draws a distinction. If, says he, the victim would be seriously disgraced
by flight, he is not bound to fly, but may repel the wrong by striking back,
whereas if flight would not smirch his reputation or honor, as when a monk 423
or rustic is attacked by a noble and powerful man, he is bound to fly instead.
Bartolus, however, commenting on Dig., 48, 19, I, and 48, 8, 9, holds with­
out distinguishing that self-defense is lawful and that there is no obligation
to fly, the putting to flight being itself a wrong {Dig., 47,10, 15). If, then,
armed resistance is permissible in defense of property, as appears from
X, 2, 13, 12, and from c. 6, tit. 11, bk. 5 in vi, much more is it permissible
in order to protect the body from hurt, such hurt being more serious than
wrong to property {Dig., 48, 19, 10). This opinion can be safely held and
with possibility of demonstration, especially as the civil law admits as much,
as in Dig., 48, 8, 9. Now, no one sins who acts under warrant of the law,
inasmuch as the law affords justification in the forum of conscience. Accord­
ingly, even if natural law does not allow killing in defense of property, this
is rendered lawful by the civil law and is available, so long as no scandal
is caused, not only to laymen, but to clerics and professed persons.
k_,5- Second proposition A Every State has authority to declare and to
make war. In course of proof of this be it noted that the difference herein
between a private person and a State is that a private person is entitled,
as said above, to defend himself and what belongs to him, but has no right
to avenge a wrong done to him, nay, not even to recapt property that has 424
been seized from him if time has been allowed to go by since the seizure.
But defense can only be resorted to at the very moment of the danger,
or, as the jurists say, in continenti, and so when the necessity of defense
has passed there is an end to the lawfulness of war. In my view, however,
one who has been contumeliously assaulted can immediately strike back,
even if the assaulter was not proposing to make a further attack, for in the
avoidance of shame and disgrace one who (for example) has had his ears
boxed might immediately use his sword, not for the purpose of vengeance,
but, as has been said, in order to avoid infamy and disgrace. But a State
is within its rights not only in defending itself, but also in avenging itself
and its subjects and in redressing wrongs. This is proved by what Aris­
totle says in the third book of his Politics, namely, that a State ought to
be sufficient unto itself. But it can not adequately protect the public
weal and the position of the State if it can not avenge a wrong and take
measures against its enemies, for wrongdoers would become readier and
bolder for wrongdoing, if they could do wrong with impunity. It is, there­
fore, imperative for the due ordering of human affairs that this authority
be allowed to States.
6. Third proposition : A prince has the same authority in this respect 425
as the State has. This is the opinion of St. Augustine {Contra Faustum) :

On the Law"of War.

169

“The natural order, best adapted to secure the peace of mankind, requires Herein the
that the authority to make war and the advisability of it should be in the
hands of the sovereign prince.” Reason supports this, for the prince only »othonty u '
holds his position by the election of the State. Therefore he is its repre- ώβ sut*‘
sentative and wields its authority; aye, and where there are already lawful
princes in a State, all authority is in their hands and without them nothing
of a public nature can be done either in war or in peace.
7. Now, the whole difficulty is in the questions: What is a State, and
who can properly be called a sovereign prince? I will briefly reply to them
by saying that a State is properly called a perfect community. But the
essence of the difficulty is in saying what a perfect community is. By way
of solution be it noted that a thing is called perfect when it is a completed
whole, for that is imperfect in which there is something wanting, and, on
the other hand, that is perfect from which nothing is wanting. A perfect
State or community, therefore, is one which is complete in itself, that is,
which is not a part of another community, but has its own laws and its
own council and its own magistrates, such as is the Kingdom of Castile
and Aragon and the Republic of Venice and other the like. For there is
426 no obstacle to many principalities and perfect States being under one prince.
Such a State, then, or the prince thereof, has authority to declare war,
and no one else.
8. Here, however, a doubt may well arise whether, when a number of Doubt.
States of this kind or a number of princes have one common lord or prince,
they can make war of themselves and without the authorization of their
superior lord. My answer is that they can do so undoubtedly, just as the Th· author'·
kings who are subordinate to the Emperor can make war on one another ·“*·*’·
without waiting for the Emperor’s authorization, for (as has been said) a
State ought to be self-sufficient, and this it would not be, if it had not the
faculty in question.
9. Hence it follows and is plain that other petty rulers and princes, who CoroU*rr.
are not at the head of a perfect State, but are parts of another State, can
not begin to carry on a war. Such is the Duke of Alva or the Count of
Benevento, for they are parts of the Kingdom of Castile and consequently have
not perfect States. As, however, these matters are for a great part governed
by the law of nations or by human law, Custom can give power and authority
to make war. And so if any State or prince has obtained by ancient custom
the right to make war of itself or himself, this authority can not be gain427 said, even if in other respects the State be not a perfect one. So, also,
necessity can confer this license and authority. For if within one and the
same realm one city should take up arms against another, or one of the
dukes against another duke, and the king should neglect or should lack
courage to exact redress for the wrongs that have been done, the aggrieved
city or duke may not only resort to self-defense, but may also commence
war and take measures against the enemy and even kill the wrongdoers,
there being no other adequate means of self-defense. For the enemy would
not cease from outrage, if the victims thereof were content merely with self-

17°

Third
principal
question.
Proposi­
tion I.

Proposi­
tion II.

Proposi­
tion III.

Proof i.

Proof i.

Proof 3.

‘ Proposi­
tion IV.
’Rather in
Quaestiones
super Josue,
qu. ro.
Proof XProof 2.

Proof 3-

Franciscus de Victoria

defense. On this principle à /private person also may begin an attack on
his foe, if there is no othe^r γ0· of safeguarding himself from wrong. This is
enough on the presentxqilestion.
10. Third question
at may be a reason and cause of just war? It
is particularly necessary7 to ask this in connection with the case of the Indian
aborigines, which is now before us. Here my first proposition is: Difference
of religion is not a cause of just war. This was shown at length in the
preceding Relectio, when we demolished the fourth alleged title for taking
possession of the Indians, namely, their refusal to accept Christianity. And
it is the opinion of St. Thomas (Secunda Secundae, qu. 66, art. 8), and the
common opinion of the doctors—indeed, I know of no one of the opposite
way of thinking.
11. Second proposition : Extension of empire is not a just cause of war. 428
1 his is too well known to need proof, for otherwise each of the two belliger­
ents might have an equally just cause and so both would be innocent. This
in its turn would involve the consequence that it would not be lawful to kill
them and so imply a contradiction, because it would be a just war.
12. Third proposition: Neither the personal glory of the prince nor
any other advantage to him is a just cause of war. This, too, is notori­
ous. For a prince ought to subordinate both peace and war to the common
weal of his State and not spend public revenues in quest of his own glory or
gain, much less expose his subjects to danger on that account. Herein,
indeed, is the difference between a lawful king and a tyrant, that the latter
directs his government towards his individual profit and advantage, but a
king to the public welfare, as Aristotle says (Politics, bk. 4, ch. 10). Also,
the prince derives his authority from the State. Therefore he ought to use it
for the good of the State. Also, laws ought “not to be enacted for the private
good of any individual, but in the common interest of all the citizens,” as
is ruled in can. 2, Dist. 4, a citation from Isadore. Therefore the rules
relating to war ought to be for the common good of all and not for the private
good of the prince. Again, this is the difference between freemen and slaves,
as Aristotle says (Politics, bk. 1, ch. 3 and 4) that masters exploit slaves for 429
their own good and not for the good of the slaves, while freemen do not
exist in the interest of others, but in their own interest. And so, were a
prince to misuse his subjects by compelling them to go soldiering and to
contribute money for his campaigns, not for the public good, but for his own
private gain, this would be to make slaves of them.
• 13. Fourth proposition: There is a single and only just cause for com­
mencing a war, namely, a wrong received. The proof of this rests in the
first place on the authority of St. Augustine (Liber 83 Quaestionum* “Those
wars are described as just wars,” etc., as above), and it is the conclusion
arrived at by St. Thomas (Secunda Secundae, qu. 40, art. 1) and the opinion
of all the doctors. Also, an offensive war is for the purpose of avenging
a wrong and of taking measures against an enemy, as said above. But
there can be no vengeance where there is no preceding fault and wrong.
Therefore. Also, a prince has no greater authority over foreigners than

On the Law of War.

171

over his own subjects. But he may not draw his sword against his own
subjects, unless they have done some wrong. Therefore not against for------eigners either. This is confirmed by the text already cited from St. Paul
fRomans, ch. 13) about a prince: “He beareth not the sword in vain: for
he is the minister of God, a revenger to execute wrath upon him that doeth
evil.” Hence it is clear that we may not turn our sword against those
who do us no harm, the killing of the innocent being forbidden by natural
430 law. I omit here any injunctions inconsistent herewith which God has
given in special cases, for He is the Lord of life and death and it is within
His competence to vary His dispositions.
14. Fifth proposition: Not every kind and degree of wrong can suffice
for commencing a war. The proof of this is that not even upon one’s own
fellow-countrymen is it lawful for every offense to exact atrocious punish­
ments, such as death or banishment or confiscation of property. As, then,
the evils inflicted in war are all of a severe and atrocious character, such
as slaughter and fire and devastation, it is not lawful for slight wrongs to
pursue the authors of the wrongs with war, seeing that(the degree of the
punishment ought to correspond to the measure of the offence;{Denieronomy,
ch. 25).
15. The fourth question is about the law of war, namely, what kind
and degree of stress is lawful in a just war. Here let my first proposition question.
be: In war everything is lawful which the defense of the common weal Proposirequires. This is notorious, for the end and aim of war is the defense and
preservation of the State. Also, a private person may do this in self-defense,
as has been proved. Therefore much more may a State and a prince.
16. Second proposition: It is permissible to recapt everything that
has been lost and any part of the same. This is too notorious to need
proof. For war is begun or undertaken with this object.
'431
I?» Third proposition: It is lawful to make good out of enemy property the expenses of the war and all damages wrongfully caused by the
enemy. This is clear, for the enemy who has done the wrong is bound to Proo< *’
give all this redress. Therefore the prince can claim it all and exact it
all by war. Also, as before, there is the argument that, when no other way Pr<Mi *·
lies open, a private creditor can seize the amount of his debt from the debtor.
Also, if there were any competent judge over the two belligerents, he would **«·* shave to condemn the unjust aggressors and authors of wrong, not only to
make restitution of what they have carried off, but also to make good the
expenses of the war to the other side, and also all damages. But a prince
who is carrying on a just war is as it were his own judge in matters touch­
ing the war, as we shall forthwith show. Therefore he can enforce all these
claims upon his enemy.
18. Fourth proposition: Not only are the things just named allowable, but a prince may go even further in a just war and do whatever
is necessary in order to obtain peace and security from the enemy; for
example, destroy an enemy’s fortress and even build one on enemy soil, if
this be necessary in order to avert a dangerous attack of the enemy. This PTOOf l-

&

172

Franciscus de Victoria

is proved by the fact that, as said above, the end and aim of war is peace
and security. Therefore a belligerent may do everything requisite to
Proof 2.
obtain peace and security. Further, tranquillity and peace are reckoned 432
among the desirable things of mankind and so the utmost material pros­
perity does not produce a state of happiness if there be no security there.
Therefore it is lawful to employ all appropriate measures against enemies
Proof 3.
who are plundering and disturbing the tranquillity of the State. Also, all
measures of this kind may be taken against internal foes, that is, against
bad citizens. Therefore they are lawful against external foes. The ante­
cedent is clear, for if one citizen does a wrong to a fellow citizen, the
magistrate not only compels the wrongdoer to make amends to the injured
party, but, if the former is a source of fear to the latter, he is compelled to
Corollary.
give bond or quit the city, so as to remove the danger of which he is the
cause. This shows that even when victory has been won and redress
obtained, the enemy may be made to give hostages, ships, arms, and other
things, when this is genuinely necessary for keeping the enemy in his duty
and preventing him from becoming dangerous again.
Proposi­
ÏJJT Fifth proposition: Not only is all this permissible, but even after
tion V.
victory has been won and redress obtained and peace and safety been secured,
Power which, it is lawful to avenge the wrong
o received from the enemy and to take measures
ορίηϊο^1,!ΟΓ’β against him and exact punishment from him for the wrongs he has done,
princes have In proof of this be it observed that princes have authority not only over
their own™
own subjects, but also over foreigners, so far as to prevent them from
subjects, but committing wrongs, and this is by the law of nations and by the authority 433
also over for- θ£
who[e world. Nay, it seems to be by natural law also, seeing that
law of na­
otherwise society could not hold together unless there was somewhere a
tions, and by power and authority to deter wrongdoers and prevent them from injuring
natural law
the good and innocent. Now, everything needed for the government and
too.
preservation of society exists by natural law, and in no other way can we
show that a State has by natural law authority to inflict pains and penalties
on its citizens who are dangerous to it. But if a State can do this to its
own citizens, society at large no doubt can do it to all wicked and danger­
ous folk, and this can only be through the instrumentality of princes. It
is, therefore, certain that princes can punish enemies who have done a
wrong to their State and that after a war has been duly and justly under­
taken the enemy are just as much within the jurisdiction of the prince
who undertakes it as if he were their proper judge. Confirmation hereof
is furnished by the fact that in reality peace and tranquillity, which are
the end and aim of war, can not be had unless evils and damages be visited
on the enemy in order to deter them from the like conduct in the future.
All this is also proved and confirmed by the authority and examples of good
men. For, as said above, the Maccabees made war not only to recover the
things which they had lost, but also to avenge their wrongs. And some
most Christian princes and most religious Emperors have done the same 434
thing. Moreover, shame and disgrace are not wiped away from a State
merely by its rout of its enemies, but also by its visiting severe punishment

J4

On the Law of JVar.

173

and castigation on them. Now, among the things which a prince is bound
to defend and preserve for his State are its honor and authority.
acu Many doubts are suggested by what has just been said. In the Doubt 1
first place, there is a doubtful point in connection with the justice of a war,
whether it be enough for a just war that the prince believes himself to have been Mid.
a just cause. On this point let my first proposition be: This belief is not Propo®always enough. And for proof I rely, first, on the fact that in some matters tio“
of less moment it is not enough either for a prince or for private persons to
believe that they are acting justly. This is notorious, for their error may
be vincible and deliberate, and the opinion of the individual is not enough to
render an act good, but it must come up to the standard of a wise man’s
judgment, as appears from Ethics, bk. 2. Also the result would otherwise
be that very many wars would be just on both sides, for although it is not
a common occurrence for princes to wage war in bad faith, they nearly
always think theirs is a just cause. In this way all belligerents would be
innocent and it would not be lawful to kill them. Also, were it otherwise,
435 even Turks and Saracens might wage just wars against Christians, for they
think they are thus rendering God service.
1
2tt Second proposition: It is essential for a just war that an exaeèd=.β^π*1'·
ingly careful examination be made of the justice and causes of the war uwi
that the reasons of those who on grounds of equity oppose it be listened to.
For (as the comic poet says) “A wise man must make trial of everything Terente
by words before resorting to force,” and he ought to consult the good and
wise and those who speak with freedom and without anger or bitterness or
greed, seeing that (as Sallust says) “where these vices hold sway, truth is s*Uu»t.
not easily distinguished.” This is self-evident. For truth and justice in
moral questions are hard of attainment and so any careless treatment of
them easily leads to error, an error which will be inexcusable, especially in
a concern of great moment, involving danger and calamity to many, and
they our neighbors, too, whom we are bound to love as ourselves.
—
Λ. Second doubt: Whether subjects are bound to examine the cause Doubt it.
of a war or whether they may serve in the war without any careful scrutiny
thereof, just as the lictors had to enforce the praetor’s decree without ques­
tioning. On this doubt let my first proposition be: If a subject is con- Prop»®vinced of the injustice of a war, he ought not to serve in it, even on the
436 command of his prince. This is clear, for no one can authorize the killing
of an innocent person. But in the case before us the enemy are innocent.
Therefore they may not be killed. Again, a prince sins when he commences
a war in such a case. But “not only are they who commit such'things
worthy of death, but they, too, who consent to the doing thereof” (Romans,
ch. 1). Therefore soldiers also are not excused when they fight in bad
faith. Again, it is not lawful to kill innocent citizens at the prince’s com­
mand. Therefore not aliens either.
2j. Hence flows the corollary that subjects whose conscience is against Coronary
the justice of a war may not engage in it whether they be right or wrong.
This is dear, for “whatever is not of faith is sin” (Romans, ch. 14).

174
Proposi­
tion Π.

Proposi­
tion m.

Proposi­
tion IV.

Doubt Hl.
Proposi­
tion I.

I

:

Franciscus de Pictoria

2^. Second proposition: Senators and petty rulers and in general all
who are admitted on summons or voluntarily to the public council or
the prince’s council ought, and are bound, to examine into the cause of
an unjust war. This is clear; for whoever can save his neighbor from
danger and harm is bound to do so, especially when the danger is that of
death and greater ills, as is the case in war. But the persons referred to
can avert the war, supposing it to be unjust, if they lend their wisdom and
weight to an examination into its causes. Therefore they are bound so to
do. Again, if by their neglect an unjust war be entered on, they are con­
senting parties thereto, for that which a man could and ought to prevent
is imputed to him, if he does not prevent it. Again, a king is not by 437
himself capable of examining into the causes of a war and the possibility
of a mistake on his part is not unlikely and such a mistake would bring
great evil and ruin to multitudes. ^Therefore war ought not to be made
on the sole judgment of the king, nor, indeed, on the judgment of a few,
but on that of many, and they wise and upright men. .
.
25. Third proposition: Other lesser folk who have no place or audience
in the prince’s council or in the public council are under no obligation
to examine the causes of a war, but may serve in it in reliance on their
betters. This is proved, first, by the fact that it is impossible and inexpe­
dient to give reasons for all acts of state to every member of the commonalty.
Also by the fact that men of the lower orders, even if they perceived the
injustice of a war, could not stop it, and their voice would not be heeded.
Therefore, any examination by them of the causes of a war would be futile.
Also by the fact that for men of this sort it is enough proof of the justice
of war (unless the contrary be quite certain) that it is being waged after
public counsel and by public authority. Therefore no further examination
on their part is needed.
Fourth proposition: Nevertheless the proofs and tokens of the
injustice of the war may be such that ignorance would be no excuse even
to subjects of this sort who serve in it. This is clear, because such ignorance
might be deliberate and adopted with evil intent towards the enemy. 438
Also, were this otherwise, unbelievers would be excused when they follow
their chieftains to war against Christians and it would be unlawful to kill
them, it being certain that they deem themselves to have a just cause of
war. Also, the soldiers who crucified Christ, ignorantly following Pilate’s
order, would be excused. Also, the Jewish mob would be excused which
was led by the elders to shout “Away with Him, crucify Him.”
Third doubt: What should be done when the justice of the war is
doubtful, that is, when there are apparent and probable reasons on both
sides. First proposition: As regards the princes themselves, it seems, that
if one be in lawful possession, the other may not try to turn him/put by
war and armed force, so long as the doubt remains. For example: Suppose
the King of France to be in lawful possession of Burgundy and that it be
doubtful whether he has or has not right thereto. The Emperor may not
try to oust him by arms; nor on the other hand may the French King

On the Law of War.

175

seize Naples or Milan, if there be doubt who is entitled to it. The proof is
that in doubtful matters the party in possession has the better position.
Therefore it is not lawful to dispossess the possessor in favor of a doubtful
cause. Further, if the matter were being heard by a lawful judge, he would
never in case of doubt dispossess the party in possession. Therefore, if we
439 postulate that those princes who are asserting a right are judges in their
own cause, they may not lawfully eject a possessor so long as there is any
doubt about the title. Further, in the suits and causes of private persons
it is never permissible in a doubtful matter to dispossess a lawful possessor.
Therefore not in the causes of princes; for the laws are the princes’ laws.
Therefore, if by human law it is not permissible in a doubtful matter to dis­
possess a lawful possessor, it can quite validly be objected to princes, “Obey
the law thyself hast made, seeing that a man ought to adopt the same law
for himself which he has enjoined on others.” Also, were it otherwise, a war
could be just on both sides and would never be settled. For if in a doubtful
matter it were lawful for one side to assert his claim by force, the other might
make armed defense, and after the one had obtained what he claimed, the
other might afterwards claim it back, and so there would be war without
end, to the ruin and tribulation of peoples.
28. Second proposition: If the city or province in regard of which
the doubt arises has no lawful possessor, as, for instance, if it were open by
reason of the death of the lawful lord and there is a doubt whether the
King of Spain or the King of France be the heir and no certainty in point
of law can be attained, it seems that, if one party wants to settle and make
a division or compromise as to part of the claim, the other is bound to
accept his proposal, even if that other be the stronger and able to seize the
whole by armed force; nor would he have a just cause of war. The proof
is that when the merits of a quarrel are equal, one side does no wrong
440 by claiming an equal part of the thing in dispute. Further, in private
disputes also, where the matter is in doubt, one party may not seize the
whole thing. Also, in the same way the war would be just on both
sides. Also, a just judge would not decree and award the whole thing to
either party.
29. Third proposition: He who is in doubt about his own title is
bound, even though he be in peaceable possession, to examine carefully
into the cause and give a quiet hearing to the arguments of the other side,
if so be he may thus attain certitude either in favor of himself or the other.
This is proved by the fact that a man who is in doubt and neglects to ascer­
tain the truth is not in possession in good faith. So also, in a matrimonial
cause, if the man who is in lawful possession entertains a doubt whether in
truth the woman is his or the other’s,it is certain that he is bound to examine
the question. Therefore the same principle applies in other causes. Also,
princes are judges in their own cases, inasmuch as they have no superior.
But it is certain that, if any one raises any objection to a lawful possessor,
the judge is bound to examine the case. Therefore in a doubtful matter
princes are bound to examine their own case.

176
Proposi­
tion IV.

Franciseus de Victoria

30. Fourth proposition: After examination of the case the lawful
possessor is not bound to quit possession so long as the doubt reasonably
persists, but may lawfully retain it. This is manifestly so, for, firstly, no
judge could divest him of it. Therefore he is not bound to give it up, 441
either the whole or part. Also, in a matrimonial cause where the matter
is doubtful, the man is under no obligation to give up his possession, as is
laid down in X, 5, 39, 44, and in X, 4, 21, 2. Therefore the like is not
required in other causes. And Adrian expressly holds (qu. 2, Quotlib. 2)
that a party in doubt may retain his possession, and he applys this rule to
princes in a doubtful matter. But concerning subjects who are in doubt
Adrian's opin­ with regard to the justice of a war, Adrian indeed says (Quotlib. 2, on the
ion about
first principal argument) that a subject in such a case, that is, one who is
subjects.
in doubt whether the alleged cause of a war is a sufficient one or simply
whether there exists some sufficient cause for declaring war, may not serve
in such a war, even at the command of his prince. The proof is that he
exposes himself to the danger of mortal sin. Also, what is not of faith is
sin, a doctrine which, according to the doctors and to truth, is to be under­
stood as condemnatory, not only where the conscience is assured or based
on opinion, but also where it is in doubt. Sylvester seems to hold the same
doctrine, under the word bellum, I, § 9.
But let this be my fifth proposition: In the first place, there is
Proposi­
tion V,
no
doubt
that in a defensive war subjects may, even though the matter be
wherein the
doubtful,
follow their prince to the war; nay, that they are bound to follow
opinion of
Adrian is
him, and also in an offensive war. The first proof is in the fact that, as 442
refuted.
has been said, a prince is not able, and ought not, always to render reasons
for the war to his subjects, and if subjects can not serve in war except they
are first satisfied of its justice, the State would fall into grave peril and the
door would be opened to wrongdoing. Also, in doubtful matters the safer
course ought to be adopted. Now, if subjects in a case of doubt do not
follow their prince to the war, they expose themselves to the risk of betraying
their State to the enemy, and this is a much more serious thing than fighting
against the enemy despite a doubt. Therefore they ought rather to fight.
Also, this is manifestly proved by the fact that the lictor is bound to carry
out the decree of the judge, even though he has his doubts about its justice,
for there would be serious danger in the opposite course. Also, St.Augustine
writing against theManichæans, defends this line of argument, where he says:
This passage “If a righteous person be in the military service of a sacrilegious king, he
is in bk. 22, may consistently go to war at his command, provided that it is certain that
Contra
the command laid on him is not contrary to the Divine precepts or that it is
Faustum,
c.75, though not certain whether it be so” (C. 23, qu. i,ban. quid culpatur). Here we have
not in quite
St. Augustine expressly declaring that if it is not certain—that is, if there is
the same
words.
a doubt—whether it be against God’s precepts, the subject may lawfully
go to the war. And however Adrian may twist and turn, he can not free
himself from the authority of St. Augustine, for our proposition is, beyond
cavil, the conclusion at which St. Augustine arrives. Nor does it avail to 443
say that such a person ought to get rid of his doubt and make his conscience

On the Law of War.

177

acquiesce in the justice of the war, for it remains that, mortally speaking,
this is impossible, as in other cases of doubt. Now, Adrian’s mistake seems
of
to be in thinking that, if I am in doubt whether this war is just for my prince error,
or whether there be a just cause for this war, it immediately follows that
I am in doubt whether or no I ought to go to this war. I admit that I am
no wise justified in doing what my conscience doubts about and that, if I
am doubtful about the lawfulness of doing any given thing, I sin if I do it.
But any doubt of mine about the justice of this war does not necessarily
involve a doubt whether I ought to fight or serve in this war. Nay, it is
quite the other way about. For although I may doubt whether the war
is just, yet the next point is that I may lawfully serve in the field at my
prince’s command. It is precisely the same as with a lictor who has his
doubts whether the judge’s decree is just, it does not follow therefrom
that he doubts whether or no he ought to carry it into execution; he knows
that he is bound to carry it into execution. So, also, if the doubt be whether
this woman be my wife; I am, Consequent upon such doubt, bound to render
her conjugal rights.
I
The fourth doubt is\JWhether a war can be just on both sides. DoubtIV·
The following is my answer: First proposition: Apart from ignorance the
444 case clearly can not occur, for if the right and justice of each side be certain,
it is unlawful to fight against it, either in offense or in defense. Second Propoeproposition: Assuming a demonstrable ignorance either of fact or of law, tion 11
it may be that on the side where true justice is the war is just of itself,
while on the other side the war is just in the sense of being excused from
.
. sin by reason of good faith, because invincible ignorance is a complete their prime
excuse. Also, on the side of the subjects at any rate, this may often *n°w‘the*n'
occur; for even if we assume that a pnnce who is carrying on an unjust war, the »ubwar knows about its injustice, still (as has been said) subjects may in good
e,ch
faith follow their prince, and in this way the subjects on both sides may be wadoti
doing what is lawful when they fight.
lawfully a<ht
55. Hence arises the fifth doubt: Whether one who has in ignorance *>·»*▼·
gone in an unjust war and subsequently is convinced of its injustice is bound
to make amends therefor. This may be asked both about a prince and
about a subject. My first proposition is: If the injustice of the war had
been within reach of proof by him, he is bound when he learns of its injustice
to give back what he has taken away and not yet consumed—that is, to the
extent to which he has been enriched; but he need make no amends as
regards what he has consumed, because the rule of law is that a person who
is not in fault ought not to be damnified, just as one who in good faith
attended a sumptuous banquet given by a thief where stolen things were
consumed would be under no obligation to give redress therefor, save
445 perhaps up to the amount that his meal would have cost him at home.
Sylvester, however, says, under the word bellum, I, § 9, that if our man SyiTMter’»
was in doubt about the injustice of the war yet followed his lord’s authority,
he is liable to make good everything, because it was with bad faith that
he fought.

178
Proposi­
tion H;
against
Sylvester’s
opinion.

Franciscus de Victoria

Now, let my second proposition, in conformity with the foregoing, be:
Our man is not bound to make good what has been consumed, any more
than the other side would be, because (as has been said) his fighting was
lawful and in good faith. Sylvester’s contention would, however, be sound
if the man had really been in doubt whether it was lawful for him to go to
Note!
the war, for he would then be acting against his conscience. Now, much
attention must be paid to the admitted fact that a war maybe just and
lawful in itself and yet owing to some collateral circumstance may be unlaw­
ful. For it is admitted that one may be entitled to recapture a city or a
province and yet that, because of some scandal, this may become quite un­
lawful. For inasmuch as (according to what has been said before) wars ought
to be waged for the common good, if some one city can not be recaptured
without greater evils befalling the State, such as the devastation of many
cities, great slaughter of human beings, provocation of princes, occasions
for new wars to the destruction of the Church (in that an opportunity is
given to pagans to invade and seize the lands of Christians), it is indubi­
table that the prince is bound rather to give up his own rights and abstain
from war. J For it is clear that if the King of France, for example, had a 446
right to retake Milan, but by the war both the Kingdom of France and the
Duchy of Milan would suffer intolerable ills and heavy woes, it would not be
right for him to retake it. This is because that war ought to take place either
for the good of F rance or for the good of Milan. Therefore, when, on the con­
trary, great ills would befall each side by the war, it could not be a just war.
Doubt I,
34. With regard to another question, namely, what degree of stress is
arising from
the last prin­ lawful in a just war, there are also many doubts. The first is: Whether it
cipal question. is lawful in war to kill the innocent. It seems that it is; because, in the
Argument for first place, the Sons of Israel slew children at Jericho, as appears from
the affirm­
Joshua, ch. 6, and afterwards Saul slew children in Amalek (I Samuel,
ative.
ch. 15), and in both these cases it was by the authority and at the bidding of
God. “Now, whatever is written is written for our instruction,” as appears
from Romans, ch. 15. Therefore, if a war of the present day be just, it
will be lawful to kill the innocent.
Proposi­
35. With regard to this doubt, let my first proposition be: The delib­
tion I.
erate slaughter of the innocent is never lawful in itself. This is proved,
Proof I.
firstly, by Exodus, ch. 23: “The innocent and righteous slay thou not.”
Secondly, the basis of a just war is a wrong done, as has been shown above.
Proof 3.
But wrong is not done by an innocent person. Therefore war may not be
employed
against him. Thirdly, it is not lawful within a State to punish 447
Proof 3.
the innocent for the wrongdoing of the guilty. Therefore this is not lawful
among enemies. Fourthly, were this not so, a war would be just on both
sides, although there was no ignorance, a thing which, as has been shown,
is impossible. And the consequence is manifest, because it is certain that
innocent folk may defend themselves against any who try to kill them.
Confirma trou. And all this is confirmed by Deuteronomy, ch. 20, where the Sons of Israel
were ordered to take a certain city by force and to slay every one except
women and little ones.

On the Law of War.

179

36. Hence it follows that even in war with the Turks it is not allowable
to kill children. This is clear, because they are innocent. Aye, and the
same holds with regard to the women of unbelievers. This is clear, because
so far as the war is concerned, they are presumed innocent; but it does not
hold in the case of any individual woman who is certainly guilty. Aye,
and this same pronouncement must be made among Christians with regard
to harmless agricultural folk, and also with regard to the rest of the peace­
able civilian population, for all these are presumed innocent until the con­
trary is shown. On this principle it follows that it is not lawful to slay
either foreigners or guests who are sojourning among the enemy, for they
are presumed innocent, and in truth they are not enemies. The same
448 principle applies to clerics and members of a religious order, for they in
war are presumed innocent unless the contrary be shown, as when they
engage in actual fighting.
37. Second proposition: Sometimes it is right, in virtue of collateral
circumstances, to slay the innocent even knowingly, as when a fortress or
dty is stormed in a just war, although it is known that there are a number
of innocent people in it and although cannon and other engines of war can
not be discharged or fire applied to buildings without destroying innocent
together with guilty. The proof is that war could not otherwise be waged
against even the guilty and the justice of belligerents would be balked. In
the same way, conversely, if a town be wrongfully besieged and rightfully
defended, it is lawful to fire cannon-shot and other missiles on the besiegers
and into the hostile camp, even though we assume that there are some
children and innocent people there.
Great attention, however, must be paid to the point already taken, ■<>*·!
namely, the obligation to see that greater evils do not arise out of the war,
than the war would avert. For if little effect upon the ultimate issue of
the war is to be expected from the storming of a fortress or fortified town
wherein are many innocent folk, it would not be right, for the purpose of
assailing a few guilty, to slay the many innocent by use of fire or engines
■M9 of war or other means likely to overwhelm indifferently both innocent and
guilty. In sum, it is never right to slay the guiltless, even as an indirect
and unintended result, except when there is no other means of carrying on r*er of th·
the operations of a just war, according to the passage (St Matthew, ch. 13) ·αΛοτ·
“Let the tares grow, lest while ye gather up the tares ye root up also the
wheat with them.”
ύ»
38. Here a doubt may arise whether the killing of guiltless persons is
lawful when they may be expected to cause danger in the future; thus, for
example, the children of Saracens are guiltless, but there is good reason to
fear that when grown up they will fight against Christians and bring on
them all the hazards of war. Moreover, although the adult male civilians
of the enemy who are not soldiers are presumed to be innocent, yet they
will hereafter carry a soldier’s arms and cause the hazard named. Now, is
it lawful to slay these youths ? It seems so, on the same principle which
justifies the incidental killing of other guiltless persons. Also (Deuteronomy,

τ8ο

Franciscus de Victoria

ch. 20) the Sons of Israel were ordered when assaulting any city to slay
“every adult male.” Now, it can not be presumed that all of these would
be guilty.
The author’s
My answer is that although this killing may possibly be defended, yet
I believe that it is in no wise right, seeing that evil is not to be done even 450
in order to avoid greater evil still, and it is intolerable that any one should
be killed for a future fault. There are, moreover, other available measures
_
of precaution against their future conduct, namely, captivity, exile, etc.,
as we shall forthwith show. Hence it follows that, Whether victory has
already been won or the war is still in progress, if the innocence of any
soldier is evident and the soldiers can let him go free, they are bound to do so.
on the argnTo the argument on the opposite side my rejoinder is that the slaughter
affirmative16 'n t^ie *nstances named was at the spécial command of God, who was wroth
against the people in question and wished to destroy them utterly, just as
he sent fire on Sodom and Gomorrah which devoured both guiltless and
guilty together. He, however, is Lord of all and has not given this license
as a common law. And the same answer might be made to that passage
On the pas- in Deuteronomy, ch. 20. But, inasmuch as what is there enjoined is in the
“om'oluter1 ^orm °f a common law of war for all future time, it would rather seem
onomy.
· that the Lord enjoined it because all adult males in an enemy State are
deemed guilty, and guiltless can not be distinguished from guilty. There­
fore all may be killed.
Doubt n.
39. The second doubtful point is whether in a just war it is lawful to
Proposidespoil jpnocent enemy-subjects. Let my first proposition be: It is cer­
tainly lawful to despoil the innocent of goods and things which the enemy 451
would use against us, such as arms, ships, and engines of war. This is
clear, because otherwise we could not gain the victory, which is the aim of
war. Nay, it is also lawful to take the money of the innocent and to bum
and destroy their grain and kill their horses, if this is requisite in order to
Corollary.
sap the enemy’s strength. Hence follows the corollary that if the war goes
on for an indefinitely long ritneTt-isTawfu! utterly to despoil all enemy­
subjects, guilty and guiltless alike, for it is from their resources that the
enemy is feeding an aiid^on.the other hand, his strength is
sapped by this spoliation oF4ris~citizens. Z"*·
Pmposi40. Second proposition : If a war can be carried on effectively enough
without the spoliation of the agricultural population and other innocent
Sylvester.
folk, they ought not to be despoiled. Sylvester maintains this (under the
word bellum, I, § 10) on the ground that war is founded on a wrong
done, and therefore the rights of war may not be enforced against the
innocent if the wrong can be redressed in another quarter. Aye, and
Sylvester adds that, even if there were good reason to despoil the innocent,
yet when the war is over the victor is bound to restore to them whatever
dicram V’* “
^1*s» however, I do not think necessary, because, as said above,
pious one, but whatever is done in right of war receives the construction most favorable
does not seem to the daims of those engaged in a just war. Hence, whatever has been 452
necessary.
lawfully seized is not in my opinion subject to restitution. All the same,

On the Law of War.

181

Sylvester’s remark is a pious one and not indefensible. But the spoliation
of foreigners and travelers on enemy soil, unless they are obviously at fault,
is in no wise lawful, they not being enemies.
41. Third proposition: If the enemy refuse to restore things wrongfully seized by them and the injured party can not otherwise properly
recoup himself, he may do so wherever satisfaction is obtainable, whether
from guilty or from innocent. For instance, if French brigands made a
raid into Spanish territory and the French King would not, though able,
compel them to restore their booty, the Spanish might, on the authorization
of their sovereign, despoil French merchants or farmers, however innocent
these might be. This is because, although the French State or Sovereign
might initially be blameless, yet it is a breach of duty, as St. Augustine says,
for them to neglect to vindicate the right against the wrongdoing of their
subjects, and the injured sovereign can take satisfaction from every member Letters of reand portion of their State. There is, accordingly, no inherent injustice in
the letters of marque and reprisals which princes often issue in such cases, themselves,
because it is on account of the neglect and breach of duty of the other prince
453 that the prince of the injured party grants him this right to recoup himself
even from innocent folk. These letters are, however, hazardous and open
the way to plunder.
42. The third doubtful point is: Assuming the unlawfulness of the Doubt in
slaughter of children and other innocent parties, is it permissible, at any .
rate, to carry them off into capitivity and slavery? This can be cleared
up in a single proposition, namely: It is in precisely the same way permisMn.
sible to carry the innocent off into captivity as to despoil them, liberty and wined in *
slavery being included among the good things of Fortune. And so when ^^9ropo'
a war is at that pass that the indiscriminate spoliation of all enemy-subjects
alike and the seizure of all their goods are justifiable, then it is also justi­
fiable to carry all enemy-subjects off into captivity, whether they be guilty
or guiltless. And inasmuch as war with pagans is of this type, seeing that
it is perpetual and that they can never make amends for the wrongs and
damages they have wrought, it is indubitably lawful to carry off both the
children and the women of the Saracens into captivity and slavery. But
inasmuch as, by the law of nations, it is a received rule of Christendom that Chri«tuo
Christians do not become slaves in right of war, this enslaving is not lawful in
a war between Christians; but if it is necessary having regard to the end and
«*<>«■
aim of war, it would be lawful to carry away even innocent captives, such
as children and women, not indeed into slavery, but so that we may receive
454 a money-ransom for them. This, however, must not be pushed beyond
what the necessity of the war may demand and what the custom of lawful
belligerents has allowed.
43. The fourth doubtful point is: Whether it is lawful at any rate to Doubt iv.
kill hostages who have been taken from the enemy, either in time of truce or
on the conclusion of a war, if the enemy break faith and do not abide by
their undertakings. My answer is in a single proposition: If the hostages
are in other respects among the guilty, as, for instance, because they have proposition.

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borne arms, they may rightfully be killed in that case; if, however, they
1 are innocent, as, for instance, if they be children or women or other innocent
folk, it is obvious from what has been said above that they can not be killed.
Doubt v.
44. The fifth doubt is: Whether in a just war it is lawful to kill, at
be^noted11* *° anY rate’
Prefatory to an answer be it noted that, as is shown
by what has been said above, war is waged: Firstly, in defense of ourselves
and what belongs to us; secondly, to recover things taken from us; thirdly,
to avenge a wrong suffered by us; fourthly, to secure peace and security.
Propositioni.
45. This premised, let my first proposition be: In the actual heat of
battle, either in the storming or in the defense of a city, all who resist may be
killed indiscriminately; and, briefly, this is so as long as affairs are in peril.
This is manifest, because combatants could not properly effect their purpose
Wherein con- save by removing all who hinder and resist them. All the doubt and diffisiets the diffi­ culty, however, is to know whether, when we have won our victory and the
culty of this
enemy is no longer any danger to us, we may kill all who have borne arms
doubt.
against us. Manifestly, yes. For, as shown above, one of the military
Argument
for the
precepts given by the Lord {Deuteronomy, ch. 20) was that when a city of
affirmative
the enemy had been taken all dwellers in it were to be killed. The words of
the passage are: “When thou comest nigh unto a place to fight against it,
then proclaim peace unto it. And it shall be if it make thee answer of
peace, and open unto thee, that all the people that is found therein shall
be saved and shall be tributaries unto thee and shall serve thee. But if it
will make no peace with thee, but will make war against thee, then thou
shalt besiege it. And when the Lord thy God hath delivered it into thine
hands, thou shalt smite every male thereof with the edge of the sword, but
not the women and the little ones.”
Proposi­
46. Second proposition: Even when victory has been won and no
tion Π.
danger remains, it is lawful to kill the guilty. The proof is that, as
said above, war is ordained not only for the recovery of property, but also
for the avenging of wrongs. Therefore the authors of a past wrong may
be killed therefor. Again, this is permissible against our own wrongdoing
citizens. Therefore also against foreigners; for, as said above, a prince
when at war has by right of war the same authority over the enemy as if he
were their lawful judge and prince. And a further reason is that, although
there be no present danger from the enemy, yet security for the future can
not be had, unless the enemy be restrained by the fear of punishment.
Proposi­
47. Third proposition: Merely by way of avenging a wrong it is not
tion m.
always lawful to kill all the guilty. TTie proof is that even among citizens
it would not be lawful, not even where the wrong was· done by the whole
city or district, to kill all the delinquents; nor in a common rebellion would
it be permissible to slay and destroy the whole population. Accordingly,
for such a deed, St. Ambrose interdicted Theodosius from the church. For
such conduct would not be for the public good, which is nevertheless the end
and aim of both war and peace. Therefore, it is not right to kill all the
guilty among the enemy. We ought, then, to take into account the nature
of the wrong done by the enemy and of the damage they have caused and

On the Law of War.

183

of their other offenses, and from that standpoint to move to our revenge
and punishment, without any cruelty and inhumanity. In this connection
Cicero says {Offices, bk. 2) that the punishment which we inflict on the
guilty must be such as equity and humanity allow. And Sallust says:
“Our ancestors, the most religious of men, took naught from those they
conquered save what was authorized by the nature of their offenses.”
"Ttf
48. Fourth proposition: Sometimes it is lawful and expedient to Propo»ikill all the guilty. The proof is that war is waged in order to get peace tion 1 '
and security. But there are times when security can not be got save by
destroying all one’s enemies: and this is especially the case against unbe- antwerie
lievers, from whom it is useless ever to hope for a just peace on any terms, ^^pie «dAnd as the only remedy is to destroy all of them who can bear arms against vanced. in
us/yrovided they have already been in fault. That is how the injunction ρ^ο^^οη r.
in Deuteronomy, ch. 20, is to be interpreted. Otherwise, however, in a war
with Christians, where I do not think this would be allowable. For, as it
needs must be that scandals come (St. Matthew, ch. 18) and also wars
between princes, it would involve the ruin of mankind and of Christianity
if the victor always slew all his enemies, and the world would soon be
reduced to solitude, and wars would not be waged for the public good, but
'to the utter ruin of the public. The measure of the punishment, then,
must be proportionate to the offense, and vengeance ought to go no further,
and herein account must be taken of the consideration that, as said above,
subjects are not bound, and ought not, to scrutinize the causes of a war,
but can follow their prince to it in reliance on his authority and on public
458 counsels. Hence in the majority of cases, although the war be unjust on
the other side, yet the troops engaged in it and who defend or attack cities
are innocent on both sides. And therefore after their defeat, when no
further danger is present, I think that they may not be killed, not only not
all of them, but not even one of them, if the presumption is that they
entered on the strife in good faith.
'vi
4^. Sixth doubt: Whether it is lawful to slay those who have surren- Doubt vl
dered or been captured, supposing them also to have been guilty. My The author'»
answer is that, speaking absolutely, there is nothing to prevent the killing
of those who have surrendered or been captured in a just war so long as
abstract equity is observed. Many of the rules of war have, however, been
fashioned by the law of nations, and it seems to be received in the use and
custom of war that captives, after victory has been won (unless perchance
they have been routed) and all danger is over, are not to be killed, and the
law of nations must be respected, as is the wont among good people. But
I do not read or hear of any such custom with regard to those who have
surrendered; nay, on the capitulation of a fortress or city it is usual for
those who surrender to try and provide for themselves in the conditions of
the capitulation, as that their heads shall be safe and that they shall be let
go in safety; that is, they fear that an unconditional surrender would mean
459 their deaths. We read of this being several times done. Accordingly, it
does not seem unjust that, if a city capitulates without taking any such

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Franciscus de Pictoria

precautions, the more notorious offenders should be put to death on the
order of the prince or a judge.
Doubt VII.
50. Seventh doubt: Whether everything that is captured in a just war
Proposi­
becomes
the property of the captor and seizor. My first proposition hereon
tion I.
is: There is no doubt that everything captured in a just war vests in the
seizor up to the amount which provides satisfaction for the things that
have been wrongfully seized and which covers expenses also. This needs
no proof, for that is the end and aim of war. But, apart from all considera­
tion both of restitution and satisfaction, and looking at the matter from the
standpoint of the law of war, we must distinguish according as the things
captured in war are movables (like money, garments, silver, and gold),
or are immovables (like lands, cities, and fortresses).
Proposi­
51. This being assumed, let my second proposition be: All movables
tion Π.
vest in the seizor by the law of nations, even if in amount they exceed
what will compensate for damages sustained. This is clear from Dig., 49,
15, 28 and 24, and from can. 9, Dist. 1, and it is more expressly laid down
in Inst., 2, I, 17, where it is said that “by the law of nations whatever is
taken from the enemy immediately becomes ours, even so far as that free
persons may be made our slaves.” And St. Ambrose says (Liber de
Patriarchis} that when Abraham slew the four kings their spoil belonged to 460
him as the conqueror, although he refused to take it (Genesis, ch. 14, and
can. 25, C. 23, qu. 5). And this is confirmed by the authority of the Lord
(Deuteronomy, ch. 20), where He says concerning the storming of a town:
“All the spoil thereof thou shalt divide with the army and thou shalt eat
of the spoil of thine enemies.” Adrian holds this opinion in his quaestio
on restitution, in the special quaestio on war. So, also, Sylvester, under the
word bellum, § 1 and § 9, where he says that he who fights a just cause is not
Corollary.
bound to give back his booty (can. 2, C. 23, qu. 7). “Hence it follows
that what is taken in war is not used as a set-off against the principal
debt, as the Archdeacon also holds (can. 2, C. 23, qu. 2).” And Bartolus
is of the same opinion, in his comment on Dig., 49, 15, 28. And this is
understood to be so even if the enemy be ready to make amends in other
ways for the damages and wrongs suffered. Sylvester, however, limits this,
and rightly, allowing it only until a satisfaction sufficient in equity has
been taken for the damages and wrongs suffered. For it is not to be
imagined that, if the French have ravaged some one district or insignificant
town in Spain, the Spanish might also, if they could, ravage the whole of
France; they can only retort in a manner proportionate in kind and degree
to the wrong done, according to the estimate of a good man.
52. But on this conclusion a doubt arises, namely, whether it is right
Incidental
doubt.
to
give
a city up to the soldiery to sack. My answer is, and let this be my
Answer
third
proposition:
This is not unlawful in itself, if necessary for the conduct 461
thereto.
Proposi­
of the war or as a deterrent to the enemy or as a spur to the courage of the
tion m.
troops. So Sylvester, under the word bellum, § 10. It is on the same
Sylvester.
principle as that which justifies the burning of a city for reasonable cause.
Nevertheless, inasmuch as such authorization to sack results in many

On the Law of War.

185

horrors and cruelties, enacted beyond all humane limits by a barbarous
soldiery, such as slaughter and torture of the innocent, rape of virgins,
dishonor of matrons, and looting of temples, it is undoubtedly unjust in
the extreme to deliver up a city, especially a Christian city, to be sacked,
without the greatest necessity and weightiest reason. If, however, the
necessities of war require it, it is not unlawful, even if it be likely that the
troops will perpetrate foul misdeeds of this kind, which their generals are
none the less bound to forbid and, as far as they can, to prevent.
53. Fourth proposition: Despite all this, soldiers may not, without Propo»the authority of their prince or general, go looting or burning, because they tionIV·
are themselves not judges, but executive officers; and those who do other­
wise are bound to make restitution.
54. Now, with regard to immovable property and things, the difficulty Propol­
is greater, and let my fifth proposition be: There is no doubt about the tton v’
—x lawfulness of seizing and holding the land and fortresses and towns of the
462 enemy, so far as is necessary to obtain compensation for the damages he
has caused. For instance, if the enemy has destroyed a fortress of ours,
or has burnt a city or vineyards or olive gardens, we may in turn seize his
land or fortress or city and hold it. For if it is lawful to exact compensa­
tion from the enemy for the things of ours which he has taken, it is cer­
tain that by the divine law and natural law it is not more lawful to take
recompense therefore in movables than in immovables.
•
55. Sixth proposition: In order to obtain security and avoid danger Proponfrom our enemy it is also lawful to seize and hold a fortress or city belonging doa
to him which is necessary for our defense or for taking away from him an
opportunity of hurting us.
56. Seventh proposition: It is also lawful, in return for a wrong Ρ»ροβreceived and by way of punishment, that is, in revenge, to mulct the enemy üo“ 711
of a part of his territory in proportion to the character of the wrong, or
even on this ground to seize a fortress or town. This, however, must be
done within due limits, as already said, and not as utterly far as our strength
and armed force enable us to go in seizing and storming. And if necessity
and the principle of war require the seizure of the larger pan of the enemy’s
land, and the capture of numerous cities, they ought to be restored when the
463 strife is adjusted and the war is over, only so much being retained as is
just, in way of compensation for damages caused and expenses incurred and
of vengeance for wrongs done, and with due regard for equity and humanity,
seeing that punishment ought to be proportionate to the fault. Thus it
would be intolerable that, if the French raided the flocks of the Spanish
or burnt a single district, the latter should be allowed to seize the whole
Kingdom of France. Now, the lawfulness of seizing on this score either a
part of enemy territory or an enemy city appears from Deuteronomy, ch. 20,
where permission is granted in war to seize a city that has refused to accept
terms of peace. Again, internal wrongdoers may be punished in this way,
that is, they may be deprived of house or land or a fortress, in proportion
to the character of the circumstances. Therefore foreigner wrongdoers also.

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Franciscus de Victoria.

Again, a superior judge has competence to mulct the author of a wrong by
taking away from him a city (for instance) or a fortress. Therefore a prince
who has suffered wrong can do this too, because by the law of war he is put
in the position of a judge. Again, it was in this way and by this title that the
Roman Empire grew and developed, that is, by occupation, in right of war,
of cities and provinces belonging to enemies who had injured them, and
yet the Roman Empire is defended as just and lawful by St. Augustine,
St. Jerome, St. Ambrose, St. Thomas, and other reverend doctors. Nay,
it might be held approved by God in the passage, “Render unto Caesar the 464
things that are Caesar’s,” and by St. Paul, who appealed unto Caesar and
who in Romans, ch. 13, gave an admonition to be subject to the higher
powers and to princes and to pay tribute to those who at that time, all of
them, derived their authority from the Roman Empire.
Doubt vm.
57. Eighth doubt: Whether it is lawful to impose a tribute on con­
quered enemies. My answer is that it is undoubtedly lawful, not only
in order to recoup damages, but also as a punishment and by way of revenge.
Answer.
This is clear enough from what has been said above and from the passage in
Deuteronomy, ch. 20, which says that when the Jews have approached a city
with good cause in order to attack it, if the city receives them and opens
its gates, all the people therin shall be saved and shall serve the Jews with
payment of tribute. And this law and usage of war has prevailed.
Doubt IX.
58. Ninth doubt: Whether it is lawful to depose the princes of the
enemy and appoint new ones or keep the princedom for oneself. First
Proposi­
proposition: This is not unqualifiedly permissible, nor for any and every
tion I.
cause of just war, as appears from what has been said. For punishment
should not exceed the degree and nature of the offense. Nay, punishments
should be awarded restrictively, and rewards extensively. This is not a
rule of human law only, but also of natural and divine law. Therefore,
even assuming that the enemy’s offense is a sufficient cause of war, it will 465
not always suffice to justify the overthrow of the enemy’s sovereignty and
the deposition of lawful and natural princes; for these would be utterly
savage and inhumane measures.
59- Second proposition: It is undeniable that there may sometimes
arise sufficient and lawful causes for effecting a change of princes or for
seizing a sovereignty; and this may be either because of the number and
aggravated quality of the damages and wrongs which have been wrought or,
especially, when security and peace can not otherwise be had of the enemy
and grave danger from them would threaten the State if this were not done.
This is obvious, for if the seizure of a city is lawful for good cause, as has
been said, it follows that the removal of its prince is also lawful. And the
same holds good of a province and the prince of a province, if propor­
tionately graver cause arise.
Wore!
Note, however, with regard to Doubts VI to IX, that sometimes, nay,
frequently, not only subjects, but princes, too, who in reality have no just
cause of war, may nevertheless be waging war in good faith, with such
good faith, I say, as to free them from fault; as, for instance, if the war is

On the Law of War.

187

made after a careful examination and in accordance with the opinion of
learned and upright men. And since no one who has not committed a
466 fault should be punished, in that case, although the victor may recoup
himself for things that have been taken from him and for any expenses of
the war, yet, just as it is unlawful to go on killing after victory in the war
has been won, so the victor ought not to make seizures or exactions in
temporal matters beyond the limits of just satisfaction, seeing that any­
thing beyond these limits could only be justified as a punishment, such as
could not be visited on the innocent.
----- 60. All this can be summarized in a few canons or rules of warfare. Three rui»·
First canon: Assuming that a prince has authority to make war, he should J*’"*"*·
first of all not go seeking occasions and causes of war, but should, if possible,
live in peace with all men, as St. Paul enjoins on us {Romans, ch. 12).
Moreover, he should reflect that others are his neighbors, whom we are
bound to love as ourselves, and that we all have one common Lord, before
whose tribunal we shall have to render our account. For it is the extreme
of savagery to seek for and rejoice in grounds for killing and destroying men
whom God has created and for whom Christ died. But only under com­
pulsion and reluctantly should he come to the necessity of war.
Second canon: When war for a just cause has broken out, it must not n.
be waged so as to ruin the people against whom it is directed, but only so
''*-367 as to obtain one’s rights and the defense of one’s country and in order that
from that war peace and security may in time result.
Third canon: When victory has been won and the war is over, the in.
victory should be utilized with moderation and Christian humility, and the
victor ought to deem that he is sitting as judge between two States, the
one which has been wronged and the one which has done the wrong, so that
it will be as judge and not as accuser that he will deliver the judgment
whereby the injured state can obtain satisfaction, and this, so far as possible
should involve the offending state in the least degree of calamity and mis­
fortune, the offending individuals being chastised within lawful limits; and
an especial reason for this is that in general among Christians all the fault
is to be laid at the door of their princes, for subjects when fighting for their
princes act in good faith and it is thoroughly unjust, in the words of the
poet, that—
Quidquid delirant reges, plectantur Achivi.
(For every folly their Kings commit the punishment should fall upon the Greeks.)

THE

CLASSICS OF INTERNATIONAL LAW
EDITED BY

James Brown Scott
Member of the Institute of International Law
President of the American Institute of International Law

DE INDIS ET DE IVRE BELLI RELECTIONES
BEING PARTS OF

RELECTIONES THEOLOGICAE XII
By Franciscus de Victoria
ul

Primary Professor of Sacred Theology in the University of Salamanca

Edited by Ernest Nys
Professor of International Law in the University of Brussels
I. Introduction by Ernest Nys, and Translation (by John Pawley Bate) of
the Introduction by Ernest Nys.
II. A Translation of the Text, by John Pawley Bate.
III. Revised Text, by Herbert Francis Wright, with Prefatory Remarks, List
°F Errata, and Index of Authors Cited.
IV. A Photographic Reproduction of Simon’s Edition of 1696.

pressor rro
6

Preface.

ments and references to them to be found in treatises on International
Law, or is driven to examine them in European libraries, often a
difficult task, while the general reader is practically barred from the
stores of knowledge locked up in earlier works on the Law of Nations.
The same difficulty exists in Latin America, Japan, and in a lesser
degree in many European countries.
Eminent publicists, European and American, who have been
consulted as to the usefulness of the plan to republish the Classics,
have endorsed the project and have pledged their personal coopera­
tion. The works to be included in the series have not only been
approved but suggested by them, so that the undertaking is inter­
national in scope, in selection, and in execution.
The underlying principle of selection has been to reissue those
works which can be said to have contributed either to the origin or to
the growth of International Law and the term classic has been used
in the broad rather than in the narrow sense, so that no work will be
omitted which can be said to have contributed to the origin or growth
of the Law of Nations. The masterpieces of Grotius will naturally
be the central point in the series, but the works of his leading prede­
cessors and successors will likewise be included. The text of each
author will be reproduced photographically, so as to lay the source
before the reader without the mistakes which might creep into a
newly printed text. In the case of the early authors the photographed
text will be accompanied by a revised text whenever that course shall
seem desirable. An Introduction will be prefixed to each work,
giving the necessary biographical details and stating the importance
of the text and its place in International Law; tables of errata will be
added, and notes deemed necessary to clear up doubts and ambiguities
or to correct mistakes in the text will be supplied. Variations in
successive editions of the text published in the author’s lifetime will
be noted, but little or nothing in the nature of historical commentary
will be furnished.
Each work will be accompanied by an English version made
expressly for the series by a competent translator.
It is hoped that the series will enable general readers as well as
specialists to trace International Law from its faint and unconscious
beginnings to its present ample proportions and to forecast with some
degree of certainty its future development into that law’ which
Mirabeau tells us will one day rule the world.
James Brown Scott,

General Editor.
Washington*, February 19, Ι9Ζ7·

FRANCISCI DE VICTORIA

DE INDIS ET DE IVRE BELLI
RELECTIONES
EDITED BY

ERNEST NYS
Honorary Doctor, Edinburgh, Glasgow, and Oxford
Member of the Institute of International Late
Member of the International Court of Arbritation at The Hague

Published by the Carnegie Institution of Washington
Washington, 1917