Mediaeval Philosophical Texts in Translation

No. 34

Roland J. Teske, S.J., Editor

Editorial Board
Lee C. Rice
Mary E Rousseau
John L. Treloar, S.J.
Wanda Zemler-Cizewski

Francisco de Vitoria, O.P.

RELECTION ON HOMICIDE

Commentary on Summa theologiae
(Thomas Aquinas)

Translated from the Latin
with an Introduction and Notes

by
John P. Doyle

UNIVERSITY
PRESS

p.

Library of Congress Cataloguing in Publication Data
Vitoria, Francisco de, 1486?-1546.
[De homicidio. English 8t Latin]
On homicide I by Francisco de Vitoria ; [containing! Relection on
homicide & Commentary on Summa theologiae Ila-IIae Q. 64 (Thomas
Àquinas) ; translated from the Latin with an introduction and notes

by John P. Doyle.

p. cm.

(Mediaeval philosophical texts in translation ; no. 34)

Includes also English translation of Aquinas’ Summa theologiae, Ila-IIae, Qu· 64.
Includes bibliographical references.

ISBN 0-87462-237-9 (pbk.)
1. Homicide (Canon law) I. Doyle, John P., 1930-

11. Vitoria, Francisco de, 1486M546. Quaestio sexagesimaquarta De homicidio.

Engjish & Latin. 1997. III.Thomas, Aquinas, Saint, 1225?-1274. Summa theologica.
Secunda secundae. Questio 64. English. 1997. IV. Title. V. Series.
LAW
262.9'35—dc21

'

96-51253

All right
*
reserved. No pan of this publication may be
rndnced. stored in > retrieval system, or transmined in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise,

Makouette UwvrasrrT Press
Kll.«AVnt

·! Jewel Pnieerrtty Prewe
*

Dedication

To Mary Gale
With Love and Gratitude

Table of Contents

Foreword..................................................................................................................... 9
Introduction............................................................................................................. 11

I. Vitoria’s Life, Work and Influence....................................................................... 11
II. The Relection “On Homicide.............................................................................14
III. The Commentary on Summa Theologiae Ila-IIae, qu. 64, aa. 1-81........ 24

IV. Some Remarks on the Translation.................................................................... 39

Notes to the Introduction......................................................................................40

The Texts of Vitoria................................................................................................ 49

I. The Relection “On Homicide”............................................................................ 49
A. Contents............................................................................................................... 51
B. The Text of the Relection................................................................................. 57
[Introduction]............................................................................................................ 57

[The First Conclusion]........................................................................................... 57

[First Proof of the First Part of the Conclusion]............................................... 57
[Second Proof of the First Part of the Conclusion].......................................... 79
[Third Proof of the First Part of the Conclusion]............................................ 85
[Fourth Proof of the First Part of the Conclusion].......................................... 85

Notes to the Latin Text........................................................................................106
Endnotes to the Translation............................................................................... 107

8

Francisco de Vitoria, On Homicide

IL The Commentary on Summa Theologiae Ila-IIae, qu. 64, aa. 1-8:....... 119

Article One: Whether it is unlawful to kill any living things at all............. 121
Article Two: Whether it is lawfill to kill sinners................................................ 139

Article Three: Whether it is laufiilfora privateperson to kill a sinful man....... 155

Article Four: Whether it is lawfulfor clerics to killfelons................................ 163
Article Five: Whether it is lawfulfor anyone to kill himself.......................... 169

Article Six: Whether it is lawful in some case to kill an innocent person....... 185
Article Seven: Whether it is lawfill to kill someone in selfdefense..................193
Article Eigjit: Whether someone who kills a man by chance is guilty ofhomicide...... 205

Notes to die LatinText..........................................

..... 208

Notes to the Translation........................... ..................................................... .. 209
The Text of St. Thomas in Summa theologiae 1I’-1I“, qu. 64.................... 239

Appendix A................ ................................ ...... .............. ......................
Appendix B......................... ..................................................................
Appendix C............................................................................................. ......
Bibliography......................................................................................
Subject Index..... .............................................................................................

Name Index................................................................................. :............. .

253

Foreword
There are no more current topics of ethical debate than euthanasia, assisted
suicide and abortion—more generally, the taking of innocent human life, as
well as the morality of capital punishment. Recently, Pope John Paul II in his
encyclical “The Gospel of Truth” (Evangelium Vitae, 1995) has declared,

By the authority which Christ conferred upon Peter and his successors, and in
communion with the bishops of the Catholic Church, I confirm that the direct
and voluntary killing of an innocent human being is always gravely immoral.
This doctrine, based upon the unwritten law which man, in the light of reason
finds in his own heart (Cf. Rom 2:14-15) is reaffirmed by the Sacred Scriptures,
transmitted by the tradition of the church and taught by the ordinary and uni­
versal magisterium (n. 57).
Furthermore, the pope applies this general principle to the cases of abortion
(n. 62), euthanasia (n. 65), and suicide (n. 66). On the other hand, he con­
cedes that capital punishment may in extreme cases be necessary to defend
the order of justice in society, although, “Today, however, as a result of steady
improvements in the organization of the penal system, such cases are very
rare if not practically nonexistent.”
These very solemn statements, although they are not in the form of infal­
lible pronouncements, are clear papal assertions that these doctrines havealways
been recognized in the Church as part of its ordinary and universal and there­
fore infallibly true teaching. This is also witnessed by their inclusion in The
Catechism of the Catholic Church (1994, cf. nn. 2268-2283) after consulta­
tion of the entire episcopate.
A few years ago I had the privilege of participating in one of the official
Catholic-Protestant dialogues, the topic of which was these same issues. Dur­
ing the course of the dialogue the Protestant participants expressed surprise
that the Catholics had such elaborately developed views on these topics con­
cerning which the Biblical texts seemed so diverse and inconclusive. I was
assigned the task of preparing a paper on the history of the doctrinal develop­
ment in the Catholic tradition of the opposition to suicide and euthanasia. In
doing so I discovered the excellent treatise De Homicidio of the Jesuit theolo­
gian Cardinal Juan de Lugo (1583-1600). I later mentioned this to John Doyle,
whom I knew to be a specialist on the Jesuit philosophers of Baroque scholas­
ticism, and he said, “Oh you must consult your Dominican Francis Vitoria
who is the real source of these ideas!”
Therefore, I am very happy to see that Professor Doyle has made Vitoria’s
thorough analyses of this basic moral topic, still so much debated in our own

yO

Francisco de Vitoria, On Homicide

times and so central to the Catholic moral tradition, available in Latin and iri
an accurate translation, along with a brief biography and a very helpful com­
mentary. Certainly Vitoria did not say the last word on these issues. Some of
his opinions suffer from his historical limits. For example, he discusses whether
the state might permit a husband to kill his adulterous wife, but not whether
it might permit a wife to kill an adulterous husband! On a few points he
seems to have changed his own mind. Nevertheless, the penetrating clarity of
his moral reasoning is for the most part still valid and highly instructive.
What is especially noteworthy is that Vitoria, although he had studied with
the famous nominalist John Major, is genuinely a Thomist, not a nominalist,
Γ a voluntarist, or legalist. Although he does not neglect the role played by
I positive law in moral decision, he seeks always to ground his reasoning in the
! natural law as a participation in the Divine Law, that is, in the reasoned con^formity of human action to the requirements of God-given human nature.
Professor Doyle has not merely contributed to historical scholarship by this
fine publication, but to the solution of the grave moral problems of our times
by making available to us this model of sound ethical reasoning.
Benedict M. Ashley, Ô.P., S.T.M.

Introduction
I. Vitoria’s Life, Work and Influence1
The earliest birthdate proposed for Francisco de Vitoria2 is 1480.3 Other
dates which have been suggested include: 1483,1486,1492, and 1493.4Most
probably, he was born in 14925 of a Basque family in Burgos. His father was
Pedro de Vitoria and his mother was Catalina de Compludo, whose family
generations back had likely been converted from Judaism.6 He had two broth­
ers, Diego who would, like Francisco, later become a Dominican, and Juan
who married and became the father of a Jesuit, Juan Alfonso de Vitoria.7
If the 1492 date is correct, then Vitoria possibly at age nine in 1501 entered
the Dominican convent of San Pablo at Burgos. Here he studied Latin and
Greek and made his formal profession as a Dominican most plausibly in 1506.
In 1509 he was sent by the Dominicans to the University of Paris to take aca­
demic degrees, first in arts and then in theology.8 He was in Paris until 1523.
Although much reduced from what it had been in the thirteenth century,
Paris was still the first ranking university in Europe. Both in arts and theol­
ogy, the dominant thought in its schools was nominalistic. At the turn of the
sixteenth century, the university was undergoing a strong revival driven by
religious and also humanistic forces.9 This revival flourished most especially _
in two colleges attached to the Sorbonne, namely, the College of Montaigue
and the Dominican College of St. Jacques. At Montaigue (where Desiderius
Erasmus [ca. 1466-1536] and later Ignatius of Loyola [1491-1556] studied)
reform had been initiated by John Standonck (1443-1504).10 Among others
there was the famous Scottish nominalist, John Mayor (1469-1550) — who
taught first in arts (logic and philosophy) and then in theology. Disciples of
Mayor at Montaigue included Erasmus, for whom Vitoria in Paris had great
admiration, Peter Crockaert (ca. 1460/70-1514) and Jacob Almain (ca. 14801515).
When Vitoria entered the College of Saint Jacques, it was far along the path
of its reform, begun under the rigorous guidance of Jean Clerée, O.P. (14551507).11 Within its walls were over three hundred friars, most of them stu­
dents from Dominican provinces outside France.12 Vitoria’s most important
teachers in this period were the Spaniard, Juan de Celaya (ca. 1490-1558),13
who taught arts in a nominalist fashion at the College of Coqueret, and the
Fleming, Peter Crockaert. Coming from Montaigue, Crockaert had joined
the Dominican order in 1503 and had gone on to teach first philosophy and
then theology at St. Jacques. It was Crockaert who in 1507 inaugurated at 3
Paris a practice which Cajetan (a.k.a. Tommaso de Vio [1469-1534]) and
Ferrara (Francesco de Silvestri [ca. 1474-1528]) were following about the
same time in Italy, viz. employing the Summa Theologiae of St. Thomas Aquinas

Francisco de Vitoria, On Homicide

12

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fl
1;

as the base of their lectures. In addition to Crockaert, another of Vitoria’s St.
Jacques teachers who exercised much influence upon him was Jean Feynier
(Fenarius — d. 1538), one of the most learned men of the time and after­
wards a Master-General of the Dominicans.14 It was probably from Feynier
that Vitoria took the model for his own teaching style and his interest in
current issues. And most likely it was Feynier who recommended Vitoria to
the Dominican Chapter General at Genoa in 1513 for a position in Paris
lecturing on theology.15
Complying with a mandate of the Chapter General,16 Vitoria, while still a
student (i.e. as a “bachelor sententiarius”17), began his teaching at St. Jacques
in 1516-1517. For this he used the Sentences of Peter the Lombard, which
had from the twelfth century on been the standard text for theological in­
struction,18 and whose use had been reaffirmed by the Genoa Chapter, under
the Master-Generalship of Cajetan. However, before he left Paris Vitoria was,
like Crockaert, using the Summa Theologiae for his lectures.19
It was during this first period of his teaching that, under Crockaert’s direction, Vitoria edited and wrote a preface for the Second Part of the Second
Part (II1-!I“) of the Summa Theologiae ofAquinas, published at Paris in 1512.20
Hedid other editingworkontheSéTTwowé’r do/mnziaZwofPedrodeCovarrubias.

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O.P. (d. 1530), which was published in two volumes at Paris in 1520.21 The
next year he worked on and wrote a preface for a new four volume edition of
the Summa theologiae moralis of Antoninus of Florence (1389-1459).22
Antoninus was canonized in 1523 and in the years that followed, his Summa

a

exercised great influence on Vitoria’s thinking.23 In 1521-22, Vitoria also co­
operated on a three volume Parisian edition of the Dictionariumseu repertorium
morale of the Benedictine, Pierre Bersuire (1290-1362), for which edition
again he wrote a preface.24 The elegant Latin of Vitoria’s prefaces bears the
stamp of his early lessons learned well at San Pablo.
On the 24th of March, 1522, having completed his studies, Vitoria re­
ceived his licentiate in theology from the University of Paris and then on June
21st of the same year he was awarded his doctorate.25 It was most probably
also in that year that he journeyed to visit relatives in Flanders, which place he
mentions a number of times in his lectures after. Sometime before, at a date
uncertain for us, he had been ordained a priest.26
In 1523 Vitoria returned to Spain to teach theology at the Dominican college of San Gregorio in Valladolid.27 Two years later, having been proposed by
the Dominicans as their candidate for the principal chair of theology (Catedra
de Prima) at the University of Salamanca, he was elected to it by a large majority of students voting.28 At this time, he took up residence at the Dominican convent of San Esteban in Salamanca. There his first lectures were on the
Second Part of the Second Part of the Summa. In this, he introduced to
Salamanca Crockaert’s substitution of St. Thomas for the Lombard.

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Introduction

13

Yet another innovation which Vitoria introduced at Salamanca was the
“dictatum” the practice of slowly dictating his lectures in order to allow stu­
dents to copy every word. Descended from the medieval custom of “reportatio,"
the dictatum was employed at Paris during his time there.29 It had earlier been
controversial,30 but Vitoria had become convinced of its value and brought it
back with him to Spain.31 One very important byproduct of the dictatum is
the confidence we can have even now in the notes of his students, which are
the only form in which his lectures survive. To be sure, these notes do have
( defects and certainly contain many things which Vitoria would have improved
if he himself had edited them for publication.32 Despite this, the notebooks
of Vitoria’s students are both impressive and valuable, as may be seen from
the Relection “On Homicide” and the Commentary on IP-II“, question 64.
In the years that followed his election to the Câtedra de Prima, Vitoria was
chiefly occupied with teaching theology at Salamanca. Again, his main ve­
hicle for that teaching was the Summa Theologiae of Aquinas, on all of whose
parts he lectured at least one time. In this, his preference lay with the Second 1
Part of the Second Part,33 which he treated twice: first between 1526 and I
1529 and then from 1534 to 1537. But in addition to his lectures, he played J

a role in various theological disputes and gave expert opinions on different
issues.34 Among such disputes and issues was the case of Erasmus, accused in
1527 at Valladolid before a commission of the Inquisition. Participating in
this commission, Vitoria opined that Erasmus had rashly questioned doc­
trines on the Trinity and the Incarnation which had been universally held up
to that time.35 With this, Vitoria adopted toward the Dutch humanist a new
attitude, very different from that of his days in Paris.36
Vitoria also kept abreast of the political events of the day, especially those
taking place in the New World. Growing out of this last was his most famous
judgment on the Spanish conquest of the American Indians37 and his con­
nected theory of just war.38 It is primarily on the basis of his teaching on these
matters that he has often been regarded as the “father of international law.”39
Despite his criticisms of Spanish policy toward France40 and his condem- <
nation of Spanish excesses in America, Vitoria remained in the good graces of
Emperor Charles V (1500-58; King of Spain: 1516-56; Holy Roman Em- \
peror: 1519-56).41 Indeed, his favor with the emperor was an important fac­
tor in the positive reception of that condemnation and the adoption in 1542
of “The New Laws of the Indies,” which has been called the “most Christian
code ever promulgated in a colonial situation.”42 Again, this favor was prob­
ably instrumental in Charles personally asking him in 1545 to be in the Spanish
delegation to the Council of Trent, summoned that year by Pope Paul III
(1468-1549; pope: 1534-1549). Unfortunately, Vitoria’s health prevented his
acceding to the emperor’s request. His reply, instead, was that rather than
going to Trent he was on his way to “another world.” In the same connection,

14

Francisco de Vitoria, On Homitide

he wrote to Prince Philip (1526-98; King of Spain [as Philip II]: 1556-98):
explaining that for the last six months he had been like one “crucified on his
bed.”43 In the time that followed, the poor health with which he was afflicted
for most of his life44 worsened, his pain increased, and finally he died on
August 12,1546.45
Except for the mentioned prefaces, Francisco de Vitoria himself published
nothing. Luis Alonso Getino has classified his literary output as follows.
“Vitoria’s bibliography contains three kinds of work: (1) those of other au­
thors which he published,... (2) those of his which others published [after his
death], and (3) those which are found as manuscripts in archives.”46The present
translations were made from works in the second group.
Rather than by published work it was by his teaching that, during and
after Spain’s golden sixteenth century, Vitoria influenced the ethical and po­
litical thought of countless disciples. There are estimates of up to 1000 audi­
tors attending some of his lectures.47 He himself in one place comes close to
confirming that figure.48 But more than this, in the century that followed his
death, almost all the great moralists of the age looked back to Vitoria as their
foremost authority. On the Catholic side of the religious divide, starting with
his successors in the Cdtedra de Prima at Salamanca,49 their names are an
honor roll of Spanish and Counter-Reformation scholasticism.50 But also
outside Spain and Catholic circles, in the dawning age of international jurispru­
dence, Vitoria exercised evident influence on important figures such as Hugo
Grotius (1583-1645) and Alberico Gentili (1552-1608).51 Looking at all his
influence and at the dearth of work published while he lived, it was with
perfect truth that Domingo Bafiez (1528-1604) would refer to him as “an­
other Socrates”.52
II. The Relection “On Homicide. ”
A. “Relection.”
Literally a “re-lecture,” the term “relection” refers to the practice in which
professors at Salamanca were required to represent in a formal manner some
topic treated in their lecture courses each year.53 In ways a successor to the
medieval Quaestio quodlibetalis?
*
a Salamanca relection was open to the whole
university community. Unlike its medieval forerunner, however, the relection
took the form of a set speech, rather than a question and reply exchange
between the master and his students or those in attendance.55 The custom
was for the master to prepare his own manuscript and read from it for the
space of two hours, measured by a water dock.56 At Salamanca the practice went
back to 1422 when it was sanctioned by Pope Martin V (pope: 1417-1431).57
After Vitoria, it was continued by Domingo Soto (1494-1560) and others.58

Introduction

15

B. Vitoria’s Relections.
In all Vitoria delivered fifteen relections, ofwhich thirteen have been printed
from his students’ notes.59 These were numbered as twelve and originally pub­
lished in 1557 at Lyons by the French printer, Jacques Boyer. Inasmuch as
Boyer was an outsider, and not even a Spaniard, his action annoyed and em­
barrassed the Dominicans at Salamanca who after Vitoria’s death had set up a
commission to edit and publish his work. This commission had been inactive
but upon the advent of Boyer’s volumes it was revived with the aim of using
more and better manuscripts to bring out an edition much superior to that of
the Frenchman. However, the new edition, which appeared at Salamanca in
1565, was basically a reworking of Boyer’s effort. Connected with this, it has
been the subject of debate and different judgments among modern scholars.
Getino, for example, regarded it as quite inferior to the first edition on which
it is based.60 Vicente Beltran de Heredia, on the other side, thought it very
much better than the first edition.61 Teôfilo Urdânoz is somewhere in be­
tween and has concluded that both editions should be used to make a mod­
ern critical edition.62 In any event, since these first two editions there have
been more than a score of reprints in whole or in part of Vitoria’s relections,
none of which notably change the first two editions.63

C. The Text ofthe Relection “On Homicide."
Although it was third in chronological order among Vitoria’s relections,
“On Homicide” was placed tenth in the logical order of Boyer, which all
subsequent editors followed.64 In addition to printed texts, the relection “On
Homicide” still exists in six manuscripts. These are found in Palencia, Valencia,
Granada, Rome, Seville, and Vienna.65 Since I have not seen any of these, for
text I have relied upon “the critical edition of the Latin text” {Ediciàn critica
del texto latino) made by Urdànoz,66 checking it at times against the Boyer
edition which has been photographically reproduced by Getino.67
The text of “On Homicide” bears the signs of its being hastily composed
after a period in which Vitoria was ill. He himself tells his audience that he
was not allowed to postpone its delivery. This should be understood against
the background of a system of fines which was then in force at Salamanca.
The masters were required to give relections and were allowed to evade or postpone them only in the most exceptional circumstances. Short of that
they were subject to a large fine of ten doubloons (3650 maravédis).68
The most obvious signs of the relection’s hasty composition are three. First
is the fact that Vitoria raises an opening question but afterwards addresses it
only in part. Second is the fact that at the end of the relection he has raised ■ ;
seventeen objections to his position but has overlooked one of them (number
sixteen) in his replies. And third, unlike his practice in other relections, in the

16

Francisco de Vitoria, On Homicide

relection, “On Homicide,” Vitoria has made little attempt to give exact refer­
ences to texts and persons which he mentions or is reflecting.69

D. Exposition ofand Thoughts upon the Relection “On HomicideT
The following exposition and thoughts, as well as their counterparts with
respect to ΙΡ-Π“, q. 64, are not meant to be exhaustive. While at times they
will engage wider issues, their chief purpose is to help readers without much
background in Scholastic thought make their way through Vitoria’s thinking
on a multifaceted subject which is perennially interesting in itself as well as
important for understanding much that he wrote about the conquest of the
- New World and just war in general. For more than main line help readers are
referred to the extensive notes attached to both this relection and the com­
mentary on question 64.
Opening “On Homicide,” Vitoria asks: Is it the act ofa brave man to kill
himselfor, when he could save his life, to embrace death? And when and to what
extent is this either lawfid or laudable? He will answer that “while it is always
sinful to inflict death upon oneself, to suffer death patiently and to undergo it
freely is generally counseled and sometimes commanded.” The total thrust of
the relection, which to my knowledge is the most extended treatment of sui­
cide up to the time of its appearance, will be to prove the first part of this
answer: that it is always sinful to bring about one’s own death. In proving this
first part, Vitoria will proceed in four steps.
f First, he will argue that suicide is always sinful because it contradicts a God­
given natural inclination to preserve one’s life. This will occasion a meta­
physical discussion of the basic goodness of our natural inclinations and give
Vitoria an opportunity to voice his Catholic optimism about human nature.
J This optimism will appear in other parts of his work and will undoubtedly
( play a role in his willingness to accept the pagan Indians of the New World as
i by nature persons, masters of themselves and their possessions, and in this
i equal to Europeans.70 In addition, the first argument will allow Vitoria to
' speak of the power of God and to separate himself from the nominalist posi­
tion of Gabriel Biel (ca. 1410-95), which maintained that God could create
natures without their essential properties or inclinations.71
Γ
Second, Vitoria will argue that suicide is wrong inasmuch as it is a form of
\ homicide and is therefore forbidden by the command of God, “Thou shalt
1 not kill.” This immediately provokes discussion of just what is forbidden by
L God’s command, a discussion centering upon capital punishment.
Certain people,72 he says, understand the commandment, “Thou shalt not
kill,” in such way that it prohibits the killing of any human being, whether
such killing be effected by private authority or by public authority and whether
the one killed be guilty or innocent. But then, they say, by divine positive law
there are some exceptions, some instances in which God has explicidy per­

Introduction

17

mined killing. In this way, they think it is allowed by divine exception from
the general rule that a murderer be jusdy killed by order of a magistrate.
This, in Vitoria’s view, is wrong. The Decalogue commandment is a simple
re-statement of natural law, which as such reflects eternal law and does not
admit of exceptions even by God himself. Accordingly, if capital punishment
or other killing is permitted it cannot be by way of exception. The truth
rather is that the commandment does not prohibit all forms of homicide. It
does not, for instance, prohibit killing another man in self-defense. For by
the natural law one has the right to defend himself even at the cost of his
attackers life. But the question is whether it is permitted to kill another apart
from such self-defense. Vitoria’s answer is yes, but it is carefully hedged.
As just said, Vitoria regards the command of the Decalogue as a re-statement of natural law. He further regards it as first and foremost forbidding the
intentional killing of an innocent man. But more than this, it is wrong for a Ί
private person intentionally to kill even a guilty man, except when this is i
required for self-defense. However, it is permitted to public authority to kill a
guilty man who is pernicious to the republic.
In our own time opinions are divided on the issue of capital punishment.
The range runs all the way from those whose philosophy might seem little
different from the lex talionis to those who would regard the death penalty as
nothing more than “state killing” or even legally sanctioned “state murder.”
Indeed, among the latter the idea of any state executing a capital offender
often is painted as worse than the original crime which may have provoked it.
For while that crime may have taken place in a moment of fury or of ungov­
ernable passion, the execution of a criminal takes place in a deliberate, calm,
and dispassionate way. Moreover, in many instances such a criminal (even
granted that he has had a fair trial and is truly guilty) is now no longer in any
realistic sense a threat to society. Again, statistics are often cited to the effect
that the death penalty has no demonstrable deterrent effect. Accordingly, the
argument runs: any execution by the state is nothing much more than an act
ofvengeance on the part ofpublic authority, nothing more than a cold blooded
and indefensible murder.
_
On the other side, until very recently most philosophers and theologians >
recognized the difference between killing the innocent and killing the guilty.
They also saw a difference between public and private killing. They recog­
nized that while the latter was wrong and to be condemned, the former was at
least tolerable and in some cases necessary. In the sixteenth century, virtually
all responsible opinion was in this vein. For example, the Catechism of the y
Council ofTrent (1545-1563) held that the execution of a criminal by legiti­
mate public authority was not a sin against the Fifth Commandment.73 Trent
represented in this the definitive teaching of the Catholic Church, which
went back through the Middle Ages74 to early Christian times75 and contin­

18

Francisco de Vitoria, On Homicide

ues in principle to the present day.76 This teaching and this tradition is clearly
in the thought of Vitoria.
Moreover, in the thought of Vitoria the teaching finds its natural setting.
For following Aristotle,77 Vitoria views human beings as political by nature,
which for him is to say that human beings naturally incline toward life in a
republic and this natural inclining comes from God. While the form any
republic may take is a matter of choice for its citizens,78 civil society as such is
natural and necessary.79 It has its own ultimately God-given place and final­
ity.80 Individual human beings thus are not social atoms who may or may not
come together through some arbitrary agreement which may be completely
abrogated by any one or all together.81
To be sure, there is in this a certain inequality between the state and indi­
viduals composing it. For Vitoria, the state and the individual citizens who
form it are not like so many peas in a pod, equal in all ways. While from one
point of view individuals, or better persons, are superior to the state (inas­
much as the state exists for the good of persons), from another viewpoint,
precisely as they are parts making up a wider whole, individuals, even per­
sons, have a certain subordination to that whole. Indeed, at least in some way,
man belongs, as Aristode earlier put it, more to the republic than to himself.82
Notwithstanding a recent translation of a passage from his relection, “On
Civil Power,”83 Vitoria does not regard the original condition of men as wolves
to one another.84 Rather, as he indicates in the present relection, “On Homi­
cide,” there is a natural affinity, sympathy, or even love which obtains among
all human beings. At the same time, each human being, each person made in
* the image of God is in charge of himself, the lord of his own actions.85 That is
to say, each person is self-determining and left to himself would simply go in
his own direction. Accordingly, if the common and natural republic is going
to arise and be maintained, there needs be some public authority.86
While public authority has a directive function, which will eventuate in
laws that bind in conscience,87 it must also have, Vitoria thinks, coercive power
to enforce such laws and to defend as well as preserve the common good. This
is proven by reason and confirmed by Scripture.88 This power extends to the
task of defending the state or the republic against external enemies. That is to
say it includes the right to make war and even to kill such enemies. It also ■
includes the power and the right to conscript citizens to fight such a war —
with the attendant risks of their killing or being themselves killed. In this, the
state can jusdy subsume basic rights of its citizens.
Vitoria allows that part of the natural public power of the state extends to
< the punishment not just of external persons but of those within who do wrong
I and in that abridge the rights of their fellow citizens, as well as threaten the
common good of peace and order within the state itself. Such punishment
can be different as offenses and circumstances warrant. Thus some offenses

Introduction

19

will merit fines or imprisonment. But others will deserve corporal punish­
ment, or even torture and death.
In all of this, there is little appeal to punishment as a deterrent. Nor is the
corrective function of punishment stressed, at least not as corrective or reha­
bilitative for the one punished. Preeminendy the justice at work here is a kind I
of retributive justice. While there is an element of vengeance in this, it is not I
simply that. Instead, it is a correction in the sense of righting the balance in
society which has been disturbed by a wrongdoer.89 As such it is medicinal,
but primarily for society rather than for the individual wrongdoer.90 Vitoria
sees a parallel in this between the capital punishment of a pernicious member
of society for the good of the whole society and the amputation of a diseased
limb for the good of the whole body.
Vitoria’s third proofύ&ΐ suicide is sinful hinges on the assertion that one Ί
who kills himself injures the republic and in this does serious wrong. This is ’
his shortest proof, which is surprising in view of his deep and abiding interest
in the political nature of man and man’s natural participation in the republic,
an interest which we have just treated and which is at the base of his whole
juridical philosophy.91
His fourth proof may also surprise modern readers. On its face, it might
seem to us to say one thing, but Vitoria intends another. His reasoning is that
suicide is wrong because it goes against charity. When modern readers see
this, their first thought may be that Vitoria is talking about the sadness and
pain which suicide so often brings to surviving family members and friends. How­
ever, this is not his point. Instead, he is thinking about an objective order of ~
charity92 in which we are commanded to love our neighbors as ourselves with the !
obvious entailment of a proper self-love which would be violated by suicide.
J
This last comes, with other things, to light in the remainder of the relection
where he raises seventeen (and answers sixteen) arguments against the con­
clusion that suicide is always sinful. The first fourteen of these arguments, he
tells us, do not involve a question of anyone intentionally and deliberately
killing himself, but only unintentionally doing so. Therefore, they can prove
nothing against the proposed conclusion. Hence, one need not take them
into account when he affirms that no one may lawfully kill himself with the
intention of doing so. At the same time, these first fourteen arguments and
Vitoria’s replies do have interest.
The first argument claims that no one can kill himself with full knowledge
and intention. The unstated obverse of this is that anyone who kills himself is
not responsible because he would not be in his right mind. But rather than
supporting this as a modern might do from clinical studies or statistics, the
argument here is more metaphysical. The reasoning is that because the will
always wills some good, no one can will the evil of not being. Hence, no one
can with full volition kill himself.

20

Francisco de Vitoria, On Homicide

To this Vitoria replies that an object moves the will only through knowl­
edge and this is the same whether that object is truly good or just thought to
be so. Because, therefore, to kill oneself, or simply not to exist, can be thought
to be good, someone may kill himself with knowledge and volition. For he
could make a mistake and think it to be a good for himself. More than this,
one may even without any mistake will not to exist. Thus it is better for the
damned not to exist than to exist as they are and they could without mistake

or self-contradiction will riot to exist.93
The second argument is again familiar to modern ears. One who commits
suicide, it runs, does no injury to anyone — not to himself, because he is
willing to end his life, nor to society, for indeed some societies grant legal
permission for suicide. The main point here is further confirmed inasmuch as
someone destroying his own material goods or killing his horse does no dam­
age either to himself or to the republic. But one’s own life belongs more to
him and less to the republic than temporal goods or a horse. Therefore.
r Vitoria answers that a man is not the master of his own life or body in the
I way that he is master of other things, such as his horse or his house, which he
I may use as he wishes without injury to anyone else. For God alone is the
1 master of life and death. And with respect to this, man is the servant of God.
^Therefore, someone who kills himself does injury to God, from whom he
received the great gift of life to be used and not to be destroyed. Equally, one
who kills another who has asked to be killed is not immune from guilt, be­
cause that other is not the master of his life in a way that he can give permis­
sion to anyone to take it.
The third argument is that one is not always obliged to defend himself, for
example, at the cost of an attackers life. But the command not to preserve
one’s life is the same as the command not to" kill oneself. Hence, if in some
circumstances one is not bound to preserve his life, he may also be allowed to
kill himself.
Vitoria agrees that there are many cases in which a man could preserve his
life by lawful means but is not obliged to do so. Thus, he could let an attacker
kill him rather than kill that attacker and send him to hell in his present
condition. Vitoria adds that although a man is not the master of his own
body, or of his own life, in the way that he is master of other things, neverthe­
less, he has some dominion and right with respect to his life, by reason of
which anyone who does a man bodily harm does injury not only to God but
also to that man himself. This right, then, which a man has over his own body
he can laudably renounce, and he can patiently bear death, even though he
has the right to defend himself.
Argument four says that given a case of two people with only enough food
for one, it is lawful for one of them to give that food to the other — which
amounts to the one’s killing himself.

Introduction

21

On the authority of Scripture and of Aristotle, Vitoria simply concedes
that, in the case proposed it is lawful to give bread to another even though
doing so involves the certain loss of one’s own life. At the same time, he
denies that such a one can in every circumstance give his food to whomever
he wants. For while a son may keep his bread for himself or may renounce his
right to it, he cannot simply give it to a stranger toward whom he has no >

obligation in preference to his father to whom he is obliged by the objective
order of charity mentioned above.
TAiefifih argument is that if a slave and a king were together on a raft which
could hold only one of them, it would be lawful for the slave to throw himself
into the sea with the certainty of drowning in order to save the king — which
means it would be lawful for the slave to kill himself.
Vitoria replies that in this case the slave could give up the raft, even though
he were certain his death would result. Moreover, deliberately ignoring the
social inequality between a slave and a king, as well as the public role of a
king, Vitoria tells us it would be laudable to do this not only on behalf of a
king, but also on behalf of any friend or neighbor. For while laying down
one’s life for friends is stupidity before the world, it is wisdom before God.
Argument six reasons that since one can submit to a lawful sentence, it is
permissible for someone lawfully condemned to death by starvation not to
eat food that is offered to him. Therefore, it is permissible for him to kill
himself.
To this Vitoria says that such a man is obliged to eat. For, to preserve his
life, he is obliged to use all means which have not been forbidden by his
judge. But the judge has not condemned him, indeed he had no authority to
condemn him, to kill himself by not eating, but only that he should suffer
death. Thus, it is lawful for him to eat in the case advanced and evidently he
is obliged to do so.
The seventh argument is to the effect that it is lawfid for someone con­
demned to death not to flee even though he may have an opportunity. But in
this way he is contributing to his own death, which then would make suicide
lawful.
Vitoria answers that such a man is obliged to flee, for it is not part of the
penalty inflicted by the judge that he remain in prison. The case here is simi­
lar to that of someone who without any reason at all offers himself to a judge
to be imprisoned. For just as such a person would be doing wrong, so too,
Vitoria argues, would the one who would not flee even given the opportunity.
Recalling Socrates, the eighth argument is that someone condemned to death
by drinking poison, may lawfully do so and thus lawfully kill himself.
Vitoria’s reply is that if other forms of capital punishment can be just, why
not this? And in a case where unless one drinks poison the penalty cannot be
otherwise imposed, there seems no reason why it would be unlawful for him

22

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Francisco de Vitoria, On Homicide

to drink it. The act itself seems similar to a condemned man climbing up to
the gallows or preparing his throat for the sword. For one is not cooperating
more in his own death than is the other. At the same time Vitoria will admit
some probability attaching to an opposite opinion and note that there is room
for disagreement on the matter.
Arguments nine, ten, and eleven are similar. They all argue that exposing
oneself to the danger of death is on a line with killing oneself and is forbidden
I by the fifth commandment. Yet such exposure is at times lawful, e.g., when
! visiting a plague ravaged friend, when undertaking to sail in the face of danger, or when taking part in military exercises or bullfights. Equally, therefore,

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killing oneself should at times be lawful.
Vitoria answers that if a sick spouse or friend were to need help, one could
without doubt give that help no matter what the danger to oneself. To be
sure, it would seem rash to expose oneself to serious danger for no benefit.
Yet, friendship and keeping faith with one’s friends, are themselves a great
benefit. As for navigation and military exercises, to know what is lawful one
should look at what generally occurs as well as public good and evil. Indeed,
navigation in face of danger is useful for the common good and, if because of
danger men would be deterred from navigation, great loss would result for
the republic. Something similar is true of military exercises. The republic
needs trained soldiers to defend its terrritory. There are, or course, less dangerous exercises, such as horseback riding and others, which suffice to train
soldiers and which should be used in lieu of more dangerous ones. However,
if soldiers could not be trained without even great danger, training should not
be rejected on that score. Bullfighting is not mentioned in Vitoria’s reply,
probably because he thought of it as manly sport in the same vein as military
exercises.
Also not mentioned here, or anywhere in either this relection or the com­
mentary on question 64, is the practice of duelling. However, touching else­
where on a reply by St. Thomas to an objection94 in support of the practice,
Vitoria declares that duelling of itself is absolutely forbidden and condemned
by Church law.95 But while it is never licit to challenge another to a duel,
Vitoria thinks it may in one case be licit to accept a challenge. For where one
I has been falsely accused, say of treachery, and will be killed if he does not
accept a challenge to a duel, such acceptance would be lawful because it
amounts to self-defense.96
Argument twelve states that monks and others lawfully shorten their lives
by the rigors of austere living. But this amounts to lawfully killing them­
selves.
To this Vitoria says that while it is not lawful to shorten one’s life, it is one
î thing to shorten life and another thing not to prolong it. Again, although a
man is obliged not to shorten his life, he is not obliged to seek all means, even

Introduction

23

all lawful means, to lengthen it. This is made clear by an example which in T
part foreshadows modern medical ethics debate about ordinary versus ex­
traordinary means to preserve life.97 Granted that someone knows with cer- J
tainty that the air in India is more healthful and temperate, and that he would
live longer there than in his homeland, he is not obliged to take the extraordi- |
nary means of sailing to India. Indeed, coming closer to ordinary means, |
Vitoria says he is not obliged even to go from one city to another more health- J
fill. Specifically on fasting and abstinence, his wry opinion is that people die
young “more often from luxury than from penance; for gluttony has killed
more than the sword.”98
Argument thirteen again anticipates current questions in medical ethics.
Someone close to death, it runs, is not obliged to spend everything he has in
order to regain his health. Hence, he is not obliged to preserve his own life,
which obligation seems to be the same as that of not killing oneself.
Back in the sixteenth century, Vitoria answered this in a way which should
be acceptable today. “Someone is not obliged to use every means to preserve
his life, but it is enough to use those means which are of themselves ordered
and fitting for this.” Thus, in the case described, the man is not obliged to
spend his whole fortune to preserve his life. From this the further conclusion
is that when someone is terminally ill, “granted that some expensive drug
could prolong his life a few hours, or even days, he is not obliged to buy it,
but it is enough to use common remedies.”
Argumentfourteen reasons that it is lawful to endure a lesser evil in order to
avoid one greater. But infamy and ignominy seem greater than death.99 There­
fore, at least to avoid these, it will be lawful to suffer death and even to kill
oneself.
Vitoria answers that life is a greater good than temporal things such as
glory, honor, and reputation. Hence, they sin seriously who kill themselves
for these, as do also they who put their lives in great danger simply for these.
Thefifteenth argument says it is not self-evident that to kill oneself is wrong.
For suicide has been praised by many who have been reputed to be wise.
Therefore, at least those will escape blame who think that by killing them­
selves they are acting in a brave and laudable way.
Relating this to persons like Brutus, Cato, and Decius, Vitoria asks whether
they could without fault not have known that suicide was unlawful. In an­
swer he says that there is no greater problem here than with other divine
commandments. For many divine commandments (e.g., those regarding for­
nication and revenge) were formerly observed among pagans and later be­
came unknown to them — and about these commandments no responsible
theologian in Vitoria’s time would allow invincible ignorance. But clearly, he
says, in the natural light of reason it could be known that suicide is wrong.
For philosophers taught this, as evidenced by Aristotle saying that to inflict

24

Francisco de Vitoria, On Homicide

death on himself is not the act of a magnanimous man, but rather of one who
is pusillanimous and not able to bear the burdens of life.
Argument sixteen says that certain saints, when they were tyrannically con­
demned to be burnt to death, of their own volition hurled themselves into
the fire. Therefore, it is lawful to kill oneself. Vitoria gives no reply to this
argument in the relection “On Homicide.” However, he will return to it in
his Commentary on IP-II“, qu. 64.
Argument seventeen asserts that persons like Samson killed themselves and
then were numbered among the saints. Thus, in their instance suicide was
not wrong.
Vitoria’s answer agrees with St. Augustine that Samson was excused because
he acted as moved by God. However, one might also employ a double effect
reasoning and say that Samson did not intend to kill himself, but instead
intended to crush and kill his enemies, in the wake of which his own death
followed. And this seems lawful without special inspiration from God. For
who doubts that someone in battle, or defending a city, could undertake an
action for the welfare of his homeland and for the detriment of its enemies,
even though it would involve his own certain death?

III. The Commentary on Summa Theologiae Ila-IIae, qu. 64, aa. 1-8.
A. Vitoria’s “Lectures.”
1. General Description, As vre have them, Vitoria’s lectures are redactions of
his classroom presentations over a period of fifteen years at Salamanca. Their
remote origin is in notes which he composed for his classes, though he never
actually read them aloud.100 Regretably, these original notes have perished. In
their place, we must rely on other notes, which exist in manuscript and which
are of two types: “academic” and “extra-academic.” The academic notes are
those ofVitoria’s students, who intelligently, perseveringly, and carefully tran­
scribed his dicution. First intended for personal use, these notes were later
given or sold to other students and to persons outside the academic commu­
nity. In time, they were copied by scribes and even spread commercially. Thus
there arose extra-academic manuscripts containing Vitoria’s lectures. While
these latter may frequently appear better, they are in fact of less value than the
academic manuscripts, inasmuch as they stem from persons often unfamiliar
with the doctrine and the language of Vitoria.
As for the original copies ofVitoria’s students, their value varies depending
on the intellectual qualities and the energies of those producing them. Most
tend to be mere summaries of what the master said, but some reproduce this
almost word for word. Among the latter, the most outstanding is the report
left to us by Francisco Trigo101 of the three courses Vitoria gave on the Se­
cunda secundae in the years 1534-1537.

Introduction

25

2. The Manuscripts. Student notes ofVitoria’s lectures were never that nu­
merous. From his first seven years at Salamanca there remains only one prob­
able transcription of his 1526-28 exposition of the I
plus work redacted
in 1541 and published in 1560 by Tomas de Chaves, which corresponded to
Vitoria’s 1529-31 classes on the fourth book of Lombard’s Sentences. In a
1565 edition of this work Chaves noted that Vitoria himself had read the
redaction of 1541 and had approved it.102
OfVitoria’s lectures from 1533 on there were more manuscripts, but today
there remain only about two dozen total manuscripts for both the Lectures
and the Refections. The largest group of these come from acquisitions col­
lected by Cardinal Ascanio Colonna (d. 1608) during his studies at Alcala
and Salamanca between 1577 and 1584. These were later deposited in the
Vatican Library.103
3. Lectures on the Second Part ofthe Second Part ofthe Summa. Vitoria lec­
tured twice at Salamanca on the IIa-IIae, first in 1526-1529 and then in 15341537. As mentioned, the report left to us by Francisco Trigo of the three
courses given in the years 1534-1537 is the best we have from Vitoria’s stu­
dents.104 Trigo’s manuscript has been used in our century by Vicente Beltrin
de Heredia as a basic text to publish six volumes ofVitoria’s lectures. Of these
volumes the first five follow the Trigo notes, while the sixth also incorporates
material on the First Part of the Second Part (Ia-IIae) of the Summa plus frag­
ments of two Relections from other copyists.
B. On Ila-LLae Question 64, Articfes 1-8.
1. A General Description and Date of the Commentary. In the Middle Ages
there were basically two styles of commentary on received texts. One was “by
way of question” (per modum quaestionis) and the other was “by way of com­
ment” (per modum commenti).'^ Vitoria’s work combines both styles. Origi­
nally delivered in Latin with Spanish phrases interspersed,106 it is comment­
ing on the text of St. Thomas; but at the same time it raises and answers
questions, many of them outside the purview of Aquinas.
As has been said, the Commentary on IIa-IIac of which the present text is a
pan stems from the years 1534 to 1537. More specifically, Vitoria’s lectures
on question 64 were copied by Trigo most likely in January of 1536.107 Ap­
parently, Vitoria did not comment upon Aquinas’ short prologue to question
64, which locates the treatment of homicide within the wider treatment of
justice, i.e., as a violation of commutative justice.

2. Exposition ofand Thoughts on Articles One to Eight.
(a) Article One, going much broader than the matter of the relection, asks
whether it is unlawful to kill anything at all. Vitoria begins his commentary

26

Francisco de Vitoria, On Homicide

I
I
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with a statement of two conclusions from the body of St. Thomas’ text. First:
inasmuch as the less perfect exists for the more perfect, it is lawful for human
beings to use all irrational things for human purposes. Second, for the un­
stated same reason, it is lawful to use plants and grasses for the sake of animais.
But granted that men may kill animals for food, can they kill them for any
other purpose? Vitoria answers, yes. For example, they can kill animals for
their hides. Again, the governing thought is that the existence of the less
perfect is ordered toward that of the more perfect.
What, however, should be said about men killing animals for no purpose or
for no benefit resulting from their death? Vitoria’s answer, which would be
out of fashion today, is twofold. First, because unlike human beings, animals
have no rights (jura), they cannot suffer the deprivation of rights which is
injury (injuria).wtl Nor does their killer commit any sin in their regard. Sec­
ond, while animals do not belong to themselves, they do belong to men.
Thus, if they are killed, even though there is no injury to them, there may be
injury to other men who own them.109 Such injury would be more or less,
depending on the character and extent of the killing involved.
This immediately leads to the question of hunting for sport. Is it lawful to
kill animals for pleasure? For Vitoria, following Aristotle, hunting is of itself
lawful and honorable, and thus the pleasure it affords needs no justification.
However, it may not always be lawfill or respectable for everyone. Specifically,
as a matter of Church law, clerics may be barred from the custom of hunting,
particularly if this involves unseemly running and shouting.
A question about whether wild animals belong to a hunter who kills them
gets into issues of Roman and Spanish law, issues which anticipate some
touched by game and property laws today. Vitoria also uses such questions in
ways to define the political or legislative power of the emperor, kings, and
nobles in his own time. As usual, he gets down to cases — here about such
things as common property, ownership, enclosures, the damage done by ani­
mals which escape from them, and the restitution to which their owners will
be obliged.
(b) Article Two asks whether it is lawful (according to moral law) to kill
sinners. St. Thomas’reply is summarized in one conclusion: it is lawful. Though
Vitoria does not explicitly say so here, the principle dictating this conclusion
is the same as that governing Aquinas’ reply in Article One — the imperfect
is ordered to the more perfect.110 But individuals as parts are imperfect when
compared to the whole community. They are in this similar to bodily members compared with the whole body.111
By way of clarifying Aquinas’ conclusion, Vitoria again takes up the Fifth
Commandment and asks how it should be understood. His answer is that it

I

does not forbid the killing of a dangerous man by public authority — which

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Introduction

27

once more raises the question of capital punishment. It also sets Vitoria apart
from Duns Scotus, who maintained that the commandment applied to all
killing of human beings but that God had made exceptions to its universal
sweep. Against this, Vitoria argues that to kill murderers and certain other
wrongdoers has always been allowed by natural law and therefore such killing
needed no exception by God.
Another interpretation of the Commandment is that one may not by any
authority, public or private, kill an innocent person. By implication then it
would be generally permissible to kill a guilty person. But Vitoria says that
this killing too is forbidden in some instances. Thus, the killing of even a
guilty person is forbidden (at least ordinarily) to those acting on private au­
thority.
Closer to the truth, he thinks, is an opinion maintaining that this com­
mandment prohibits killing by private authority but permits killing by public
authority. Yet Vitoria demurs, for the reason that however great a public au­
thority may be it cannot rightly kill an innocent person. Also no public au­
thority may kill a person who is guilty of only a minor transgression. Again, a
private person acting with moderation in the special case of self-defense needs
no public authority to kill his attacker.
Vitoria himself says that the command, “Thou shalt not kill,” is a matter of
natural law. As such, it was always the same and it could never be rescinded by
any positive law, whether human or Divine. Accordingly, against Scotus, if it
was ever lawful to kill a murderer, a thief, or an adultress, this cannot be by
Divine exception — but only because it was never against this command­
ment.
What the Fifth Commandment then forbids and what it permits is as fol­
lows. First, it forbids only a homicide which is of itself evil — regardless of )
whether such a homicide be of a guilty or of an innocent person, and whether
it be by public or private authority. Second, it forbids the intentional killing,
either by public or private authority, of a man who is innocent. Third, natural
law and this commandment, which is its expression, permit the intentional
killing of a guilty man who is dangerous or harmful to the republic, but only
by public authority. Fourth, both natural law and this commandment forbid
every other intentional homicide.
This leaves further questions which Vitoria will pursue in articles to come.
But at least one difference at this point between him and St. Thomas is worth
mentioning. In his reply to the third objection in this Article, Aquinas has
argued for killing a sinful man because such has abandoned his humanity for
the status of a beast and like a beast he may be disposed of for the good of
others. Surprisingly, in view of his extended commentary on Article One,112
Vitoria has not taken this up in his commentary here. I have no explanation
for it but I find the fact remarkable.

28

Francisco de Vitoria, On Homicide

(c) Article Three asks whether it is lawful for a private person to kill a sinner.
The answer ofAquinas is that this is not lawful, for wrongdoers may be killed
only by public authority. To this Vitoria adds a confirmation from the fact
that the penalty by which wrongdoers are punished is not from natural but
from positive law and no positive law allows private persons to kill wrongdo­
ers. This, ofcourse, immediately raises the question whether positive law could
allow this to private persons. Vitoria replies that positive law probably could
not allow general permission for any person anywhere to kill wrongdoers
without judicial forms. But even granted that such a practice would be per­
missible, it would not be in the best interests of the republic to encourage
what would lead to a kind of social anarchy and injustice. However, in a
particular case, Vitoria acknowledges legal permission to kill wrongdoers can
be given to private persons. For example, he says, the king might rightfully
grant permission to a son to kill his father’s murderer.
This raises a further doubt about a wife taken in the act of adultery. Would
it be lawftd for her husband to kill her on the spot by private authority? It
seems it would be lawful, because the law at the time apparently gave him
permission. To this Vitoria replies that if in that case he kills his wife, the
husband is sinning, no matter how much the law apparendy gives him per­
mission to kill her. The reason is that in fact the law has not given, nor could
it give, such permission. For it is against the natural law, and all positive law,
that even the worst person be punished and killed without a hearing. There­
fore, husbands who kill their wives in the act of adultery sin most grievously.
On the question of the actual civil law in force at the time, Vitoria says that
this does not give a husband permission or authority to kill a wife caught in
the act of adultery. What it does rather is exempt a husband who kills a wife
found in the act of adultery from the penalty for homicide. In this way, he
says, the law may take into account the extenuating circumstance of a wronged
mans feeling and show him leniency. On the related question of whether a
judge could hand a wife tried and convicted of adultery over to her husband
for punishment, even capital punishment, Vitoria believes such could be done
and that the husband in that instance could without sin act as an official
executioner.
A further question here concerns tyrannicide. May a private person kill a
tyrant? In answer, Vitoria distinguishes two kinds of tyrant — one who is
occupying territory to which he has no legitimate claim and one who is a
legitimate ruler but who is governing for his own advantage and not that of
the republic. It is, he says, unlawful for any private person to kill a tyrant of
the second sort, although the republic could defend itself from him. As re­
gards a tyrant of the first kind, he says, it is lawful for any private person to
kill him as long as doing so will not result in greater evil for the republic. His
rationale is that in killing such a tyrant a private citizen would be acting by

Introduction

29

public authority to continue an unfinished war on the part of the republic
against an outside aggressor.
(d) Article Four asks a question which is not treated in the relection “On
Homicide.” Is it lawful for clerics to kill felons?113 St. Thomas has replied in
the negative for the reason that such killing is out of line with the office of
clerics and with the spirit of the New Testament. Vitoria, however, raises other
legal, or even legalistic, questions.
Is Aquinas speaking of Divine or human positive law? In reply, Vitoria says
that Divine law may be taken either for everything which is commanded in
Scripture or more properly “for that which is established by God without
human authority interposed.” In this second way, the commands of the
Decalogue are matters of Divine law. However, that clerics are forbidden to
kill felons is a matter of Divine law in the first way. As such, even though it is
found in Scripture, it has been established by the Apostles and, like the Lenten
fast, it is not properly a Divine commandment but rather a positive human
law.
This immediately raises another question. Cati the pope dispense from this
law? Vitoria’s answer is that the pope can, for reasonable cause, dispense both
from an Apostolic command as well as from any penalty or irregularity which
the Church has afterwards attached to its violation. For the pope, he says,
does not have less jurisdiction now than the Apostles had. But they would
have dispensed for good reason from laws they themselves enacted. There­
fore, the pope now can also do the same.
But if the pope dispenses without reasonable cause, is such a dispensation
valid? It seems that it is not, for the reason that a law should be fair and an
unreasonable dispensation would be unfair to those not dispensed but still
bound. Yet Vitoria says that the opposite is more true — that in cases where
the pope dispenses without reason the dispensation holds, even though the
pope himself, and perhaps also the one dispensed, sins.
Finally in this place, after declaring that the law here applies to all clerics
and not just to priests, Vitoria raises a further question about a simple (i.e.
non-ordained) cleric who takes part in a just war and kills Saracens. While
those taking part in a just war do not sin, nevertheless, a cleric so doing who
kills Saracens is subject to irregularity or the penalty established by the Church
which forbids the reception of Holy Orders or the exercise of Orders already
received.
(e) Article Five returns to the main matter of the relection, “On Homicide,”
and asks: is it lawfulfor anyone to kill himself? As Vitoria sees it, St. Thomas
has answered that killing oneself is unlawful for four reasons. First, suicide
contradicts the natural inclination which everyone has to love himself and to
preserve his life. Second, suicide is wrong because a person killing himself
does injury to the republic of which he is a part. Third, it is wrong because

30

Francisco de Vitoria, On Homicide

God, not man, is the master of life and death, and thus one who kills himself
does injury to God inasmuch as he takes to himself the mastery that belongs
to God. Fourth, suicide is wrong because it is against the love which everyone
is obliged to have for himself. Therefore, one who kills himself would be
committing mortal sin and would in this be acting against the Fifth Com­
mandment.
Two remarks seem immediately in order. First, in his response to the ques­
tion, St. Thomas has actually given just three reasons which correspond to
Vitoria’s first three here. Vitoria’s fourth reason is mentioned by Aquinas, but
only as part of the first reason. My guess is that Vitoria’s choice to highlight it
as a separate argument is rooted in the fact that while arguments two and
three are based upon the injury done to the republic and to God, and there is
question about whether one can work injustice or injury toward himself, sui­
cide can be wrong for another reason, namely, that it violates the order and
obligation of charity. Second, the four reasons given here have all more or less
been given by Vitoria in the earlier relection “On Homicide,” but those here
are not simply congruent with the four main ways he argued in that place.
Perhaps the most obvious difference between the treatment here and that
in the relection results from the fact that by this place in the commentary he
has already discussed, at Article Two, the question of capital punishment.
Hence there is no need to treat it again here. Instead, he will directly confront
ten arguments against the general conclusion, understanding this to be that
to kill oneself is always a serious sin against the Fifth Commandment.
The first of these arguments is the same as argument sixteen, which he ne­
glected to answer in the relection. Certain saints (he mentions Vincent and
Apollonia) cooperated in their own martyrdom in that they exhorted others
to kill them or themselves rushed to their own death. But this would argue
that at least in such cases suicide would be lawful. Supplying somewhat for
his omission in the relection, Vitoria here answers part of the argument and
says that what the martyrs did was not only lawful, but it was also laudable.
For they did not exhort their oppressors in order to move these to evil, but in
order to show the truth of faith. Moreover, since they themselves were going
to suffer anyway, their exhortation of their oppressors was only a form of
non-resistance. This leaves unaddressed the action of someone like St. Apollonia
(d. 249) who, he tells us, “escaping from the hands of her oppressors, hurled
herself into the fire that was prepared for her.” To this he will return in his
answer to the third argument.
The second argument here corresponds to argument twelve in the relection.
Carthusian monks and others, it says, shorten their lives by works of penance
and abstinence. In so doing, they are lawfully, if only by inches, killing them­
selves. To this Vitoria replies that while it is seriously sinful to intentionally
shorten one’s life, it is not sinful to intend something good, such as peniten-

Introduction

31

rial practices, from which incidentally one’s life may be shortened. In this
connection, he notes that one is not obliged always to eat the best food. Nor
is one is obliged to do everything possible to lengthen his life, for example,
emigrare to another more habitable country. But it would hardly be lawful to
shorten one’s life by such harsh and unusual penance as eating only once a
week.
Returning to the case of St. Apollonia, the third argument against the gen­
eral conclusion here is that she hastened her own death and thus killed herself
by leaping into the fire which her tormentors had prepared for her. Some
would excuse her action as the result of ignorance. Vitoria, however, refuses
to take this way out. Instead, he says, it was lawful and indeed laudable that
she would hurl herself into the fire since she was going to die anyway. And she
did not cooperate in her own death, since that was already decreed by her
oppressors. Much the same is true regarding Saint Vincent (d. 304), who did
not wait to be thrown into the fire, but threw himself in. His act (as well as
that of Apollonia) was certainly praiseworthy, done to show both strengh of
soul and that he was voluntarily dying for Christ. Moreover, in itself what
they both did was not much different from a condemned man putting the
rope around his own neck, which would hardly be a sin.
Coupled with this is another question, which corresponds to the eighth
argument of the relection. Is it lawful for someone, such as Socrates con­
demned to death by poisoning, to administer the poison to himself? Vitoria’s
answer is that if the law requiring such a death existed not among barbarians,
but within a well ordered republic, such as that of Athens in the time of
Socrates, that law would presumably be just and it would be lawful for a
condemned man to drink poison himself rather than wait for someone else to
pour it into his mouth. This answer of Vitoria differs from that given earlier
by Cajetan as is noted below in the translation.
Thefourth argument against the general conclusion corresponds to thefourth
argument in the relection. It reasons that suicide is lawful inasmuch as some­
one can lawfully give to another—say, his father, his king, or even a neighbor
— food which is necessary to sustain his own life. Vitoria concedes that such
a gift is lawful but he denies that it amounts to killing oneself intentionally.
This occasions a question, corresponding to argument five in the relection,
about survival and self-sacrifice in a lifeboat: could someone voluntarily give
up his place, and thereby drown in the sea, to save another? Vitoria replies
that it would be lawful for someone to sacrifice himself in this way — par­
ticularly if it would be someone of lesser rank sacrificing himself for some­
one of greater rank. Examples he gives are a slave sacrificing himself for his
master, a son for his father, and a private person sacrificing himself for some
public person. Strangely here he does not emphasize the neighbor mentioned
above or at the corresponding place in the relection. Also strange is the fact

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Francisco de Vitoria, On Homicide

that he does not address the possibility of a person invested with public au­
thority putting undue pressure on one in subjection to that authority to sac­
rifice his life.114
Thefifih argument corresponds to the sixth argument in the relection. It
takes the case of someone condemned to death by starvation and reasons that
when he is offered food he can lawfully refuse it. But in this he would be
intentionally and lawfully killing himself. Vitoria’s answer here is essentially
that given in the relection. A person condemned to death by starvation is not
and cannot be forbidden to eat food which is available to him. Therefore, he
cannot lawfully refuse such food. Vitoria adds a difference between this case
and that of those in a lifeboat, or that of the martyrs, because in these other
cases the persons affected will die no matter what they do but this is not so in
the present case. Instead, a man condemned to starve will live if he eats of­
fered food and he will die, by his own decision, if he refuses it.
In the same context, corresponding to argument seven in the relection, is a
case addressed in another place by St. Thomas.115 Take someone justly con­
demned to death. Is he obliged to flee if he can, and were he to do otherwise
would he be cooperating in his own death? Here Vitoria’s reply is that al­
though it is lawfid for such a person to flee, he is not morally obliged to do so.
Instead, he'may virtuously submit to the penalty imposed upon him for his
crime. This differs from what he has said in the relection. In a later question,
at theThomistic place just mentioned, Vitoria will return to the same matter
and will repeat what he says here.116
Corresponding to arguments ten and eleven of the relection are doubts here
about dangerous navigation, military exercises and bullfights. Navigation in
the face of clear and present danger would, he says, not be lawful for mere
private gain. It can, however, be justified for the common good of the repub­
lic or for the Faith. Indeed, in this the good of the republic or of the Faith
confers added legitimacy on the pursuit of private gain, which in itself is not
wrong. It is easy to see in this a justification for Spaniards sailing to the New
World “for God, for country, and for gold.”117
Even though such military exercises as jousting may entail the risk of death,
they are lawfid says Vitoria. Ordinarily they do not result in death and the
republic has need of trained men at arms. While not explicitly saying that
bullfighting is a military exercise, Vitoria says that it is the same as jousting or
taking part in tournaments inasmuch as it too involves minimal danger of
death. The thirteenth argument of the relection had raised the issue of how
much a sick man must sacrifice to preserve his life. Here in the commentary,
the case, which has parallels in our time, is that of a rich man held captive.
How much is he morally obliged to give for his life? Indeed, is he obliged to
gjve anything? Vitoria’s flat answer is no. Such a man is not obliged to give
anything for his life and in this he is not cooperating in his own death. In­

Introduction

33

stead, full responsibility for his death, if it occurs, rests with his captors who
would intentionally act to kill him.
Again shifting ground from the relection is an argument here to the effect
that it is lawful to kill oneself in order to avoid mortal sin. Argumentfourteen
in the relection had offered the same reasoning with respect to things like
disgrace or the loss of ones reputation. There Vitoria had answered that life is
a greater good than honor, fame, or reputation and hence those who kill
themselves for these things do wrong. Here he says that since sin is a matter
within one’s own control the death of the body is never required in order to
avoid it. Accordingly, it is never lawful intentionally to kill oneself in order to
avoid mortal sin. One may, however, unintentionally expose himself to death
to avoid mortal sin.
Returning at this point to the question of killing oneself to avoid disgrace,
Vitoria raises the issue raised earlier in argumentfifteen of the relection. Granted
that it is never lawfol to kill oneself intentionally, is this precept so evident
that no one can be ignorant of it? It seems not. For Brutus and others killed
themselves to avoid disgrace and they thought they were in this acting better
than by staying alive. Vitoria’s answer here is that absolutely such persons
were doing wrong. However, softening his stand in the relection, he allows
that they may be excused because of ignorance — which, of course, is to agree
that the proscription of suicide is not so evident that no one can be ignorant
of it.
Finally in this place, Vitoria raises again cases of persons like Samson and
Eleazar, who killed themselves and who have been praised in Scripture. Vitoria’s
comment here is the same as that given in response to argument seventeen in
the relection. Even without a special Divine command, it would have been
lawfol for Samson or Eleazar to sacrifice themselves for their people. Indeed,
the intention of both was not to kill themselves but rather to kill the enemies
of the republic and for this they were praised.
(f) Article Six asks whether in some particular case it is lawfol to kill an
innocent person? Vitoria follows St. Thomas to make a distinction between a
man considered in his own right and a man considered in relation to some­
one else. Then he reduces Aquinas’ reply to three conclusions which together
give insight into their common position. First, it is not lawfol to kill even a
sinfol man (and a fortiori one who is innocent) if we consider him just in
himself. Second, if we consider a man in relation to others, it is lawfol to kill
him. This would, of course, have to be for some serious reason, but the point
is that it is only as he is related to others that it can ever be lawfol to kill
another human being. Third, it is never lawfol to kill an innocent man.
Immediately doubt arises. Since killing a sinfol man is precisely permitted
not because of his sin but rather for the good of the republic, why cannot an
innocent man also be killed for the same reason? Why especially when the

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Francisco de Vitoria, On Homicide

killing of one innocent man might save the whole republic of which he is a
part? Vitoria replies that it is never lawful to kill an innocent person, even if
that person is willing to be killed. Even granted that the life of an innocent
person demanded by an enemy may be necessary to save the republic, nevertheless, it is not absolutely necessary inasmuch as it hinges upon the enemy’s
evil demand, which is voluntary and to that extent contingent. Moreover,
since evil things cannot be the means for good ends, even less can they be
necessary means.
As for the argument that a person is a member of the republic and thus an
innocent person may be sacrificed for the good of the republic in the way that
a healthy bodily member may be sacrificed for the good of the whole body,
Vitoria denies the parallel. A bodily member, he says, cannot of itself suffer
injury for the reason that it has no good of its own apart from the whole body.
A man, however, has his proper good to which he has a right even apart from
the republic. Hence, an innocent person cannot without injury be killed sim­
ply for the good of the republic.
Against this is an argument to the effect that a king, the ruler of the repub­
lic, can in a just war send an innocent soldier to certain death, which amounts
to killing him. Vitoria replies that in this instance the king is not sending the
soldier expressly to die, but rather for the lawful end of fighting the enemy.
Still on the subject of war, the argument is made that it is lawful in war to
intentionally kill innocent persons. This may occur in the repulse of attackers, many of whom are innocent men who are just obeying lawfill orders. In
answer, Vitoria denies that such persons would be intentionally killed inasmuch as they are innocent. Instead, they would be killed because they are
attacking like guilty enemies, even though from ignorance they may think

they are acting in a lawful manner. Were it otherwise, he says, a just war could
not be waged — for the obvious reasons that there would be innocents on
both sides and that it is never lawful to intentionally kill innocent persons.
Connected is a question whether it is lawful to kill innocent, even Chris­
tian, enemies when there is no reason to do so — to kill them, say, after
victory has been attained. To this Vitoria replies that if it is not necessary for
victory or for the recovery of possessions it is unlawful to kill innocent per­
sons except from some accidental circumstance. However, even when victory
has been achieved but safety and security are still not assured, it is lawful to
kill innocent persons who have aided the enemy’s cause or who have borne
arms in it. This would be done in self-defense inasmuch as such persons pose
danger for the victors in that they may soon rise against them.
While a position like this may sound harsh to modern ears, it should be
judged in its own context. For this at least two things should be taken into
account. The first is a Scriptural passage, viz., Deuteronomy c. 20, v. 10, where
it is stated: “If when you come to take a city by storm, you first offer it peace;

Introduction

35

if it shall accept and open its gates to you, all persons in it will be safe and will
serve you for tribute. But if, however, it declines to make peace and it begins
war against you, you will attack it. And when the Lord your God shall have
delivered it into your hand, you will strike with the edge of the sword all in it
of masculine gender, but not women and children.” To see the effect of this
text upon Vitoria one need only look at his relection, On the Law ofWar.™
A second item which ought to be taken into account here is the basic equal­
ity which would in Vitoria’s time still remain between a victor and a van­
quished enemy soldier. While in our time a well armed victor would enjoy an
enormous advantage over a disarmed and defeated enemy, in the sixteenth
century there would clearly not be the same disproportion between a victor
with a sword or a clumsy firearm and say a defeated enemy with a concealed
dagger. While this may not validate Vitoria’s position, it may make it more
understandable.
Even with regard to the Saracens, Vitoria would accept the Deuteronomy
text just cited when it spares women and children from the sword. But he
raises a question about killing such persons in an all out war. The question,
which has obvious application to the wars of our own century, concerns the
killing of innocent children when, for example, a city is bombarded. Vitoria’s
judgment is that if the war is just and it is necessary to take the city in order to
pursue the war then it is lawful to kill innocent children in the process, if it
cannot be avoided.
Finally here, Vitoria denies the parity between despoiling or enslaving in­
nocent persons in a just war and simply killing them. The former he says is
lawful, but only from the accidental condition that these persons are parts of
a republic against which war is being justly waged and that as parts they may
be despoiled or captured to order to inflict harm on the whole republic. From
this, however, it does not follow that they may be intentionally killed.
(g) The question in Article Seven is whether it is lawful to kill someone in
self defense. The thought of St. Thomas is summed up in three conclusions.
First, it is not unlawful to kill an attacker. Second, explaining the first, it is
lawful to kill another in self-defense, but only “within the bounds of blame­
less defense.” And third, even within such bounds, it is not lawful to intend
to kill another, for example, to intend a revenge killing while defending one­
self.
In reaching these conclusions, St. Thomas employed what has later come to
be called the principle of double effect, a principle which was previously in
play here in the commentary and in the relection “On Homicide.”119 It con­
cerns a moral act which results in two consequences, one evil and the other
good. The act may be lawfully performed, if the good is in reasonable propor­
tion to the evil, if the good cannot be attained without the evil, if the two
results are concommitant, and if only the good is directly intended while the

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Francisco de Vitoria, On Homicide

evil is merely permitted. Applying it here, what is directly intended is ones
own defense, the proportion is in blamelessly not doing more than is neces­
sary for that defense, the defense and the death of the attacker are simulta­
neous, and the attackers death is not as such intended, but only accepted as
the price of the defense.
About all of this Vitoria raises further questions, which might contradict
the apparendy self-evident character attributed to self-defense in the relection,
“On Homicide,” as well as earlier in the commentary. For instance, since to
will seems the same as to intend, one may doubt that the killing of an at­
tacker, which is willed as a necessary means by one defending himself, is un­
intentional. Vitoria concedes that when in self-defense one kills an attacker
he wills to do so. Moreover, it is lawful for him to so will. But when it is
further argued that it is therefore lawful for him to intend that killing, Vitoria
disagrees.'For there is, he says, a difference between an act of willing and a
direct intending of something as an end in itself. To illustrate this, he gives
the case of a sick man, who on account of health may will the amputation of
an arm, but does not intend this, since he does not will that the arm be cut off
as an end in itself. In the present case, his thought then is that it is lawful to
will, but not to intend, whatever is necessary for one’s defense.
Again, one may doubt whether it is universally true that a man may in self­
defense kill his attacker. Take the case where that man is being attacked, even
unjustly so, by his king or by his father. It would seem that he could not
lawfully kill either one. Not the king, because he is a public person upon
whose death turmoil might ensue in the republic and, besides, every subject
should be willing to lay down his life for his king. And not his father, because
to kill his father goes against the filial devotion which every son should have.
In answer, Vitoria allows the killing in self-defense of both one’s king and
one’s father. As regards the king, he makes a distinction, and first stipulates a
situation in which there would be no serious harm resulting in the republic
from Ids death. In this situation, he says, the subject could defend himself
even at the cost of the king’s life, for the king as such would have no right to
be attacking him unjusdy. As for the obligation of laying down one’s life for
the king, this will apply only where necessary, which is not here since the king
could (and should) let the man live without attack. But in a situation in
which great harm would result to the republic from killing its king, Vitoria
says that a a subject should submit to his attack with his own death resulting
rather than kill his king. Presumably, this would not be suicide or cooperat­
ing in one’s own death, but rather patiently bearing injustice. However, just
how strong the obligation of a subject to do so would be Vitoria does not say.
As regards one’s father, while a devoted son might at the cost of his own life
bear an unjust attack from his father, Vitoria says that he is not bound to do
so. He am instead defend himself and, if necessary, in the process kill his

O—

Introduction

37

father. For in unjustly attacking his son a father is not acting as a father, but
rather like a stranger. Correspondingly, the son may defend himself against
the attack as if it were from a stranger. "What is not said, and is somewhat
notable from its absence, is that the father in this is not like the king. He is
not a public person, the embodiment of the republic, and his death will not
cause serious public turmoil.
Returning to the issue of obligation but on the other side, Vitoria now asks
whether someone is obliged to kill an attacker when he cannot otherwise
defend himself against him? His answer is negative. In proof he points to
cases he has already mentioned, cases in which there is obviously no overrid­
ing obligation always to preserve one’s own life at all costs. Martyrs who could
have defended themselves but chose instead to patiently bear death, have been
praised for this. A man is not obliged to pay a huge ransom to avoid death at
the hands of his captors. A man may give his food to another and serenely
face death. A man facing death in prison with an opportunity to flee is not
obliged to do so. A man may give his life for his father, by giving him a plank
to avoid death by drowning, while the man himself remains in the sea. In a
similar situation a man may give his life for a friend. But he can also give his
life for an enemy inasmuch as he has freedom not to kill him. Thus he can
lawfully allow himself to be killed if he cannot defend himself except by kill­
ing his attacker — especially when he considers the probability of his attacker
being damned if he is killed in the act of an unjust attack.
Here an objection is raised. From the order of charity, every man has the
obligation to love himself and to preserve his own life more than that of
another. Therefore, one would be obliged to prefer his own life over that of an
attacker. Vitoria’s reply is to the effect that while this is true of one’s own
spiritual life, it is not true that one must prefer his own corporeal life to the
spiritual detriment, for example here the damnation, of another. At the same
time, one is not obliged to refrain from killing an attacker. For, inasmuch as
the attacker is himself choosing to attack and in this bringing on his own
spiritual loss, refraining from killing him and in the process losing one’s bodily
life is not going to avert his spiritual detriment.
Connected here is the question of whether it is lawfill in defense of some­
thing less than one’s life, say for some temporal possession, to take the life of
an attacker, such as a mugger or a hold-up man demanding my property.
While Cajetan has said that it is lawfill to defend one’s possessions, even one’s
cloak, no matter what may follow from that defense, Vitoria distinguishes
between a trivial possession and one of great value. His judgment is that it
would be seriously sinful to kill a thief to prevent the loss of a small thing.
However, it would be permissible to defend a valuable possession even at the
cost of a thiefs life, if no other way to retain or regain that possession is
possible. Thus it would not be permissible to kill one who is demanding my

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Francisco de Vitoria, On Homicide

possession if I knew who he was and could in a court action against him
recover what he might take.
Yet another question concerns a choice between killing an attacker and
fleeing from him. Vitoria’s answer reflects the mores and social distinctions of
sixteenth century Spain. A knight or a nobleman, who would by fleeing suf­
fer a loss of reputation, would not be morally obliged to do so. But a man of
lesser rank, whose reputation is not so great a matter, would be obliged to
choose flight over killing an attacker. In both cases, however, if the cause of
the attack is trivial, a small sum of money for example, there is an obligation
to prefer flight over taking the attackers life for something of such little value.
A final question in this place has implications for Vitoria’s just war theory
and the issue of a preemptive strike. If it is lawful to kill one’s attacker, would
it also be lawful to forestall his action by killing him first? While a plausible
case might be made for such preemptive killing, Vitoria rejects it as a general
rule. This is because it would lead to anarchy if everyone could preemptively
kill presumed attackers. Again, the preemptive killing of an attacker cannot
be accepted where there are other courses available, for example, flight to save
one’s life. However, if there is no other means to save one’s life except preemp­
tively killing an enemy who certainly means to kill me, then, says Vitoria, it is
lawful to kill that enemy. This is not to attack him, but rather to defend
oneself. Indeed, it is the enemy who is attacking when he is preparing to kill
me. Whatever one may think of this doctrine ofVitoria, its application to his
just war doctrine is patent, with far reaching ramifications.
(h) Article Eight asks whether someone who kills a man by chance is guilty
of homicide. Vitoria says that St. Thomas has basically concluded that any­
one who contributes to a homicide, in any way in which he did not need to
and in which he was obliged not to do so, causes it voluntarily and sinfully.
St. Thomas, he says, makes a distinction here between two ways of contribut­
ing to a homicide. One way is by intending something unlawful from which
a homicide results. A second way is by intending something lawful and using
sufficient care to avoid a homicide which still, despite such care, follows. In
the first way, the homicide will be imputable to the one who contributes to its
causation but in the second way not.
Following Cajetan, Vitoria raises some doubts about this. But first he notes
with Cajetan that something which is intended is not by chance. Second, he
notes that howevermuch anyone contributes to the causation of a homicide,
if the homicide still does not follow from that, then it should not be imputed
to him. He gives the example of someone who wounds another, which other
then dies by his own bad conduct or his neglect of the wound. In such event, the
homicide, says Vitoria, should not be imputed to the one who wounded him.
Other doubts in the wake of Cajetan concern special cases of chance killing
and ecclesiastical irregularity resulting from them. While, in contrast to

Introduction

39

Cajetan, Vitoria did not discuss the matter of an accidental abortion which
St. Thomas had raised,120 in other cases he is usually in agreement with Cajetan.
To explore these in more detail would take us far afield into areas of Church
discipline and canon law. The reader who wishes to go further may look to
the text itself which, as annotated, is for the most part clear enough without
further comment.
IV. Some Remarks on the Translation
As mentioned, both the Relection and the Commentary have come down
to us only through students’ notes. We do not have a Vitoria’s own final pol­
ished version of either text. As was also said, the relection, “On Homicide,”
betrays a certain incomplete character in its overall structure and in its cita­
tions of texts. In the Commentary, the structure is better defined but there is
some inexactness again in citations. This may be due to Vitoria himself, but it
could easily have resulted from his copyist’s miscues.
A further complication in the Commentary comes from the fact that the
notes of Vitoria’s lectures contain numerous passages in which he broke off
speaking in Latin and, perhaps better to aid his listeners’ understanding, in­
jected a word or a phrase in Spanish. Marking these passages with quotation
signs, I have done my best to render them literally and yet clearly. Sixteenth
century Spanish presented some difficulties for a translator whose reading in
Spanish has been limited to present century authors. For example, it took me a
while to realize that “dalle” equates with “dar le” and “matalle” equals “malar le”
Wherever possible I have tried to give a literal translation. This, however,
sometimes made for such awkward English that I had to range out from the
Latin. At least as reported, Vitoria’s Latin is alternately repetitious and cryp­
tic. Clauses are interlocked in an almost byzantine way. His sequence of tenses
is often unreliable and the text of both the Relection and the Commentary is
replete with anacolouthic constructions. Of course, the lecture style itself con­
tributed to this. A particular difficulty came from the Scholastic style of “sic el
non (“yes and no”). Often it took some sorting to know just what was Vitoria’s
own position vis à vis those of others he was reporting or refuting. In the
Commentary, especially, I tried to bring out his positions by underlining such
phrases as “I say” or “I answer.”
Not too helpful in this connection was the paragraphing of Vitoria’s Latin
editors. Although I was tempted at times to break their long rambling para­
graphs into shorter ones, I resisted doing so. Usually, but not always, I did the
same with respect to sentences which were at times almost interminable. My
thought was to stay close to the Latin in order to aid scholars wishing to verify
my translation and also to stay myself as close as possible to Vitoria. With this
in mind, normally when I had to insert words to bring out his meaning I
enclosed them in square brackets.

40

Francisco de Vitoria, On Homicidt

A few items which bear mentioning are: Vitoria’s use of “et” (“and”) often
in an exegetic way; his typically Latin employment of double negatives, e.g,
“non inconvenit” (“it is not unfitting”); and his impersonal Latin construc­
tions, e.g. “arguitur” (“it is argued”) or “respondetur” (“it is answered”). These
last I usually translated by “we argue,” “we answer,” or “the answer is,” etc. A
usage which I at first thought unusual was “postquam” (“after”) as equivalent
to a temporal “cwn (“when”). But after meeting it numerous times, I came to
see it as normal.
As regards Vitoria’s use of pronouns and antecedents, sometimes I substi­
tuted the unexpressed antecedent for a prounoun while at other times I sub­
stituted a pronoun for an expressed antecedent. His use of personal verb end­
ings was often inconsistent. In the same paragraph, or even at times in the
same sentence, he talks in both first person singular and first person plural, in
second person, or in third person with an unidentified “they” conveyed by a
verb ending.
With regard to verbs, frequently I treated present tense as historical, equiva­
lent that is to a past tense. In this vein, the imperfect tense often equated with
a simple past tense. Again, I relied on context to choose between a simple past
tense and a perfect tense. To bring out wherever possible Vitoria’s legal inter­
ests, I usually translated the impersonal verb, “licet” as “it is lawful” or “it is
licit,” rather than “it is right” or “it is permitted.” Also at rimes for a livelier
reading I changed Vitoria’s verbs in passive voice into active verbs in English.
For biblical quotations, whenever possible I used the Douay-Rheims ver­
sion. My reason was that this version, made as it was directly from the Vulgate,
came closest to Vitoria’s Latin. For the Relection, I did use the Spanish trans­
lation, made originally by Getino and reproduced by Urdanoz, on occasion
to revise my English rendition. But at other times I deliberately translated in
a different way from their Spanish

Notes
1 The principal sources I am following here are: Luis AlonsqGetinq,1 O .P., El Maestro
Fray Francisco de Vitoria. Su vida, su doctrina e influencÎcTiM-iàsià: Imprenta
Catôlica, 1930); Teôfilo Utdânoz, O.P., “Introducciôn biogrâfica,” in Obras de
Francisco de Vitoria: Relecciones teologicas (Madrid: Biblioteca de Aurores Cristianos,
19®)), pp. 1-107; Vicente Beltrin de Heredia, “Vitoria (François de),” Dictionnaire
de théologie catholique, XV, 2* “" part. (Paris: Letouzey et Ané, 1950), cols. 311734; and for Vitoria’s student days at Paris: Ricardo G. Villoslada, S.J., La universidad
de Paris durante los estudios de Francisco de Vitoria, O.P. (1507-1522) (Romae:
Apud aedes Universitatis Gtegorianae, 1938).
1 On the spelling of his name, cf. Getino, p. 14, and: “En cuanto a la grafia del
nombre, signe la suerte del de la cuidad de donde ha sido tornado, que en aquella
época se escribia de tres maneras: Victoria, Bitoria, Vitoria. De los tres modos

Introduction

41

escriben los registres el nombre de nuestro teôlogo. Pero era mâs comûn y prevaleciô
el ùltimo. Es también el modo como se firma el maestro en las cartas castellanas:
Francisco de Vitoria. Sôlo en la firma latina usa también la grafia latina: Victoria.”
Urdânoz, p. 5.
3 Cf. Getino’s report (p. 13) of the opinion of Echard.
4 To be sure, most dates in this brief presentation ofVitoria’s life have been in dispute
among his biographers. Since I have neither the interest nor the competence to
enter into these disputes, I am simply presenting here a distillation of my reading
of those biographers.
5 For this, see Vicente Beltrin de Heredia, O.P., “En que afio naciô Francisco de
Vitoria? Un documento revolutionario,” La cientia tomista, LXTV (1943), pp. 4959.
6 Cf. Urdanoz, p. 4.
7 Cf. Urdânoz, p. 6.
8 Ibid., pp. 6-8.
’ On both the decadence and the sixteenth-century revival of the University of Paris,
cf. Villoslada, ch. 2, pp. 29-71.
10 On Standonck in this connection, cf. Villoslada, pp. 61-4.
11 Cf. ibid., esp. pp. 65-6.
’12 Ibid., p. 31.
13 On the person and work of Celaya, see Villoslada, pp. 180-215. For lists of the
Spanish masters and students at Paris during this period, cf. ibid., 371-414.
14 Cf. Getino, p. 29.
15 Urdânoz, 12-13.
16 For the text of this, cf. Getino, p. 33.
17 On this and the course of theological studies at medieval universities, see Etienne
Gilson, History of Christian Philosophy in the Middle Ages (New York: Random
House, 1955), p. 248.
18 For Lombard’s work and its use through the Middle Ages, see P. Glorieux, “Sen­
tences (Commentaires sur les),” Dictionnaire de théologie catholique, XIV, 2èmt partie
(1941), cols. 1860-84.
” Cf. Urdânoz, pp. 11-14.
“The Latin title of this was: Sancti doctoris divi Thomae aquinatis predicatorum ordi­
nis liber nomine. Secunda Secundae, at meritis facile primus nusquam citra montes
hactenus impressus, geminoque indice illustratus, altero antiquo illo articulatim
materias distinguente: altero alphabetario scilicet primo adiecto. Et a reverendo
admodum patre et doctote optime merito fratre Petro brussellensi accuratissime
castigatus; cf. Getino, p. 300. For a reproduction ofVitoria’s preface, which is his
first known, cf. Villoslada, pp. 422-5.
21 Cf. Getino, pp. 303-7.
22 Ibid., 308-11. For Vitoria’s preface, see p. 309.
23 Cf. its citation in some of the notes to the Relection and Commentary below.
24 Cf. Urdânoz, p. 17.
25 In this connection, cf. remarks of a great medievalist: “La educaciôn de Vitoria filé
el ùltimo esclarecido mérito que se asignô esta escuela de su Orden, tan nombrada

42

Francisco de Vitoria, On Homicide ;

en la historia de la antigua escolâstica, antes de ver palideccr su brillo, junto con el
de la Universidad de Paris, en las tormentas de la Reforma; entonces huyô con
Francisco la primacia de la ciencia teolôgica, atravesando los Pirineos, a la fiel
creyente Espana.” Franz Cardinal Ehrle, “Los manuscrites vaticanos de los teôlogos
salmantinos dei siglo XVI. De Vitoria a Bafiez,” primera ediciôn espafiola corregida
y aumentada a cargo del padre José M. March, S.J., Etudios Eclesiasticos, VIII
(1929), p. 157, cited by Urdânoz, p. 17.
26 Getino (p. 381) gives a date of 1509 for this. Urdânoz (p. 13), however, says that
the date of Vitoria’s ordination is unknown.
27 For Vitoria at Valladolid, cf. Getino, pp. 47-56.
28 Salamanca, like other southern European universities was organized and run by its
students rather than, as at Paris, by the masters; cf. "... Salamanca era Universidad
de tipo democrâtico, calcada mis en los estatutos de Bolonia que en los de Paris.”
Villoslada, p. 316.

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25 Cf. Villoslada, pp. 308-19.
50 In 1355 the Faculty of Arts at Paris, alarmed by abuses of the method of dictation,
had forbidden its further use. At the same time it was also proscribed there by the
Faculty of Canon Law and then in 1366 by the Faculty ofTheology. By the end of
the fourteenth century this last prohibition was reversed and finally in 1491 the
Faculty of Arts also restored the practice; cf. ibid., pp. 310-311. For a similar
controversial practice called “diting” in seventeenth-century English and Scottish
schools, cf. William T. Costello, S.J., The Scholastic Curriculum at Early Seventeenthcentury Cambridge (Cambridge, MA: Harvard University Press, 1958), pp. 13-14.
31 On Vitoria’s lively style of dictating, cf. Villoslada, 316-7.
32 On this, cf, “Que en la exposiciôn de las doctrinas filosôficas existan defectos en las
releccionesvitorianas, es cosaharto notoria.... en ellas hay. argumentes presentados
en forma imperfecta y que non concluyen; intercalaciôn de sentencias y de pruebas
con tanta confusiôn que, a veces, hasta cuesta trabajo Hegar a entender qué es Ιο
que, en ciertos puntos, defiende Vitoria; inexactitudes y equivocaciones de buko;
y otros varios defectos, sobre los cuales no se puede en justicia hacer gran hincapié
para format un capitulo de cargos a Fray Francisco, ya que no filé éste quien
publicô el texto de las relecciones, y por tanto, no pudo limar ni corregir estes
defectos, que, pueden no ser de él, sino de los alumnos que, al oido, tomaron sus
explicaciones y las transcribieron en los côdices que sirvieron para imprimir las
relecciones.” Marcial Solana, Historia de lafilosofia espaüola. Época del renacimiento
(siglo xvi), III (Madrid: Real Academia de Ciencias Exactas, 1940), p. 83.
33 Vicente Beltrân de Heredia, O.P., calls it “materia preferida en sus estudios por
Vitoria,” cf. Francisco de Vitoria, O.P., Comentarios a la Secunda secundae de Santo
Tomas [hereafter. Comentarios...,], 1 (Salamanca: Biblioteca deTeôlogos Espaftoles,
1932), pp. vii-viii.
34 For some of this, cf. Beltrân de Heredia, “Vitoria (François de),” col. 3122; also cf.
Urdânoz, pp. 38-41.
35 For the text of Vitoria’s opinions before the commission, cf. Getino, pp. 98-101.
36 Cf. “Ces réponses nous font entendre que l’enthousiasme jadis manifesté par Vitoria
pour Erasme, lors de son séjour à Paris, s’était bien refroidi, depuis qu’il avait cru

Introduction

43

remarquer les affinités de celui-ci avec Luther.” Beltrân de Heredia, “Vitoria
(François de),” col. 3122.
37 Cf. esp. his “Relection on the Recently Discovered Indians” {Rekctio de Indis recenter
inventis) [hereafter referred to as: On the Indians}, ed. Urdânoz, 641-726.
38 See the “Relection on the Law of War” (Relectio dejure belli) [hereafter referred to
as: On the Law of War}, Urdânoz, 811-858; and his commentary on Summa
Theologiae IIa-II“, qu. 40, aa. 1-4, in Comentarios ..., II (Salamanca, 1932), pp.
279-93.
37 On this, cf. J. Brown Scott, The Spanish Origin ofInternational Law. T. 1, Francisco
de Vitoria and his Law ofNations, Oxford: The Clarendon Press, 1933 and N.
Pfeiffer, “Doctrina juris internationalis juxta Franciscum de Vitoria,” in Xenia
Thomistica III (Romae, 1925), pp. 391-420. For Vitoria’s influence on the coloni­
zation of America, cf. Urdânoz, pp. 53-60.
40 Getino, pp. 219-222.
41 Ibid. 224-5.
42 Cf. Beltrân de Heredia, “Vitoria (François de),” col. 3123.
43 ‘como crucificado en una cama;’ cf. Getino, p. 277.
44 For Vitoria’s poor health throughout his years at Salamanca, cf. Getino, pp. 11418.
45 Ibid., p. 279.
46 “La Bibliografia del P. Vitoria abarca très grupos de obras: 1.’ las que él publicô de
otros autores, ...; 2.° las que otros publicaron de él; 3.° las que se encuentran
manuscritas en los Archives.” Getino, El maestro ..., p. 299. For a convenient
listing of Vitoria’s prefaces, extracts from his teaching, opinions, moral decisions,
and extant letters, cf. Urdânoz, pp. 83-4.
47 Cf. Getino, p. 270; Urdânoz, p. 68; and Beltrân de Heredia, Comentarios ... Ill
(Salamanca, 1934), xxxiii, who remarks (xxxivxxxv) among Vitoria’s hearers many
law students as well as later bishops and theologians (xxxv-xxxviii).
48 Cf. Vitoria, In Ila-IIae, q. 89, a. 7, in Comentarios..., V (Salamanca, 1935), p. 20.
On this text and the number of Vitoria’s hearers, cf. ibid., I, p. xii, n. 1.
49 On this, cf. the remarks of a biographer of the famous Jesuit philosopher-theolo­
gian, Francisco Suârez (1548-1617), who studied theology at Salamanca in the
third decade after Vitoria’s death; “Perhaps in no other university in the world is
there to be found so brilliant a succession of professors as that which filled the
principal chair of theology at Salamanca during the sixteenth century. Suarez’
teacher, Mancio, was the fifth of the fine which started with the great Francis
Vittorio in 1526, and ended with the controversial Dominic Banez in 1604. In
the order in which they followed Vittorio these outstanding Dominican scholars
were: Melchior Cano [1509-1560], Dominic de Soto [1494-1560], Peter de
Sotomayor [1511-1564], John Mancio [1497-1576], Bartholomew de Medina
[1527-1580], and Dominic Banez [1528-1604]. All of these men enter intimately
into the life of Francis Suarez; those before Mancio, his teacher, because of their
influence on his development; those after Mancio because he knew them person­
ally and was sometimes at odds with them.” Joseph Fichter, Man ofSpain, Francis
Suarez (New York, 1940), 79-80, dates added.

'■'Β<ί

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Francisco de Vitoria, On Homicide

44

50 For some of their testimonies, see Getino, pp. 281-284 and Appendix I, esp. pp.
421-428; also cf. Solana, pp. 84-85.
51 See for example the listings of parallel passages between Vitoria and Grotius, and
then Gentili, as given by Getino, Relecciones teolôgicas del Maestro Fray Francisco
de Vitoria, ediciôn critica, con facsfmil de codices y ediciones principes, variantes,
versiôn castellana, notas e introduccidn, por el P. Mtro. Fr. Luis G. Alonso Getino,
Cronista de Salamanca y Bibliotecario de la “Asociaciôn Francisco de Vitoria,”
tomo III (Madrid: Imprenta La Rafa, 1935), pp. ix - xliii.
52 For this, see Getino, El Maestro .... p. 283.
53 Cf. Urdânoz, 78-9.
M On this, cf. P. Glorieux, La littérature quodlibétique, 2 vols., Paris: J. Vrin, 1925,
1935.
55 Cf. Urdânoz, p. 78.
56 Beltrân de Heredia, “Vitoria (François de),” col. 3128.
57/W.,78.
* Ibid., 79.

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M Ibid., p. 80.
60 Cf. El maestro..., pp. 323-5; Relecciones..., I, xx-xxvi.
61 Cf. “Vitoria (François de),” ... col. 3132.
62 Cf. Obras..., pp. 93-4.
63 See Urdânoz, pp. 90-8. This contrasts with the rare publication of relections by
other Salamanca masters; cf. Beltrân, “Vitoria...,” col. 3128.

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M Urdânoz, p. 80.
65 Urdânoz, p. 102. For descriptions of the manuscripts themselves, cf. ibid., 99-101.
“Ci. Obras..., w. 1083-1130.
67 Cf. Relecciones teolôgicas del Maestro Fray Francisco de Vitoria.... Ill, pp. 24-38.
68 Cf. Urdânoz, p. 79; Beltrân de Heredia, “Vitoria ...”, col. 3128.
65 Cf. Urdânoz, p. 1071.
70 Cf. e.g. “The result, therefore, from all that has been said is that, without doubt,
the barbarians were true lords, both publicly and privately, just as much as the
Christians. And so they, both princes and private citizens, could not be despoiled
of their possessions, on the ground that they were not true lords.” On the Indians,
1, n. 23; Urdânoz, p. 665; ibid., Ill, n. 6, p. 713.
71 On the influence of nominalism, for good and ill, upon Vitoria, see Urdânoz, p.
16; esp. cf.: “En sus Relecciones y Lecturas teolôgjcas posteriores, para las que runiria
en gtan parte materiales durante su ptofesorado, su posiciôn es casi siempre critica
y polémica frente a las teorlas del nominalismo, opuestas al tomismo. No obstante, opiniones nominalistas se infiltran a veces, total o parcialmente, en su
pensamiento y exposiciôn.” ibid.
72 These are identified in the Commentary as Duns Scotus (1266-1308) and his
followers.
.
73 Cf. The Roman Catechism, translated and annotated by Robert I. Bradley, S.J. and
Eugene Kevane (Boston: St. Paul Editions, 1985), Part III, c. 5, n. 4 (pp. 410411). On this Catechism, see E.Mangenot, “Catéchisme,” Dictionnaire de théologie
catholique, II, 2toe parue (1932), cols. 1917-1918.

5 ’

Introduction

45

74 Cf. “As regards the secular power, we assert that it can without mortal sin exact a
judgment of blood, as long as in carrying out retribution it proceeds not from
hatred but by judgment, not without precaution but with care.” Profession of
Faith prescribed for the Waldensians, 18 December 1208; cf. Henricus Denzinger
et Adolfus Schônmetzer, S.J., Enchiridion symbolorum definitionum et declarationum
de rebus fidei et morum, editio xxxii (Barcinone/Friburgi/Romae/ Neo-Eboraci:
Herder, 1936), n. 795, p. 257 [hereafter this work will be referred to as: Denzinger].
75 Cf. E. Thamiry, “Mort (Peine de),” Dictionnaire de théologie catholique, X, 2ème
partie (1929), col. 2500.
76 Cf. “Preserving the common good of society requires rendering the aggressor un­
able to inflict harm. For this reason the traditional teaching of the Church has
acknowledged as wellfounded the right and duty of legitimate public authority to
punish malefactors by means of penalties commensurate with the gravity of the
crime, not excluding, in cases of extreme gravity, the death penalty. For analogous
reasons those holding authority have the right to repel by armed force aggressors
against the community in their charge.” Catechism ofthe Catholic Church (Città
del Vaticano: Libreria Editrice Vaticana, 1994), η. 2266, p. 546.
77 Politics I, c, 2, 1253a2
78 Cf. e.g., Relection “On Civil Power” (Depotestate civili) [hereafter: On Civil Power]
, n. 8, Urdânoz, pp. 162-3; ibid., n 11, p. 166; On the Indians, III, n. 16, p. 721.
79 Cf. On Civil Power, n. 10, Urdânoz, p. 166.
80 Cf. ibid., nn. 4-6, pp. 156-9.
81 Cf. ibid., n. 9, p. 164.
82 Cf. Relection “On Matrimony,” (De matrimonio) [hereafter: On Matrimony], n. 6,
ed. Urdânoz, p. 891. For Vitoria making this opinion his own, see In Ila-IIae, q.
62, a. 1, n. 34 in Comentarios..., Ill, p. 86.
83 The heart of the passage in question is: “Sicut corpus hominum in sua integritate
conservari non posset nisi esset aliqua vix ordinatrix quae singula membra in usus
aliorum membrorum, maxime in commodum totius hominis componeret. Sane
ita in civitate contingere necesse esset, si unusquisque pro suarum rerum utilitate
sollicitus esset, et unusquisque civis publicum bonum negligeret.” On Civil Power,
n. 5, Urdânoz, pp. 157-8. Pagden and Lawrance translate this as follows: “Just as
the human body cannot remain healthy unless some ordering force directs the
single limbs to act in concert with the others to the greatest good of the whole, so
it is with a city in which each individual strives against the other citizens for his
own advantage to the neglect of the common good.” Vitoria: Political Writings
(Cambridge: Cambridge University Press, 1991), pp. 9-10.1 would rather trans­
late it something like this: “Just as the human body could not remain intact unless
some ordering force direct its individual members to act together for the greatest
good of the whole, so would it necessarily be in a republic, if each one were to
worry about his own advantages and each were to neglect the common good.”
Thus in Vitoria’s Latin, there is no mention of individuals striving against one
another in some Hobbesian state of nature. The point rather is that without di­
rection each would simply go his own way and ignore the common good, which,
with or without conflict, would be bad for the republic. Finally, Urdânoz s Span-

46

Francisco de Vitoria, On Homicik

ish translation here is: “Asi como el cuerpo del hombre no se puede conservât en ;
su integridad si no hubiera alguna fuerza ordenadora que compusiese todos los
miembros, los unos en provecho de los otros y, sobre todos, en provecho del hombre
entero, asi ocurriria en la ciudad si cada uno estuviese solicito de sus proprias
utilidades y todos descuidasen el bien pùblico.” p. 157.
84 Cf. “As it is said in [the Digest] Dejustitia etjure [1,1,3]: ‘Nature has establisheda
kind of kinship as a force among all men.' Hence, it is against natural justice (jw
naturale], that one man turn himself away from another without reason. “For
man is not a wolf to man”, as Ovid says [actually: Plautus, Assinaria, (Act. IIII Sc.
4,78-94)], but rather a man.” On the Indians, III, n. 3, Urddnoz, p. 709; also cf.
On Civil Power, n., Urddnoz, p. 156.
85 Indeed, the basis of all dominion is that human beings are made in God’s image;
cf. On the Indians, I, n. 21, Urddnoz, p. 663.
86 Cf. note 83, above.
87 Cf. “I say that civil laws also oblige under pain of sin and guilt just as much as
Church laws.” On Civil Power, n. 15, Urddnoz, p. 183; and “Again, as St. Thomas
teaches, in [Summa Theologiae] P-II", q. 96, a. 4, laws oblige in conscience.” On
the Indians, I, n. 9, Urddnoz, p. 657.
88 Here the principal text, as 1 have marked it in footnotes to the translations, is
Romans 13:4: “He beareth not the sword in vain, for he is an avenger?
89 In this the sovereign is conceived as acting in the role of Gods minister, cf. Romans,
13:4.
90 On the role of public punishment, cf. the text cited cited from Domingo Soto in
note 107 in the Commentary on IP-II", question 64, below.
,l For an excellent summary ofVitoria’s juridical philosophy, cf. J.G. MenendezRigada, “Vitoria (François de): III, Doctrine juridique de Vitoria,” Dictionnaire
de théologie catholique, XV, 2tae partie (1950), cols. 3133-3143.
92 For this, see St. Thomas, Summa Theologiae, Π’*-ΙΙ
',
q. 26. As a cursory reading of
the texts translated below will reveal, Vitoria’s thought was very much guided by
the Thomistic doctrine of the order of charity.
93 For the willing of something impossible in later debate about “impossible objects,”
cf. my article, “Another God, Chimerae, Goat-Stags, and Man-Lions: A Seven­
teenth-Century Debate about Impossible Objects,” The Review of Metaphysics,
XLVHI (1995), esp. 802-3.
94 Cf. Summa Theologiae ll’-ll“, q. 95, a. 8, ad 3.
95 Cf. In IIa-IIae, q. 95, a. 8, n. 3, in Comentarios ..., V, pp. 73. The principal law
cited here is Decretum 11, Causa II, q. 5, c. 22 (Monomachiam), in Corpus juris
canonici, ed. Lipsiensis secunda, A. Richter et A. Friedberg, Pars prior: Decretum
Magistri Gratiani (Lipsiae: Officina B. Tauchnitz, 1922), col. 464.
96 Cf. “Nicholas of Lyra answers that this is the one case in which it is lawful to accept
a dud. And I think that he is speaking the truth, because it is case of defense,
inasmuch as he [i.e. the challenger) means to kill me.” (Respondet Nicolaus de Lyra
quod iste est unus casus in quo licet suscipere duellum. Et credo quod verum dicit, quia
est causa defensionis, quia ille vult occidere me.) Ibid. n. 4, p. 74.

Introduction

47

97 On this, cf. Daniel A. Cronin, The Moral Law in Regard to the Ordinary andExtraordi­
nary Means ofConserving Life, Rome: Pontificia Universitas Gregoriana, 1958.
98 For other examples ofVitoria’s wry humor, cf.: (1) his rejection of Spanish claims
on the basis of a “right of discovery” — "... it profits nothing toward the posses­
sion of those barbarians — any more than if they had discovered us.” On the
Indians, II, n. 7, ed. Urdanoz, p. 685; (2) his discussion of the case of a nun at
Paris “who conceived — and you know it was not by the Holy Spirit,” In IIa-IIae,
q. 62, a. 6, n. 18, in Comentarios..., Ill, p. 189; and (3) his delightful introduc­
tion to his 1531 relection, On Matrimony, in which he compares himself, a celi­
bate priest, speaking of marriage with a certain old sophist who dared to give
Hannibal a lecture on the art of war, cf. Urddnoz, p. 880.
99 While Greeks and Romans may have reasoned so, modern Americans might adapt
the argument to cover physical pain and suffering.
100 Cf. Beltran de Heredia, Comentarios..., I, xvi.
101 For the little we know of Trigo, see Beltran de Heredia, Comentarios ..., I, xxvxxviii.
102 Cf. Urdanoz, p. 28.
103 Ibid., pp. 28-9.
IM
“Alumno inteligente y aventajado, que escucho durante siete afios las lecciones
de! maestro Vitoria, nos ha transmitido una versiôn, si no integral,
indiscutiblemente la mejor que nos queda de sus lecciones sobre la Secunda
secundae.” V. Beltran de Heredia, Comentarios..., VI (1952), p. 13.
105 For this, cf. Manin Grabmann, Mittelalterliches Geistesleben, I (München: Max
Huebner Verlag, 1926), p. 529. For another distinction between “in the manner
ofa writing” {per modum script!) and “ in the manner of a commentary” (per modum
commenti), cf. M.D. Chenu, O.P., Toward Understanding St. Thomas, tr. Landry
and Hughes (Chicago: Henry Regnery Company, 1964), p. 220, n. 34.
106 On Salamanca statutes relating to this, cf. “En los Estatutos de 1538, redactados
en parte por Vitoria, se dispone que ‘los lectores (profesores) sean obligados a leer
en latin y no hablan en las càtedras en romance, excepto refiriendo alguna ley del
reino o poniendo enxemplo;...’” L. Getino, El Maestro ..., p. 112, n. 3. Also, cf.
"... in this university it has been imposed under pain of excommuncation that
scholastics would speak Latin in the schools.” (... in hac Universitate impositum
est sub poena excommunicationis quod scholastics loquerenter latine intra scholas.),
In IIa-IIae, q. 62, a. 3, n. 4, in Comentarios..., Ill, p. 151.
107 Cf. “Desde fines de diciembre hasta bien avanzado febrero de 1536 recorriô las
cuestiones 63-77 dilucidando magistralmente la materia relativa a los vicios
opuestos a las partes subjectivas de la justicia,...” Comentarios..., IV (1934), p. x.
108 For a fuller presentation ofVitoria’s doctrine of rights and dominion and the lack
of such in animals, see In IIa-IIae, q. 62, a. 1, nn. 4-16, esp. nn. 10-11, in
Comentarios... Ill, pp. 63-74.
109 Cl ibid., n. 11, p. 71110 This is basic thought which Aquinas has expressed in other places also; see e.g., De
potentia Dei, q. 5, a. 9, ed. P. Pession (Taurini: Marietti, 1953), p. 154; also cf.:

48

Francisco de Vitoria, On Homicide

“Elements then exist on account of mixed bodies. But these in turn exist for living
things, among which living things plants exist for animals and animals for man.
Man, therefore, is the goal of all generation.” {Sunt ergo elementa propter corpora
mixta; haec veto propter viventia; in quibus plantae sunt propter animalia; animalia
vero propter hominem. Homo igitur estfinis totius generationis.) Contra Gentiles, III,
c. 22 (Madrid: Biblioteca de Autores Cristianos, 1953, II, pp. 122-3.
nl On the medieval conception of the republic as organic, cf. Ulman Struve, Die
Entwicklung der organologischen Staatsauffassung im Mittelalter, Stuttgart:
Hiersemann, 1978.
112 On this, Vitoria even more stands out inasmuch as Cajetan, the principal com­
mentator before him, did not comment at all on Article One.
113 Note a parallel question: “Whether it is lawful for clerics and bishops to fight [in
a just war]?” In Ha-IIae, q. 40, a. 2, in Comentarios..., II, pp. 288-91.
114 Of course, Vitoria would say that a master may not simply kill his a slave; cf. e.g.
“... nor is a master the master of his slave in all ways, for he must not kill him.” (...
nec dominus est dominus servi ad omnes usus, quia non ad occidendum) In Ila-IIae,
q. 62, a. 1, n. 15, Comentarios... III, p. 73.
115 Cf. Summa Theologiae, IP-II", q. 69, a. 4, ad 2.
116 Cf. In Ila-IIae, q. 69, a. 4, nn. 3 and 8, in Comentarios..., IV, pp. 39 and 42. Also
cf. translation below at In Ila-IIae, q. 64, a. 7, n. 4.
1,7 For a bitter criticism of the Spaniards’ motivation in this, cf. Gustavo Gutiérrez,
Las Casas: In Search ofthe Poor ofJesus Christ, tr. Robert R. Barr (Maryknoll, NY:
Orbis Books, 1993), esp. pp. 429-44.
118 See, e.g. nn. 35,38,45, and 48; Urddnoz, pp. 841, 844, 848, and 849.
n’ For examples, see Vitoria’s replies above to the arguments about the Carthusians
and to Samson.
120 Cf. Summa Theologiae Π’-ΙΙ“, q. 64, a. 8, ad 2. It may be noted that the abortion
of an animated fetus, which results from striking a pregnant woman, is here re­
garded as homicide. This seems remarkably anticipatory of present day laws in
various American states which prescribe a charge of homicide in such a case. Vitoria
would hardly be in any doubt about this, and much less would he doubt that an
intentional abortion of an animated fetus would be homicide. In all probability,
his only questions would concern the species of sin when a fetus would be aborted
prior to animation and the ecclesiastical penalities to be attached to abortion at
different stages of fetal development. For a brief summary of the views of St.
Antoninus and Silvester Prieras on abortion, with which Vitoria would have been
familiar and for which he would have had respect, cf. Germain Grisez, Abortion:
The Myths, the Realities, and the Arguments (New York: Corpus Books, 1972), p.
166.

Relection on Homicide

By
Francisco de Vitoria, O.P.

A Translation

From: Obras de Francisco de Vitoria·. Relecciones teolôgicas, edicion critica
del texto latino, versiôn espafiola, introducciôn general e introducciones
con el estudio de su doctrina teolôgico juridica, porTeofilo Urdànoz, O.P
(Madrid: Biblioteca de Autores Cristianos, 1960). Printed with permission.

Francisco de Vitoria, On Homicide

50

De Homicidio

An sit fortis viri occidere se

1. Mortem sibi consciscere, quomodo sicut semper impium, ita et mortem
non solum patienter, sed libere etiam subire plerumque consilium,
nonnunquam praeceptum sit,
2. Interficere seipsum, semper est impium. Et multa de inclinatione naturali,

peculiariter an sit semper prona ad malum.
3. Inclinatio hominis, quatenus homo est, est bona et ad nullum malum, aut
virtuti contrarium inclinat.

4. Deus an naturas rerum inmutare potuerit, vel ab initio alias facere, quam

nunc sunt.

5. Quod Deus naturas rerum mutare non possit ab auctore probari videtur.

6. Deus, supposito quod non possit rerum naturas mutare quomodo fecerit
hominem cum naturali inclinatione ad malum.
7. Inclinatio hominis quamvis sit ad malum tamen non est mala malitia morali

quamdiu manet intra terminos appetitus.

8. Deus creavit hominem sine inclinatione mala, qua appetitus inclinat ad
malum.
9. Deus dedit appetitui naturalem inclinationem, ut obediret voluntati.

10. Homo non inclinetur ad diligendum se plus quam Deum, vel proprium
bonum plus quam commune.
11. Praecepto, non occides, quid et qualiter homicidium prohibeatur. Et de
triplici opinione ibi recitata.
12. Praeceptum de non occidendo, est iuris naturalis, et non positivi, sicut
etiam alia praecepta Decalogi secundum auctorem.

51

Relection on Homicide

On Homicide

Whether It is the Act of a Brave Man To Kill Himself
[Table of Contents1]
1. Just as it is always sinful to inflict death upon oneself, so it is often a matter
of counsel and sometimes prescribed to undergo death patiently and even
freely.

2. It is always sinful to kill oneself. Plus many things about natural inclina­
tion — especially whether it is always prone to evil.
3. Human inclination, as such, is good and inclines to no evil or to what is
contrary to virtue.
4. Whether God could change the natures of things or from the beginning
could have made them different than they are now.

5. That God could not change the natures of things seems proven to the
author.
6. Supposing that He could not change the natures of things, how would
God have made man with a natural inclination to evil?

7. Although human inclination may be toward evil, still that inclination is
not morally evil as long as it remains within the limits of appetite.

8. God created man without an evil inclination moving his appetite toward
evil.
9. God gave human appetite a natural inclination to obey the will.
10. Man is not inclined to loving himself more than to loving God, or to
loving his own good more than the common good.
11. Which and what kind of homicide is forbidden by the commandment,
“Thou shaft not kill”? Three opinions voiced on this.
12. According to the author, the command not to kill is, like the other com­
mands of the Decalogue, a matter of natural and not positive law.

I
Francisco de Vitoria, On Homiddt

52

Relection on Homicide

Praeceptum de non occidendo semper fuit aequale, et ante legem, et in

13.

13. The command not to kill was always the same — before the [Mosaic] law,
during the time of that law, and in the time of the Gospel.

lege, et tempore Evangelii.

14. If in the law of Moses it was permitted to kill an adultress or a thief, it was also
permitted before that law, and it is permitted now m the law of the Gospel.

14. Interficere si licebat adulteram, aut furem in lege Moysi, etiam licuit ante

1

j
j

legem, et licet in lege evangelica.

'

1

15. Praecepto hoc, non occides, quomodo prohibeatur omne homicidium,

1

quod stando in lege naturae sola, est malum et irrationabile.

16.

53

Praecepto de non occidendo, non magis prohibetur homicidium auctoritate

15. How by this command, “Thou shalt not kill,” there is forbidden every
homicide which, within the law of nature alone, is evil and irrational.

16. A homicide by public authority is not, by this command not to kill, more
forbidden than one by private authority.

publica, quam privata.

1

17.

Occidi quomodo dupliciter potest homo, scilicet ex intentione, et praeter

17. How a man can be killed in two ways — either by intention or without
intention.

intentionam.

I

18. Occidere hominem reipublicae nocivum ex intentione, stando in lute

[

divino et naturali licet ipsi reipublicae.

'
.
. .
. <
19. Homicidium de iure naturali et divino permissum, quibus sit commis-

11|
I

18. Within both divine and natural law it is permitted for the republic inten­
tionally to kill a man who injures it.
19. To whom is it permitted to kill a man when it is lawful by divine and
natural law?

sum.

I

20. Homicidium omne ex intentione praecepto de non occidendo est pro-

|
|

hibitum, seu publicae seu privatae personae, praeter quam id, quod reipublicae
aut publicis magistratibus et principatibus fuerit commissum.

21. Interficere seipsum quare non liceat.

ΐ
ί

22. Obiectum voluntatis non est solum verum bonum.
23. Deus solus est vitae et mortis dominus, non homo, qui quantum ad hoc,
est peculiariter servus Dei. Unde occidere seipsum, est Deo iniuriam facere.
24. Homo in multis casibus quamvis licitis viis possit vitam servare, quo­
modo tamen non teneatur.

25. Quod homo semper tenetur defendere vitam proximi, etiam
quandocumque licet, non est exploratum.

20. By the command against killing, there is forbidden every intentional ho­
micide, whether of a public or a private person, except that which is allowed
to public magistrates or governments.
21. Why it is not lawful to kill oneself.
22. The object of the will is not only what is a true good.
23. The lord of life and death is God alone, and not man, who in this regard is in
a special way the servant of God. Hence to kill oneself is to do injury to God.

24. How, although in many cases a man may preserve his life in lawful ways,
he still may not be obliged to do so.

25. It is not certain that a man is always obliged to defend the life of his
neighbor, even when it is lawfid to do so.
26. It is lawful to give bread to another, even when it entails the sure loss of

one’s own life.
26 Panem licet alteri cedere cum certa pernicie propriae vitae.

J

54

Francisco de Vitoria, On Homicide

27. Animam ponere pro amicis licet sit stultitia huius mundi, tamen est
sapientia apud Deum.
28. Damnato ad mortem non licet se fame interficere.
29. Damnato ad mortem licet fugere, et mortem non expectare.
30. Damnato ad mortem per cicutae seu veneni haustum, licet illud haurire,
nec videtur ad sui mortem cooperari.
31. Auxiliari licet amico etiam cum quantocumque vitae discrimine. Et quid
dicendum de uxore, quae etiam cum magno periculo marito peste laboranti
adsideret.

32. Navigare, et artem militarem exercere etiam cum magno vitae periculo
servatis circunstantiis quae magis et ut plurimum contingunt, licet.

33. Vitam abbreviare nullo modo licet, etsi non teneatur homo omnia media
licita etiam facere, ut sibi vitam reddat longiorem.
34. Alimentis insalubribus et nocuis vitam reddere breviorem, non licet, neque
tamen uti tenetur quis optimis.
35. Vitae conservandae ratione non sunt omnia media adhibenda necessario,
sed solum illa, quae ad hoc sunt de se, et ordinata et congrua.
36. Vita non est in discrimine pro bonis temporalibus ponenda, inter quae
gloria, honor, et fama reponuntur.
37. Brutus, Cato, Decius et alii innumeri qui sibi mortem consciverunt, utrum
excusationem habebunt, eo quod putabant in hoc se fortiter et laudabiliter
agere. Et quid de Samsone, Rasia et Saule.

Relection on Homicide

55

27. Although it is folly for this world, to give one’s life for one’s friends is
wisdom before God.
28. It is not right for one condemned to death to kill himself by starvation.
29. It is right for one condemned to death to flee and not wait for death.
30. For one condemned to death by drinking hemlock or poison, it is right to
drink it and he is not cooperating in his own death.

31. It is right to help a friend, even with some degree of danger to one’s own
life. What should be said of a wife who with great danger would sit by the side
of her plague struck husband.
32. It is permitted to sail, or to practice the art of soldiering, even with great
danger to life, even under the conditions which generally prevail in such in­
stances.
33. It is not right to shorten life in any way, although a man is not bound to
make use of all, even licit, means in order to prolong his life.
34. It is not permitted to shorten life by unhealthy or harmful food, but one
is not bound to eat the best.
35. In order to preserve life, it is not necessary to use all means — but only
those which of themselves are both fitting and suitable
36. Life should not be put in danger for such temporal goods as glory, honor,

and reputation.
37. Whether Brutus, Cato, Decius, and many others, who inflicted death on
themselves, may be excused by the fact that they thought they were doing
something brave and praiseworthy. And what about Samson, Razias, and Saul?

56

Francisco de Vitoria, On Homiâh

Non de nihilo dixit Ecclesiastes 1,18: Qui addit scientiam, addit et laborem.
Habent agricolae sua otia, habent operarii, habent omnes opifices. Et cum
diebus operosis victum paraverint, festis diebus requiem habent, et pro suo
arbitrio remittunt, et oblectant animos, et corda oblita laborum. Nobis neque
festis neque profestis licet esse otiosos; nullas habemus studiorum ferias, nullam
vacationem ab exercitiis litterarum. Ecce convenimus, patres religiosissimi
virique spectatissimi, in festo tam celebri
ad hanc relectionem cum mihi non licuit non solum in sequentem annum ut
putaram, sed neque in alium quidem diem proferre. Ergo, ne supra laborem

necessarium, novum etiam in prooemiis assumamus, rem ipsam superis
praeeuntibus aggrediamur.
Argumentum me tractandum in praesenti relectione, non est aliquis novus
locus ad hoc designatus, et in ordinariis lectionibus praetermissus, ut in aliis
relectionibus a me factum est. Sed ut non nomine tantum, sed et re etiam sit
relectio, constitui tractare aliqua prius in meis lectionibus disputata, non tamen
multa; nec enim possem. Sed consilium meum ftiit in praesentiarum disputare
quaestionem: An sitfortis viri occidere seipsum, vel cum conservare vitam possit,
mortem oppetere. Et quando et quatenus hoc aut licitum, aut laudabile sit. Ad
quam quaestionem commodius tractandam et examinandam, tanquam
fundamentum totius huius relectionis, sequentem conclusionem a principio
pono.

1. PRIMA CONCLUSIO: Sicut mortem sibi consciscere semper impium est, ita
mortem non solum patienter tolerare, sed libere etiam subireplerumque consilium,
nonnunquam praeceptum est.

Hanc conclusionem pro temporis angustia, proque tenui mea eruditione
quam potero perspicue et clare, varie versabo. Inmoraborque circa singulas
partes, primo illam probando, deinde argumenta in contrarium obiciendo,
iliaque pro captu ingenii diluendo ac dissolvendo. Quod interim dum facio,
vos patres observandissimi virique ornatissimi, oratos velim ut me non tam
attente, quam benevole et amice audiatis.
2. Prima ergo pars conclusionis est, quod semper est impium interficere seipsum.
Hoc primo probatur. Quia occidere seipsum est contra naturalem
inclinationem hominis. Sed facere aliquid contra inclinationem naturalem
est peccatum. Ergo occidere se semper est peccatum. Maior est manifesta.

Relection on Homicide

57

[The Text of the Relection, “On Homicide”]
[Introduction]
It is not for nothing that Ecclesiastes I, 18, has said: “He that addeth knowl­
edge, addeth also labor." Farmers, laborers, and artisans have their leisure. And
after they have prepared food on days of work, they have their rest on feast
days and choose to relax and pleasure their minds and hearts forgetful of their
labors. But for us it is not permitted to be idle either on feast days or on
ordinary days. We have no days of rest from studies nor any vacation from
literary pursuits. Indeed, we come together, most religious fathers and most
respected men, on a feast so famous,2 for this relection, since I was not per­
mitted to defer it until next year nor indeed to deliver it on another day.3
Therefore, lest in introductions we take on more new labor than necessary, let
us with the help of God get on with the matter.
The argument I am about to treat in this relection, is not some new topic
designated for this and left aside in ordinary lectures, as was the case in my
other relections.4 But, in order that it be a “relecture” not just in name but
also in fact, I have decided to treat some, for I could not treat many, things
already discussed in my lectures.5 But it was my intention to discuss (disputari)
today the question: Whether it is the act ofa brave man to kill himself or when
he could save his life, to embrace death. And when and to what extent is this either
licit or laudable! In order to treat and examine this question in the best way, I
am positing at the beginning the following conclusion, as a basis for this entire
relection.

[The First Conclusion]
1. THE FIRST CONCLUSION:7 While it is always sinfid to inflict death
upon oneself, to suffer death patiently and to undergo itfreely is generally coun­
seled and sometimes commanded.

Governed by the shortness of the time8 and by my meagre erudition,91 will
treat this conclusion in various ways as clearly and as precisely as I can. And I
will spend time on its different parts, first proving it, then putting up argu­
ments against it, refuting and solving them according to the capacity of my
talent. While I am doing this, I would ask you most honorable fathers and
most eminent men, to listen to me not so much with attention as with be­
nevolence and friendship.
[First Proof of the First Part of the Conclusion]
2. Therefore, the first part of the conclusion is that it is always sinfiil to kill
oneself. THIS IS PROVEN FIRST: because to kill oneself goes against the
natural inclination of a human being. But to do something against natural
inclination is a sin. Therefore, to kill oneself is always a sin. The major pre-

58

Francisco de Vitoria, On Homicide

Non enim homo solum omniaque animantia, sed res omnes resistunt suae
corruptionis et pro viribus adnituntur conservare se in rerum natura, ut dicitur
in secundo De generatione, et experientia apertius docet. Quam ut probatione
res indigeat, nec opus est in re non dubia argumentis uti non necessariis. Est
ergo contra naturalem inclinationem hominis ut se interimat.
Quod autem inclinationi naturali adversari et repugnare sit illicitum,
exploratum est valde, atque in confesso. Si enim naturalis inclinatio semper
in bonum et honestum propensa est, atque adeo nunquam malum suggerit,
profecto huiusmodi inclinationi repugnare, aut in contrarium tendere, sem­
per illicitum erit. Quemadmodum enim virtuti quicquam contrarium facere
semper illicitum est, quod ea non nisi ad honestum inducat, ita prorsus si id,
ad quod homo suapte natura et inclinatione fertur, semper bonum est,
huiusmodi inclinationi contravenire malum erit. Bono enim non nisi
contrarium malum esse potest. Quare cum hic sit vel primus locus, et
praecipuum argumentum, quo hanc conclusionem doctores probare
contendunt, operae praetium erit, si de hac ipsa re uberius disseruerimus.
Et quidem sunt nonnulli, nec vulgares, neque contemnendi, sed primi etiam
Aristotelis expositores, quibus non videtur verum, naturam semper ad bonum
inclinare et honestum. Sed potius credunt naturam et gratiam, legem et
naturalem inclinationem contrarias esse sibique invicem repugnare. Quod
multis tum argumentis, tum etiam testimoniis suadere conantur.
Et primo argumentantur. Appetitus enim humanus fertur naturaliter in
omne bonum. Bonum autem delectabile est bonum quoddam. Fertur ergo
appetitus in bonum delectabile naturaliter, bonum autem delectabile
plerumque est contrarium virtuti; ergo naturaliter homo appetit contrarium
virtuti atque adeo peccatum et malum.
Secundo. Virtus omnis versatur circa difficile (ex auctoritate Aristotelis 2
Ethicorum}. Quod si natura inclinaret in bonum virtutis, certe huiusmodi
bonum difficile non esset. Nihil enim aliud inclinatio virtutis facit nisi reddere
facile et iucundum ipsum bonum, quod alioqui difficile erat. Non ergo natura
inclinat de se ad bonum. Inclinat autem, ergo inclinat ad malum. Et
confirmatur: Si enim homo sua natura inclinaretur ad bonum, non essent
necessariae virtutes, quarum hoc unum officium est, tollere difficultatem illam
et molestiam bonorum operum. Atque adeo qui probabilius philosophantur,
negant necessariam esse aliquam virtutem, anteponendam quidem ad ea bona
ad quae homines sua natura feruntur et inclinantur. Nemo enim tam ingenio
tardus est, qui putet virtutem esse aliquam, ut homines cupiant felices esse,
oderint autem miseriam.

Relection on Homicide

59

miss here is evident. For not only man and all animals, but all things gener­
ally, resist their own corruption, and strive with whatever powers they have to
preserve themselves in reality, as is said in the second book of the De
generatione™ and as experience teaches more evidently than the matter needs
proof. Nor is there any need in a non doubtful thing to use unnecessary argu­
ments. It is therefore against the natural inclination of a man to kill himself.
That it is illicit to oppose and to contradict a natural inclination is very
certain and generally acknowledged by all. For if a natural inclination is al­
ways leaning toward what is good and decent, and thus would never suggest
evil, to contradict an inclination of this kind and to lean in the opposite
direction will indeed always be illicit. For just as it is always illicit to do any­
thing contrary to a virtue which leads only to what is decent, so indeed, if
that to which a man is by his very nature borne is always good, it will be evil
to go against an inclination of this kind. For the opposite of good can only be
evil. Wherefore, since this is the first place and the principal argument by
which the doctors try to prove this conclusion, it is worthwhile to treat this
matter more fully.
And indeed there are some, not common nor to be despised, but even prime
exponents of Aristotle, to whom it does not seem true that nature always
inclines to what is good and decent. But they rather believe that nature and
grace, as well as law and natural inclination are opposites and contradict one
another. And they try to show this both with many arguments and with many
authorities.
Thus they argue first: Human appetite is indeed naturally led toward every
good. But pleasurable good is a certain good. Therefore, the appetite is natu­
rally led toward pleasurable good. But pleasurable good is often opposed to
virtue. Therefore, a human being naturally desires what is opposed to virtue
and what is therefore sin and evil.
Second, they argue from the testimony of Aristotle in Book 2 of his Eth­
ics'1-. All virtue is concerned with something difficult. But if nature were to
incline to the good of virtue, certainly a good of this kind would not be
difficult. For the inclination of virtue does nothing else but make easy and
pleasant that good which was otherwise difficult. Therefore, nature does not
of itself incline to good. But it does incline; therefore it inclines to evil. This
is confirmed: for if a man by his nature were to be inclined to good, virtues
would not be necessary — virtues whose one task it is to remove that diffi­
culty and the trouble involved in good works. And therefore, those who phi­
losophize more reasonably deny that it is necessary to posit some virtue in­
clining to those goods to which human beings of their nature are led and
inclined. For there is no one so dull witted as to think that it is a virtue that
human beings would desire to be happy and would hate misery.

60

Francisco de Vitoria, On Homicide

Tertio. Theologi ponunt motus subitos tam in voluntate, quam in appetitu
sensitivo. Nihil vero aliud sunt tales motus, quam inclinationes quaedam natu­
rales in malum. Ergo natura inclinat ad malum.
Quarto. Nam ad hoc, vel solum, vel certe potissimum ponebatur iustitia
originalis in primis parentibus, ut appetitus sensitivus contineretur in officio,
et voluntati sine difficultate pareret, et voluntatem ipsam rationi rationemque
divinae legi et voluntati subiectam efficeret. Quod si humanus appetitus non
sua natura adversaretur vel rationi vel legi divinae, nullum fuisset aut munus
aut opus ipsius iustitiae originalis.
Quinto. Homo secundum virtutem et legem Dei tenetur diligere Deum
plus quam se, et commune bonum praeferre bono privato. Non enim caritas,
iuxta Apostolum, quaerit quae sua sunt, sed quae lesu Christi. Et tamen homo
naturaliter diligit bonum proprium et est valde difficile Deum plus quam se
diligere, quia homo, ut a principio dictum est, naturaliter inclinatur ad
conservationem propriam. Ergo natura inclinat contra caritatem et legem Dei.
Sexto. Inclinatio appetitus sensitivi est naturalis, cum ipse sit potentia
naturalis, nec eius inclinatio sit aliud ab appetitu sensitivo. Et tamen appetitus
non obedit rationi, sed tendit in contrarium. Ergo inducit in malum. Et
confirmatur. Obiectum appetitus sensitivi est bonum delectabile. Hoc autem
plurimum est contrarium virtuti et legi Dei. Ergo appetitus sensitivus
naturaliter fertur in malum.
Septimo. Fomes inclinat ad peccatum, ut theologi definiunt secundo
Sententiarum. Et tamen fomes nihil aliud dicit praeter naturam et naturales
potentias hominis destitutas dono iustitiae originalis, ut in eodem loco theologi
defendunt. Ergo homo per naturales potentias fertur et inclinatur in malum.
Et confirmatur hoc. Si enim homo produceretur in puris naturalibus, hoc est
sine iustitia et sine peccato, eodem modo inclinaretur ad malum, sicut nunc
inclinatur ex fomite. Ergo inclinatio naturalis est ad malum.
Adducunt deinde et advocant in favorem huius sententiae Scripturarum
testimonia. Et in primis dictum Domini Gen. 8,21 : Sensus et cogitatio humani
cordis in malum prona snntab adolescentia. Ex quo videtur quod natura humana
sit proclivis et inclinata ad malum. Dominus item apud Mt. 26.41: Spiritus
promptus est, caro autem infirma. Quod exponens Apostolus ad Gal. 5,17:
Caro (inquit) concupiscit adversus spiritum et spiritus adversus carnem. Et Rom.
7.23: Video aliam legem in membris meis. Et plura in hanc sententiam. Et
rursum alibi: Si secundum carnem vixeritis, moriemini. Et iterum: Spiritu am­
bulate, et desideria camis non perficietis. Ex quibus omnibus manifeste con­
stat, carnis appetitum esse in malum, et contrarium spiritui et legi Dei.

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Third, theologians say that there are “sudden motions” both in the will and
in the sense appetite.12 But such motions are indeed nothing more than cer­
tain natural inclinations to evil. Therefore, nature inclines to evil.
Fourth: original justice was placed in our first parents for this alone or most
of all— that their sense appetite be contained in bounds, and that it obey
their will without difficulty, and to make the will itself subject to reason, and
reason subject to the divine law and will. But if human appetite of its nature
would not be opposed either to reason or to the divine law, there would have
been no task or need for that original justice.
Fifth: according to virtue and the law of God, a man is obliged to love God
more than himself, and to put the common good before his private good. For,
according to the Apostle [Paul],13 charity does not seek its own things but
rather those ofJesus Christ. And yet a man naturally loves his own good and
it is very difficult to love God more than himself, since man, as was said in the
beginning, is naturally inclined to his own preservation. Therefore, nature
inclines against charity and the law of God.
Sixth: the inclination of the sense appetite is natural, since this is a natural
power and its inclination is not other than itself. And yet that appetite does
not obey reason, but rather tends to the opposite. Therefore, it leads to evil.
This is confirmed because the object of the sense appetite is a pleasurable
good. But such is frequently contrary to virtue and to the law of God. There­
fore, the sense appetite is naturally inclined to evil.
Seventh: as the theologians determine in the second book of the Sentences,
“the kindling” inclines to sin.14 Still, as theologians say in the same place, “the
kindling” involves nothing else than human nature and natural powers de­
prived of the gift of original justice. Therefore, a man is led and inclined to
evil by his natural powers. And this is confirmed: for if a man were to be
produced in a pure state ofnature, i.e. without grace and without sin, he would be
inclined to evil in the same way as he is now inclined from the kindling. Therefore
his natural inclination is toward evil.
They further advance and suggest texts of Scripture in favor of this opin­
ion. First there is the word of the Lord, in Genesis 8,21 : “ The imagination and
thought ofa mans heart areprone to evilfrom hisyouth” — from which it seems
that human nature is leaning toward or inclined to evil. Again, the Lord says
in Matthew 26.41 : “The spirit is willing but theflesh is weak.” And the Apostle
[Paul] expounding this in Galatians 5,17, says: “The flesh lusts against the
spirit and the spirit against the flesh.” And in Romans 7, 23, he writes: “I see
another law in my members" — and more in the same vein. And again else­
where15: “Ifyou live according to theflesh, you shall die” and “ Walk in the spirit
and you shall not fulfill the lusts ofthe flesh.”16 From all of which places it is
clearly evident that the appetite of the flesh is toward evil, as well as contrary
to the spirit and to the law of God. But the desires of the flesh are natural,

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Desideria autem carnis sunt naturalia, cum sint apud omnes. Ergo prorsus
naturalis inclinatio est in malum et in peccatum.
Item, Aristoteles 2 Ethicorum dicit quod ad hoc quod homo fiat studiosus,
oportet ut servet se ab his ad quae natura maxime inclinat, ut Sanctus Tho­
mas 2.2 q.166 a.2 ad 3 adducit.
His et aliis rationibus et testimoniis auctores illi sententiam suam tuentur.
Unde etiam in naturam ipsam, illae querelae exortae sunt, ut alii novercam,
alii inimicam, alii scelerum altricem, alii malorum parentem, aliisque invidiosis
odiosisque nominibus appellent ac dehonestent. Inde etiam illud, quod homo
ex se non potest nisi malum. Inde adhuc ille odiosior et omnibus mortalibus
insigniter iniurior error, quod omnia omnium hominum opera sunt peccata,
et aeterno supplicio digna, nisi misericordia Dei venialia fierent. Unum ex
dogmatibus luteranorum.
Verum bona venia tantorum virorum et pace, non adducor nec propositis,
neque quibuscumque aliis argumentis ut credam humanam naturam, quam
omnipotens et sapientissimus Deus ad imaginem et similitudinem suam
condidit, tam malo genio, et pravis conditionibus formatam et constitutam,
ut cum reliquae res omnes in fines et operationes sibi convenientes suo ingenio
et natura ferantur, solus homo non nisi in mala, atque adeo in perniciem
suam et condemnationem feratur et inclinetur.
3. Quare in praesentiarum defendo inclinationem hominis, quatenus quidem
homo est, bonam esse. Atque adeo ad nullum malum, aut virtuti contrarium
inclinare. Quod postquam auctoritate probare non sufficio, argumentis non
infirmis probabile facere contendam.
Et primo quidem sic arguo. «Inclinatio naturae humanae est immediate ab

ipso Deo». Ergo non potest esse ad malum. Antecedens est notum. Cum
Deus sit auctor ipsius naturae, atque adeo omnium quae consequuntur
naturam, cuius in primis est inclinatio naturalis. «Qui enim (ut verbis Aristotelis
utar) dat formam, dat consequentia ad formam». Est ergo Deus solus auctor
et causa humanae inclinationis.
Consequentia vero probatur. Motus enim naturalis sive ex naturali
inclinatione, attribuitur et imputatur generanti, id est auctori et causae ipsius
naturalis inclinationis, ut Aristoteli merito placuit 8 Physicorum, simulque
multis gravissimis philosophis. Gravia enim et levia hac una ratione a generante,
et non a se ipsis moveri dicuntur, quod eam inclinationem, atque adeo
necessitatem ad motum vel sursum, vel deorsum a generante acceperint. Si
ergo homo ad malum naturaliter inclinatur, illa inclinatio et motus sequens
talem inclinationem in peccatum imputarentur ipsi Deo. Quod prorsus dicere,
vel cogitare impium est. Certe si motus lapidis deorsum, aut motus ignis
sursum peccatum esset, nulli dubium quin hoc peccatum Deo potius

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since they are present in all human beings. Therefore, natural inclination is
wholly toward evil and sin.
Likewise, as St. Thomas cites him in Summa Theologiae IIa-II“, q. 166, a. 2,
ad 3, Aristotle, in Book two of his Ethics,17 says that for a man to become
studious he must keep himself from those things to which nature is most of
all inclined.
With these and other arguments and texts, those authors defend their opin­
ion. Hence also against nature itelf complaints have arisen, such that different
people may call it a stepmother, an enemy, the nurse of crimes, the parent of
evils, and may dishoner it with other invidious and hateful names. Hence
again, the opinion that man of himself can do only evil. Hence even more,
that opinion most hateful and extraordinarily harmful to all human beings,
that all the works of men are sins worthy of eternal torment unless by Gods
mercy they are forgiven — which is one of the dogmas of the Lutherans.18
But with the good pardon and peace of [you] so distinguished men, neither
by the arguments proposed nor by any other arguments either, am I brought
to believe that human nature, which the omnipotent and most wise God
made in his own image and likeness, was formed and made with such an evil
spirit and such depraved conditions that, while all other things would be led
to goals and operations fitting to their talent and nature, man alone would be
led and inclined only to evil things and thus to his own destruction and con­
demnation.
3. Accordingly, I am now holding that human inclination as such is good.
And therefore, it inclines to nothing evil or opposed to virtue. Not able to
prove this sufficiently by authority, I will try to do so by strong arguments.
And first, I argue as follows: The inclination ofhuman nature is immediately
stemmingfrom God himself.Thereiore, it cannot be toward evil. The anteced­
ent is evident. For God is the author of nature itself and therefore of all things
following upon nature, of which first is natural inclination. “For” (to use the
words ofAristotle) “who gives the form, gives whatever follows upon the form.”19
God alone, therefore, is the author and the cause of human inclination.
The consequence is proven: for a natural motion, or one which follows
from a natural inclination, is attributed and credited to the generator, that is
to the author and cause of that natural inclination, in line with Aristotle’s
opinion in Book eight of the Physics,10 and at the same time that of many
serious philosophers. For heavy and light things are said to be moved not of
themselves but by their generator for this one reason that they have received
that inclination and thus a necessity for motion up or down from their gen­
erator. If therefore a human being is naturally inclined to evil, that inclina­
tion and the motion to sin which follows it would be imputed to God himself
— which, indeed, to say or to think is impious. Certainly, if the motion of a
stone down, or the motion of fire up, were a sin, no one would doubt that

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tribuendum esset, quam ipsis gravibus et levibus, quae talem a Deo
inclinationem acceperunt. Et similiter si homini peccatum esset appetere
felicitatem, non tam homini imputandum esset quam Deo, qui sic hominem
constituit, ut naturaliter appeteret felicitatem. Quare haec ratio efficax est ad
probandum aliquem actum non esse peccatum, quia procedit ex inclinatione
hominis a Deo sibi data. Ex quo etiam loco arguit Sanctus Thomas et alii
theologi graves non invalide ad probandum quod prima operatio angeli non
potuit esse mala. Cum enim prima operatio sit dilectio sui, omnes enim aliae
operationes ex ista proficiscuntur, ut Aristoteles docet in Ethicis. “Amicabilia,
inquit, quae sunt ad alterum, sunt ex amicabilibus quae sunt ad nos”. Primam
operationem angeli oportet fuisse amorem sui. Cum ergo ex naturali
inclinatione ad talem amorem inclinaretur, fieri non potuit ut ille amor malus
esset. Et sic prima operatio angeli non potuit esse peccatum.
Secundo probatur idem. “Non posset Deus producere in anima habitum
vitiosum inclinantem ad peccatum”. Hoc enim repugnat divinae bonitati.
Ergo neque potuit dare animae rationali aut homini vitiosam inclinationem,
qua scilicet ad peccatum inclinaretur. Non enim minus esset causa, inclinatio
vitiosa mali actus, quam vitiosus habitus.
Tertio. “Non posset Deus producere habitum inclinantem ad falsum”. Ergo
nec inclinationem ad malum. Patet consequentia. Nam non minus repugnat
Deo inclinare ad peccatum, quam ad falsum. Imo multo plus. Qui ergo non
potest producere inclinationem ad falsum, multo minus potuisset dedisse
inclinationem ad peccatum. Assumptum autem patet. Ea enim est una probatio
doctorum, quod fidei non potest subesse falsum, quia scilicet est infusa a
Deo. Non ergo potest Deus infundere habitum ad falsum inclinantem.
Atque ista ratione probari quodam modo possunt prima principia, quamvis
per se nota. Quid enim si quis fateretur quidem se cogi ad assentiendum huic
principio: “Omne totum est maius sua parte”; diceret tamen se timere ne
forte deciperetur, quemadmodum et homo aliquando cogitur ad credendum
aliquid hominum auctoritate, quibus fidem non habere homo non potest, et
tamen fieri potest ut decipiatur? Quid inquam si quis diceret ita de primis
principiis, an non aliqua ratione induci posset ad assentiendum illis? Ego vero
puto, si quis mihi recipiat, Deum neque mentiri, neque decipere posse,
concedat etiam necesse esse naturam rationalem esse a Deo creatam cum hac
necessitate et inclinatione consentiendi his principiis, manifeste etiam convinci
talia principia vera esse. Si enim falsa sunt et Deus humanum intellectum
cogit ad assentiendum illis, aperte constat Deum homines decipere et per
consequens mentiri. Simili ergo modo, si Deus produceret quemcumque
habitum inclinantem ad falsum, merito et mendacii et deceptionis
argueretur.

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65

this sin would have to be attributed to God rather than to those heavy and
light things which would have received such an inclination from God. And
similarly if it were a sin for man to desire happiness, it would have to be
imputed not to man but rather to God, who so made man that he would
naturally desire happiness. Accordingly, this argument decisively proves that
an act is not a sin if it proceeds from a mans inclination given to him by God.
On this same basis, St. Thomas and other serious theologians have also ar­
gued to validly prove that the first operation of an angel could not be evil.
For, since the first operation is self-love, all other operations proceed from it,
as Aristotle teaches in his Ethics.1' “Benevolent acts,” he says, “which are di­
rected toward another, stem from benevolent acts toward ourselves.” So, the
first operation of an angel had to have been self-love. Since therefore it was
inclined by a natural inclination to such love, it could not be the case that such
love would be evil. And thus the first operation of an angel could not be a sin.
Second, the same thing is proven: God could notproduce in the soul a vicious
habit inclining toward sin. For this is contrary to divine goodness. Therefore,
He could not give to the rational soul or to a man a vicious inclination by
which he would be inclined to sin. For a vicious inclination would not less
than a vicious habit be the cause of an evil act.
Third: God could not create a habit which would incline toward what isfake.
Therefore, neither could He create an inclination to evil. The consequence is
clear: for it is not less contradictory for God to incline [a man] to sin than to
what is false. Indeed, it is much more so. He, therefore, who could not pro­
duce an inclination to what is false, could much less have given an inclination
to sin. What is assumed here is evident. For it is one of the proofs of the
doctors that Faith cannot be false, because it has been infused by God. There­
fore, God cannot infuse a habit inclining to what is false.
And by this reasoning, first principles also, even though they are self-evi­
dent, can be in a certain way proven. For what if someone were to say that he
was forced to assent to this principle: “Every whole is greater than its part,”
but would also say that he was afraid perhaps that he was deceived, just as a
man sometimes is forced to believe something on the authority of men, in
whom the man must have faith and yet it could happen that he be deceived?
What, I say, if someone were to speak like this about first principles — could
he not be induced by some reasoning to assent to them? Indeed, I think that
if someone were to admit to me that God cannot lie nor deceive, he would
also concede that it is necessary that a rational nature be created by God with this
necessary inclination to consent to these principles, and would evidently be con­
vinced that such principles are true.22 For if they are false, and God is forcing the
human intellect to assent to them, it is plainly evident that God is deceiving men
and consequendy lying. Similarly, if God were to create any habit inclining to­
ward what is false, He would righdy be accused of lying and deception.23

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' Quarto. “Si homo induceret alium ad peccandum, peccaret. Ergo similiter
si Deus inclinat homines ad peccandum, peccat”. Quamvis enim non valeat
apud theologos consequentia: Deus concurrit cum homine ad peccandum,
ergo peccat. Tamen recipient istam: Deus se solo inducit homines ad
peccandum, ergo peccat. Nam sicut consequens est impossibile, ita et
antecedens: Deus autem se solo est causa inclinationis naturalis hominis. Si
ergo per talem inclinationem homo induceretur ad peccandum, videtur etiam
quod Deus inducat ad tale peccatum.
Quinto. “Voluntas humana non fertur in obiectum nisi mediante ratione”.
Ratio autem semper inclinat ad indicandum quod omne malum est evitandum.
Ergo voluntas non inclinat ad malum.
Sexto. “Si inclinatio ad malum est a solo Deo, ut isti fatentur, non video

quomodo negent quod Deus sit causa peccati”. Quod omnes theologi tamquam
impium semper reiecerunt.
Quod si rationes nostrae, ut videmus, superiores et probabiliores sunt, ne
testibus etiam deficiamur, aliquid de Scripturis etiam oportet adducere. Et
primo omnium facit auctoritas lacobi 1,13: Nemo, inquit, cum tentatar, dicat
quod a Deo tentatur, Deus enim intentator malorum est. Ex quo loco sic arguitur.
Si inclinatio naturalis esset ad malum, Deus esset tentator malorum. Quod
est contra Apostolum. Ergo impossibile est quod natura tentet seu inclinet ad
malum. Assumptum probatur. Nihil enim aliud est tentare nisi facere
inclinationem ad malum. Si ergo Deus fecit et dedit talem inclinationem
homini ad malum, qualem isti dicunt esse naturalem inclinationem, cur ergo
Deus tentare non diceretur? Confirmatur: si daemon iniceret talem
inclinationem homini ad malum, qualem isti asserunt esse naturalem, certe
daemon tentaret. Ergo et Deus diceretur tentator.
Secundo, Ecclesiastes 7,30 dicitur: Fecit Deus hominem rectum, et ipse
inmiscuit se infinitis quaestionibus. Non autem videtur Deus hominem rec­
tum fecisse, si cum ista pessima inclinatione et maledictione creavit, qua sua
natura ferretur ad malum. Ergo...
Sed in primis videtur facere, quod sapientia divina attingit a fine usque ad
finem fortiter, et disponit omnia suaviter, ut per Salomonem ipse testatur. Non
esset vero suavis dispositio, si cum Deus homini legem et praecepta dedisset,
naturam in contrarium trahentem, vocantem et allicientem dedisset. Cum
enim Deus hominem condiderit ad laudandum creatorem suum, vitamque
aeternam ab illo promerendum, non utique tamquam sapiens architector
hominem fabricavit, si naturam fini repugnantem, et incommodam illi dederit.
Cum tamen viderit Deus cuncta quaefecerat, et erant valde bona. Et alibi: Dei
perfecta sunt opera. Profecto non videretur opus aut valde bonum aut perfectum,
si hominem cum huiusmodi inclinatione fecisset.

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Fourth: Ifone man were to lead another into sin, he would himselfsin. There­
fore, similarly, if God inclines men to sin, He sins. For even though this argu­
ment is not valid for theologians: “God concurs with a man sinning, there­
fore He sins,” they will however accept this one: “God by Himself alone leads
men to sin, therefore He sins.” For just as the consequent is impossible, so
also is the antecedent. But God by Himself alone is the cause of the natural
inclination of a man. If therefore by such inclination a man would be led to
sin, it is apparent that God would be leading him to such sin.
Fifth: The human will is moved to its object only by means of reason. But
reason always inclines us to judge that every evil should be avoided. There­
fore, the will is not inclined to evil.
Sixth: Ifthe inclination to evil isfrom God alone, as the opponents say, I do not
see how they can deny that God is the cause ofsin. But this is something which
all theologians have always rejected as impious.
But even though our arguments, as we see, are superior and more probable,
in order not to lack testimony, we should also adduce something from the
Scriptures. And first of all is the authority ofJames 1,13, saying: “Let no man,
when he is tempted, say that he is tempted by God. For God is not a tempter of
evils.” From this passage the argument is: if there were a natural inclination to
evil, God would be a tempter of evils; which goes against the Apostle [James].
Therefore, it is impossible that our nature tempts or inclines us to evil. The
antecedent is proved: for to tempt is nothing else that to give an inclination
to evil. If therefore God has made and given to man such an inclination to
evil, as the opponents say his natural inclination is, why then would God not
be said to tempt? This is confirmed: for if a demon had put in man such an
inclination to evil, as they assert is natural, certainly that demon would be a
tempter. Therefore, God also would be a tempter.
Secondly, it is said in Ecclesiastes 7,30: “God made man right, and He hath
entangled him with an infinity ofquestions.” But it does not seem that God
would have made man right, if He created him with that most wicked incli­
nation and curse by which his nature would be brought to evil. Therefore...
This seems first to do with the fact, as stated by Solomon,24 that “[Divine
wisdom] reacheth from end to end mightily and ordereth all things sweetly” But
it would not be a ‘sweet ordering’ ifwhile God had given man the law and the
commandments, He had also given him a nature drawing, calling and entic­
ing him to their opposite. For since God created man to praise his Creator
and by that to merit eternal life, as a wise maker He certainly did not make
man and give him a nature contradictory and unsuitable to that end. For
indeed “God saw all things that He had made, and they were very good.”15 And
elsewhere26: “The works of God are perfect.” But indeed the work would not
seem very good or perfect, if God has made man with an inclination of this

kind.

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Et demum, ut quid Deus hominem non fecit propensum et proclivem ad
bonum potius quam ad malum, ad legem suam quam ad transgressionem

legis? An quia non potuit? Hoc vero quid stultius, quid indignius divinae
maiestati excogitari posset? An quia non voluit? Invidit ergo Deus mortalibus
hanc felicitatem, quam tamen maxime ad divinorum praeceptorum usuri essent
observantiam. Angelos certe Deus non hac conditione creavit ut non nisi ad
peccatum et malum tantum inclinarentur. Quae ergo ratio esse potuit, ut hac
parte tanto benignior et aequior angelis esset quam hominibus qui de Deo
quidem non poterant melius esse meriti? Videmur igitur ex parte probasse
hominem sua natura non inclinari ad malum, sed relictum potius in manu
consilii sui, ut utrumlibet pro suo arbitrio sequeretur, sive bonum, sive malum.
Superest ut argumentis in contrarium adductis utcumque satisfaciamus.
Ad quorum expeditionem illud in primis meminisse oportet, homines esse
compositum ex duabus naturis, rationali scilicet ac sensitiva. Quas Apostolus
ad Rom. 12 (sic. Recte: 7,22) interiorem et exteriorem hominem vocat. Quod
non est sic intelligendum, ut anima ipsa sit interior homo, aut natura rationalis,
corpus vero natura sensitiva. Sed totus homo secundum spiritum est homo
interior, idem vero secundum carnem est homo exterior, et natura sensitiva.
Secundo est advertendum quod quia homo est homo simpliciter inquantum
rationalis, non inquantum sensitivus. Inclinatio hominis absolute est inclinatio
hominis inquantum homo est, scilicet inclinatio voluntatis et intellectus, et
non inclinatio partis sensitivae, quae aut non est inclinatio hominis, aut non
inquantum homo est, sed secundum quid, et non absolute. Comparatur enim
appetitus sensitivus ad hominem quasi aliquod extrinsecum. Nec plus debet
dici inclinatio hominis, inclinatio appetitus sensitivi, quam inclinatio daemonis
aut mundi. Cupit enim et mundus et daemon trahere humanam voluntatem
ad malum, cupit etiam nunc appetitus sensitivus. Sed sicut non interest nostra,
quid aut mundus aut daemon suggerat, sed quid ipsi per voluntatem et
rationem prosequamur, ita eadem ratio est de appetitu, ac si esset a nobis
separatus. Nec enim quod caro nobis suadet, imputatur, nec opus nostrum,
aut desiderium dicitur, sed in tantum quod per liberum arbitrium acceptum
habuerimus et secuti fuerimus.
Quare quanquam sint nonnulli qui etiam defendere velint nec ipsum etiam
appetitum inclinare ad malum ex specie aut natura sua, sed ex peculiaribus
uniuscuiusque conditionibus, quas non a Deo, sed a patria, vel a parentibus,
vel astris unusquisque contraxit. Tamen ego non nego quidem sensualitatem
trahere et tendere ad malum et peccatum ex specie et natura sua, sed nego
eam esse humanam inclinationem aut conditionem. Imo contrariam,

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Finally, why did God not make man inclined and prone to good rather
than to evil, to law rather than to its transgression? Was it because He could
not do so? But what could be imagined more stupid and more unworthy of
the divine majesty than this? Was it then because He was unwilling to do so?
Therefore, God envied mortals this happiness which however they would
especially use for the observance of divine commandments. Certainly, God
did not create the angels in this condition that they would be inclined only to
sin and evil. Therefore, what reason could there be that God would be in this
way so much more benign and fair to the angels than to men, when those angels
could not have deserved more from Him? We seem, therefore, to have proven on
our side that man is not by nature inclined to evil, but is rather left in the hand of
his own counsel so that by his own choice he may pursue either good or evil.
What remains now is that we answer in some way the arguments on the
other side. In doing this, we must first remember that human beings are com­
posed of two natures: rational and sensitive. The Apostle [Paul], in Romans
12,27 calls these “the interior and the exterior man.” This is not to be under­
stood in such a way that the soul itself is the interior man or the rational
nature while the body is the sensitive nature. Rather the whole man accord­
ing to the spirit is the interior man, and the same man according to the flesh
is the exterior man and the sensitive nature.28
Secondly, we should note that because man is man precisely inasmuch as he
is rational and not inasmuch as he is sensitive: the inclination of a man pre­
cisely as such is the inclination of a man inasmuch as he is a man, namely, the
inclination of will and intellect, and not the inclination of the sensitive part,
which is not the inclination of man, or not insofar as he is man, but only to a
certain extent and not simply as such.29 For the sensitive appetite is compared
to man like something extrinsic. And the inclination of the sensitive appetite
should not be called the inclination of a man any more than should the incli­
nation of the devil or of the world be so called. For both the world and the
devil desire to draw the human will to evil, as does also now the sensitive
appetite. But just as what the world or the devil may suggest does not interest
us, but rather what we ourselves pursue through will and reason, so the same
reasoning is valid about the [sensitive] appetite, [which is] as though it were
separate from us. For what the flesh persuades us to is not imputed to us, nor
is it called our work or desire, except insofar as we through free choice have
accepted and followed it.
Hence, although there are some who wish to defend the position that even
the sensitive appetite itself does not incline to evil from its species or nature,
but from the peculiar circumstances which each person has received not from
God, but from his birthplace, his parents, or the stars — I, however, do not
deny that sensuality, specifically from its nature, does draw and tend to evil
and sin, but I do deny that this is the human inclination or condition. In-

t

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quemadmodum nec motus appetitus voluntatem praecedentes, actus humani
dicuntur. Atque adeo simul verum est quod appetitus sensitivus inclinatui
contra virtutem. Homo vero interior, qui simpliciter est homo, inclinatur ad
virtutem. Utrumque Apostolus signanter et diserte expressit ad Rom. 12 (sic.
Recte: 7,22): Condelector, inquit, legi Dei secundum interiorem hominem; video
autem aliam legem in membris meis repugnantem legi mentis meae. Quod tamen
Paulus non aliter ad se pertinere arbitratur, quam angelum satanae, qui eum
colaphizabat. Et sicut manente vera inclinatione hominis ad virtutem erat
angelus satanae eum colaphizans, ita adversante et contraveniente appetitu
sensitivo manet integritas humanae voluntatis, quae est hominis integritas,
inquantum homo est.
Verum restat scrupulus ex hac responsione. Nam aeque est a Deo inclinatio
appetitus sensitivi, sicut et voluntatis. Si ergo inconveniens dicitur quod Deus
sit causa inclinationis voluntatis ad malum, quare non idem habeatur pro
inconvenienti de appetitu sensitivo? Quare, inquam, sapientissimus creator
et conditor rerum malam inclinationem dedit appetitui et carni, et non potius
bonam, quae magis convenire videbatur illi infinitae bonitati?
4. Dico primum omnium. Dubium est certe inter theologos et philosophos:
An naturas rerum Deus inmutare possit, vel potuerit, vel ab initio alias facere,
quam nunc sunt. Et quidam sunt qui putent cum Gabriele 4 d.l q.l. Quamvis
Deus species quidem rerum et essentias variare non potuerit, neque enim
potuit aut hominem, aut bovem alterius speciei facere quam fecit, potuit tamen
proprietates et inclinationes naturales immutare. Potuit (inquam) ignem
frigidum naturaliter facere et aquam calidam, ac rursum nigram nivem, et
album corvum. Quod tali ratione probatur. Nam posse Deum ignem frigidum
facere aut calidam aquam, et caetera huiusmodi, dubitari non potest. Potuit
ergo Deus ab initio aquam calidam facere, aut frigidum ignem, levem terram,
gravem aerem, et legem ponere ut sic perpetuo perseverarent. Qua lege posita,
illud esset proprium, aut naturale talium rerum. Nihil enim aliud est rerum
natura quam id quod ab initio (ut Augustinus ait) Deus rebus dare voluit.
Ergo potuit Deus contrarias naturas et inclinationes dare rebus, quam dedit.
Et confirmatur. Nam potuit Deus res nudas creare, id est essentias sine
quibuscumque accidentibus aut proprietatibus. Ergo non necessario creavit
cum his conditionibus et proprietatibus, quas nunc habent.
5. Hanc sententiam quamquam theologi et auctores nonnulli, qui in pretio
habentur, defendunt, non puto esse probabilem, nec verisimilem. Unde puto
quod Deus non potuerit quidem ignem calidum naturaliter frigidum facere
aut non naturaliter calidum, aut nivem nigram, aut levem terram, et in

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deed, I say the contrary — just as the motions of appetite which precede the
will are not called “human acts.”30 And thus, it is at the same time true that
the sensitive appetite is inclined against virtue, but the interior man, who is
precisely man, is inclined to virtue. The Apostle [Paul] has expressed both of
these points with striking eloquence in Romans 12:31 “lam delighted," he says,
“with the law ofGod, according to the inward man; but I see another law in my
members fighting against the law of my mind." But Paul does not think this
belongs to him any more than the angel of Satan who was buffeting him. For
just as while his true human inclination to virtue remained, there was an
angel of Satan buffeting him, so even while the sensitive appetite is opposing
and resisting it, the integrity of the human will remains, which is the integrity
of man insofar as he is man.
But now there is one small problem with this answer. For the inclination of
the sense appetite is from God just as much as that of the will. If therefore it
is hard to say that God is the cause of an inclination of the will to evil, why
not think the same about the sense appetite? Why, I mean, has the most wise
creator and maker of things given an evil inclination to the sense appetite and
to the flesh, rather than a good inclination which was evidently more fitting
to His infinite goodness?
4. First of all, I say: it is certainly doubtful among theologians and philoso­
phers: Whether God can change the nature ofthings or could have from the be­
ginning made them other than they now are. There are some who think with
Gabriel [Biel (1410?-95)], at 4 d.l q.l,32 that although God indeed could not
change the species and essences of things, for He could not make a man or a
cow to be of another species than He did make it, nevertheless, He could
change natural properties and inclinations. He could, I mean, make fire natu­
rally cold and water hot, or again snow black or a crow white. This is proven
as follows. It cannot be doubted that God can make cold fire or hot water,
and other things of this sort. Therefore, God from the beginning could have
made hot water, or cold fire, light earth, heavy air, and decreed it as law that
they would endure forever so. And if such a law had been decreed, that would
be proper or natural for such things. For, as Augustine says,33 the nature of
things is nothing else but what God from the beginning willed to give things.
Therefore, God could have given natures and inclinations to things contrary
to those He did give them. This is confirmed: for God could have created
things bare, that is to say, as essences without any accidents or properties.
Therefore, He did not need to create them with the conditions and properties
which they have now.
5. Although some reputable theologians and authors defend this opinion, I
do not think that it is probable or likely. Thus I think that God could not
indeed have made naturally cold rather than naturally hot fire, or black snow,
or light earth, or in general remove or change natural inclinations. This is

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Francisco de Vitoria, On Homicidi

universum naturales inclinationes tollere, aut mutare. Quod sic probatur. Nam
primum omnium, multae sunt proprietates et aptitudines rerum, quae secun­
dum communem opinionem non conveniunt rebus per aliquas qualitates
superadditas, sed inmediate per suas essentias. Ut verbi gratia, si risibile non
convenit homini per aliquam qualitatem superadditam secundum opinionem
istorum, sed per essentiam, potuit quidem Deus facere quod homo nunquam
rideret, non autem quod non esset natura risibilis. Quia Deus non potest
tollere effectum causae formalis, manente causa formali. Si ergo homo est
formaliter risibilis per suam essentiam, non potuit Deus facere quod sua natura
non esset risibilis.
Secundo sic arguo. Aqua cum concursu Dei generali producit frigiditatem
in se, ut patet in aqua reducente se ad frigiditatem. Ergo Deus non potuit
fecere quin cum tali concursu esset frigida, et per consequens naturaliter frigida.
Consequentia probatur. Nam detur oppositum, puta quod faceret Deus quod
aqua naturaliter esset calida, quaero, an aqua cum concursu Dei generali
potuerit reducere se ad frigiditatem, vel non. Si potuit, ergo non erat naturaliter
calida. Si non potuit, ergo nec nunc potest, quia concursus generalis Dei non
potuit esse maioris activitatis, quam nunc est. Et ab eisdem causis semper
producitur similis effectus. Nec Deus potest fecere quod causa naturalis, quae
nunc non potest in aliquem effectum cum concursu generali, possit in illum
cum eodem concursu. Verbi gratia, nunc non potest homo suscitare hom­
inem cum concursu generali Dei. Ergo Deus non potest facere quod homo id
possit cum tali concursu. Nec Deus ipse posset cum generali concursu facere
quod nunc non fecit. Sicut ergo Deus non potuit facere ut homo naturaliter
posset suscitare mortuum, ita non potest facere quod aqua produceret calorem,
aut quod naturaliter lapis ascenderet sursum.
Et confirmatur. Aut essentiae rerum, aut species de se sunt indifferentes ad
quamlibet proprietatem, aut non. Si non, ergo non potuit fieri, quin id, ad
quod essentia magis inclinatur, sit magis naturale. Si sint indifferentes, verbi
gratia si natura ignis nuda est indifferens ad calorem et frigus, ergo cum
concursu generali non plus produceret calorem quam frigus. Et per consequens
non poterit esse magis naturale unum quam aliud.
Et confirmatur exemplo. Deus non poterat fecere quod caelum naturaliter
inclinaretur ad quietem vel ad motum a septentrione ad meridiem. Ergo nec
alias naturas rerum potuit mutare. Anteciedens probatur: Si caelum naturaliter
inclinaretur ad motum contrarium isti quem nunc habet, vel ad quietem,
non posset cum concursu generali moveri motu isto quem nunc habet. Sicut
e contrario. Et confirmatur valide. Quia si potest Deus mutare naturas rerum,
feciat ergo quod aqua sit naturaliter calida. Sic arguo. Calor nunc cum generali
concursu sufficit corrumpere aquam. Ergo cum simili concursu potuisset tunc

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73

proven as follows. For, first of all, there are many properties and aptitudes of
things which, according to the common opinion, do not belong to things
through superadded qualities, but immediately through their essences. For
example, if to be able to smile does not belong to man through some
superadded quality, in line with the opinion of those [theologians and au­
thors above], but through his essence, God could indeed make it that man
would never smile, but not that man would be by nature not able to smile.
For God cannot remove the effect of a formal cause, as long as that cause is
present. If, therefore, man is formally able to smile through his essence, God
cannot make his nature not able to smile.
Secondly, I argue as follows. With the general concurrence of God, water
produces coldness within itself, as is clear in the case of water reducing itself
to being cold. Therefore, God could not with such concurrence make it not
be cold, and thus it is naturally cold. The consequence is proven: for if we
grant the opposite, say that God could have made water naturally be hot, the
question is whether with the general concurrence of God water could have
reduced itself to coldness or not. If it could, then it was not naturally hot. If it
could not, then neither can it do so now, because .the general concurrence of
God could not be capable of greater activity than it is now. And from the
same causes there is always produced a similar effect. Nor can God bring it
about that a natural cause, which now with His general concurrence is not
capable of some effect, could be capable of it with that same concurrence. For
example, a man cannot now with Gods general concurrence raise another
man from the dead. Therefore, God with that same concurrence cannot make
a man so capable. Nor could God himselfwith His general concurrence do what
He is not now doing. Therefore, just as God could not bring it about that one
man could naturally raise another from the dead, so He could not bring it about
that water would produce heat or that a stone would naturally ascend on high.
This is confirmed: the essences or species of things are of themselves indif­
ferent to any property, or not. If not, then it could only happen that a prop­
erty to which an essence is more inclined is more natural. If they are indiffer­
ent — for example, if the nature of fire by itself is indifferent to hot and cold
— then with the general divine concurrence it would not produce heat more
than cold. As a result, one could not be more natural than the other.
It is also confirmed by an example. God was not able to make heaven natu­
rally incline to rest or to motion from north to south.34 Therefore, neither
was He able He change the natures of other things. The antecedent is proven:
if heaven were naturally inclined to a motion contrary to what it has now, or
to rest, it could not with general divine concurrence be moved with that motion
it now has, and vice versa. And this is strongly confirmed: for if God can
change the natures of things, He can bring it about that water would be
naturally hot. I argue as follows: Now with the general divine concurrence,

Francisco de Vitoria, On Homiciii
corrumpere. Ergo non est ei calor naturalis. Non enim posset Deus cum solo
concursu generali impedire ne calor corrumperet aquam. Et non est

impotentior quam a principio. Ergo nec tunc potuit. Certe puto quod
argumentum concludit.
Item, Deus non potuit hominem naturaliter facere incorruptibilem. Item,
non posset agens naturale cum concursu generali inducere formam aquae in
materiam indispositam per calorem et siccitatem. Ergo calor et siccitas non
possunt esse naturales aquae. Ut enim arguebatur, quidquid creatura potuit
posse (ut ita dicam) cum concursu generali Dei, potest nunc cum simili

concursu.
6. Hoc ergo supposito, quod Deus non potest naturas rerum mutare dico
quod Deus fecit hominem, cum hac naturali inclinatione appetitus sensitivi.
Quia aliter fieri non poterat.
7. Secundo dico quod talis inclinatio, quamvis sit ad malum, non tamen est
mala, quandiu quidem manet intra terminos appetitus sensitivi. Malum
inquam malitia morali. Nam malitia poenae non inconvenit, cuius Deus sem­
per est causa. Sicut non dicitur mala inclinatio qua leo inclinatur ad
homicidium. Sicut enim appetitus inclinat hominem ad malum ita etiam
obiectum ipsum, ut delectabile, aut utile inclinat etiam ad malum. Et tamen
natura ipsius auri, verbi gratia, aut cibi dulcis, bona prorsus est. Neque unquam
aliquis conqueritur de Deo quod aurum pulcherrimum fecerit, aut vinum
suave. Ita prorsus nec de appetitu sensitivo, qui movet hominem ad malum,
non aliter quam ipsum obiectum. Unde nulla malitia exsistit appetitus sensitivi,
aut rerum ipsarum.
Tertio dico guod appetitus inclinat ad malum, non ipsius appetitus, sed
hominis. “Semper enim appetitus naturalis est conveniens”, ut Sanctus Tho­
mas dicit 1 q.31 a.l.
8. Quarto dico quod Deus hominem creavit sine tali inclinatione mala.
Creavit enim eum cum iustitia originali, quae appetitum subiciebat rationi,
et nullo modo inclinabat ad malum. Quod si postea sua culpa incidit in hunc
laborem, sibi potius quam divinae sapientiae imputandum est. Nec plus sane
quam si oculos sibi erueret, quos illi creator dedisset, conqueri de creatore suo
posset.
9. Quinto dico quod dedit appetitui naturalem inclinationem ut obediret
rationi. Et sic tandem tota inclinatio est bona. Et ista pro argumentis satis esse
videntur, quatenus ad inclinationem appetitus sensitivi spectabat.
Sed aliunde arguebatur quia scilicet homo tenetur diligere Deum plus quam
seipsum, et commune plus quam privatum bonum. Et tamen inclinatio
hominis naturalis est in contrarium atque adeo in malum.

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75

heat is enough to corrupt water. Therefore, with a similar concurrence it could
have corrupted it in the past.35 Therefore, heat is not natural to water. For,
with His general concurrence alone, God could not prevent heat from cor­
rupting water. And as He is not less powerfill now than He was at the begin­
ning, He was therefore not able to prevent it then. To be sure, I believe this
argument is conclusive.
Again, God was not able to make man naturally incorruptible. Likewise, a
natural agent could not, with God’s general concurrence, induce the form of
water into a matter which would through heat and dryness be indisposed for
it. Therefore, heat and dryness cannot be natural to water.36 For, as was ar­
gued, whatever a creature could have been able to do (if I may speak so) with
the general concurrence of God, it can do now with that same concurrence.
6. Therefore, supposing this, that God cannot change the natures of things,
I say that God made man with this natural inclination of his sense appetite.
For man could not have been made otherwise.
7. Secondly, I say that this inclination, even though it may be to something
evil, is still not itself evil as long as it abides within the limits of the sense
appetite. Evil, I mean, with moral evil. For the evil of pain [or punishment]
(poenae)?1 of which God is always the author, does not pose a problem, just
as the inclination by which a lion is inclined to kill a man is not called evil.
For just as the [sense] appetite inclines a man to evil, so also an object which
is pleasurable or useful also inclines him to evil. And, nevertheless, the nature
of gold, for example, or of sweet food, is completely good. Nor does anyone
ever complain about God, that He made gold most beautiful or wine smooth.
So neither [should anyone complain] generally about the sense appetite, which
moves man to evil in away not different from such objects. Hence, there is no
evil either in the sense appetite or in those objects.
Thirdly, I say that the sense appetite inclines to evil, which is such not for
the appetite itself, but rather for the man. For as St. Thomas says in Summa
Theologiae Ia, q. 31, a. 1: “A natural appetite is always fitting.”38
8. Fourthly, I say that God created man without such an evil inclination.
For He created him with original justice, which subjected appetite to reason
and in no way inclined to evil. But if afterwards, by his own fault, man fell
into this difficulty, it should rather be imputed to himself than to the divine
wisdom. And certainly not any more than, if he were to pluck out the eyes
which his Creator gave him, he could complain about his Creator.
9. Fifth, I say that God gave sense appetite a natural inclination to obey
reason. And so in the end the whole inclination is good. And this seems to be
enough for arguments that relate to the inclination of the sense appetite.
But the argument was made elsewhere39 that a man is obliged to love God
more than himself, and is obliged to love the common good more than his
private good. Yet the natural inclination of a man is in the opposite direction,
and therefore it is toward what is evil.

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10. Ad hoc quamquam sint clari philosophi et theologi, qui ita esse
arbitrentur, ego vero nego hominem inclinari ad diligendum se plus quam
Deum, vel proprium bonum plus quam commune. Sicut enim membrum
plus inclinatur ad bonum totius quam ad bonum proprium, periclitatur enim
manus pro salute totius, ita etiam ex naturali inclinatione homo quem Deus
fecit partem reipublicae, natura inclinatur ad bonum publicum plus quam ad
privatum. Et cum Deus sit bonum universale, plus etiam homo diligit Deum
quam seipsum. Sicut nota experientia docet quod aqua ascendit, deferens
conveniens sibi bonum propter integritatem et continuitatem universi. Non
est autem consentaneum ut Deus rebus inanimatis aut membris corporis
inclinationem dederit convenientem suo fini, uni autem homini negaverit.
Sunt vero qui hoc ipsum negant, scilicet, membrum plus inclinari ad bonum
totius quam ad proprium. Nec membrum se exponit (ut aiunt) periculo pro
salute totius, sed ipsum totum membrum tremens et resistens opponit pro se.
Sed certe hoc ipsum est inconsonum rationi. Et est condemnare industriam
divinam dicere quod Deus cum membra corporis fecerit solum propter bonum
totius, et non propter se, tamen membris dederit inclinationem contrariam
bono totius. Quasi vero pedes sibi, et non homini ambularent, et aures sibi, et
non homini audirent, et oculi etc. Et ut de membris hominis donemus hoc
illis, quid de aqua dicturi sunt cum sursum ascendit? An non ipsa se sursum
movet? An potius imaginandum est totum universum concurrere ut aquam
moveat? Profecto dicendum non est. Quod si ita est, ut certe est, cum Deus
fecerit hominem potius propter se, quam propter hominem, absurdum est
dicere non dedisse inclinationem suo fini convenientem, qua plus ipsum
Deum, quam se diligeret.
Error tamen iste emanavit, quod viderent hominem cum magna difficultate,
aut vitam, aut etiam bona temporalia ponere pro Deo, aut pro bono publico.
Quare ex hoc arguunt non inclinari naturaliter ad bonum publicum. Sed hoc
perinde est, ac si quis dicat hominem non amare propriam vitam plus quam
unum membrum, cum videant gravari nimis. Et cum magna molestia et
difficultate secare aut urere membrum propter salutem totius. Aut si quis
neget aliquem cupidum esse vitae, ideo quia potionem amaram non libenter
sumit. Ita non statim, si quis aegre et moleste ferat aut vitam, aut fortunas
perdere propter Deum, aut propter bonum publicum, non inquam statim
arguendum est hominem non plus naturaliter Deum aut commune bonum
diligere, quam privatum. Ut enim doctores docent, gratia non est contraria

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77

10. In answer to this, although there are famous philosophers and theolo­
gians who think that, I deny that a man is inclined to love himself more than
God or to love his own good more than the common good. For just as one
member is more inclined to the good of the whole body than to its own
proper good, say when a hand is risked for the safety of the whole body, so
also from natural inclination a man, whom God made to be part of a repub­
lic, is by nature inclined to the public rather than to his private good. And
since God is the universal good, a man loves God even more than himself. In
the same way, experience evidently teaches that water ascends [in a vacuum],
leaving aside what is fitting for itself in favor of the integrity and continuity of
the universe.40 However, it is not reasonable that God would have given to
inanimate things or to corporeal members an inclination suitable for His end,
while denying such to man alone.
But there are those who deny that a corporeal member is inclined more to
the good of the whole than to that of itself. Neither, as they say, does a mem­
ber expose itself to danger for the preservation of the whole body, but rather
a member puts that whole before itself only trembling and resisting.41 But
that certainly does not square with reason. And it impugns Gods work to say
that, although He made the members of the body solely for the good of the
whole, and not for themselves, nevertheless, He gave those members an incli­
nation contrary to the good of the whole. As if, indeed, feet would walk for
themselves and not for the man, and ears would hear for themselves and not
for the man, and eyes [would see for themselves,] etc.! And if we grant them
this regarding the members of the human body, what are they going to say
about water ascending on high? Is it not moving itself upward? Or should we
rather imagine that the whole universe concurs in order that water move?42
Certainly, that should not be said. But if this is so, as it certainly is so, since
God made man for Himself rather than for man, it is absurd to say that He
did not give him an inclination suited to his end, by which he would love
God more than himself.
This error, however, has arisen because they have seen that a man gives his
life, or even temporal goods, for God or for the public good only with great
difficulty. Then they argue from this that man is not naturally inclined to the
public good. This is as if someone were to say that a man does not love his
own life more than one of his members, since they see he is sorely vexed and
that it is with great trouble and difficulty that he cuts off or burns a member
for the salvation of the whole body — or if someone were to say that a person
does not desire to live because he does not relish taking some bitter medicine.
Accordingly, if a man only with pain and distress bears the loss of his life or
his fortune for God or for the public good, I say that you should not immedi­
ately argue that man does not naturally love God or the common good more
than his private good. For, as the Doctors teach,43 grace is not contrary to

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naturae, sed perficit naturam et naturalem inclinationem. Difficultas autem
provenit, tum ex appetitu, tum etiam quia licet plus inclinetur ad bonum
totius, tamen etiam inclinatur ad alia bona. Et sic patitur difficultatem, sicut

de proiciente merces in mare.
Atque in demum cogitandum est non esse Deum deteriorem artificem ipso
homine, cum tamen artifex homo, si quod instrumentum ad aliquem finem
fingat, curet omnem aptitudinem ad talem finem instrumento dare,
idoneumque suo fini facere. Quare ergo Deus, qui omnia fecit propter se,
non talem inclinationem suae creaturae credatur dedisse, qualem ad illum
finem convenire noverat? Nos ergo amoliamur huiusmodi querelas de summo
artifice ac conditore, credamusque naturam non nisi ad bonum inclinare.
Atque ideo omne quod est contrarium naturali inclinationi, esse malum.
Perditio enim tua ex te, Israel. Salus autem ex me, Os. 13,9. Cum ergo, ut a
principio arguebam, interficere seipsam sit contra naturalem inclinationem,
consequens est esse illicitum, quod erat primum argumentum ad probationem
conclusionis.
Secundo PRINCIPALITER PROBATUR EADEM CONCLUSIO.
Occidens seipsum facit contra praeceptum decalogi: Non occides. Quod habetur
Ex. 20,13 et Deut. 5,17. Ergo peccat, et mortaliter. Hoc est argumentum
beati Augustini I De civitate e.20 ad probandum quod occidere seipsum sit
illicitum.
Sed ut apertius constet quam vim habeat argumentum, sicut etiam de primo
fecimus, operae pretium est etiam examinare quid prohibetur in illo praecepto:
Non occides. Cum in Scriptura non inveniatur alibi prohibitum, aut
reprehensum seipsum occidere. Aut ex illo praecepto oportet esse illicitum,
aut revocari in dubium potest, an liceat se interficere.
Cum enim praeceptum sit absolutum: Non occides, et in multis casibus
licitum sit occidere, ut certo constat, dubitare merito potest, quid illo praecepto
et qualiter homicidium prohibeatur.
11. Quidam ergo ita intelligunt praeceptum illud ut absolute prohibeatur
occisio cuiuscumque hominis, sive privata auctoritate, sive publica, sive
nocentis, sive innocentis. Sed ab eo praecepto tanquam a canone generali
excipiuntur lege divina aliqui casus, in quibus licet occidere. Verbi gratia ut
homicida iuste a magistratu occiditur. Sed dicunt quod nisi hanc facultatem
haberent a Deo ex Sacra Scriptura, quae iubet ut qui occiderit hominem
occidatur, ut patet Lev. 24,17, magistratus occidens latronem faceret contra
illud praeceptum: Non occides. Itaque sine quocumque alio praecepto praeter
id: Non occides, erat sufficienter prohibitum regi occidere etiam malefactorem,

Relection on Homicide

79

nature, but rather perfects nature and natural inclination. But the difficulty
comes from sense appetite itself and from the fact that even though it is more
inclined to the good of the whole, it is however also inclined to other goods.
And so a man does undergo hardship, as in the case of someone throwing
merchandise into the sea.44
*
Finally, we should not think that God is a less skilled worker than is man
himself. But a human craftsman, if he fashions a tool for some purpose, takes
care to give that tool every aptitude for that purpose and to make it suitable
for what he wants. Why, then, should God, who has made all things for
Himself, not be thought to have given to his creature an inclination such as
He knew was suitable for that end? Let us, therefore, put aside complaints of
this kind about the Supreme Craftsman and Creator, and let us accept the
fact that nature inclines only to what is good. And, therefore, everything that
is contrary to natural inclination is evil. “For destruction is thine own, O Israel,
thy help is only in me” (Osee 13,9). Since therefore, as I argued in the beginning,
to kill oneselfis against our natural inclination, it is illicit. And that was the first
argument to prove the conclusion.

[Second Proof of the First Part of the Conclusion]
In a SECOND PRINCIPAL WAY THE SAME CONCLUSION IS
PROVEN: Someone killing himself is acting against the command of the
Decalogue: “Thou shalt not kill.” This is taken from Exodus 20,13 and from
Deuteronomy 5,17. Therefore, such a person commits a mortal sin. This is the
argument St. Augustine uses, in De civitate I, c. 20,45 to prove that killing
oneself is illicit.
But to see the force of this argument more evidently, we need to examine
just what is prohibited in that command: “Thou shalt not kill.” For killing
oneself is not forbidden or censured anywhere else in Scripture. Necessarily,
therefore, either it is illicit on the basis of this commandment or you can
doubt whether it is licit to kill oneself.
For although this command, “ Thou shalt not kill,” is absolute, certainly in
many cases it is clearly lawful to kill. Hence one may reasonably doubt what
is, or what kind of homicide is, prohibited by this command.
11. Thus certain people understand this command in such way that the
killing of any man at all, whether by private or public authority, whether
guilty or innocent, is forbidden. But from this command, as from a general
rule, [they think] there are excepted by divine law some cases, in which it is
lawful to kill. For example, when a murderer is justly put to death by a judge.
But they say that without God’s permission in Sacred Scripture, ordering that
he who kills a man should be killed, as in Leviticus 24, 17, a judge putting a
criminal to death would be acting against the commandment: “ Thou shalt not
kill.” Therefore, in the absence of any other command but this: “ Thou shalt

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Francisco de Vitoria, On Homicide

nisi Dominus excepisset de homicida, et quibusdam aliis malefactoribus. Et
sic apud istos in nullo casu licet etiam publicis potestatibus occidere, nisi in
casibus expressis a iure divino. Unde ortum habuit illa opinio quod non licet
interficere, aut adulteram, aut simplicem furem, quia non est expressum in
iure divino de adulterio. Et licet filerit expressum in Veteri Testamento, tamen
est revocatum a Domino per illa verba Io. 8,11 : Nemo te condemnant, mulier?

neque ego te condemnabo.
Sed contra hanc sententiam arguitur. Illud quod est de se licitum et per se
bonum non est prohibitum praecepto divino. Sed occidere hominem in casu
est per se bonum, videlicet in defensione sui. Ergo non est prohibitum illo
praecepto: Non occides. Neque indiget excipi a regula id quod nullo modo
potuit cadere sub regula. Si ergo occidere invasorem non potuit cadere sub
praecepto: Non occides, non est factum licitum, quia exceptum sit ab illo
praecepto. Item, in lege data Moysi fuit aliquando licitum occidere, aliquando
non. Et tamen non erat facta talis exceptio in iure divino plus de homicida,

quam de adultera. Ergo vel utrumque licebit, vel neutrum. Et quaero, ante
legem Moysi, an licebat interficere blasphemum et homicidam, vel non. Si
non, contra. Quidquid non licuit in lege naturae, nunquam licuit. Non enim
lex Moysi aut lex gratiae sunt dispensationes legis naturae, sed potius e contrario
multa licebant in lege naturae quae in lege Moysi prohibita sunt. Si ergo
licebat interficere in lege naturae adulteram, sine exceptione et expressione
iuris divini, licuit in lege Moysi.
Et ideo alii dicunt quod in praecepto: Non occides, prohibetur solum occisio
innocentis. Et illud praeceptum Ex. 20,13: Non occides, videtur explicatum
Ex. 23,7: Insontem et iustum non occides. Sed contra hoc est quod privatus
occidens peccatorem et sontem facit contra illud praeceptum: Non occides. Si
enim non peccat contra id praeceptum: Non occides, nusquam alibi in iure
prohibetur occisio nocentis hominis. Quare cum certum sit etiam apud istos
privatum hominem reum esse homicidii, etiam si nocentissimum occidat,
certum est illo praecepto non prohiberi solum innocentis occisionem plus
quam nocentis.
Et ideo alii, qui propius ad veritatem accedunt, dicunt quod prohibetur illo
praecepto occisio hominis privata auctoritate. Sed neque isti quidem
sufficientem vim illius praecepti explicarunt. Si enim respublica aut rex
innocentem hominem occideret, faceret contra illud praeceptum, ut certum
est. Ergo non prohibetur absolute privata auctoritate occidere, aut permittitur
occidere publica. Neque valet dicere quod qui interficit se defendendo, occidit

Relection on Homicide

81

not kill,” it was completely prohibited that a king kill a criminal, unless God
made an exception for a murderer and for certain other criminals. Thus ac­
cording to these people it is not lawful, even for public authorities, to kill in
any case except those expressly mentioned in divine law. In this way, there
arose the opinion that it is not lawful to kill an adultress (or a simple thief)
because it is not expressly mentioned in the divine law regarding adultery.
And even if it was expressed in the Old Testament, it has, nonetheless, been
revoked by Our Lord in these words ofJohn 8, 10-11: “Hath no man con­
demned thee, woman? Neither will 1 condemn thee.”
But against this opinion I argue as follows. That which is lawful and of
itself (perse) good is not forbidden by a divine command. But to kill a man is
in some cases of itself good, for instance, in defense of oneself. Therefore, it is
not forbidden by the command: “ Thou shalt not kill.” Neither does that which
can in no way fall under a certain rule need to be excepted from that rule. If,
therefore, to kill an aggressor could not fall under the command, “Thou shalt
not kill,” it is not made lawful because it has been excepted from that com­
mand. Moreover, in the Mosaic law it was sometimes lawful to kill and some­
times not. Yet, apart from a murderer or an adultress, no such exception was
made in divine law. Therefore, either both will be lawful, or neither.46 And
my question is: before the Mosaic law, was it lawful to kill a blasphemer and
a murderer, or not? If not, then on the other side: whatever was not lawful in
the law of nature was never lawful. For the Mosaic law and the law of grace
are not dispensations from the law of nature, but, on the contrary, many
things were lawful in the law of nature which were prohibited in the Mosaic
law. If therefore under the law of nature it was lawful to kill an adultress, apart
from any explicit exception of divine law, it was lawful in the Mosaic law.
And therefore, others say that in the command: “Thou shalt not kill,” only
the killing of an innocent person is prohibited. Further, they say, the com­
mand, “Thou shalt not kill,” in Exodus 20, 13, is seemingly explained in Exo­
dus 23,7: “The innocent and the just person thou shalt not put to death.” But
against this is the fact that a private man killing a sinner or a guilty person
contravenes this command: “Thou shalt not kill.” For if he does not sin against
the command, “Thou shalt not kill,” nowhere else in the law is the killing of
a guilty person prohibited. Since, then, it is certain also according to these
people that a private citizen is guilty of homicide, even if he kills someone
who is most guilty, it is certain that by this command there is not prohibited
only the killing of the innocent rather than of the guilty.
Therefore, others coming closer to the truth say that what is forbidden by
this commandment is killing a man by private authority. But these also do
not explain the frill force of this commandment. For if a republic or a king
were to kill an innocent man, it is certain they would act against this com­
mandment. Therefore, to kill by private authority is not absolutely prohib-

82

Francisco de Vitoria, On Homicide

publica auctoritate. Quia habet auctoritatem a Deo, per ius naturale. Hoc
enim ineptum et ridiculum est. Nam hoc modo neque comedere aut bibere
nisi publica auctoritate liceret. Non enim liceret nisi a iure divino esset
permissum.
12. Et ideo dimissis variis opinionibus, dico primo quod hoc praeceptum est
turis naturalis, et non positivi, sicut etiam alia praecepta decalogi. Quod patet,
quia in lumine naturali semper fuit notum homicidium esse culpabile et il­
licitum.
13. Secundo. Infertur ex hoc quod hoc praeceptum semper fuit aequale, et
ante legem, et in lege, et tempore Evangelii. Patet. Quia lex naturalis nun­
quam mutatur. Nec enim abrogatur, aut limitatur, aut extenditur. Est enim
lumen signatum super nos a principio.
14. Tertio infero quod si licebat interficere adulteram aut furem in lege

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Moysi, etiam licuit ante legem et licet in lege Evangelica.
15. Quarto dico et infero quod illo praecepto prohibetur omne homicidium,
quod stando in lege naturae sola, est malum et irrationabile. Et ad hoc solum
oportet respicere, et non ad exceptiones, vel permissiones factas in lege. Om­
nia enim illa vel solum sunt iudicialia, quae iam cessaverunt, aut si sunt moralia,
sunt explicativa iuris naturalis. Quare ad id est ultimo referendum, quando
licet occidere, et quando non. Ad quod tamen iuvat Scripturas consulere.
Neque hoc est (ut aiunt) explicare idem per se ipsum, aut ignotum per ignotius.
Non est enim homicidium malum quia prohibitum, sed prohibitum quia
malum. Quare ad intelligendum quid sit prohibitum per illud praeceptum:
Non occides, optime respondetur, et per causam, quod omne illud homicidium,
quod est iure naturali malum.
16. Quinto dico quod in illo praecepto non magis prohibetur homicidium
auctoritate publica quam privata. Alia enim quaestio est, quem et quando
licet occidere; et alia quaestio est, cui licet occidere. Nam aliquando est malum
publica auctoritate occidere,
17. Sexto dico quod dupliciter potest occidi homo. Uno modo ex inten­
tione et certo proposito, ut iudex intendit privare vita malefactorem. Alio
modo praeter intentionem, non dico solum a casu et involuntarie, sed etiam
propter alium finem, quem si posset occidens aliter consequi non occideret.
Sicut cum quis in defensionem sui, vel etiam reipublicae occidit invasorem,
quem non occideret, si aliter posset se defendere.
18. Septimo dico quod ex intentione licitum est, stando in iure divino solum
et naturali occidere hominem nocivum reipublicae. Quia homo est mem­
brum communitatis. Et ideo sicut licitum est abscindere membrum corruptum
et nocivum toti corpori, ita est licitum in iure divino et naturali hominem

Relection on Homicide

83

ited, nor is it absolutely
permitted
*
to kill by public authority. Nor is it valid to
say that one who kills in self-defense is killing by public authority because he
has authority from God, through natural law. For this is foolish and ridicu­
lous, since in this way to eat or to drink would be lawful only by public authority.
For such would not be lawful if they were not permitted by divine law.
12. Therefore, putting aside these various opinions, I say first that this com­
mandment is a matter of natural, and not positive, law — just like the other
commands ofthe Decalogue. This is clear, because by the light of natural reason
it was always evident that homicide is blameworthy and illicit.
13. Second, it is inferred from this that this command was always the same
— before the law, during the time ofthe law, and in Gospel time. This is clear,
because the natural law is never changed; it is not abrogated, limited, or ex­
tended. For it is “a light marked (signatum) upon us from the beginning.”47
14. Third, I conclude that ifit was lawful to kill an adultress or a thiefunder
Mosaic law, it was also lawful to do so before the law and it is lawful in Gospel law.
15. Fourth, I say and conclude that by that commandment there is prohibited
every homicide which, by the law ofnature alone, is evil and irrational. And it is
only to this that we must look, and not to exceptions or permissions given in
[divine] law. For all of these are only judicial, and have ceased to obtain, or if
they are moral are explanatory of the natural law.48 Accordingly, when it is
lawful to kill and when it is not must be ultimately referred to this. However,
it does help here to consult the Scriptures. Neither is this to explain (as they
say) the same thing by itself or to explain what is unknown by what is more
unknown. For homicide is not evil because it is prohibited, but rather pro­
hibited because it is evil. Hence, to understand what is forbidden by this
precept: “Thou shalt not kill,” the best reply is through the cause itself, that it
is every homicide which is evil by natural law.49
16.1 say, fifth, that in this command homicide by public authority is not more
forbidden than is homicide by private authority. For it is one question, whom
and when it is lawful to kill, and another question, for whom is it lawful to kill.
For sometimes it is wrong to kill by public authority.
17. Sixth, I say, there are two ways in which a man can be killed·, first, inten­
tionally and by express purpose, as when a judge intends to deprive a criminal
of life, and second, unintentionally. Here I mean not only by chance and
involuntarily, but also for some purpose for which, if it could be otherwise
achieved, the one killing would not kill. An example might be when someone
in self-defense, or in defense of the republic, kills an aggressor whom he would
not kill if he could defend himself in another way.
18. Seventh, staying within divine and natural law only, I say it is lawful
intentionally to kill a man who injures the republic. For man is a member of the
community. And, therefore, just as it is permitted to cut off a corrupt mem­
ber which is harmful for the whole body, so it is permitted in divine and

ί

84

Francisco de Vitoria, On Homitià

perniciosum et boni communis corruptorem interficere, etiam si hoc nun­
quam sit expressum in iure divino scripto. Quia hoc est notum in lumine
naturali quod maius bonum debet praeferri minori bono, et privato bono
publicum bonum.
19. Octavo dico quod tale homicidium de iure naturali et divino est solum
commissum reipublicae aut publicis magistratibus et principibus, qui habent
curam reipublicae, ut patet ex Paulo ad Rom. 13,4: Non sine causa gladium
portat, vindex enim est.
20. Nono dico quod ex intentione occidere hominem semper est prohibi­

tum homini privato. Nunquam enim licet nisi in casu praemisso. Non autem
est commissa cura publici boni defendendi nisi publicis personis. Ergo nulli
privato sua auctoritate licet ex intentione occidere.
21. Ultimo dico quod omne aliud homicidium ex intentione est illo
praecepto prohibitum, seu publicae, seu privatae personae, praeterquam in
casu praemisso, quando vira alicuius propter peccatum eius est perniciosa
reipublicae. Nam de homicidio non ex intentione, quale est in defensione sui,
aut reipublicae latior est disputatio. Quod licet etiam ex iure naturali cognosci

posset, tamen quia non est praesentis speculationis, missum facio.
Ex his patet quam vim habet argumentum ex illo praecepto ad probandum
quod non licet interficere seipsum. Cum enim nemo sit iudex sui ipsius, neque
habeat auctoritatem in seipsum, nunquam licebit se interficere, etiamsi dignus
morte esset, et perniciosus reipublicae.
22. TERTIO ARGUITUR ET PROBATUR CONCLUSIO. Se occidens
facit iniuriam reipublicae. Ergo peccat. Consequentia est clara. Antecedens
patet. Quia quidquid homo est. est ipsius reipublicae, sicut pars sui est totius.
Ergo qui se occidit aufert a republica quod suum est.
QUARTO ET ULTIMO PROBATUR. Quia occidens se facit contra
praeceptum de caritate. Ergo peccat. Consequentia est nota. Et antecedens
probatur. Quia non minus homo tenetur se diligere quam proximum sicut
seipsum. Sed si occideret proximum, semper esset contra caritatem proximi.
Ergo se occidens, facit contra caritatem sui. Ista duo arguenta non carent

Relection on Homicide

85

natural law to kill a man who is destructive and corruptive of the common
good, even if this has never been expressed in the written divine law. For this
is evident by natural light, that a greater good should be preferred to a lesser
good, and the public good should be preferred to a private good.
19. Eighth, I say that such a homicide as a matter ofnatural and divine law is
permitted only for the republic, orfor publicjudges and princes who govern the
republic, as is clear from Paul to the Romans 13,4: “He beareth not the sword in
vain, for he is an avenger.”50
20. Ninth, I say that it is alwaysforbiddenfor aprivateperson to intentionally
kill a man. For it is never lawful, except in the case mentioned.51 But the task
of defending the public good is given only to public persons. Therefore, it is
unlawful for any private person intentionally to kill on his own authority.
21. Last, I say that every other intentional homicide isforbidden by that commandment, whether for a public or a private person, apart from the mentioned case when, because of his misconduct, the life of some person is destructive of the republic. And it is beyond our intention to discuss a nonintentional homicide, such as in the defense of oneself or of the republic.
That this is lawfill also could be known from natural law, but because it is not
a matter of present concern, I am putting it aside.
From all of this, it is clear what force the argument from this commandment has to prove that it is wrong to kill oneself. For, since no one is his own
judge, nor does he have authority over himself, it will never be lawful for him
to kill himself, even though he may be deserving of death and be injurious to
the republic.52
[Third Proof of the First Part of the Conclusion]
22. THE CONCLUSION IS PROVEN WITH A THIRD ARGUMENT.
Someone who kills himself injures the republic. Therefore, he sins. The con­
sequence is clear and the antecedent is evident. For whatever a man is, he
belongs to the republic in a way similar to that in which a part of himself
belongs to his whole reality. Therefore, he who kills himself takes away from
the republic what belongs to it.

[Fourth Proof of the First Part of the Conclusion]
FOURTH AND LAST THIS IS PROVEN. For one who kills himself acts
against the commandment of charity. Therefore, he sins. The consequence is
evident. And the antecedent is proven: for a man is obliged as much to love
himself as to love his neighbor as himself. But if he were to kill his neighbor,
it would always be against the love of his neighbor. Therefore, killing himself,
he is acting against his own self-love.53

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86

Francisco de Vitoria, On Homicide

difficultatibus et dubiis, possentque examinari sicut praecedentia. Sed quia
impugnando conclusionem ipsam commodius veritas ipsius explicabitur, nec
tempus nobis suppeteret si utrumque vellem prosequi, ideo hoc relicto, con­
tra conclusionem arguitur.
Et primo sic. Nemo potest se saltem de industria et volens occidere. Ergo
conclusio includit falsum, scilicet inveniri posset tale delictum et crimen.
Antecedens probatur. Quia voluntas non potest velle nisi bonum ut Aristoteles
habet, et impraesentiarum pro rato habemus. Sed non esse, aut desinere esse
non est bonum, imo potius malum. Ergo nullus seipsum potest interficere.
Neque sufficit dicere quod cum anima sit inmortalis, non desinit esse saltem
meliori sui parte, qui se interficit. Saltem enim argumentum procedit de illo
qui non haberet spem alterius vitae qui non posset seipsum interficere. Cuius
oppositum ex historia constat. Et confirmatur. Quia impossibile est quod
aliquis nolit esse beatus, ut diserte Augustinus tenet 17 De civitate Dei. Sed
qui vult esse beatus, vult esse, cum non possit esse beatus si non sit. Ergo non
potest aliquis nolle esse, et per consequens neque se interficere.
Secundo arguitur. Nulli facit iniuriam qui se interficit. Ergo non peccat se
interficiendo. Antecedens patet. Quia non sibi, volenti enim non fit iniuria.
Ipse autem volens patitur. Ergo non patitur iniuriam. Nec sufficit dicere quod
facit iniuriam reipublicae, quia saltem qui bona venia reipublicae vel adepti
licentiam a republica (sicut mos apud aliquas nationes fuit) se interficerent,
non peccarent. Et confirmatur. Quia qui bona temporalia volens perderet,
neque sibi, neque reipublicae iniuriam faceret. Ut si quis equum suum
occideret. Et tamen non minus res temporales sunt reipublicae quam hominis
vita, imo multo plus. Ergo nec se interficiens facit iniuriam reipublicae, aut
sibi. Item, licet non se defendere a latrone invadente, quando non potest
vitam tueri nisi alterum occidat. Ergo licet se interficere. Consequentia
probatur. Eodem praecepto tenetur quis defendere propriam vitam quo tenetur
se non occidere. Et si se posset defendere, et non se defenderet, esset contra
praeceptum de non se occidendo.
Quarto. Licet duobus existentibus in extrema necessitate, et habentibus
solum unicum panem, unde alter posset tantum vitam conservare, licet inquam
alteri habenti panem cedere alteri. Et hoc est se interficere. Ergo.

Relection on Homicide

87

These two arguments do not lack difficulties and doubts, and they could be
examined as have the preceding arguments. But because by arguing against
the conclusion its truth will be more fittingly explained, and because there
would not be time54 for us to do both things, therefore, putting this aside, we
argue against the conclusion.
First as follows: No one can kill himself, at least on purpose and willingly.
Therefore, the conclusion includes something false, namely, that such a fault
or crime could happen. The antecedent is proven: for the will can only will
what is good, as Aristotle says,55 and as we hold it certain now. But not to be,
or to cease to be, is not good; indeed rather it is bad. Therefore, no one can
kill himself. Nor is it enough to say that, since the soul is immortal, someone
who kills himself does not cease to be at least in his better part. For at least the
argument proceeds against a person who would not have a hope of another
life, that56 he could not kill himself. But the opposite of this is clear from
history. And this is confirmed. For it is impossible that someone not want to
be happy, as Augustine eloquently holds in Book 17 of his De civitate Dei.57
But he who wants to be happy, wants to be, since he could not be happy
unless he is. Therefore, someone cannot not want to be, and consequently he
cannot kill himself.58
The second argument is that one who kills himself does an injury to no
one. Therefore, if he kills himself, he does not sin. The antecedent is clear. For
no injury is done to himself, since to a willing person no injury is done.59 But
he suffers [death] willingly. Therefore, he does not suffer injury. Nor is it
enough to say that he injures the republic, for at least those who would kill
themselves with the permission of the republic or with a licence from the
republic (as was the custom in some nations60) would not sin. And this is
confirmed: for he who willingly would destroy [his own] temporal goods
would not injure himself or the republic. For instance, if someone were to kill
his own horse. And, nevertheless, temporal goods belong to the republic nor
less than the life of man, indeed they belong much more. Therefore, someone
killing himself does not injure the republic or himself.
Again [third], it is lawfid not to defend oneself from an aggressive criminal,
when one cannot defend his life unless he kill another. Therefore, it is lawfid
to kill oneself. The consequence is proven. One is obliged to defend his own
life by the same commandment by which he is obliged not to kill. And if he
could defend himself, and did not do so, it would be against the command­
ment not to kill oneself.
Fourth: where there are two people existing in extreme necessity with only
enough bread between them to sustain the life of one of them, it is, I say,
lawful that the one having the bread give it to the other. And this is to kill
oneself. Therefore...

9

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Francisco de Vitoria, On Homicià

Quinto. Si servus esset cum rege in naufragio et essent in tabula vel nav­
icula quae utrumque non posset sustineret licet servo desilire in mare sine spe
evadendi, ut regem servet a morte. Ergo licitum est in casu se interficere.
Sexto. Licitum est damnato ad mortem, ut fame conficiatur, oblato pane
non comedere. Ergo licitum est se interficere. Antecedens patet. Quia licitum
est, et potest parere sententiae, cui adiudicatus est.
Septimo. Licet damnato ad mortem habita etiam opportunitate fugiendi
non fugere, sed expectare. Sic dat operam morti propriae. Ergo.
Octavo. Licet damnato ad mortem veneni hausti haurire venenum.
Ergo licet se interficere.
Nono. Licet cum manifesto periculo mortis tempore pestis visitare amicos.
Ergo...
Decimo. Licet navigare cum manifesto periculo mortis. Ergo
Undecimo. Licita sunt exercitia militaria, et taurorum exagitatio, etiam cum
periculo mortis. Ergo seipsum interficere. Probatur consequentia. Quia in
omnibus his tribus argumentis est eadem ratio, quia eodem praecepto
generaliter prohibetur interficere alium, et exponere se periculo occidendi.

Ergo etiam
deseipso.
Duodecimo. Licet vitam breviorem facere abstinentiis, et duro victu, et
aliis vitae austerioris rigoribus. Ergo se interficere. Consequentia probatur ex
dicto Hieronymi: “Nihil interest parvo aut magno tempore te interimas”. Et
antecedens probatur, et patet de monasteriis, ubi certum est vitam esse
breviorem quam extra.
Decimo tertio. Non tenetur aliquis constitutus in extremo periculo redimere
salutem quacumque pecunia, vel toto patrimonio. Ergo non tenetur conservare
vitam suam. Antecedens patet. Si enim quis indigeret ad salutem herba aliqua,
ut (exempli gratia) radice pontica, quam non posset habere, nisi daret suum
regnum, aut principatum, non teneretur dare. Ergo.
Decimo quarto. Semper est licitum subire minus malum ad evitandum maius
malum. Sed maius videtur infamia et ignominia, quam mors. Ergo saltem ad
vitandum ignominiam et infamiam, licitum erit subire mortem et se interficere.
Decimo quinto. Saltem hoc, scilicet non licitum esse se occidere, non est
ita per se notum, quin possit ignorari. Cum apud multos, qui reputati sunt
sapientes, fuerit laudatum. Ergo saltem excusabuntur illi, qui putant se fortiter
et laudabiliter agere, se interficiendo, ut Cato, Brutus et similes.

Fifth: if a slave (servus) were in a shipwreck with a king and they would be
on a plank or a lifeboat which could not bear them both, it would be lawful
for the slave to throw himself into the sea, without hope of survival, in order to
save his king from death. Therefore, it would be lawfill in that case to kill himself.
Sixth: it is lawful for someone condemned to death by starvation not to eat
food that is offered to him. Therefore, it is lawful for him to kill himself. The
antecedent is clear: for one can submit lawfully to a sentence to which he has
been condemned.
Seventh: it is lawfid for someone condemned to death not to flee even
though he may have an opportunity, but rather to wait for that death. But in
this way he is contributing to his own death. Therefore.
Eighth: it is lawful for someone condemned to a death by drinking poison,
to drink that poison. Therefore, it is lawful that he kill himself.
Ninth: it is lawful for someone in a time of plague to visit his friends even
though there is obvious danger of death. Therefore ...
Tenth: it is lawful to sail in face of â clear danger of death. Therefore ...
Eleventh: military exercises, and bullfights61 are lawful, even with the danger of death. Therefore, it is lawful to kill oneself. The consequence is proven:
because in all these three [last] arguments the reasoning is the same, namely,
that to kill another and to expose oneself generally to the danger of killing
him is forbidden by the same commandment. Therefore, the same is true
with respect to oneself
Twelfth: it is lawful to shorten one’s life by abstinences, poor food, and
other rigors of austere living. Therefore, it is lawful to kill oneself. The consequence is proven from the words of St. Jerome: “It makes no difference whether
you kill yourself in a short or over a long time.”62 The antecedent is both
proven and is clear from monasteries, within which life is certainly shorter
than it is outside.
Thirteenth: someone in extreme danger is not obliged to purchase health
with all possible amount of money or with his whole patrimony. Therefore,
he is not obliged to preserve his own life. The antecedent is clear: for if some­
one were to need some herb for his health, for example some root from the region
of the Black Sea, which he could not get without giving up his kingdom or his
government, he would not be obliged to give these up. Therefore.
Fourteenth: it is always lawfid to endure a lesser evil in order to avoid one
which is greater. But infamy and ignominy seem greater than death. There­
fore, at least in order to avoid ignominy and infamy, it will be lawfid to suffer
death and even to kill oneself.
Fifteenth: that it is unlawfid to kill oneselfis not so self-evident that it cannot be
unknown. For it has been praised by many who have been thought to be wise.
Therefore, at least those will escape blame who think that by killing themselves
they are acting bravely and laudably, for example, Cato,63 Brutus,64 and the like.

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Francisco de Vitoria, On Homicide

Decimo sexto. Legitur de quibusdam sanctis feminis quod cum essent a
tyrano damnatae ut igne comburerentur, ipsae se in eum praecipitaverunt.
Ergo licet se interficere.
Decimo septimo. Samson, Saul, Razias, Eleazarus, se interfecerunt, qui non
solum non vituperantur in Scriptura, sed certe Samson inter sanctos refertur
ab Apostolo ad Hebraeos 11,32-33. Et Razias et Eleazarus laudantur. Et idem
argumentum potest fieri de virginibus, quae fugientes romanorum iniuriam,
apud Aquileiam se in flumen praecipitaverunt.
Pro solutione istorum argumentorum multa et varia possent adduci, quae
si tempus ferret, non essent inutilia vel iniucunda tractatu. Sed pro temporis
brevitate solutionem illorum in paucissima verba conferam.
Pro elucidatione ergo primi argumenti est advertendum quod obiectum
voluntatis non est solum verum bonum. Cum enim obiectum non moveat
voluntatem nisi mediante cognitione, nihil refert ad movendum voluntatem,
an sit verum bonum, aut aestimetur verum bonum. Itaque cum interficere
seipsum, aut prorsus non esse, possit aestimari bonum, ex hac parte non
impeditur, quin potest aliquis sciens et volens seipsum interficere. Cum possit
errare, et aestimari sibi bonum esse. Sed quoniam ista solutio solummodo
ostendit aliquem ex errore posse velle non esse, et per consequens se interficere,
dico secundo quod non inconvenit aliquem sine errore quocumque, velle non
esse.
Pro quo advertendum quod sicut non inconvenit aliquid esse secundum se
bonum, et tamen ex aliqua circumstantia fieri malum, ita e contrario aliquid
quod absolute est malum, potest ex aliquo adiuncto fieri bonum. Atque in
proposito non esse, licet absolute sit malum, tamen tanquam medium ad
vitandas miserias, non solum potest aestimari bonum, sed revera esse bonum.
Et quamvis esse secundum se sit bonum tamen coniunctum cum aliquo malo,
potest non solum aestimari, sed fieri revera malum. Unde dico quod damnati,
sine quocumque errore cupiunt non esse. Quamquam enim esse absolute esset
eis bonum, tamen tale esse, scilicet cum summa miseria, revera est eis malum.
Et melius esset eis non esse, quam sic esse. Quod Dominus in Evangelio satis
aperte ostendit dictum de luda traditore: Bonum erat ei, si natus non fuisset
homo iste (Mc. 14,21). Quamvis enim aliqui ita hunc locum intelligunt, ut
melius quidem fuisset ludae non nasci, non tamen melius non concipi aut
non esse. Tamen non puto Christum habuisse respectum ad differentiam illam
inter natum esse et conceptum esse, et prorsus esse, sed absolute protulit melius
futurum illi omnino non esse, quam ita perditum esse. Unde Ecclesiastici
30,17: Melius est mors quam vita amara. Quare damnati non errantes, sed

Relection on Homicide

91

Sixteenth: we read of certain sainted women who, when they were con­
demned by a tyrant to be burnt to death, of their own volition hurled them­
selves into the fire. Therefore, it is lawful to kill oneself.
Seventeenth: Samson, Saul, Razias, and Eleazar killed themselves. And not
only were they not blamed in the Scripture, but Samson was certainly num­
bered among the saints by the Apostle [Paul], in Hebrews 11,32-33, and both
Razias and Eleazar are praised.65 The same argument can also be made with
regard to the virgins in Aquileia, who, to escape harm from the Romans,
threw themselves into a river.66
In answer to these arguments, many different things could be brought forth,
which if time would allow,67 would not be useless or hard to treat. But, be­
cause of the brevity of time, let me solve them in very few words.
For the solution of the first argument, therefore, one should note that the
object of the will is not only what is truly good. For, since an object moves the
will only through the medium of knowledge, it does not matter for such
moving whether it is a true good or whether it is simply thought to be a true
good. Since, therefore, to kill oneself, or simply not to exist, can be thought
to be good, on this score there is no obstacle to someone’s being able to kill
himselfwith knowledge and volition. For he could make a mistake and think it to
be a good for himself.68 But since this solution only shows that someone from
error can want not to be, and consequendy kill himself, I say secondly, it is not a
problem for someone, without any error, to want not to exist.
In explanation, we should note that just as it is not a problem that some­
thing be good in itself and still because of some circumstance become bad, so
on the other hand something which is simply evil can from some added thing
become good. And in the case before us, although not to exist is as such bad,
still as a means of avoiding afflictions it can not only be thought to be good,
but can actually be good. And although to exist is good in itself, nevertheless,
when it is linked with some evil it can not only be thought to be, but actually
can become evil. Hence, I say that without any error the damned [in hell]
desire not to exist. For although existence as such would be a good for them,
still the existence they have, that is with supreme misery, is indeed an evil for
them. And it would be better for them not to exist, than to exist as they are.
The Lord evidendy showed this when in the Gospel he said of Judas, the
betrayer: “It were betterfor him, ifthat man had not been born (Mark 14,21).
For, although some understand this passage to mean that it would have been
better for Judas not to have been born, but not better for him not to have
been conceived or simply not to exist, I, however, do not think that Christ
was making any difference between being born and being conceived, or just
being as such, but was simply saying it would be better for that man not to be
than to be, as he was, damned. Hence it is that Ecclesiasticus (30,17) says:
“Better is death than a bitter life.” Therefore, not in error, but choosing rightly,

t ■

3

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Francisco de Vitoria, On Homicidi

recte eligentes, cupiunt non esse. Et hoc plusquam satis ad primum

argumentum.
Sed instabat in confirmatione, quod omnis homo necessario appetit
beatitudinem, quam non potest habere si non sit. Et per consequens videtur
quod necessario vellet esse, neque posset velle non esse.
Ad hoc argumentum quamvis multifariam possit responderi, tamen in
praesentia dico quod nullus potest velle absolute quod scit se nunquam
adepturum. Et per consequens nec medium eligere ad consequendum illud,
quod consequi non sperat. Quare cum damnati firmiter credant se nunquam
futuros felices, fit ut nec etiam esse velint, quod tamen necessarium est ad
felicitatem. Et eo ipso quod damnati cupiunt felices esse, cupiunt miserias
vitare, quas fugere non possunt. Ac per consequens vellent non esse.
23. Pro secundo argumento eiusque confirmatione est notandum quod dif­
ferentia est inter alias res corporales et inter vitam hominis. Est enim homo
ita verus dominus aliarum rerum ut possit pro suo arbitrio uti omnibus illis.
Omnia enim Dominus subiecit pedibus eius. Quare non tenetur homo ad

conservationem rerum temporalium, sed potest pro sua voluntate vel tenere,
vel dimittere. Unde occidens proprium equum, aut comburens propriam
domum, nulli facit iniuriam. Non est autem ita dominus aut corporis aut
;
vitae propriae. Est enim solus Deus dominus vitae et mortis. Et quantum ad
hoc homo peculiariter est servus Dei. Unde occidens seipsum, occidit alicui
servum, et facit iniuriam Deo, a quo tantum donum utendum accepit, non
perdendum. Et sicut non est inmunis ab iniuria qui alium interficit, etiam
alio petente, quia scilicet ille non est ita dominus vitae suae, ut possit facultatem
>,
cuiquam dare sibi vitam eripiendi, ita et qui seipsum interficit, iniuriae reus
[
est. Ut enim apud Ciceronem Pythagoras ait, “prohibentur mortales sine iussu ■
imperatoris vel domini de praesidio et statione vitae discedere”.
1
24. Pro tertio argumento. Quamvis nonnulli in illa sint opinione ut putent
hominem teneri ad tuendam vitam, quandocumque licite potest, tamen dico
quod non solum in isto, sed in multis aliis casibus homo posset licitis mediis
i
vitam servare. Et tamen non tenetur. Unde si invasus a latrone aliter non
posset se defendere quam latronem interficiendo, non dubito quin sit opus
l
consilii et perfectionis permittere se occidere potius quam latronem in tali
1
statu mittere in perditionem. Quod probatur. Si enim christianus deprehensus
in solitudine a pagano invaderetur eo quod christianus esset, dato quod posset
se ab illo defendere, etiam licite, et sine scandalo fidei, tamen nemo dubitaret
quin esset opus patientiae ferre aequanimiter mortem in testimonium fidei.

Relection on Homicide

93

the damned desire not to be. And this is more than enough by way of reply to
the first argument.
But in the confirmation of that argument it was further objected that every
man necessarily desires happiness, which he cannot attain unless he exists.
Consequently, it seems that a man would necessarily will to exist and that he
could not will not to exist.
Although this argument can be answered in various ways, for now I say that
no one can without qualification will what he knows he will never attain.
Consequently, neither can he choose a means to attain that which he has no
hope of attaining. Therefore, since the damned firmly believe that they will
never be happy, it is the case that they also do not will to exist, which is
necessary for happiness. And by that very fact that the damned desire to be
happy, they desire to avoid the afflictions which they cannot escape. Conse­
quently, it is their will not to exist.
23. As regards the second argument and its confirmation, it must be noted
that there is a difference between human life and other corporeal things. For
man is the true master of other things in such a way that he can use them all
as he wishes. For the Lord subjected all things under the feet of man. There­
fore, a man is not obliged to keep temporal things, but he can hold them or
let them go, as he wills. Thus, a man killing his own horse, or burning his
own house, is injuring no one.69 However, he is not in this way the master of
his own body or of his own life. For God alone is the master of life and death.
And with respect to this, man is in a special way the servant of God. There­
fore, someone who kills himself, kills the servant of another, and does injury
to God, from whom he received the great gift of life to be used and not to be
destroyed. And just as one who kills another, even when that other has asked
to be killed, is not immune from guilt, because that other is not the master of
his life in such a way that he can give permission to anyone to take it away,70
so also he who kills himself is guilty of injury.71 Thus, according to Cicero,72
Pythagoras said: “Apart from the command of their ruler or master, mortals
are forbidden to leave their post or station.”
24. In reply to the third argument·, although some are of the opinion that a
man is obliged to protect his life whenever he can lawfully do so, I say that a
man could preserve his life by lawful means not only in that case but in many
others as well — but he is, however, not obliged to do so. Thus, if when
attacked by a robber he could not defend himself unless he killed that robber,
I do not doubt that it is an act of counsel and perfection to let the robber kill
him rather than to kill the robber and send him to hell in his present condi­
tion. This is proven: for if a Christian surprised in a lonely place by a pagan
were to be attacked for the reason that he is a Christian, granted that he could
defend himself, even lawfully and without any scandal to the faith, neverthe­
less, no one would doubt that it would be an act of patience to suffer death

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Francisco de Vitoria, On Homicide

Probatur secundo. Christus licite se poterat defendere a iudaeis vel gentilibus,

qui tyrannice oppresserunt illum, nec tamen fecit. Ergo non quicumque licite

potest salvare vitam suam, tenetur. Item, decem millia martyrum qui pro
Christo mortui sunt, non videtur quod non potuissent se defendere licite et

pugnare adversus tyrannos. Sicut et nunc christiani se tuentur contra paganos.
Unde non dubito quin plerumque martyrium sit sub consilio, et quod multi
martyres se ultro martyrio obtulerunt, cum ad hoc non obligarentur. Quod
satis consonum videtur consilio Apostoli ad Rom. 12,19: Non vos defendentes,
carissimi, sed date locum irae. Et Dominus in Evangelio Mt. 5,39: Ego autem
dico vobis, non resistere malo. Imo iste videtur error iudaeorum, quem Domi­
nus apud Mt. 5, elidit, quod putabant non esse laudabile, si quis iniurias
patienter toleraret.
Pro quo est considerandum quod licet (ut dictum est) homo non sit domi­
nus sui corporis, aut vitae suae sicut aliarum rerum, tamen aliquid dominii et
iuris habet in vita sua, ratione cuius qui nocet in corpore non solum facit
Deo, qui est supremus dominus vitae, sed etiam ipsi homini privato, iniuriam. t
Hoc ergo ius guod homo habet in proprium corpus, potest homo laudabiliter
dimittere et perdere, quamvis habeat ius se defendendi, et sic patienter ferre
mortem.
Î
Contra hanc tamen solutionem potest instari. Quilibet tenetur defendere
vitam innocentis, si quis per violentiam velit eum interficere. Unicuique enim
Deus mandavit deproximo suo. EtProv. 24,11: Erue eos, qui ducuntur ad mortem',
et eos qui trahuntur ad interitum, liberare non cesses. Unde si quis posset
innocentem eripere de manu invasoris, et non faceret, esset reus homicidii.
Ex hoc sic arguitur. Plus tenetur homo servare propriam vitam quam vitam
proximi. Si ergo tenetur homo defendere vitam proximi ab iniusto invasore.
Ergo etiam propriam vitam.
25. Ad hoc primo dico quod non est ita exploratum quod semper homo
teneatur defendere vitam proximi, etiam quandocumque licet. Si enim
christianus se ultro offerret tyranno, ad augmentum fidei etiam extra tempus
necessitatis, quando scilicet est opus consilii, dato quod christiani possent
illum eripere de manu tyranni, et liceret sine scandalo, credo quod non
tenerentur. Et sic non est universaliter verum quod quilibet tenetur defendere
vitam innocentis, etiam cum licite potest. Ut patet de Petro Apostolo, quem
Dominus reprehendit quia volebat eum eripere de manibus iudaeorum.

Relection on Homicide

95

with equanimity in witness of his faith. It is proven secondly: Christ could
have lawfully defended himself against the Jews and the gentiles who were
unlawfully [tyrannice) oppressing him, and yet he did not do so. Therefore,
not everyone who can lawfully save his own life is obliged to do so. Again, it
is apparent that the ten thousand martyrs who died for Christ could have
lawfully fought and defended themselves against the tyrants [who killed
them],73 just as now Christians defend themselves against pagans.74 Thus, I
do not doubt that oftentimes martyrdom falls under a counsel75 and that
many martyrs have offered themselves voluntarily to martyrdom, even though
they were not obliged to do so. This seems consonant enough with the advice
of the Apostle [Paul] to the Romans (12, 19): “Defending notyourselves, dearly
beloved, but give place unto wrath,” and to that of the Lord in the Gospel of
Matthew (5, 39): “But Isay to you not to resist evil.”76 Indeed, that seems to be
the error of the Jews, which the Lord struck against in Matthew 5, that they
thought it was not praiseworthy for someone patiently to suffer injuries.
In this regard, we must consider that although (as has been said) a man is
not the master of his own body, or of his own life, in the way that he is master
of other things, nevertheless, he has some dominion and right with respect to
his life. And by reason of this anyone who does a man bodily harm does
injury not only to God, the supreme Lord of life, but also to that individual
man himself. This right, then, which a man has over his own body he can
laudably give up and renounce, and thus can patiently bear death, even though
he has the right to defend himself.
However, against this solution one can object: everyone is obliged to de­
fend the life of an innocent person, if someone is looking to violently kill
him. For God has charged everyman with respect to his neighbor, and Prov­
erbs 24,11, says: “Deliver them that are led to death, and those who are drawn to
death forebear not to deliver."77 Hence, if someone were able to deliver an
innocent person from the hands ofan attacker and did not do so, he would be
guilty of homicide. From this, it is argued as follows: a man is more obliged to
save his own life than to save the life of a neighbor. If therefore a man is
obliged to defend the life of a neighbor from an unjust attacker, he is then
also obliged to defend his own life.
25. In answer to this, I say first that it is not so certain that a man is always
obliged to defend the life of a neighbor, even when such is lawful. For if to
spread the Faith a Christian were to willingly offer himself to a tyrant, even
apart from necessity, that is, when it would be an act of counsel — granted
that other Christians could snatch him from the hands of this tyrant and that
it would be lawful to do so without scandal, I believe that they would not be
obliged to do so. Thus, it is not universally true that everyone is obliged to
defend the life of an innocent person, even when he can lawfully do so. This
is clear from the Aposde Peter, whom the Lord reproved because he wanted to
snatch him from the hands of the Jews.

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Secundo dico negando consequentiam: Si teneor defendere vitam proximi
quod tenear meam. Possum enim, ut dictum est, cedere iuri meo, non autem
iuri fratris mei. Exemplum est clarum. Certum est enim quod non teneor

defendere bona temporalia mea iuxta id: Si quis petierit a te tunicam, da à et
pallium. Et tamen, si possem sine periculo meo defendere bona innocentis a
ràptore et latrone, certum est quod teneor. Simili ergo modo quamvis possum
non defendere vitam meam, non possum non defendere vitam proximi.
Pro quarto argumento licet multi vertant in dubium, an liceat pro privata
persona ponere vitam, et plures partem negativam defendant, tamen ut alias a
me disputatum est, puto probabilius hoc esse laudabile. Et videtur laudatum
a Domino in illo loco: Maiorem delectionem nemo habet, ut animam suam
ponat quis pro amicis suis, etc., ubi non distinguit de privata persona aut pub­
lica. Et Io. 1,3.16: In hoc cognovimus caritatem Dei, quoniam ille animam
suam pro nobisposuit et nos debemusprofratribus animas ponere. Neque videtur
solum loqui pro spirituali bono proximorum. Statim enim subditur: Qui ha­
bet substantiam huius mundi et videtfratrem suum necessitatem habere, etc. Et
Cant. 8,6: Fortis est ut mors dilectio, quia scilicet facit pro amico mori. Et ad
Eph. 5,25: Viri diligite uxores, sicut Christus dilexit Ecclesiam, et semetipsum
tradidit pro ea. Et infra: Ita viri debent diligere uxores suas, sicut corpora sua. Et
item: Unusquisque uxorem diligat sicut seipsum (5,33). Et Aristoteles 9
Ethicorum, omnino docet maximam honestatem esse mortem etiam oppetere
pro amicis. Et filium patrem potius quam se redimere; et honestius esse
parentibus alimentis opitulari, quam sibi ipsis. Quodsi in extrema necessitate
licet panem vitae necessarium patri relinquere, non est dubium quin etiam
liceat amico dare. Quare omnino concedo in casu proposito in argumento,
quod licet panem alteri cedere cum cena pernicie propriae vitae.
26. Sed contra hoc vehementer illud urget. Sit enim casus, quod sint in
extrema necessitate filius cum patre et alio extraneo, et filius habeat unicum
panem. Sic arguitur. Sequitur quod filius potest dare panem extraneo, relicto
patre. Consequens autem est contra ordinem caritatis. Ergo non sufficienter
respondetur ad argumentum. Consequentia probatur. Quia postquam filius
habet ius servandi sibi soli panem, si potest iuri suo cedere, ergo relinquere
extraneo, et nullam iniuriam facit patri, cum pater nihil iuris habeat in pane
illo. Ad hoc nego consequentiam. Quamquam enim filius possit sibi panem

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97

Secondly, I deny the consequence: that if I am obliged to defend the life of a
neighbor, I am obliged to defend my own life. For I can, as was said, give up
my own right, but not the right of my brother. The example is clear. For it is
certain that I am not obliged to defend my own temporal goods, according to
this: “Ifanyone asksfor thy tunic, give him also thy cloak.”™ And, still, if I could
without danger to myself defend the goods of an innocent person from a
bandit and a robber, it is certain that I would be obliged to do so. Thus, in a
similar way, even though I may be permitted not to defend my own life, I
may be obliged to defend the life of a neighbor.79
As regards the fourth argument, although many doubt whether it is lawful
to lay down one’s life on behalf of a private person, and many defend the
negative side on this, nevertheless, as I have discussed it elsewhere,801 think it
is more probable that this is praiseworthy. And it seems to have been praised
by the Lord in this passage: “Greater love than this no man hath, that a man lay
down his life for his friends, etc.,”81 where he does not distinguish between a
private and a public person. And FirstJohn (3, 16) also says: “In this we have
known the charity ofGod, because he hath laid down his lifefor us: and we ought
to lay down our lives for the brethren.” Nor does this seem to mean only with
regard to the spiritual good of neighbors. For immediately [v. 17] it adds: “He
that hath the substance ofthis world and shall see his brother in need, etc.” And
the Canticle of Canticles (8, 6) says: “Love is as strong as death,” because it
causes one to die for a friend. And at Ephesians 5,25, we read: “Husbands love
your wives, as Christ also loved the Church and delivered himselfup for it.” And
below that [v. 28] : “So ought men to love their wives as their own bodies.” Again
(5,33): “Let everyone love his wife as himself? And Aristotle, in the ninth book
of his Ethics?1 especially teaches that it is a most honorable thing to die for
one’s friends, and for a son to redeem his father rather than himself, and that
it is more honorable for children to give food to their parents rather than to
themselves. But if in extreme necessity it is lawful to give to one’s father bread
which is necessary for one’s own life, without doubt it is also lawful to give it
to one’s friend. Therefore, I completely concede that, in the case proposed in
the argument, it is lawful to give bread to another even though doing so
involves the certain loss of one’s own life.
26. But very much against this is the following. Imagine a situtation in
which a father, his son, and some stranger, are in dire need, and the son has a
single bit of bread. The argument then is that it follows [from the position
just enunciated] that the son may give that bread to the stranger rather than
to his father. But this consequent is against the order of charity.83 Therefore,
we have not sufficiendy answered the argument.84 The consequence is proven:
because when the son has a right to keep the bread for himself alone, if he can
give up that right, then he can give it up to the stranger, and in the process do
no injury to his father, since the father has no right to the bread.85 In reply to

retinere et potest cedere iuri suo, non tamen cui vult, sed tenetur ex ordine
caritatis subvenire potius patri quam extraneo. Et eo quod panis est in potestate
filii, pater habet maius ius ad panem quam extraneus.
27. Et per hoc patet ad quintum argumentum. Credo enim quod in illo casu
servus possit relinquere naviculam, aut tabulam, certus mortis. Et non solum
pro rege hoc esset laudabile, sed pro quocumque etiam amico, aut proximo.
Quod Lactantius 1.5 De iustitia c. 18 diserte commendat: “Quid (inquit) iustus
faciet, si nactus fuerit aut in equo saucium, aut in tabula naufragum? Non
invitus confiteor morietur potius quam occidet. At stultitia est, inquiunt,
alienae animae parcere cum pernicie suae nunc etiam pro amicitia perire
stultum iudicabitur”. Et reliqua quae in hunc locum eloquentissime congerit.
Est sine dubio pro amicis animam ponere stultitia huius mundi, quae tamen
sapientia est apud Deum.
28. Pro sexto argumento dico quod talis tenetur comedere. Et Sanctus Thomas 2.2 q.69 a.4 ad 2 dicit quod si non comederet, se interficeret. Quod
probatur. Quia tenetur uti ad conservandam vitam omnibus mediis a iudice
non prohibitis. ludex autem non prohibuit, imo neque potuit quidem

j

j

prohibere, ne oblato pane non ederet. Non enim damnavit eum ut mortem
sibi daret, sed solum ut pateretur. Ut patet quia comedens non facit contra
sententiam iudicis. Ergo non est poena inflicta a iudice ut ipse se ab esu
abstineat. Itaque si licet ei comedere in casu posito, quod pro confesso video

t
j
ΐ
j
j
j
■

inter omnes constare, omnino videtur quod tenetur.
29. Pro septimo argumento similiter dico sicut ad sextum. Quod talis tenetur
fugere, quia non est pars poenae inflictae a iudice ut maneat in carcere. Ad
minus dico quod idem est iudicium de eo qui est in carcere, et de eo qui est in
sua libertate. Et si latro peccat ultro se offerendo iudici et carceri, etiam peccat
si libere potest fugere, et non fugit.
30. Pro octavo certe non video quare id sit negandum licere. Etenim sicut
sunt alia supplicia decreta contra nocentes, quare non posset id institui ut

veneno tolleretur. Quod si illud supplicium potest esse iustum cum aliter illa
poena irrogari non potest, nisi ut ille venenum epotet, nihil videtur cur non
liceat ei haurire venenum. Sicut licet damnato ad supplicium ascendere scalas,
et ei qui damnatus est gladio parare iugulum. Neque enim unus magis

;
i

|
|
1
I
i
ξ
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I
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1

’

Relection on Homicide

99

this last, I deny the consequence. For although the son can keep the bread for
himself and he can also give up his right to it, he cannot, however, give it up
to whomever he wants. But he is obliged by the order of charity to help his
father before the stranger. And by the very fact that the bread is in the possession
of his son, the father has a greater right to that bread than does the stranger.
27. Through this the answer to the fifth argument is clear. For I believe that
in the case mentioned in that argument the slave can give up the lifeboat or
the plank, even though he is certain his death will result. Moreover, it would
be laudable to do this not only on behalf of a king, but also on behalf of any
friend or neighbor.86 This is what Lactantius clearly recommends in Book 5,
c. 18 of his De iustitia?1 “What (he says) will the just man do, ifhe finds a
wounded man on a horse or a man shipwrecked on a planki™ I say that he will
voluntarily die rather than kill. But it is stupidity, they say, to spare the life of
another with damage to one's own life and now also it will be deemedfoolish to
perishforfiriendship"V) — as well as the rest ofwhat he most eloquently adds in
this place. Without doubt, therefore, to lay down one’s life for friends is stu­
pidity for the world, but it is wisdom before God.
28. As regards the sixth argument, Isay that such a man is obliged to eat. And
St. Thomas, in Summa Theologiae IPIIae, q.69, a.4, ad 2, says that if he does
not eat, he is killing himself. This is proven: for, to preserve his life, he is
obliged to use all means which have not been forbidden by his judge. But the
judge has not forbidden, indeed he was not empowered to forbid, him to eat
food offered to him. For the judge has not condemned him to kill himself,
but only that he should suffer death. This is clear, since one who eats is not
acting against the judges sentence. Therefore, the penalty inflicted by the
judge is not that the condemned man should abstain from eating. And thus,
if it is lawful for him to eat in the case advanced, which I see as universality
acknowledged, it seems he is absolutely obliged to do so.
29. As regards the seventh argument, I say the same as for the sixth. Such a
man is obliged to flee, for it is not part of the penalty inflicted by the judge
that he remain in prison. At least, I say that the judgment is the same about
him who is in prison and him who is at liberty. And if a criminal sins by
gratuitously offering himself [i.e. without any cause at all to do so] to a judge
or to a prison, he also sins if he can freely flee and he does not.90
30. As regards the eighth argument, I certainty do not see why we should
deny that this is lawfill. And indeed just as other forms of capital punishment
are exacted against guilty persons, why could it not be ordered that one be
killed by poison? But if another punishment can be just, in a case where
unless one drinks poison the penalty cannot be otherwise imposed, there seems
to be no reason why it would be unlawful for him to drink it. This is similar
to its being lawfill for someone condemned to death to climb up to the gal­
lows or to prepare his throat for the sword. For one is not cooperating more

100

Francisco de Vitoria, On Homicidt

cooperatur morti suae quam alius. Quod si datur non posset tale supplicium
constitui, consequenter dicendum est non esse licitum venenum sumere

damnato a tyranno. Sicut neque se iugulare, aut gladio incumbere. Hoc autem
est probabiliter dictum. Non tenetur enim sibi aliquis poenam inferre sed

solum ferre. Unde non videtur posse constitui poena ad quam necessarium sit
ipsum nocentem cooperari. Mihi tamen primum magis placet quam hoc.
Neque valet. Ergo posset damnari, ut seipsum iugulet. Hoc enim potest fieri
per alium, quod non est de haustu veneni. Sed de hoc disputari potest.
31. Ad nonum patet ex solutione ad quartum et quintum. Ubi enim amicus
meus indigeret auxilio meo, vel obsequio in aegritudine, vel consilio meo in
conscientia, non dubito quin possem consulere illi cum quantocumque
periculo meo. Quod si nihil essem profuturus, profecto non videtur carere
temeritate exponere me periculo gravi sine ullo fructu. Quamquam hoc ipsum,
scilicet amicitiam et fidem in amicis servare magnus fructus est. Nec vellem
uxorem damnare, quae etiam cum magno periculo marito peste laboranti
assideret. Etiam si hoc officium non esset illi ullo pacto profuturum, sed ut
pereunti viro officium et consolationem praestaret.
32. Ad decimum et undecimum est advertendum quod ad cognoscendum
quid in hoc casu liceat, non oportet solum habere respectum ad circumstantias
pro tempore occurrentes, sed magis quid ut plurimum contingat. Neque
respectus habendus magis est ad bonum vel malum privatum quam ad bonum
vel malum publicum et commune. Navigatio etiam pro tempore periculoso
est utilis bono communi. Ex communicatione enim nationum et provinciarum
respublica magna commoda accipit, et in pace, et in bello. Quare si propter
periculum tempestatum homines deterrerentur a navigatione, fieret magna
iactura publici boni. Cum aut vix, aut nunquam navigare sine magno periculo
possit. Et eodem modo de exercitiis militaribus dicendum. Omnino enim est
necessarium reipublicae milites habere ad defendendum patriam, qui sine
militari exercitio inutiles bello essent. Sunt autem quaedam exercitia militaria
parum periculosa, ut sunt equestria et alia multa, quae sufficiunt ad exercendos
milites. Et ideo aliis multum periculosis uti illicitum esset. Verum si non possent
milites exerceri sine etiam magno et gravi periculo, non ideo omittenda essent
bellica exercitia. Minus enim malum temporale tolerandum esset ad evirandum
maius, ne scilicet patria perdatur, et tyranni occupent illam aut in bello victores
hostes multo plures caedant, quia non sunt exercitari milites.

Relection on Homicide

101

in his own death than is the other. But if it is granted that this kind of death
could not be ordered, one would have to consequently say that it is not lawful
for a condemned man to take poison from a tyrant, just as it would not be
lawful for one to cut his own throat or to fall upon his sword. However, this
is said only “probably.” For someone is not obliged to inflict punishment on
himself, but only to bear it. Hence, it does not seem that a punishment can be
established in which it is necessary that the guilty person himself cooperate.
Still, to me the first [alternative]91 is more acceptable than this. Nor is it valid
that he could, therefore, be condemned to cut his own throat. For this can be
done by another, which is not the case with a drink of poison. But there is
room for dispute about this.
31. The answer to the ninth argument is clear from the solutions to the
fourth and fifth. For if my friend were to need my help, or my assistance
{obsequio) in time of sickness, or my advice in a matter of conscience, I do not
doubt that I could look to his interest no matter what the danger to myself.
But if I were in no way useful to him, it certainly would seem rash to expose
myself to serious danger for no resulting gain; although this very thing, namely
to keep friendship and faith with one’s friends, is a great gain. Nor would I want to
condemn a wife, who even with great danger to herselfwould assist her husband
suffering with the plague — even if her doing so would not help him in any way,
but as to a dying friend92 it would offer service and consolation.93
32. In answer to the tenth and eleventh arguments, we should note that in
order to know what is lawful in this case, it is necessary not only to have
regard for the circumstances occurring at some time, but even more for those
which generally occur. And we should not have regard more for private good
or evil than for public and common good and evil. Indeed, navigation in
perilous time is useful for the common good. For from the communication of
nations and provinces, the republic receives great advantages both in peace
and in war.94 Therefore, if because of the danger of storms men would be
deterred from navigation, great losses would result for the common good, for
sailing only rarely or never could take place without great danger. And we
must speak in the same way about military exercises. For it is absolutely nec­
essary that the republic have soldiers to defend its terrritory, soldiers who
without such exercises would be useless. Nevertheless, there are certain less
dangerous military exercises, such as horseback riding and many others, which
are enough to train soldiers. And, therefore, it would be unlawful to use other
more dangerous exercises in place of these. But if soldiers could not be trained
without even great and serious danger, training for war should not be rejected
because of this. For a lesser temporal evil ought to be tolerated in order to
avoid a greater, namely, that one’s nation not be lost, that tyrants not occupy
it, or that victorious enemies not slaughter many more, because there are no
trained soldiers.

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Francisco de Vitoria, On Homiciik

33. Ad duodecimum argumentum dico quod nullo modo licet abbreviare
vitam. Sed est considerandum quod (sicut in materia de abstinentia late

disserui) aliud est vitam minuere, aliud non proferre. Secundo est advertendum
quod homo, licet teneatur non abrumpere vitam, non tamen tenetur omnia
media etiam licita quaerere, ut longiorem vitam faciat. Quod manifeste patet.
Dato enim quod aliquis certo sciat quod in India est salubrior et dementior
aura, et quod ibi diutius viveret quam in patria,
non tenetur navigare in Indiam. Imo nec de una civitate ad aliam salubriorem.
Nec enim Deus voluit nos tam sollicitos esse de longa vita. Similiter dico de
alimentis, quod quaedam sunt quae non sunt proprie alimenta, quia de se
sunt insalubria et nociva humanae valetudini. Et istis uti, esset interficere se.
Nec solum intelligo de venenis, sed etiam de aliis insalubribus cibis. Ut si quis
velit victitare ex fungis, aut crudis herbis et acerbis aut aliis similibus. Alia
sunt alimenta, quae licet non sint ita salubria sicut alia, non tamen suht
contraria vitae humanae, ut pisces, ova, lacticinia, potus aquae. Item dico
quod oportet respicere ad id, quod communiter accidit. Est autem commune
ut plures in iuventute reperiantur ex lautis, quam ex poenitentibus. Plures

*

!

enim interficit gula quam gladius.
’
34. Istis praemissis dico ad argumentum quod non est licitum vitam
breviorem reddere alimentis insalubribus et nocivis. Secundo quod non tenetur
homo uti alimentis optimis, non nocivis, ut piscibus. Neque enim si medicus
consuluit quod si quis bibat vinum vivet diutius decem annis, quam cum
ΐ
aqua, ideo non licebit abstinere a vino. Potus enim aquae non est contrarius >
vitae, nec hoc est vitam minuere, sed non producere. Ad quod non tenetur :
quisquam. Hoc dico de sanis et bene habentibus. Aegrotantibus enim aliqui
ΐ
sunt insalubres et nocivi, qui sanis sunt salubres. Unde aegrotis non esset
i
licitum huiusmodi alimentis uti. Sed de hoc vide in materia de abstinentia
i
latius. Et idem est de inediis, et aliis poenitentiae exercitiis iudicium.
j
35. Per hoc etiam patet ad decimumtertium. Non enim tenetur quis, ut dixi,
j
omnia media ponere ad servandum vitam, sed satis est ponere media ad hoc
i
de se ordinata et congruentia. Unde in câsu posito credo quod non tenetur
i
ille dare totum patrimonium pro vita servanda, et reputatur non habere re|
medium. Et alius qui negat remedium, est homicida. Ex quo etiam infertur
|
quod cum aliquis sine spe vitae aegrotat, dato quod aliquo pharmaco pretioso
I
posset producere vitam aliquot horas, aut etiam dies, non tenetur illud emere,
sed saris erit uti remediis communibus. Et ille reputatur quasi mortuus.

Refection on Homicide

103

33. In answer to the twelfth argument, I say that it is in no way lawful to
shorten one’s life. But it should be taken into account that (just as I exten­
sively said on the subject of abstinence95) it is one thing to shorten life and
another thing not to prolong it.96 Second, it should be noted that although a
man is obliged not to shorten his life, he is not however obliged to seek all
means, even all lawful means, to lengthen it.97 This is very clear: for granted
that someone knows with certainty that the air in India is more healthful and
temperate, and that he would live longer there than in his homeland, he is
not obliged to sail to India. Indeed, he is not obliged to go from one city to
another more healthful.98 Neither, indeed, did God intend us to be so wor­
ried about a long life. And I say much the same about foods. Certain ones are
not properly food because they are unwholesome and harmful to human health,
and to eat these would amount to killing oneself. Nor am I thinking here only
of poisons, but also of other unwholesome foods, for example, if someone
wanted to live on mushrooms, or unripe and bitter herbs, or other similar
things. There are other foods, which, although they are not as healthy as
some, are not however opposed to human life, for example, fish, eggs, milk­
pottage,99 and water. Again, I say it is necessary to look at what commonly
happens. But it is more common that young people die from luxury than
from penance; for gluttony has killed more than the sword.
34. That being prefaced, in answer to the argument I say that it is not
lawful to shorten one’s life with unwholesome and harmful foods. Second, I
say that a man is not obliged to eat the best not harmful foods, such as fish.
Neither is someone obliged to drink wine, because a physician has advised
him that if he drinks wine he will live ten years more than he will with water.
For to drink water is not opposed to life, nor does it shorten life, although it
may not prolong it, which last is something to which no one is obliged. I am
saying this about people who are well and healthy, because some foods are
unwholesome and harmful for sick persons which are wholesome for those
who are healthy. Hence, it would be unlawful for sick persons to eat foods of
this kind. But about this see more in my treatment of abstinence.100 And my
judgment is the same about fastings and other penitential exercises.
35. Through this the answer to the thirteenth argument is also clear. For, as
I have said, someone is not obliged to use every means to preserve his life, but
it is enough to use those means which are of themselves ordered and fitting
for this. Hence, in the case put forward, I believe the man is not obliged to
spend his whole patrimony to preserve his life,101 and in this he is considered
as not having any remedy. At the same time, someone else who may refuse to
take a remedy is guilty of homicide.102 From this it is also inferred that when
someone is sick without any hope oflife, granted that some expensive drug could
prolong his life a few hours, or even days, he is not obliged to buy it, but it is
enough to use common remedies103 and such a man is judged as if [already] dead.

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Francisco de Vitoria, On Homicide

36. Ad decimumquartum dico quod vita est maius bonum quam bona
temporalia, inter quae gloria, honor et fama reponuntur. Cuncta enim quae
habet homo, pro anima sua dabit. Omnia enim illa ordinantur ad vitam
humanam sicut ad finem. Unde Salomon dicit: Curam habe de bono nomine;
hoc enim permanebit tibi magis quam mille thesauri. Non enim comparat bonum
nomen ad vitam, sed ad thesauros. Et alibi: Melius est nomen bonum quam
divitiae multae. Et Eccles. 30,16. Non est census super censum salutis corporis.
Dico ergo quod non licet ponere vitam pro fama aut gloria. Unde non solum
qui se interficiunt, sed qui sine alio titulo ponunt vitam in magno periculo
propter gloriam humanam graviter delinquunt. Aristoteles 3 Ethicorum ait:
«Ultimum malorum mors».
Pro his omnibus quatuordecim argumentis est considerandum quod in eis
omnibus non est tractatum an aliquis ex intentione et volens possit se occidere,
sed solum praeter intentionem. Ut patet in omnibus illis. Et ideo nihil possunt
probare contra intentionem conclusionis propositae. Unde solum concedimus
quod non possit quis se interficere ex intentione, ut se interficiat. Quare sive
id, quod in argumentis propositum fuit, sit licitum, sive non, nihil procedunt
contra conclusionem. Non enim id est se interficere, ut in proposito accipimus,
sed solum mors imperata ex tali actu: «volo me occidere».
37. Et ideo gravius argumentum est decimumquintum. Utrum Brutus, Cato,
Decius et alii innumeri qui se occiderunt poterant ignorare inculpabiliter talem
mortem esse illicitam, cum ipsi omnino crederent esse optimam et honestis­
simam, et a viris, qui pro sapientibus habiti sunt, laudentur.
Respondetur. Non videtur maius dubium quam de aliis divinis praeceptis,
Multa enim sunt praecepta divina, quae apud paganos fuerunt, et hodie sunt
ignorata, ut de fornicatione, de vindicatione iniuriae, in quibus tamen non
damus ignorantiam invincibilem, sed dicimus cum beato Paulo ad Rom. 1,28
quod in poenam perfidiae suae et impietatis: Tradidit illos Deus in reprobum
sensum, ut faciant ea quae non conveniunt, repletos omni iniquitate, malitia,
fornicatione, homicidiis, etc. Et sic quod non excusantur, sed est sapientia huius
mundi, quae est stultitia apud Deum. Quod autem in lumine naturali cognosci
possit, illicitum esse se ipsum interficere, patet. Quia philosophi studiosi virtutis
id docuerunt, ut patet ex Aristotele 3 Ethicorum dicente quod est non
magnanimi mortem sibi consciscere sed pusillanimi, et non potentis ferre
vitae labores. Et Cicero: «Mortem (inquit) cur mihi consciscerem, cum causam

Relection on Homicide

105

36. In answer to thefourteenth argument I say that life is a greater good than
temporal things, including glory, honor, and reputation. For a man will give
everything that he has for his life. For all those things are ordered to human
life as to their end. Hence, Solomon says: “ Take care ofa good name: for this
shall continue with thee, more than a thousand treasures.”'04 For he is not com­
paring a good name to life, but rather to riches. And elsewhere, he says: “A
good name is better than great riches.”'05 And Ecclesiasticus 30,16 reads: “ There
is no riches above the riches ofthe health ofthe body.” I say, therefore, that it is
not lawful to give ones life for fame or glory. Hence, they sin seriously not
only who kill themselves, but also they who, for no other reason besides hu­
man glory, put their lives in great danger. For Aristotle in Book 3 of his Ethics
says: “Death is the ultimate evil.”106
As regards these fourteen arguments, we should consider that clearly in all
of them it is not a question of anyone intentionally and deliberately killing
himself, but only unintentionally doing so. Therefore, they can prove noth­
ing against the intent of the proposed conclusion. Hence, we simply affirm
that no one may kill himself with the intention of doing so. Therefore, whether
what was proposed in those arguments was lawful or not, they do not proceed
against the conclusion. For what was proposed in those arguments is not
killing oneself as it is taken in the conclusion posited above, which is only a
death commanded in the wake of a judgement like this: “I will to kill myself.”
37. And therefore, the fifteenth argument carries more weight. The ques­
tion is whether Brutus, Cato, Decius,107 and others who killed themselves
could have without fault not known that such a death was unlawful, even
though they themselves believed it to be best and most honorable and even
though they were praised by men who were thought to be wise.
The answer is: there is no greater problem here than with respect to other
divine commandments. For there are many divine commandments which
were formerly observed among pagans, but which are today unknown to them,
for example those regarding fornication and revenge, in regard to which, how­
ever, we do not allow invincible ignorance.108 But we say with St. Paul to the
Romans (1,28) that in punishment of their perfidy and infidelity: “God deliv­
ered them up to a reprobate sense, to do those things which are not proper, being
filled with all iniquity, malice, fornication, murders, etc.” Thus they are not
excused, but what they are doing is the wisdom of this world, which is folly
before God. But clearly it could be known in the natural light of reason that
it is unlawful to kill oneself. For philosophers striving for virtue taught that,
as is evident from Aristotle, in Book 3 of the Ethics'09 saying that to inflict
death on himself is not the act of a magnanimous man, but rather of one who
is pusillanimous and not able to bear the burdens of life. And Cicero says:
“Why should I inflict death upon myself, since I have no reason? Why would

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Francisco de Vitoria, On Homicide

I

nullam habeam? Cur optarem muletas? Quamquam hoc ipsum sapienter;
sapientis enim est, neque optare mortem, neque timere».
Ad ultimum de Samsone et Razia, Saule, etc., non similiter de omnibus
dicendum videtur. Samsonem enim necessarium est excusare, quem Paulus
retulit inter iustos. Unde Augustinus dicit Samsonem hac ratione excusari,
quia spiritu Dei motus fecit. Nec hoc est divinare sed habetur expresse ex
historia ludicum, ubi dicitur orasse Dominum ut redderet ei pristinam
fortitudinem, ut ulcisceretur se de inimicis suis. Quamvis posset et alia solu­
tio dari. Non enim interfecit se ex intentione, sed voluit hostes opprimere et
interficere, ad quod secuta est mors ipsius. Ipse enim bene optasset alios perdere
se salvo, si fieri potuisset. Hoc autem sine nova revelatione videtur licitum.
Quis enim dubitat quin aliquis in praelio, vel defendendo civitatem, posset
certus de morte facinus aggredi, quod sit quidem patriae saluti, hostibus autem
magnum detrimentum futurum? Ut de Eleazaro legitur 1 Mach. 6,43-47 qui
ingressus sub ventre elephantis cui regem Antiochum insidere credebat,

1
I

elephantem quidem gladio confodit. Ipse vero bestiae ruina oppressus,
praeclaram mortem invenit, quia se libenter (ut dicit Scriptura) pro populo

1

suo posuit. Quod factum adeo non vituperatur ut Ambrosius libro De officiis,
capite de fortitudine, Eleazarum mirificis efferat laudibus. Atque ita videtur
posse excusari Samson sine recursu ad instinctum caelestem. Eodem modo
Eleazarus se interfecit, sicut Samson.
De Saule vero non est idem indicium. Cum enim dimissus esset, imo repulsus
a gratia Dei, non est necesse quaerere excusationes. Sabellicus scribit Saulem

i

j
j
!
Î

i

non se interfecisse, sed cogitasse quidem de morte sibi consciscenda. Verum
quia visum est impium vitam violenter abrumpere, ab amalecita quodam
ignorante quis esset, interfectum. Sed est turpis lapsus christiani historici,
cum primi Regum ultimo legatur Saulem incubuisse super gladium suum, et
sic vitam finiisse.
Razias vero probabilius posset excusari, quamvis Sanctus Thomas 2.2 q.64
a.5 non excuset illum. Super qua re est contentio inter Nicolaum et Burgensem,
quos videre poteritis ad longum. Et ista quantum ad praesentem relectionem
sufficiant.

Relection on Homicide

•
J

j

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I
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107

h

I much desire it? Yet [I would bear] it wisely, for it is the mark of a wise man
neither to desire nor to fear death.”110
In answer to the last argument,111 about Samson, Razias, Saul, and others:
we should not speak of all in t he same way. For it is necessary to excuse
Samson, whom St. Paul numbered among the just.112 Hence Augustine says
that Samson was excused for this reason that he acted as moved by the spirit
of God. And this is not guessing, but it is taken expressly from the history of

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the Jews, where Samson is said to have prayed the Lord to restore his former
strength that he might avenge himself on his enemies. However, another solution also could be given: that he did not indeed kill himself intentionally,
but rather he wished to crush and kill his enemies, in the wake of which his
own death followed. For he really wanted to destroy them, saving himself if it
were possible. But this seems lawful without any new revelation. For who
doubts that someone in a battle, or defending a city, could undertake an
action for the welfare of his homeland and for the great detriment of its enemies, even though it would involve his own certain death? For example, we
read of Eleazar, in I Machabees 6,43-47, who having gone in under the stomach of an elephant on which he thought King Antiochus was seated, stabbed
the elephant with a sword. But he himself, crushed by the fall of the elephant,
died gloriously, since, as the Scripture says, he freely gave himself for the
people. What he did, therefore, was not blamed, but rather St. Ambrose in
his book, De officiis, the chapter on bravery,113 extolled Eleazar with fabulous
praise. Thus it seems that Samson can be excused without resorting to divine
inspiration, for he killed himself in the same way as Eleazar.
About Saul, however, the judgment is not the same. For since he was de­
posed, and indeed rejected by the grace of God, there is no need to try to
excuse him. Sabellico (Marco Antonio Sabellico [ca. 1436?-1506]?)114 writes
that Saul did not kill himself, but that he only thought to kill himself. But
because it seemed sinfol to shorten his life unnaturally, [he allowed himself to
be killed] by one of the Amalectites who did not know who he was. But this
is a very bad mistake by the Christian historian, because in the last chapter of
the first book of Kings we read that Saul fell upon his sword and in this way
ended his life.115
Razias more probably could be excused, although St. Thomas, in Summa
Theologiae II’-II”, q.64, a.5, will not do so. On this there is an issue between
Nicholas and Burgensis,116 both of whom you could spend some time look­
ing at. But that will be enough for this present relection.

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Notes to the Translation
1 The following table of contents comes from the first edition of Vitoria’s Relections
published by Jacob Boyer at Lyons in 1557; c£: Reverendi Pattis F. Francisci de
Victoria, ordinis Praedicatorum sacrae Theologiae in Salmanticensi Academia

i
·■’.

108

Francisco de Vitoria, On Homicià

quondam primarii Professoris Relectiones Theologicae XII in duos Tomos divisae.
Quorum seriem versa pagella indicabit Summariis suis ubique locis adiectis una
cum Indice omnium copiosissimo Tomus primus. Lugduni: Apud Jacobum
Boyerium, MDLVII.
j
2 That is, the feast of Saint Barnabas — June 11, 1530; cf. Teôfilo Urddnoz, O.P.,
i
Obras de Francisco de Vitoria: Relecciones teoldgicas, edicion critica del texto latino,
;
version espanola, introducciôn general e introducciones con d estudio de su doctrina
j
teoldgico-juridica (Madrid: Biblioteca de Autores Cristianos, 1960), p. 1070.
3 There is an obvious allusion here to Vitoria’s health.
4 Previous to this, Vitoria had delivered relections “On the Obligation of Silence”
{De silentii obligatione) in 1527 and “On Civil Power” (Depotestate civilt) in 1528;
cf. Urddnoz, pp. 79 and 1070.
5 Held from 1526 to 1529, these were on Summa Theologiae Π’-ΙΙ“; cf. Urddnoz
(following V. Beltrdn de Heredia), p. 77.
6 On the kind of discussion (or disputation) involved here, cf.: “... it is not novel for
theological disputations to be conducted about something that is certain. Indeed,
we conduct disputations even about the Incarnation of the Lord and other ar­
ticles of faith. For theological disputations are not always of deliberative kind (in
genere deliberativo) but many are demonstrative (in genere demonstrativo), that is
to say, undertaken not as searching for certitude but for purpose of teaching.” On
the Indians, I, n. 3; ed. Urddnoz, p. 649.
7 While to call this conclusion “first” may indicate that Vitoria’s original intention
was to treat a number of conclusions, this is actually the only one dealt with in the
present relection. Moreover, most of what follows will be devoted to proving just
the first part of this conclusion.
8 Two hours were allowed for a relection; cf. Urddnoz, p. 79. Vitoria on other occa­
sions has remarked his constraint by the time allowed; cf. e.g. “But because, pressed
by time, we could not here treat all things which might be discussed on this
subject, or we could not extend our pen as much as the matter might merit, we
will therefore say only as much as the brevity of time will allow.” On the Law of
War, ed. Urddnoz, pp. 814-815.
’ On Vitoria’s earlier studies at Paris, see R. Villoslada, S.J., La Universidad de Paris
durante los estudios de Francisco de Vitoria, Romae: Univ. Gregoriana, 1938.
10 Cf. Aristode, De generatione et corruptione, II, c. 10, 336b27-337a7.
11 Cf. c. 6, 1106b31-2 and c. 9,1109a24-9.
12 For such motions, which differ from physical motions involving succession, cf. St.
Thomas, Summa theologiae F, 31,2, ad 1, who cites Aristode, De Anima III, c. 7,
431a6.
13 Cf. I Corinthians, 13: 5.
14 The “fomes peccati,” or the tinder of sin, which is identified with concupiscence, is
a certain disposition toward evil which remains in human beings even after the
remission of original sin. The place referred to here is II Sent. 32, q. 1, aa. 1-3; cf.
St. Thomas Aquinas, Scriptum super libros Sententiarum Magistri Petri Lombardi
episcopi Parisiensis, editio nova, cura R.P. Mandonnet, O.P., Tomus II (Parisiis:
Sumptibus R Lcthielleux, 1929), pp. 822-32.

Translator s Notes to the Relection on Homicide

109

Romans 8: 13.
16 Galatians 5: 16.
17II, c. 9, llOSbl.
18 On the Lutheran concept of man, see Edo Osterloh, “Anthropology,” The Encyclo­
pedia ofthe Lutheran Church (Minneapolis: Augsburg Publishing House, 1965),
I, 81-5. For the difference between Lutheran and Catholic anthropologies here,
cf. José M? G. Gomez-Heras, Teologia protestante, sistema e historia (Madrid:
Biblioteca de Autores Cristianos, 1972), pp. 13-50. Also cf. R. Garcia-Villoslada,
Martin Lutero (Madrid: Biblioteca de Autores Cristianos, 1976), 1,230-4; 444-8;
II, 193-4.
” While I have not been able to locate Aristotle saying this, the thought expressed is
certainly Aristotelian, as well as central to Vitoria’s argument here. My guess is
that the quotation actually comes more or less from Averroes (d. 1198); cf.
“Generans enim est illud quod dat corpori simplici generato formam suam, et
omnia accidentia contingentia formae:...” (“The generator is that which gives a
simple body its form and all the accidents contingent upon the form.”) In
Physicorum libros, VIII, η. 28, in Aristotelis De Physico Auditu, libri octo. Cum
Averrois Cordubensis variis in eosdem commentariis (Venedis: Apud Junctas, 1562),
f. 370v; and idem, In De Coelo libros, III, n. 28, in Aristotelis De Coelo, De
Generatione et corruptione, Meteorologicorum, De Plantis, cum Averrois Cordubensis
variis in eosdem commentariis (Veneriis, 1562), f. 198v. For Vitoria in another
place attributing this, without an exact reference, to Aristotle, see On Civil Power,
n. 6, Urddnoz, p. 159.
Mc. 4, 256al.
21IX, c. 4, 1166al-2.
22 Cf. “Vitoria enuncia asi, con un siglo de antelaciôn, la doctrina de Descartes sobre
el criterio supremo de verdad y soluciôn dei problema critico.” Urddnoz, Obras
—, p. 1075.
23 Cf “... that to which a man is naturally inclined is good and that which he natu­
rally abhors is evil. Otherwise, if I am deceived God, who gave me that inclina­
tion, would be deceiving me.” (“... id ad quod naturaliter homo inclinatur, est
bonum, et quod naturaliter abhorret, est malum. Alias si ego decipior, Deus me
deceperit, qui dedit mihi istam inclinationem.”) In P-IP", qu. 94, a. 2; Comentarios
... VI, p. 426.
uWisdom8-.\.
25 Cenem 1:31.
26 Cf. Deuteronomy 31'. 4.
'
27 Here Urddnoz corrects the reference to: Romans 7: 22.
28 Vitoria’s Aristotelianism here has obvious epistemological corollaries; for some of
these, cf. Étienne Gilson, Réalisme thomiste et critique de la connaissance (Paris:
Librairie Vrin, 1947), c. 7, pp. 184-212.
29 With this cf: In IF-IP, q. 26, a. 6, n. 2, in Comentarios..., II, p. 101.
30 For the distinction of “human acts,” which are under the control of the will, from
“acts of man,” which are not under such control; cf. St. Thomas Aquinas, Summa
Theolo^aeY-lY‘,q.l,A.\.

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Francisco de Vitoria, On Homicide

31 The actual reference should be: Romans 7: 22-23.
32 Cf. Gabrielis Biel, Collectarium circa quattuor libros Sententiarum, Libri quarti pan
prima (dist. 1Ί4), collaborante Renata Steiger ediderunt Wilfridus Werbeck et
;
Udo Hofmann (Tübingen: J.C.B. Mohr (Paul Siebeck), 1975), In Sent. IV, d. 1,
j
q. 1, a. 1, not. 3 (pp. 14-15); ibid., a. 3, addub. 2, (p. 30); and -iddub. 3 (p. 33). >
On Gabriel Biel, cf. Heiko Augustinus Obermann, The Harvest ofMedieval Thei
ology, 3rd edition (Durham: The Labyrinth Press, 1983), esp. pp. 30-8.
>
33 Cf. Confessiones XII, c. 11, n. 11, in Obras de San Augustin, ediciôn bilingue, tomo
‘ï
II, por P. Angel Custodio Vega, O.S.A. (Madrid: Biblioteca de Autores Cristianos,
!
1955), p. 622; De libero arbitrio III, c. 15, n. 42; in Obras..., tomo III, version,
introducciones y notas de los padres, Fr. Victorino Capanaga, O.R.S.A., et al.
|
(Madrid: BAC, 1951), p. 476.
34 That is, as opposed to its normal daily motion from east to west.
35 Urdinoz’s reading here [Calor nunc cum concursu generali sufficit corrumpere
aquam. Ergo cum simili concursu generali sufficit corrumpere aquam. Ergo cum
simili concursu potuisset tunc corrumpere.] is obviously in error due to
homoioteleuton. In its place, I have taken the reading from: Reverendi Patris E
Francisci de Victoria, ordinis Praedicatorum, sacrae Theologiae in Salmanticensi
Academia quondam primarii Professorii, Relectionum Theologicarum. Secundus
tomus (Lugduni, apud lacobum Boyerium, 1557), p. 119, as reproduced by Luis
G. Alonso Getino, in Relecciones teoligicas..., III, ρ. 30.
36 For Aristotle’s doctrine of the four elements and their primary qualities, which is
presupposed here, cf. esp. De Generatione et corruptione, II, cc. 2-3, 329b6-331a6.
37 For St. Thomas on the distinction between moral evil (culpa) and pain or punish­
ment (poena), cf.: Summa theologiae P, q. 17, a. 1; ibid., q. 19, q. 19, a. 9; a. 10,ad
2; a. 12, ad4;q. 48, aa. 5 and 6; I’-II“, q. 39, a. 2, ad 3; IP-II“, q. 19, a. 1; In Sent.
II, d. 34, 1, 2; DepotentiaNL, 1, ad 8; and De malo I, 4.
38 Vitoria’s reference here does not check out. But cf. Summa Theologiae P, 80,1, ad 3.
39 For this, cf. Summa Theologiae IP-II”, q. 26 — “On the order of charity.” For
Vitoria’s later (1534-5) lectures on the topic, see: Comentarios ..., II, 84-134.
40 Cf. “... we speak about water. It has its natural good next to the earth and in order
that there not be a vacuum it does not descend downward. Indeed, sometimes it
ascends to fill a vacuum. This is clear from many experiences in which it is evident
that water puts aside its own good, namely to be down, for the common good,
namely that there not be a vacuum. I ask therefore, by what is water moved? It
cannot be said by anything else but itself in the way in which it descends.” (...
. dicimus de aqua. Illa naturale bonum habet juxta terram nec descendit deorsum ut
non detur vacuum, immo aliquando ascendit ad supplendum vacuum. Hoc patet
multis experientiis ubi patet quod aqua postponit bonum particulare, scilicet esse
deorsum, bono communi, scilicet ne detur vacuum. Quaero ergo, a quo movetur aqua?
Non potest dici aliud nisi quod a seipsa eo modo quo descendit.) In ΙΙ“-ΙΙ“, q. 26, a. 3,
n. 3, in Comentarios... 11, p. 102. For the natural place of water next to earth and
its ascent to fill a vacuum, cf. Aristotle, De Caelo et mundo, II, c. 4, 287a32-b8.
On water drawn up in a clepsydra, see ibid., c. 13, 294b20-21; or in heated ves­
sels, ibid., IV, c. 5, 312bl3-14. For post-Aristode discussion of experiments with

Translator’s Notes to the Relection on Homicide

111

clepsydrae, drinking straws, and siphons, showing how water fills a void, see Pierre
Duhem, Le système du monde: histoire des doctrines cosmologiques de Platon à
Copernic, T. I, nouveau tirage (Paris: Librairie Scientifique Hermann et C”, 1954),
pp. 323-332.
41 Here Urdânoz (1104) and Getino (III, 214-215) translate: “Hay quienes niegan
también esto, que el membro del cuerpo busqué, mâs que su proprio bien, el de
este, pues dicen que el miembro se expone al peligro temblando y resistiendo, no
por la salud dei todo, sino por la suya.”
42 For some possible physical, metaphysical, epistemological, and historical ramifica­
tions of this, see my article, “Prolegomena to a Study of Extrinsic Denomination
in the Work of Francis Suarez, S.J.,” Vivarium, XXII, 2 (1984), esp. pp. 139-140,
n. 109.
43 Cf., e.g. St. Thomas, Summa Theologiae P, 2, 2, ad 1.
44 Cf. Aristotle, E7VIII, 1,1110a8-l 1 ; St. Thomas, In decem libros Ethicorum Aristotelis
adNichomachum, expositio, III, c. 1,1.1 ; ed. novissima, cura ac studio P. Fr. Angeli
M. Pirotta, O.P. (Taurini: Marietti, 1934), p. 134, nn. 389-90.
45 Cf. Obras de San Augustin, ediciôn bilingiie, tomo XVI, preparada por el padre
José Moran, O.S.A. (Madrid: Biblioteca de Autores Cristianos, 1964), pp. 39-41.
46 Here the Spanish translation reads: “Por tanto, o sera licito matar a los dos o a
ninguno.” (Urdânoz: 1107).
47 Cf. Psalms 4: 7.
48 For the difference here between “moral,” as of or pertaining to natural law, and
“judicial,” as pertaining to further human laws determining justice among men,
cf. St. Thomas, Summa Theologiae I’-II“, 99, 4.
49 Vitoria’s point here is plain even though it may be stated in a way which is strange
to a modern reader. The prohibition is the effect while the evil of the thing pro­
hibited is the cause. The wider point and its context goes back to Plato’s question
of whether the pious or holy is beloved by the gods because it is holy, or holy
because it is beloved by the gods; cf. Euthyphro 9E-1OA. A. Koyre is hardly
exagerrating when of Plato’s question he writes: “This, by the way, is a very diffi­
cult problem which became later the crux of the medieval Christian philosophy.”
Discovering Plato, tr. L. Rosenfield (New York: Columbia University Press, 1960),
58, n. 6a. For St. Thomas on this, cf.: “... when, therefore, it is said that not every
sin is evil because it is prohibited, this is understood with regard to a prohibition
by positive law. But ifreference is made to the natural law, which is contained first
in the eternal law and second in the natural court of human reason, then every sin
is evil because it is prohibited. For from the very fact that it is disordered (inordinatum),
it contradicts natural law."
77w4^weP-II", q. 71, a. 6, ad 4.
50 This text of Romans is a prominent link between Vitoria’s doctrine here and his
doctrine ofjust war; cf. “Secondly, it proven by the argument of Sr. Thomas, [in
Summa Theologiae) Π’-Π", q. 40, a. 1, that it is lawfill to draw the sword and to
use weapons against domestic criminals and seditious citizens, according to the
passage from Romans, c. 13, v. 4: “Not without reason does he carry the sword; for
God’s minister is a wrathfill avenger for him who does evil.” Therefore, it is also
lawfill to use the sword and weapons against external enemies.” On the Law of

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Francisco de Vitoria, On Homicide

War, η. 2, Urddnoz, 816-17; ibid., η. 13, Urdinoz, 825; On the Indians 11,7,
Urdànoz, 685-6.
51 That is the case of self-defense, or defense of the republic, in which the one killing
would prefer another means if that were possible.
52 Cf. St. Thomas, Summa Theologiae
q. 64, a. 5, ad 2.
53 Here 1 am breaking the paragraph in a different way from that of Urdinoz.
54 See note 8, above.
55 Cf. EAT III, c 6,1113a 23-4.
% Here I am reading “quia” instead of Urdânoz’s and Boyer s “qui.”
571 have not found this reference as Vitoria gives it; but cf. De libero arbitrio III, 7,
20-21; ed. P. Evaristo Seijas, Obras de San Augustin, III (Madrid: BAC, 1951), 434-6.
58 That is, “on purpose and willingly.”
59 cf “Therefore, it must be said that, directly and formally speaking, no one can do
an injustice unless he is willing and no one can suffer it unless he is unwilling.” St.
Thomas, Summa theologiae 1F-II“, q. 59, a. 3.
60 In our own time, this custom appears to be coming back in some nations.
61 “In 1567 Pius V condemned bullfighting, punishing participants and spectators
with excommunication. A few years later, Gregory XIII restricted the penalties to
clerics in major orders.” B. Riegert, “Bullfighting,” The New Catholic Encyclope­
dia (New York/St. Louis: McGraw Hill, 1967), II, 882.
62 “Nihil interest parvo aut magno tempore te interimas;” cf. Urddnoz, p. 1114. An
electronic search of the Patrologia Latina and the CETEDOC Library ofChristian
Latin Texts has not located this quotation. It should be noted that while Vitoria,
commenting on Summa Theologiae II'-II
*
’, 64, art. 5, has cited Jerome in the same
way, in parallel contexts in another work he has cited him differently. Cf. On
Temperance, η. 1, Urddnoz, p. 1007-8: “Nihil interest quo pacto te interimas:
quia de rapina holocaustum offert, qui vel ciborum nimia egestate, vel manducandi
penuria immoderate corpus affligit” (“It does not matter in what way you kill
yourself, for he who immoderately afflicts his body with either too little food or a
want of eating offers a sacrifice of rapine.”); and ibid., n. 11, p. 1068: Nihil
interest quo pacto te interimas” (“It does not matter in what way you kill your­
self.”) A possible source may be St. Augustine speaking not of suicide but of the
end of a long or a short life: “Quid autem interest, quo mortis genere vita ista
finiatur, quando ille cui finitur, iterum mori non cogitur?” (“But what does it
matter by what kind of death this life is ended, when he for whom it ends is not
forced to die again?” De civitate Dei, I, c. 11; ed. J. Moran, Obras de San Augustin,
XVI (Madrid: BAC, 1964), p. 24.
63 Marcus Ponius Cato (95-46 B.C.), “Cato the Younger,” committed suicide after
learning of Caesars victory at Thapsus in 46 B.C.
64 Marcus Junius Brutus (85-42 B.C.), one of Caesar’s assassins, committed suicide
after defeat in 42 at Philippi.
65 For Eleazar, cf. I Machabees 6,43-47; for Razias, see II Machabees, 14,41-46.
M Cf. St. Augustine, De civitate Dei I, c. 26, ed. J. Moran, Obras de San Augustin ...
XVI, p. 48; and St. Ambrose, De virginibus, III, n. 33; PL 16, col. 241. Also cf.
Vitoria, In IPIN, q. 124, a. 1, n. 8, Comentarios..., V (1935), pp. 317-319.

Translator’s Notes to the Relection on Homicide

113

67 See note 8, above.
68 Here I follow Boyer (p. 136 [as given by Getino: III, 34]), and omit the “non”
which has been mistakenly added in Urddnoz’s text (p. 1116).
69 In this Vitoria has, of course, no concern for modern issues relating to the environ­
ment.
70 This is the main argument against assisted suicide. It is also an argument which
Vitoria has used in at least three places, two linked directly to the Spanish con­
quest of the New World, against a justification of human sacrifice on the basis
that the victims are willing; cf. “ANOTHER TITLE [for the conquest] could be
because of tyranny, either of the barbarian rulers themselves or simply because of
tyrannical laws working injury to innocent people. Think, for example, that they
are sacrificing innocent men or killing blameless persons in order to eat their
flesh. I say that even without papal authority the Spaniards can restrain the bar­
barians from every such abominable custom and rite, because they can defend
innocent people from unjust death.
“This is proven, inasmuch as God has commanded everyone to have care for his
neighbor, and all these are neighbors. Therefore, anyone can defend them from
such tyranny and oppression, but this is especially the prerogative of princes.
Again, it is proven from Proverbs, c. 24, v. 11: “Deliver those who are being led to
death, and do not cease to free those who are being dragged to destruction. "And this
is to be understood not only when people are actually being dragged to death, but
the Spaniards can also compel the barbarians to desist from this kind of religious
practice. And if they are unwilling, the Spaniards can for this reason wage war on
them and pursue the rights of war against them. Moreover, if the sacrilegious
practice cannot otherwise be rooted out, they can change their rulers and estab­
lish a new government. And with respect to this, the opinion of the Archbishop
[i.e. St. Antoninus (1389-1459) — Dominican, Archbishop of Florence, author
of a four part Summa Theologia^ is true: that they can be punished for sins against
nature.
“Furthermore, it is no obstacle that all the barbarians may agree on laws and sacri­
fices of this kind, and that they have no wish on this score to be delivered by the
Spaniards. For in these matters they are not so much in charge of themselves (sui
juris) that they can hand themselves or their children over to death. And this
could be a Fifth Legitimate Title.” On the Indians, III, n. 15, ed. Urdinoz, pp.
720-721; and: “No one can grant to another the right to kill, or to eat, or to
sacrifice himself.” On Temperance, n. 7 Fragmentum, Urdânoz, p. 1051; also cf. In
IFII“, 59, a. 3, n. 3, Comentarios..., Ill (1932), p. 32.
71 It should be clear that the injury in this case is not to the person killed but to
society and to God. This doctrine is a logical extension from that of St. Thomas
in Summa theologiae, II’II”, 59, a. 3, ad 2: “Thus, he who kills himself does injury
not to himself, but to the republic (civitati) and to God.” For another statement
ofVitoria’s doctrine, cf.: “... in those acts which someone suffers willingly there is
no injury. And in answer to the proof [of those saying otherwise], I concede that
he [who kills a willing person] has committed a mortal sin by the fact that he has
acted against the law and the commandment of God, and against the republic of

..

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Francisco de Vitoria, On Homicide

which he is a part, and he is acting against the natural law: ‘Thou shalt not kill the
innocent and thejust’ (Ex. 23: 7). But I say that he has not done injury to the one
asking and willing to be killed .... Therefore, he who lulls another who is willing
does not do injury any more than if he were to kill himself, although in both cases
there is mortal sin.” Vitoria, In IT-II“, 59, a. 3, n. 3, Comentarios..., Ill (1932), p.
32.
72 Cf. De senectuteVPA, 73; inAf. Tulli Ciceronis Cato maior de senectute, with notes by
Charles E. Bennett (Chicago/New York/Boston: Benj. H. Sanborn Sc Co., 1930),
p. 31.
73 Note that these are identified in the Commentary on Il-Il, 64,7, n. 4, as “martyred
soldiers.” Immediately coming to mind is the “Theban legion,” whose martyr­
dom at Aguanum in Switzerland was reported early in the fourth century by St.
Eucherius, bishop of Lyons; for this cf. H. Leclerq, “Aguanum,” The Catholic
>
Encycopedia (New York, 1913) I, 205-6. Perhaps, however, the reference is to
;
1004 legionaries who were said to be martyred in Armenia under Diocletian; cf.
1
Alfred Vanderpol, La doctrine scolastique du droit de guerre (Paris: A. Pedone, 1919),
p. 176.
.
ΐ
74 Inasmuch as the “Reconquest” (Reconquistà) of Spain from the Moors has been by
I
this time completed, there is perhaps a reference here to the situation in the New
World?
ί
75 Rather than a commandment.
76 For these same two texts advanced in favor of pacifism, which Vitoria rejects, cf.
On the Law ofWar, n. 1, Urdanoz, p. 815.
77 Remark the role that this text plays in the passage cited above in note 70.
78 Cf. Matthew 5: 40.
79 In recent years, moralists have formulated what has been called “the Kew Gardens
principle” (cf. e.g. Robert Barry, O.P., “Infant Care Review Committees: Their
Moral Responsibilities,” Linacre Quarterly, Nov. 1985, p. 366). Named from the
famous incident in New York City in which dozens of people witnessed the mur­
der of Kitty Genovese and did nothing to stop it, this principle is that all moral
agents are required to take actions which do not entail grave risk for them if those
actions would prevent another from losing a fundamental human good or from
experiencing grave sufferings. In this place, Vitoria is clearly teaching what amounts
to the Kew Gardens principle. On the wider point being made, cf.: “It is true that
for the defense of others, for example fellow citizens, we are obliged to fight; but
for the defense of oneself no one is obliged to fight with injury to his attacker, and
thus he is not bound to fight in defense of his own life.” (Verum est quod pro
defensione aliorum, puta suorum civium, tenemur nos pugnare; sedpro defensione sui
ipsius nullus teneturpugnare cum malo invadentis, ita quodpro defensione vitae suae
non tenetur pugnare:...) In IFTt", q. 124, a. 4, n. 11, Comentarios ..., V, p. 344.
80 This is probably a reference to Vitoria’s unpublished lectures on the Summa
Theologiae, given before the present relection.
81 John 15:13.
82 Cf. c. 2,1165a2 and c. 8,1169a20.

Translator’s Notes to the Relection on Homicide

115

83 For the order of charity, cf. St. Thomas, Summa Theologiae II’II”, qu. 26.
84 That is, the fourth argument above. Therefore, the insufficient answer referred to
is that given in paragraph 25, immediately preceding.
85 Note in this discussion that “jus” is used in the sense of a subjective right.
86 Vitoria’s nuance here is noteworthy. The argument seems to rest at least in part
upon the social inequality of a slave vis 'a vis a king, who incidentally is a public
person (cf. paragraph 25, above). In reply, however, Vitoria ignores both the in­
equality and the public character of the king and in effect says that the case is the
same between equals who are both private persons.
87 Cf. Patro logia Latina, 6,607.
88 Quid (inquit) iustus faciet, si nactus fuerit aut in equo saucium, aut in tabula
.
*naufragum
Urdanoz (Getino) translates: “;Qué hard el justo — dice — si se
encontrarse en un caballo desbocado o nâufrago en una tabla?” (pp. 1122-23).
89 With this cf.: “What then will the just man do, if he shall have met with a wounded
man on a horse or a shipwrecked man on a plank? I am not unwilling to confess
he will rather die than put another to death.... It is folly, he says, to spare the life
of another in a case which involves the destruction of one’s own life. Then do you
think it foolish to perish even for friendship.” Lactantius as translated by Rev.
William Fletcher, D.D., in The Ante-Nicene Fathers, Vol. VII (New York: Charles
Scribner’s Sons, 1913), p. 153. Also cf, Vitoria: “Lactantius in Book Five, Chap­
ter 18 of his De justitia (“On justice”), explicitly says this of a Christian who is
shipwrecked with another and there is only a plank on which one can survive: he
will die rather than take the plank.” In IP-II^, q. 26, a. 4, n. 3, in Comentarios...,
II, p. 108.
90 On its face, this argument seems very weak. Remark, however, that it is advanced
in a hypothetical way. Also remark its possible application to the case of a crimi­
nal who, for whatever reason, might admit to a crime which in fact he did not
commit. Farther out from this, but still plausible, might be the case of someone
who refuses to defend himself against a death sentence — even though others feel
a moral obligation to do so.
i
91 That is, that such a penalty could be ordered.
92 Here I read “amico” (Boyer, p. 146; Getino, p. 37) instead of Urdanozs “viro” (p.
1125).
93 With this, cf.: “Again, with danger to her own life, a wife can sit by and assist her
husband suffering from plague, even where it is not necessary, except to preserve
marital faith.” (Item, uxor cum periculo vitae suae potest assidere, et assistere viro
peste laboranti, etiam ubi non est necesse, sed tantum ad conservationem fidei maritalis.)
On Temperance, η. 9, Urdanoz, p. 1064.
94 Note here an allusion to what will become Vitoria’s first legitimate tide for the
Spanish entry into the New World; cf. “I will speak now about legitimate and
fitting titles by which the barbarians could have come under the rule of the Span­
iards. The FIRST TITLE can be called that of natural society and communication.”
On the Indians, III, I, ed. Urdânoz, p. 705.
95 We do not have the work to which Vitoria refers here. However, we do have his
later teaching on abstinence; for this, cf. see his 1537 relection “OnTemperance,”

■ΜΒΜΜΜ

Francisco de Vitoria, On Homicide

.

I

116

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nn, 8-15, ed. Urddnoz, pp. 105969. Also cf. the lectures given duringhis illnessin
1536-7 by his substitute; In IP-II“, 146; in Comentarios ..., VI, pp. 4650.
96 Vitoria’s point here has obvious application to current “death with dignity” issues.
97 Cf. On Temperance, n. 1; Urdinoz, p. 1009; ibid., n. 9, p. 1065; ibid. n. 13, p. 1069.
98 Cf. ibid., n. 9, p. 1064 and n. 13, p. 1069.

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99 “Lacticinia” in Urdanoz (p. 1126), omitted in Boyer (p. 147; Getino, p. 37).
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100 Cf. note 96, above.
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101 Cf. “Nor do I think that, if a sick person could get a drug only by givinghis whole
1
substance for it, he would be obliged to do so.” On Temperance, n. 9, Urdinoz, p.
■
1065.
102 Cf. “Third, we say that if someone were morally certain that he would regain his
health through some drug and that without that drug he would die, he certainly
doesnot seem excused from mortal sin [if he does not take the drug], for if he did
not give [such a drug] to a sick neighbor, he would sin mortally ...” ibid., η. 1,
Urdinoz, p. 1009.
103 Here two points may be remarked: (1) Vitoria clearly recognizes a difference be­
tween food and medicine with respect to one’s obligation to preserve his life; cf.:
"... it is not the same with regard to medicine (pharmaco) and food. For food is a
natural means which is directly ordered to the life of an animal, but medicine is
not such. And a man is not obliged to use all possible means in order to preserve
his life, but only means which are directly ordered to that. Second, we also say
that it is one thing to die from a [chosen] want of food, which would be imputed
to a man and would be a violent death, and another thing to die from the power
of a naturally invading disease. And thus, not to eat would be to kill oneself, but
not to take medicine would be not to impede death threatening from elsewhere,
[to impede which] a man is not always obliged. For it is evident that a person may
sometimes lawfully defend his life and not be obliged to do so. And it is one thing
not to prolong life and another to cut it short; the second is always illicit, but not
the first.” On Temperance, n. 1, Urdinoz, p. 1009. (2) In another passage, he says:
“One is not obliged to use medicines in order to prolong life, even where there
would be a probable danger of death, say, to take a drug for a number of years in
order to avoid fevers or something of this nature.” ibid., n. 14, p. 1069.
1MErcZ«iAsftzw41:15.
™ Proverbs 22'. 1.
IO6Cf. c. 6, U15a27.
107 Publius Decius Mus was the name of three consuls, father, son, and grandson,
who sacrificed themselves to assure Roman victories in 340 B.C., 295 B.C., and
279 B.C., respectively.
108 The pagans of “today” whom Vitoria has in mind are most likely the Indians of
the New World. For what is required in order that ignorance be vincible or invin­
cible, cf. On the Indians, Π, n. 9, Urdinoz, 690-2.
109Cf. c.7,1116al3-14.
110 Cf. Adfamiliares, VII, 3,4; in: M. Tulli Ciceronis, Epistularum adfamiliares, libri
sedecim, ed. H. Moricca, pars prior (Augustae Taurinorum: In Aedibus Paraviae,
1965), p. 234.

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Translators Notes to the Relection on Homicide

117

111 Note that Vitoria has not replied to the sixteenth argument.
112 Cf. Hebrews 11: 32.
113 Cf. S. Ambrosii episcopi Mediolanenis, De officiis ministrorum, libri III, I, c. 40;
ed. Io. Georgius Krabinger (Tubingae: Libraria Henrici Laupp, 1857), p. 101.
114 Cf. Historia Hebreorum ex elegantissimis Marci Antonii Coccii Sabellici Enneadibus
excerpta, eius gentis ritus leges et gesta, ab orbe condito, ad lesu Christi tempora (sunt
haec omnia in libris Bibliacis et losepho ubertim comprehensa) succincte complectens,
in septem estpartita libros, qui singuli suis quoque capitibus distincti, capitum brevibus
argumentis sunt elucidari, et ad laudem dei impressi, Lib. Ill, cap. viii (Basileae:
Ludovicus Horken, 1515), fol. 45r.
1I5Cf.IÂin^31:4.
1161 have not seen the text to which Vitoria is referring, which I think is: Textus biblie
cum glosa ordinaria: Nicolai de Lyra postilla, moralitatibus eiusdem, Pauli Burgensis
additionibus, Matthie Thoringreplicis, 7 vols., Basileae: Johannes Petri et Johannes
Frobensius, 1506-1508. On Nicholas of Lyre (d. ca. 1349) and his critic, Paul of
Burgos (d. ca. 1431), cf. E Vernet, “Lyre (Nicolas de),” Dictionnaire de théologie
catholique, IX (1926), esp. 1414-1415; and Melquiades Andrés, La teologia espanola
en elsiglo XVI, I (Madrid: BAC, 1976), pp. 314-315. For another place in which
Vitoria has paired Nicholas and Burgensis, cf. Fragmentum de regno Christi, in
Comentarios... VI, p. 499.

Commentary on Summa theologiae ΙΙα-ΙΙΜ Q. 64
(Thomas Aquinas)

By

Francisco de Vitoria, O.P.

A Translation

From: Comentarios a la Secunda secundae de Santo Tomds, ediciôn preparada

por el R.P. Vicente Beltran de Heredia, O.P., Tomo III (Salamanca:
Biblioteca deTeôlogos Espafioles, 1934) pp. 266-311.
Printed with permission.

ί.ί·

Articulus primus

Utrum occidere quaecumque viventia sit illicitum.

I

1. -Prima conclusio: Licitum est homini uti omnibus irrationalibus, sive
animatis sive inanimatis, quae sibi ad usum data sunt. Probatur, quia
imperfectiora sunt propter perfectiora; Deus enim non fecit solem propter
ipsum Deum, nec lunam propter ipsum, sed propter hominem.
Secunda conclusio: Licitum est plantis et herbis uti et eas mortificare, segar
los prados ad usum animalium.
Non est dubium de utraque conclusione. Et sanctus Thomas forsan movit
hanc quaestionem propterea quia fuerunt haeretici antiqui dicentes quod non
licebat occidere animalia ad vescendum. Forsan hujus sententiae fuerunt
philosophi antiqui ut Pythagorici.
2. -Dubitatur. Dato, ut dicit sanctus Thomas, quod licitum est interficere
animantia bruta ad vescendum, an tamen liceat occidere illa ad quoscumque
alios usus praeterquam ad vescendum. Videtur quod non, quia in Genesi non
aliud dicitur nisi quod ea dedit Dominus ad vescendum.
Respondetur quod non est dubium nisi quod liceat animantia bruta occidere
etiam ad alios usus, utputa propter pelles animalium. Sic legitur de Cain quod

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erat venator, et tamen ante diluvium non legimus quod homines comederent
carnes. Sed postquam Cain erat venator, ad quid venabatur? Dicunt doctores
quod Cain et alii venabantur propter pelles animalium; et ita lupi occiduntur

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propter pelles, y las martas. Licet ergo uti animalibus ad alios usus praeterquam
ad vescendum, quia imperfectioribus propter perfectiora uti licet.
3.-Sed dubitatur, an si occisor sine ulla utilitate occidat bruta, pec/267/cet.
De hoc nihil dicit sanctus Thomas, quia solum dicit quod si quis occidat rem
ad illud ad quod est, non peccat.
Respondeo primo, quod certum est quod nulla fit injuria animantibus brutis
etiamsi occidantur, nec sunt capacia injuriae, quia bruta non habent jus in se,
sed homo habet jus. Diximus enim quod solum natura rationalis est capax
dominii. Solus namque homo est dominus sui ipsius et suorum membrorum,
non tamen sic bruta. Unde lapis non est dominus sui, nec cervus, et sicut
nulla fit injuria lapidibus etsi frangantur, ita nec plantis etsi evellantur nec
arboribus etsi abscindantur, nec etiam brutis occidendo illa, nec peccat occisor
illorum. Secundo dico, quod bruta omnia sunt hominum. Unde si aliqua

i

Commentary on Summa theologiae II’II”, q. 64, aa. 1-8

121

Question Sixty-Four

On Homicide.
Article One

Whether it is unlawful to kill any living things at all.

1. — The first conclusion: it is lawfulfor a man to use all irrational things,
whether animate or inanimate, which have been givenfor his use. This is proven,
because more imperfect things exist for the sake of things more perfect. Indeed,
God did not make the sun or the moon for His own sake, but for that of man.
The second conclusion: it is lawful to use plants andgrasses, and to kill them —
[e.g.] “to mow meadows”1 for the use of animals.
Both conclusions are certain. But St. Thomas perhaps raises this question
because in antiquity there were heretics saying that it was not lawful to kill
animals for food. Perhaps also of this opinion were ancient philosophers such
as the Pythagoreans.2
2.— A doubt is raised: granted, as St. Thomas says, that it is lawful to kill
brute animals for food, the question is whether it is lawful to kill them for any
other use. It seems that it is not lawful, since in Genesis it is said only that the
Lord has given the animals for food.
The answer is that it is certainly lawful to kill brute animals for other uses,
for example, for their pelts. Thus we read of Cain that he was a hunter,4 yet
we do not read that before the flood men ate meat.5 But when Cain was a
hunter, for what was he hunting? The doctors6 say that Cain and others were
hunting for the skins of animals; and thus wolves were killed for their pelts and
also “martens.”7 It is therefore lawfol to use animals for other ends besides eating,
because it is lawfol to use more imperfect things for those more perfect.
3.— But there is doubt whether someone sins if he kills brute animals for
no benefit. St. Thomas has said nothing about this, for he states only that if
someone kills a thing for what it is intended he does not sin.
I answer, first, that it is certain that no injury is done to brute animals even
if they are killed. For brutes are not capable of [receiving] injury, since they
have no right in themselves.8 But a man does have such a right. For we have
said that only a rational nature is capable of dominion;9 since man alone is
the master of himself and of his members, and brutes are not such. Thus, a
stone is not its own master, nor is a stag, and just as no injury is done to stones
when they are broken, so also neither is any done to plants when they are
uprooted nor to trees when they are cut down, nor also to brutes when they
are killed. Neither does their killer commit a sin. Second, I say that all brute
animals belong to men. Hence, if some animals are needed and have some

122

Francisco de Vitoria, On Homicide

sunt animalia necessaria et alicujus utilitatis, occidere illa sine quacumque
utilitate est peccatum, quia aliquo modo fit injuria aliis hominibus ad quo­
rum manus possent pervenire. Sicut qui sine utilitate occideret cervos et lepores
et alias feras quae sunt utiles hominibus, peccaret, non propter injuriam factam
illis, sed propter injuriam quae fit hominibus, quia nocent illis, postquam illa
sunt in usum hominum, ut porci monteses. Et posset tantum nocere, quod
peccaret mortaliter, ut si silvam combureret et vastaret ubi essent ferae
necessariae et utiles ipsis hominibus, quibus fit injuria, quia habent jus ad illa
animalia bruta.
-Dubitatur tertio, an liceat occidere bruta solum voluptatis causa, id est
4.
an liceat venari recreationis causa. Supposito, ut verum est, quod licet venari,
an tamen venatio ex genere suo, id est ex objecto sit licita. Videtur quod non,
quia in sacra scriptura videntur reprehendi venatores, quia Hieremiae, 16 (v.
16), inter comminationes quas Deus ponit, ponit unam, quod mittet eis
venatores multos·, et Eccle. 10 (v. 16) dicitur: Vae terrae cujus principes male
comedunt·, omnes intelligunt de venatoribus. Item, Hieronymus in Psalmo
90, et habetur 86 dist., ca. Esau, dicit: “Esau venator erat quoniam peccator
erat”; et plus dicit: et penitus non invenimus in sacra scriptura sanctos
venatores, sed piscatores. Et Ambrosius in homilia quadragesimae, et habetur
in eadem dist. 86, ca. An putatis, reprehendit vehementer venatores. Item,
quia interdicitur clericis venatio, ut patet in cap. 1 \Episcopum\ de clerico
venatore, ubi dicitur quod non licet clericis habere canes ad venandum, nec
accipitres nec alia instrumenta venationis. Ergo videtur quod venatio de se,
dato quod non sit injusta, quod tamen est turpis, sicut ludere de se non est /
268/ iniustum, ponitur tamen inter turpia, et ita quod adquiritur per ludum
ponitur inter turpia. An ergo ita dicendum sit de venatione.
Respondeo: primo, quod venatio de se est licita et honesta, nec ponitur
inter turpia sicut ludus, sed inter honesta. Expresse hoc ponit sanctus Tho­
mas 1 p., q. 96, a. 1 ex Aristotele 1 Politicorum dicente, quod venatio est licita
et honesta, non solum causa necessitatis, sed etiam causa voluptatis. Ponitur
enim venatio inter honestas voluptates quia est conformiter ad jus naturale,
quia omnes ferae non solum ordinantur ad usum, sed etiam ad voluptates.
Idem dicit sanctus Thomas 3 Contra gentes, cap. 22. Et dat rationem, quia
alias si non liceret homini occidere oves ut faceret vestem et vestiret se, certe
non esset factum conformiter ad sapientiam divinam, quia non bene
consuluisset Deus et providisset homini, cum nudus nascatur et cum multis
necessitatibus, quod sic maneret; animalia vero induta et omnibus necessariis

Commentary on Summa theologiae 11*11“, q. 64, aa. 1-8

123

utility, to kill them for no use, is a sin. For in some way an injury is done to
other men into whose hands they could come. Just as he who would for no
reason kill deer, rabbits, and other wild creatures which are useful for men,

would sin not because of any injury done to those creatures but because of
the injury which results for men, because he is harming10 those creatures,
when they (e.g., mountain pigs)11 are of use to men. And he could do such
great harm that he would sin mortally — for instance, if he were to burn a
forest and destroy the habitat of wild animals which were necessary or of use
for those men, to whom injury would be done inasmuch as they have a right
to those brute animals.
4.— There is a third doubt·, whether it is lawful to kill brute animals simply
for pleasure; that is, whether it is lawful to hunt for sport. Supposing that it is
lawful to hunt, the question is still whether hunting of its nature, that is from
its object, is lawful. It seems that it is not, because in Sacred Scripture hunters
appear to be condemned. For Jeremiah 16, v. 16, among the threats made by
God puts this one: that he “will send them many hunters” and at Ecclesiastes
10, v. 16, it is said: “ Woe to the land whoseprinces eat wrongly”12 — [which] all
understand to be about hunters. Again, Jerome, commenting on Psalm 90,
which is reproduced in distinction 86,13 says about Esaw. “Esau was a hunter
because he was a sinner;” and he further says: “we simply do not find saintly
hunters in Sacred Scripture — but rather fishermen.”14 And Ambrose in a
Lenten homily, which is also in the same distinction 86, about An putatis,15
strongly blames hunters. Again, because hunting is forbidden to clerics, as is
clear in chapter 1 of Episcopum16 about a clerical hunter, where it is said that
it is not lawful for clerics to have hunting dogs, nor hawks, nor other instru­
ments for hunting. Therefore, it seems that hunting of itself, granted that it is
not unjust, is however base, just as to gamble is not of itself unjust, but it is
put among base things, and thus what is acquired through gambling is put
among base things. The question then is should the same be said of hunting.
I answer, first, that hunting of itself is lawful and honorable, nor is it to be
put among base things, like gambling, but among honorable things. St. Tho­
mas explicitly affirms this in Summa theologiae I’, q. 96, a. 1, on the basis of
Aristotle in Book I of his Politici7 saying that hunting is lawful and honor­
able, not just out of necessity, but also for the sake of enjoyment. For hunting
is put among honorable pleasures inasmuch as it is in conformity with natural law, because all wild animals are ordered not only for use, but also for
pleasure. St. Thomas says the same in Contra gentes, Bk. Ill, chapter 22. And
he argues that otherwise, if it were not lawfill for a man to kill sheep in order
to make clothes and clothe himself, certainly this would not be something in
conformity with divine wisdom, since God would not have well looked out
for and provided for man who is born naked and needing many things, be-

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124

Francisco de Vitoria, On HomicUi

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implevit, et non alia de causa nisi ut homo egeret animalibus. Secundo dico,
quod dato quod venatio sit honesta, non tamen omnibus est honesta. Sicut
bellatio et militatio armorum ponitur inter honesta exercitia, non tamen
omnibus est honesta, ita venatio ponitur inter res honestas, sed non omnibus
est honesta. Ideo interdicitur clericis, tum propter occupationem nimiam quam
operatur, quia multum occupat venatio tum propter cursus et clamores quae
sunt necessaria ad venationem, indiget enim currere et clamoribus, quae om­
nia non sunt honesta clericis. Tertio dico et dubitatur, an cleris in illo loco sit
absolute interdicta omnis venatio. Dico quod clericis non absolute prohibetur
venatio, sed exercitium et consuetudo cujuscumque venationis, de cualquier
caza, est sibi prohibitum. Et illic ponitur poena quae esset infligenda clerico
qui sic haberet consuetudinem venandi. Quarto dico, quod prohibetur eis
omnis venatio quae indiget clamore et cursibus. Quinto dico, quod non est
simpliciter interdicta venatio, quia quod semel exeat ad venandum, si hoc
non habet pro exercitio, licitum est. Sexto dico, quod absolute est inhonesta
venatio quando habetur pro officio et pro exercitio, in qua consummitur vita
et omnis industria. Etiam de laicis dico quod non est laudabile que su vida sea
cazar, nec laudantur venatores in sacra scriptura, immo dicitur, ‘venator est
quoniam peccator est,” ex qua multa mala sequuntur, maxime tempore
quadragesimae in quo non esset venandum, quia venatores non jejunant. Immo
si legatis historias antiquas, videbitis quod non erat con- /269/ suetudo venandi,
sed rarissime venabantur. Unde certe res honestissima ut venatio, fit ab illis
inhonesta propter consuetudinem venandi.
5. — Dictum est quod venatio est licita et licitum occidere bruta. Dubita­
tur an bruta et ferae campestres quae occiduntur sint ipsius venatoris.
Respondeo primo, de jure communi omnes ferae sunt communes omnibus
hominibus et non propriae alicujus. Patet in instituta “De rerum divisione,”
Ferae, et § Et quidem et § Flumina, ubi expresse determinatur quod non solum
sunt communes ferae, sed quod est de jure gentium. In § Et quidem dicitur
quod mare est commune jure gentium; ideo dicit quod omnibus licet navigare
et piscari in mari, et ita de portu et fluminibus. Et idem judicium est de
venatione. Et in alio § dicit de omnibus animalibus quae in caelo et in terra
nascuntur, quod incipiunt esse illius qui capit illa.
Dicetis quod verum est si capiat in communi agro; sed si capiat in agro
meo, quid dicetur? Dicitur ibi quod non interest quod capiat in fundo suo vel
in alieno, sed dicitur ibi quod potest quis prohibere ne ingrediantur in agro

Commentary on Summa theologiae II’II", q. 64, aa. 1-8

125

cause he would remain so; but the animals he clothed and gave them all they
needed — for no other cause than that man would need them. I say, second:
granted that hunting is honorable, it is not however honorable for everyone.
Just as waging war and using weapons are reckoned among honorable exer­
cises, but not honorable for all, so hunting is put among honorable things,
but it is not honorable for all. Therefore, hunting is forbidden to clerics,
because of both the chase and the cries which are necessary for it, for it does
need running and shouting, which are not at all respectable for clerics. Third
I say, there is also doubt whether in that passage18 all hunting whatever is
proscribed for clerics. I say that hunting is not absolutely prohibited for cler­
ics, but the habitual practice19 of any hunting whatever, “of any kind of hunt­
ing,”20 is forbidden for them. And a penalty is there declared which should be
inflicted upon any cleric who thus would have a habit of hunting. Isay, fourth,
all hunting which requires shouting and running is proscribed for them.21
Fifth Isay, that hunting is not absolutely forbidden, because what one may do
one time in hunting, if it is not his [habitual] practice, is lawful. I say sixth,
that hunting is without qualification dishonorable when it is regarded as a
business or a practice in which ones life and whole industry is consumed.
With respect to laymen also I say that it is not laudable “that their life be
hunting.”22 Nor are hunters praised in Sacred Scripture; but rather it is said:
“he is a hunter because he is a sinner.”23 And from hunting many evils follow,
as especially in Lent when there should be no hunting because hunters do not
fast. Indeed, if you read ancient histories, you will see that there was no cus­
tom of hunting, but they hunted most rarely. Thus certainly a most honor­
able thing such as hunting was made dishonorable by the ancients on account
of the custom of hunting.
5. — It has been said that hunting is lawful and that it is lawful to kill brute
animals. The question is whether brutes and wild animals of the field which
are killed belong to the hunter himself.
I answer, first, from the common [i.e. Roman] law that all wild animals
belong in common to all men and are not the property of any one man. It is
clear in the Institutes, On the division of things,”24 § Ferae? and § Et quiden?
and § Flumina? where it is explicitly decided that not only are wild animals
common, but that this is a matter of the “law of nations.”28 In § Et quidem it
is stated that the sea is common by the law ofnations. Therefore, it states that it is
lawfill for all to sail upon and ro fish in die sea, and the same with regard to
harbors and rivers. And the same judgement holds as regards hunting. And in
another paragraph it is stated, with respect to all animals which are bom in heaven
and on earth, that they become the property of him who takes them.29
You will say that this is true if he takes them in a common field. But what
will be said if he takes them in my field? In that place,30 it is said that it does
not matter whether he takes them on his own land or on that of another.

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suo ad venandum sub tali poena; sed si quis ingrediatur et capiat bruta, tunc
sua sunt. Dicitur etiam quod potest quis circumdare montem et ibi intromittere
cervos et alia animalia, et ipse est dominus eorum et manent in suo dominio.
Sed si aliquae ferae inde exiliant et fugiant, quandiu dominus non persequitur
illas, sunt capientium et suae; sed si illas persequitur, etsi egrediantur, sunt
suae. Hoc etiam patet ff. “De adquirendo dominio rerum,” lege naturali.
Dico ergo primo, quod si loquamur de jure communi, omnes ferae sunt
communes omnibus et pisces.
Secundo dico, quod sunt capientium de jure gentium, nec hoc est revocatum
per aliquam legem.
Tertio dico, quod licet ita sit quod de jure gentium sunt communes et fiunt
capientium, tamen quia jus gentium est magis jus positivum quam naturale,
ut supra diximus, ideo jus ipsum commune ex rationabili causa potest aliter
disponi per legem positivam. Unde imperator potest facere novas leges de
venatione ex rationabili causa, licet non sint factae. Potest facere quod ferae
non sint communes, et quod cervi et porci campestres non capiantur nisi
solum a regibus et dominis. Patet, quia potest rex jus commune mutare per
legem ex rationabili causa. Item, quia rex ha/270/bet potestatem a communitate
et republica; sed respublica posset dividere bruta, quod cervi essent de los
hidalgos y las liebres de otros: ergo ita rex potest facere, postquam habet po­
testatem a republica.
Quarto dico, dato quod rex possit facere tales leges, tamen, sicut si res nunc
essent communes, non essent dividendae sicut nunc sunt divisae, ita quod
divites plus habeant, pauperibus remanentibus in egestate, sed essent
dividendae sine injuria alicujus; ita dico quod licet rex possit facere leges illas
de venatione, tamen postquam ex natura sua ferae sunt communes nunc et
non divisae, non posset utcumque appropriate illas ita ut solum possent equites
venari. Non posset facere quod aliquae ferae approprientur istis, las liebres y
conejos a los hidalgos et aliis aliae, quia sunt communes, sed debet in com­
muni distributio fieri et divisio sine injuria aliorum. Et si exhauriretur venatio,
potest dari modus quomodo non exhauriatur.
Quinto dico, quod divisio non debet fieri aequalis, sed proportionabiliter
secundum statum cujuslibet, ita ut quisquam habeat suam partem. Itaque
dato quod ferae omnes sint communes ut sunt, non oportet tamen quod

rSs?

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127

Rather it is said there that someone can under a certain penalty forbid per­
sons from entering his field in order to hunt; but if someone does enter and
takes animals, then they are his. It is also said that someone can fence off a
mountain and there introduce deer and other animals, so that he is their
owner and they are under his control. But if some wild animals escape and
flee from there, as long as the owner does not pursue them, they belong to
those taking them, so that they are theirs. But if the owner pursues them,
even though they get out, they belong to him. This is also clear by natural
law, according to [the law] “On aquiring ownership of things.”31
Therefore, I say first that if we are speaking of the common law, all wild
animals and fish are common to all.
I say second that from the law of nations they belong to those who take
them, and this has not been revoked by any [other] law.
Third, I say that although it is the case that from the law ofnations they are
common and they become the property of those taking them, nevertheless, as
I have said above,32 the law of nations is more positive than natural law,33
therefore that common law can for a reasonable cause be changed through
positive law. Thus the Emperor, for some reasonable cause, can make new
laws about hunting, even though they have not been made. He can make a
law that wild animals are not common, and that deer and wild boar are not to
be taken except by kings and lords alone. This is clear, because a king, for a
reasonable cause, can by his law change the common law. Again: a king has
power from the community and the republic;34 but the republic could divide
brute animals so that “the deer would belong to the nobles and the rabbits to
others;”35 therefore, once he has power from the republic, a king can make
such a law.
Fourth, I say that, granted that a king could make such laws, still, if things
were at present common, they should not be divided as they now are, in such
a way that the rich have more, with the poor remaining in want. But they
should be divided without injury to anyone. So I say that although a king can
make those laws about hunting, nevertheless, when now of their nature wild
animals are common and not divided, he could not in just anyway apportion
them so that only knights could hunt. He could not make a law that some
wild animals be apportioned to them, “the hares and rabbits to the nobles,”36
and other animals to others, because [wild animals] are common. Thus there
should be a common distribution and a division without injury to one or
another. And if hunting were being depleted, a way could be legislated in
which it would nor be depleted.
Fifih, Isay that a division does not have to be made equal, but proportion­
ately according to the condition of each one, so that each one may have his
own share. Granted, therefore, that all wild animals exist as common, never-

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dividerentur aequaliter, dicendo: partamoslo desta manera: lleven tanto los
hidalgos, y tanto los labradores, sed quod dividerentur secundum dignitatem
personarum, quia rationabile est quod quidam dominus habeat majorem
partem quam quidam agricola; sed taliter divisio deberet fieri ut omnes ex his
haberent.
Sexto dico, quod illud quod potest fieri per legem, potest etiam fieri per
consuetudinem antiquam cujus non est memoria in contrarium. Probatur,
quia appropriatio potest fieri per legem; et antiqua consuetudo habet vim
legis: ergo. Sicut si sit aliquod nemus in quo prohibe[b]atur antiquitus venatio
de qua non habetur memoria apud homines in contrarium, ista consuetudo
tenenda est tamquam lex, et dominus juste defenderet feras suas. Patet, quia
hoc potest fieri per legem; sed antiqua consuetudo habet vim legis: ergo quod
potest fieri per legem, potest fieri per consuetudinem antiquam cujus
contrarium non est in hominum memoria. Unde si esset consuetudo antiqua
de prendar los que entran a cazar en su monte, y los prenda, licite facit, quia
consuetudo habet vim legis.
Septimo dico, quod quamvis rex possit facere talem legem, ut dictum est,
scilicet de appropriatione ferarum, non tamen hoc potest facere dux Albanus
nec alii magnates. Probatur, quia tales non sunt legislatores, id est non possunt
facere leges proprie, sed rex. Item, quia omnes ferae sunt communes: ergo
non potest dominus aliquas illas sibi appropriate. No puede acotar la caza,
nisi habeat ex antiqua consuetudine cujus nulla /271/ memoria sit in
contrarium. Quod non dicatur: audivi ab avis meis quod omnes solebant in
tali monte venari; tunc enim non esset consuetudo antiqua cujus non est
memoria. Unde dico quod non possunt appropriate sibi feras nisi ex antiqua
consuetudine, quia tyrannicum est quod faciant leges de appropriatione
ferarum et contra libertatem populi ad venandum, quia ferae sunt communes.
Immo potius debent defendere principes hanc libertatem.
Octavo dico, quod quamvis ita sit quod dominus non possit appropriate
simpliciter sibi feras, potest tamen facere aliqua statuta de venatione quae sint
convenientia, et alias non; lo que puede hacer un concejo para que no se
pierda la caza y se acabe. Potest ergo fecere leges, non ad utilitatem propriam,
sed communem, scilicet praecipere quod non venentur con hurones ni con
redes, sino con galgos; cum illis enim exhauritur venatio. Sed non potest
omnino tollere libertatem venandi.
Nono dico, quod in hujusmodi statutis debet servari jus proportionabiliter,
scilicet secundum dignitatem cujusque, sic quod major licentia detur majoribus

et dignioribus.

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129

theless, they need not be equally divided — saying: “let’s divide it in this way:
let the nobles take so much and the workers take so much”37 — but they
should be divided according to the dignity of persons, since it is reasonable
that some lord have a larger share than some farmworker. But the division
ought to be made in such way that all would have a share.
Sixth, Isay that what can be done by law can also be done by ancient cus­
tom of which there is no memory to the contrary. This is proven: because an
apportionment can be achieved by law, and an ancient custom has the force
of law; therefore .... For example, if there is some grove in which from antiq­
uity hunting has been prohibited, and there is no human memory to the
contrary, that custom must be held as a law, and the owner would justly
defend his wild animals. This is clear, because this can be done by law; but an
ancient custom has the force of law: therefore, what can be done by law can
be done by an ancient custom the contrary ofwhich is not in human memory.
Hence if it were an ancient custom “to arrest those entering on his mountain
for the purpose of hunting, and he does arrest them,”38 he is acting lawfully,
because the custom has the force of law.
Seventh, I say that although the king can make such a law, as has been said,
that is, about the apportionment of wild animals, the Duke of Alba or other
magnate?9 cannot do this. This is proven, because such are not legislators,
that is, they cannot on their own make laws, as can the king.40 Again it is
proven, because all wild animals are common; therefore, a lord cannot appro­
priate any of them to himself. “He cannot set bounds for hunting,”41 unless
he possesses it from an ancient custom, of which there is no memory to the

contrary. Thus it may not be said: “I have heard it from my grandparents that
everyone used to hunt on such a mountain” — because then it would it would
not be an ancient custom of which there is no memory. Hence, Isay that they
cannot appropriate wild animals to themselves except from an ancient cus­
tom, because it is tyrannical to make laws for the appropriation of wild ani­
mals against the peoples freedom to hunt, since wild animals are common.
Indeed, princes should rather defend this freedom.
Eighth, I say that although it is the case that a lord may not simply appro­
priate wild animals to himself, he can however make some statutes about
hunting which are fitting (if they are not fitting, he cannot make them);
“which is what a town council can do in order that hunting not be destroyed
and ended.”42 He can therefore make laws, not for his own but for the com­
mon advantage, for instance, to prescribe that persons hunt “with greyhounds,
but not ferrets and nets,”43 since hunting is exhausted by these.44 But he can­
not entirely remove freedom to hunt.
Ninth, I say that in statutes of this kind what is right must be observed
proportionately, that is, according to the dignity of each one, so that more
licence is given to greater and more noble persons.

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Francisco de Vitoria, On Homicide

Consequenter dico, quod illud quod potest fieri per legem et consuetudinem
antiquam, potest fieri ex pacto facto cum populo, ita quod aliqui domini
possunt appropriate sibi feras et habere jus ad venationem, componendo hoc
cum populo et faciendo pactum quod dabit tantam pecuniam populo ut habeat
jus ad venationem, v. g. cervorum, et quod nullus alius venetur. Ita scio quod
aliquis princeps facit; quitale las alcabalas, et tunc volenti non fit injuria. Sed
hoc intelligendum est dummodo compositio non sit violenta, utputa quod

propter dominum ipsum, populus non audeat aliud facere nec aliter quam
ipse vult; sed oportet quod sit voluntaria, vel quia subditi accipiunt majus
beneficium, vel quia gratis volunt placere domino. Tunc domini possunt uti
illa libertate venandi et custodire venationem.
6.— Restat respondere ad argumenta quae domini vel alii pro illis faciunt

f

ad probandum quod possunt habere venationem et custodire illam. Primo
arguitur: quia aliqui domini habent donationem a rege his verbis: quod dat
illis totam potestatem quam habebat in villa quam dat alicui domino cum
omnibus privilegiis et conditionibus requisitis ad veram appropriationem; sed

j

rex poterat in villa illa facere leges de venatione et dividere eam: ergo et dorninus. Item, rex poterat sibi appropriate venationem: ergo et dominus, postquam
rex dedit magnati totum dominium quod ipse habebat quando dedit villam,

t
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ί

et per consequens potest prohibere subditos a venatione.
/272/
Ad hoc respondetur multo clarius quam ipsi arguunt. Domini habent villas
cum potestate regia etc.: distinguo, et dico quod rex duplicem habet potestatem.
Una est potestas quae est communis ipsi regi et aliis, ita quod est potestas ut
est privata persona, ut potestatem quam quis habet in praedio suo, habet
etiam rex. Alia est potestas propria et praerrogativa ipsius regis quae non cadit
in aliis, ut potestas imponendi tributa, sisas y pechos, et remittendi homicidia
et limitare libertatem populi. Unde si domini habent potestatem regiam, est
prima potestas et non haec secunda, quia domini non possunt remittere
poenam homicidii latam a lege, no pueden perdonar la muette de uno, sed
solum rex. Et sic dico quod domini non habent totam potestatem regiam,
quia facere leges est praerrogativa regis, et qui sunt subditi illi ut domini non
possunt illas facere. Secundo dico, quod licet rex possit facere leges de venatione,
non tamen debent esse iniquae et irrationales. Et iniqua esset lex si appropriaret
sibi illa quae sunt communia, vel alteri. Sic potest facere legem de los ejidos
que se rompan, sed non potest appropriate alicui sed omnibus quibus prata
erant communia; como las mercedes que hizo de los ejidos de Medina del
Campo para que los rompiesen, sed quia hoc visum fuit esse iniquum, revocavit
illud. Unde cum venatio sit communis omnibus, licet rex bene possit facere

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131

Consequently, I say that what can be done by law and by ancient custom
can be done from an agreement made with the people, so that some lords can
appropriate wild animals to themselves and have a right to hunt them, by
agreeing on this with the people and contracting to give a certain amount of
money to the people in order to have an exclusive right of hunting, e.g. deer.
I know that an occasional prince does this; “pay the duty on it”45 and then no
injury is done to a willing people.46 But this must be understood only if the
agreement is not violent in such way that because of the lord himself the
people may not dare to do anything else or otherwise than he wants. But it
must be voluntary, either because the subjects receive a greater benefit, or
because they freely will to please their lord.47 In such cases, lords may use that
freedom to hunt and may restrict hunting.
6.— We still must answer the arguments which lords, or others on their
behalf, make to prove that they can hunt and restrict hunting. First, it is
argued that some lords have a donation from the king in these words: that he
is giving them the whole power which he had over an estate, which he gives to
some lord with all privileges and conditions necessary for a true appropriation.
But the king could on that estate make laws about hunting and could appor­
tion it. Therefore, the lord also can do so. Again, the king could appropriate
hunting for himself. Therefore, the lord also can do so and consequently he
can prohibit his subjects from hunting — when the king has given him the
whole dominion which he himself had when he gave him the estate.
To this the answer is more clear than their argument. “Lords have estates
with royal power, etc.” — I distinguish and say that the king has two powers.
There is one power which is common to the king and to others, power as he
is a private person. Thus as anyone has power on his own estate, so also does
the king. There is another power which is the proper prerogative of the king
himself, a power which does not occur in others, like the power of imposing
tributes, “assizes and taxes,”48 as well as of pardoning homicides and limiting
the freedom of the people. Hence, if lords have royal power, it is the first and
not this second power, because lords cannot remit the punishment required
by law for homicide, “they cannot pardon the death of anyone,”49 as only the
king can do. And so I say that lords do not have complete royal power, be­
cause to make laws is the prerogative of the king and those who are subject to
him, like lords, cannot make them. Secondly, Isay that, although the king can
make laws about hunting, these must not, however, be wicked and irrational.
And a law would be wicked if the king were to appropriate to himself or to
another things which are common. Thus, the king can make a law about
“public lands, that they be ploughed,”50 but he cannot apportion them to
anyone but to all to whom the meadows were common; “like the gifts which
he made of the public lands of Medina del Campo in order that they plough
them,”51 but because this seemed to be wicked, he revoked it.52 Hence, be-

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leges de venatione, non tamen leges per quas approprier venationem alicui
domino, quia non esset lex rationabilis, et per consequens nec dominus potest
venationem prohibere nec sibi appropriate.
Et si objicias: quia rex alicubi custodit nemora et venationes sibi soli: ergo
et dux potest idem facere, postquam rex dat ei suam potestatem. Respondeo:
diximus supra quod licet sit venatio communis, non tamen debet ad omnes
aequaliter exspectare. Non enim hoc est rationabile, sed quod plus exspectet
ad regem quam ad privatos homines. Unde dico quod rex bene potest illud
facere, modo rationabiliter faciat. Quia si omnia loca in quibus est venatio
arcerentur a rege, esset magna tyrannis, et intolerabilis esset talis lex, sicut si
arceret illam in omnibus locis quae sunt dominorum. Quod tamen solum in
duobus aut tribus locis prohibeat venationem, hoc tolerabile est. Sed si
extenderet hoc ad tot oppida quot sunt dominorum, esset intolerabile. Unde
resolutorie dico quod non sequitur: rex potest hoc facere, ergo et domini
possunt. Secundo dico, quod rex non potest facere nisi rationabiliter.
7.— Secundo arguunt etiam domini: dato quod de jure communi sint fe­
rae communes, tamen ferae quae habentur in custodia non sunt communes,
sed appropriatae, quia ipsi faciunt sumptus ponendo custodiam /273/ ad hoc
quod nullus venetur, y que prende a los que cazan, et sub-gravi poena quod
flagelletur qui captus fuerit venando.
Respondetur quod hoc est mera calumnia. Leges non dicunt quod ponatur
custodia adversus venientes ad venandum, nec isti coercentur a custodia, sed
ferae coercentur ab illa. Et sic dico quod illud non est aequum, quia custodia
non vocatur quae ponitur ne alii venentur, sed custodia vocatur quae ponitur
ipsis feris quando coercentur ipsae ferae ne exeant, sicut olim ab aliquibus
magnatibus solebat fieri quia obsidebant nemus; pero agora quierenlo hacer
todo a costa agena. En un cercado non nego quin possint custodire feras y
penar a los que las cazen, quia hujusmodi ferae sunt appropriatae et non com­
munes. Sed quando ferae sunt communes, non potest dominus illas sibi
appropriate, licet ponat custodiam in monte.
8.— Tertio arguunt: dato quod in praediis et montibus communibus non
possit dominus sibi appropriate venationem et ponere custodiam, saltem pos­
sum illam habere in praedio et monte meo quem ego plantavi, et ponere
custodiam et prohibere venationem sicut cessionem lignorum. Ergo in illo
monte in quo posui venationem, possum habere custodiam et prohibere illam.
Respondetur ad hoc ex ipsa lege superius habita quae disponit quod non
refert venationem exercere in agro proprio sive in alieno, quia licet mons sit

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133

cause hunting is common to all, even though the king can indeed enact laws
about hunting, he cannot enact laws through which he would make hunting
the property of some lord, for such would not be reasonable law. Consequendy, neither can a lord prohibit hunting or appropriate it to himself.
And if you object that the king keeps groves and hunting somewhere for
himself, and therefore a duke can do the same when the king gives him his
own power, I answer, we have said above that although hunting is common,
still it should not pertain in the same way to all; for this is not reasonable; but
the fact is that more belongs to the king than to private men. Hence, I say
that the king can indeed do that, provided that he does it reasonably. For if all
hunting places were to be fenced off by the king, it would be great tyranny,
and such a law would be intolerable, just as if he would fence off hunting in
places which belong to lords. However, it is tolerable that he prohibit hunting
in two or three places. But if he were to extend this to as many towns as there
are lords, it would be intolerable. Hence, by way of resolution, Isay that this
does not follow: the king can do this, therefore so can the lords.
7.— Second, the lords also argue·, granted that from the common law wild
animals are common property, nevertheless, wild animals which are kept in
captivity are not common, but owned [by those keeping them]. For they go
to the expense of posting a guard in order that no one may hunt, “that they
arrest those who hunt,”53 and that whoever be captured hunting be subject to
the severe punishment of flogging.
The answer is that this is a mere deception. The laws do not say that the
guard may be posted against those coming to hunt, nor are they coerced by
the guard, but it is wild animals which are coerced by it. And so I say that this
is not the same, because that is not called a guard which is posted lest others
hunt. But a guard is that which is posted for the wild animals when those
same wild animals are coerced lest they escape, just as in the past some mag­
nates used to do when they enclosed a grove. “But now they want to do it all
at someone else’s expense.”541 do not deny that they can keep wild animals
“in an enclosure”55 “and punish those who hunt them,”56 because animals of
this kind are owned and not common. But when wild animals are common,
a lord cannot appropriate them to himself although he may post a guard on
a mountain.
8.— Thirdly they argue·, granted that in common lands and mountains a
lord cannot appropriate hunting to himself and post a guard, at least I can do
that in my own mountain and land which I have planted, and can both post
a guard and prohibit hunting, just as [I may prohibit] cutting trees. There­
fore, in that mountain on which I have established hunting, I can place a
guard and prohibit it.
From the law mentioned above,57 the reply to this is that it does not matter
whether the hunting takes place in one’s own field or someone else’s. For even

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domini et ibi ponat feras, nihilominus ferae si ibi capiantur, ita sunt capientium
sicut si mons non esset suus, postquam ferae sunt communes.
9.-Quarto arguunt: quia utile est subditis ipsis prohibere illos a venatione
et piscatione, quia multi sunt qui perdunt tempus, et omittunt agriculturam,
y dejan de ganar de comer por andar a caza; et dominus debet procurare
utilitatem suorum subditorum: ergo bene facit arcendo illos a venatione.
Ad hoc concedo antecedens, et nego consequentiam, quia dato quod sit
illis utile non venari, non tamen potest dominus cogere illos ad illud, quia
hoc fit cum jactura eorum, que es quitarles la caza. Nec exspectat ad dominum
consulere utilitati alterius cum sua utilitate. Non enim dabit dominus nummos
agricolis ut emant jumenta ad colendum agros, etsi egeant, licet hoc sit con­
veniens agricolis. Ergo nec aliud curent. Secundo dico, quod illud non est illis
utile, postquam tollunt ab eis libertatem, quia libertas est magis utilis quam
illud bonum privatum. Melius est agricolae habere libertatem venandi toto
anno, licet nihil venetur, quam quod laboret y gane de comer. Unde postquam
in hoc faciunt illis tam /274/ gravem injuriam, nullis certe argumentis nec
excusatione se possunt domini defendere quin peccent mortaliter arcendo
subditos a venatione.
10.— Ex his quae dicta sunt oriuntur aliqua dubia. Primo, quando domini
legitime custodiunt venationem ita quod legitime sunt eis ferae appropriatae,
vel ex eo quia est consuetudo antiqua et immemorialis, vel ex rationabili lege,
vel ex pacto facto cum populo, dubitatur an tunc liceat eis coercere venationem
poena aliqua, so pena de mil maravedis la primera vez, y la segunda de cien
azotes al que cazare.
Respondetur quod sic, quia alias dominus non posset conservare jus suum
ad venationem nec aliquid haberet. Secundo dico, quod poena debet esse
moderata pro qualitate rei. Debet dominus considerare quod fuit venatio com­
munis, et ideo non debet esse poena gravis et atrox, quia esset maxima tyrannis,
ut dicit Cajetanus et Silvester. Sufficit quod solvant duos vel tres argenteos, et
non alias poenas et flagella, quia hoc tyrannicum esset. Illud enim quod erat
commune, nescio unde veniat quod vertatur in gravamen populi. Quando
ergo poena est in gravamen populi, non debet imponi.

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though a mountain belongs to a lord and he puts wild animals there, never­
theless, ifthose animals are taken there, they belong to the one taking them just as
if the mountain were not the lord’s, and the wild animals were common.
9.— Fourth, they argue·, that it is for the benefit of those subjects themselves
to prohibit them from hunting and fishing, because there are many who waste
time and neglect farm work, “and do not earn a living because they go hunt­
ing,”58 and a lord should provide for the benefit of his subjects. Therefore, he
does well in keeping them from hunting.
In answer, I concede the antecedent and I deny the consequence. For, granted
that it benefits them not to hunt, a lord cannot, however, force them to this,
for this is done with loss to them, “which is to deprive them of hunting.”59
Nor does one expect a lord, along with his own advantage, to look out for the
benefit of another. For a lord will not give money to farmers to buy animals
(jumenta) to plow their fields, even if they need them — although this is of
benefit for the farmers. Therefore, neither will they [i.e. lords] provide for
anything else. Secondly, I say that this is not advantageous for the subjects,
when the lords take away their freedom, since freedom is more beneficial
than that good which is lost [when freedom is exercised]. It is better for a
farmer to have freedom to hunt all the year round, even though he may hunt
nothing, than that he labor “and earn a living.”60 Hence, when in this they do
such great harm to their subjects, certainly lords cannot, with arguments or
excuse, so defend themselves that they do not sin gravely by keeping their
subjects from hunting.
10.— Some doubts arise from what has been said. First, when lords legiti­
mately preserve hunting in such way that wild animals are legitimately appro­
priated to them, either from an old and immemorial custom, or from a rea­
sonable law, or from an agreement made with the people, the question is
whether it is then lawful for them to restrict hunting with some penalty, “un­
der pain of a thousand maravediP the first time, and the second time a hun­
dred lashes to one hunting.”62
The answer is yes, since otherwise a lord could not keep his right to hunt
nor would he have any right. Second, I say that the penalty should be moder­
ate in line with the character of the offense. The lord should consider that
hunting was common, and therefore the penalty should not be severe and
cruel, for such would be great tyranny, as Cajetan (Tommaso de Vio, O.P.
[1469-1534]) and Sylvester (i.e. Silvestro da Priera Mazzolini, O.P. [ca. 14601523]) say.63 It is enough that they pay two or three pieces of silver64 and no
other punishments and floggings, for this would be tyrannical. For I do not
know how what was common could be changed into a hardship for people.
When, therefore, the punishment becomes a hardship for people it should
not be imposed.

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11.— Dubitatur etiam, dato quod venatio sit legitime prohibita, an qui
capit feram legitime custoditam et prohibitam, teneatur ad restitutionem.
Respondetur quod si ferae sint appropriatae secundum formam legis com­
munis ita quod sint muris obsessae, nescirem aliud dicere nisi quod tenetur
ad restitutionem, quia idem judicium est de illis sicut de animalibus muratis,
scilicet gallinis et etiam cervis nutritis in domo, quia jam ferae illae habentur
sicut mansuetae. Secundo dico, quod si ferae non sint obsessae, sed est pro­
hibita venatio ex antiqua consuetudine, ita quod ferae sunt legitime
appropriatae, tunc credendum est quod populus non ita voluit feras appropriate
dominis, quod si capiat cuniculum teneatur ad restitutionem. Unde non
auderem hoc dicere, maxime quando non est grave damnum, sicut si aliquis
exiret onustus cuniculis, quia tunc bene teneretur ad restitutionem. Sed si
capiat unum, non teneretur ad restitutionem.
12.— Sed dubitatur, quando dominus habet cervos vel alias feras obsessas,
et exeunt ad segetes et faciunt multum damnum ipsi populo, quia triticum et
alia vegetabilia destruunt, an dominus teneatur ad restitutionem.
Respondetur quod etsi ponatur custodia, nihilominus si fiat damnum,
tenetur de toto damno. Y antes ha de ser mas que menos, quia revera raro vel
nunquam faciunt completam restitutionem; quia si eligunt duos homines qui
pensent damnum, semper potius favent domino. Sed quid si /275/ dominus
non vult restituere? An possit agricola capere cervum: Dico quod sic et occidere
illum, nec tenetur ad restitutionem.
13.— Dubitatur ultimo. Diximus quod vel ex lege rationabili, vel ex antiqua
consuetudine, vel ex pacto facto cum populo possunt domini arcere subditos
a venatione, acotar la caza. Una cosa suya bien la puede el sefior arrendar a
algunos cum conditione quod ibi non venentur. Sed dubium est quando non
constaret de hoc, an liceat eis venari.
Respondetur quod cum ferae sint communes de jure communi, et cum
verisimilius sit quod domini faciant injuriam subditis quam econtra, dico
quod bene faciunt venando. Itaque quando ferae obsessae vel quae legitime
arcentur faciunt magnam perniciem populo, tunc praesumendum est jus potius
in favorem populi; et sic dicendum est quod debet et potest populus venari
quando libere potest, et hoc esset forte meritorium. Et in summa
considerandum est [quod] dicebamus de lignis, quod non debent esse leges
ita rigidae ad illa custodienda sicut ad custodiendas oves, quia ligna sunt nec­
essaria ad usus humanos, et aliter non possunt haberi. Ita ferae sunt tales

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q. 64, aa. 1-8

137

11.—There is also a question whether, granted that hunting is legitimately
prohibited, one who takes a wild animal which is lawfully kept and forbidden
to him, is obliged to make restitution.
The answer is that if wild animals are owned according to the form of the
common law so that they are encompassed by walls, I would not know any­
thing else to say except that he is obliged to make restitution, for the judg­
ment is the same for them as for [other] walled animals, e.g. chickens and
even domesticated deer, since now those wild animals are regarded as tame.
Second I say, that if wild animals are not fenced, but their hunting is prohib­
ited by ancient custom, in such way that they are legitimately owned, then we
must believe that the people did not wish these wild animals to belong to
lords in such way that if one were to take a rabbit he would be obliged to
make restitution. Hence, I would not venture to say this, especially when
there is no serious damage, such as if one were to go out loaded down with
rabbits —for then he would indeed be obliged to make restitution. But if he
take only one rabbit, he would not be obliged to make restitution.
12.— But it is a matter of doubt·, when a lord has deer or other wild animals
enclosed, and they get out into planted fields and do much damage to the
populace inasmuch as they destroy wheat and other crops, whether the lord is
obliged to make restitution.
The answer is that even though a guard was posted, still, if damage is done,
he is obliged for it all.65 “And it ought to be more rather than less,”66, because
indeed rarely or never do [lords] make full restitution. For if [people] choose
[between] two men, who will pay damages, they rather always favor a lord.
But what ifa lord does not want to make restitution? Can a farmer seize
[that lord’s] deer? I say that he can and he can kill it and not be obliged to
make restitution.
13.— There is a final doubt·, we have said that either from a reasonable law,
or from an ancient custom, or from an agreement made with the people,
lords can restrict their subjects from hunting, or “limit hunting.”67 “A lord
can rent a property he owns to some tenants”68 with the condition that they
not hunt there. But doubt occurs when this would not be clearly stated {non
constaret de hoc), would it then be lawful for them to hunt?
In answer, since wild animals are common by the common law, and since it
it more likely that lords do injury to their subjects than vice versa, I say that
they are acting right in hunting. Therefore, when enclosed wild animals, or
those which are legitimately fenced in, do great damage to people then a right
must be presumed in favor of the people. And thus we must say that the.
people should and can hunt, when they can do so freely, and this would be
quite laudable. In summary one should consider what we said with regard to
woods, that laws to preserve them should not be as rigid as those to preserve
sheep, because woods are necessary for human uses, and they cannot be thought

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Francisco de Vitoria, On Homicide

quod non possunt creari ab omnibus. Ideo semper praesumendum est quod
ferae de jure communi sunt communes, quantumcumque custodiantur, nisi
arceantur muro, vel sit antiqua consuetudo, vel pactum factum cum populo.
Et nihilominus jus commune adhuc est interpretandum in favorem populi.
Nec excusatur dominus per hoc quod ipse creet silvam et feras in campo, quia
clarum est quod naturaliter ista non possunt creari nisi in campis.
De piscatione et volucribus est dicendum sicut de venatione dictum est. De
fluminibus non ita jura loquuntur quod sint communia; sed tamen flumina
publica ut flumen Salmanticense est commune omnibus civibus Sahnanticae.
Unde nec possunt domini appropriate sibi piscationem, quia hoc facere est
contra jus naturale. Deberent domini considerare quod subditi sub illis non
sunt pejoris conditionis quam sub rege, et tamen reges non facerent tales
extorsiones: ergo nec ipsi domini debent facere.
Articulus Secundus

Utrum sit licitum occidere homines peccatores.

1.— Respondet sanctus Thomas per unicam conclusionem: quod homines
perniciosos, id est peccatores qui sunt in damnum commune licet occidere.
Patet, quia sicut quando manus nocet toti corpori licet abscindere illa, ita
ergo licet occidere hominem perniciosum et nocivum communitati.
/276/
2. — In hac materia de homicidio multa sunt consideranda. Et ut ordinate
procedamus, arguitur contra conclusionem sancti Thomae: Occidere hom­
inem est contra praeceptum decalogi, Non occides·, ergo non licet hominem
peccatorem occidere. Patet consequentia, quia homo peccator est homo; et
non licet occidere hominem: ergo non licet hominem peccatorem occidere.
Pro solutione hujus argumenti est dubium inter doctores, quid prohibetur
illo praecepto, Non occides, et quomodo intelligitur; an absolute et generaliter
prohibeatur occidere quemcumque hominem.
3.— Respondeo quod de hac materia, scilicet quomodo intelligatur illud
praeceptum, sunt opiniones. Prima opinio est Scoti et aliquorum sequacium,
quod illic prohibetur absolute omnis occisio omnium hominum, sive mali,
sive boni sint, ita quod quaecumque occisio hominis absolute prohibetur
quacumque auctoritate, sive publica, sive privata, quia praeceptum illud de­
bet intelligi ut jacet: ergo debet intelligi tam de homine innocenti quam de
nocente. Prohibetur ergo quaecumque occisio sive hominis innocentis sive

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139

otherwise.69 So wild animals are such that they cannot be created by anyone.
Therefore, we must always presume that wild animals are common by the
common law, howevermuch they are guarded, unless they are enclosed by a
wall, or there is an ancient custom or a contract made with the people [to the
contrary]. And, nevertheless, the common law up to now should be inter­
preted in favor of the people. Nor is a lord excused by the fact that he may
create a forest and wild animals in a field, because it is clear that these cannot
naturally be created except in fields.
About taking fish and birds, we must say the same as was said about hunt­
ing. As regards rivers, the laws do not say that they are common; but [there
are] public rivers, for example the Salamanca river is common to all citizens
of Salamanca. Hence, lords cannot appropriate fishing to themselves, for to
do this is contrary to natural law. Lords should have to consider that those
subject to them are not in a worse condition than they would be under a king;
and yet kings would not make such extortions; therefore lords should not
make them either.
Article Two

Whether it is lawful to kill sinners,

L— St. Thomas answers with a single conclusion: that it is lawfill to kill
pernicious men, that is sinners who do damage to the community. This is
clear, because just as when a hand is harmfill to the whole body it is lawful to cut
it off, so it is lawful to kill a man who is dangerous and harmfid to the community.
2.— In this matter of homicide many things must be taken into account.
To proceed in order — it is argued against the conclusion of St. Thomas: To
kill a man is contrary to the command of the Decalogue, “Thou shalt not
kill;” therefore, it is not lawful to kill a sinfid man. The consequence is clear:
because a sinful man is a man; and it is not lawful to kill a man; therefore, it
is not lawful to kill a sinfid man.
In solving this argument, there is doubt among the doctors about what is
prohibited by the command, “Thou shalt not kill,” and how it is to be under­
stood. Is it simply and generally forbidden to kill any man at all?
3.— 1 answer that about this matter, i.e., how that command is to be un­
derstood, there are opinions. Thefirstopinion is that of [Duns] Scotus [12661308] and some of his followers: that by that command there is forbidden
without qualification every killing of all men, whether they are evil or good,
so that every killing of a man by any authority at all, whether public or pri­
vate, is absolutely forbidden, because that command must be understood lit­
erally. Thus, it must be understood about both an innocent and a guilty man.70
Therefore, any killing whatever, whether of an innocent or ofa guilty man, is

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nocentis. Secundo dicit, quod infertur ex hac propositione quod si in aliquo
casu liceat occidere, est per exceptionem factam et datam a Deo in lege, sicut
si Deus absolute prohiberet comedere carnes, non liceret etiam infirmis
comedere illas, nisi Dominus exciperet. Et ideo dicit quod sicut Deus in veteri
lege prohibuit comedere carnes porcinas, taliter quod tunc non liceret alicui,
etiam in extrema necessitate existent!, sine exceptione facta ab ipso Deo,
comedere carnes porcinas, ita dicit quod in nullo casu licet alicui occidere,
nisi in casu excepto a Deo. Tertio, infert ex hoc quod nunquam licet occidere
nisi in casibus expressis a Deo formaliter in scriptura sacra, sicut si quis occideret
adulteram, blasphemum etc., qui sunt casus excepti a Deo in lege. In aliis non
licet occidere nisi ex exceptione; sed non habetur exceptio nisi ex sacra scriptura:
ergo nunquam licet occidere nisi in casu excepto a Deo in sacra scriptura.
Quarto infert quod non licet furem simpliciter occidere, id est illum qui non
est aliud nisi latro de cien ducados, ita quod solum pro furto non licet furem
occidere. Patet, quia iste non est casus exceptus in scriptura sacra. Sed fures
puniebantur alia poena, scilicet quadrupli, que pagasen cuatrotanto et non
poena mortis. Breviter pro nullo furto licet occidere furem secundum Scotum.
Et eadem ratione nec adulteram nunc licet occidere. Patet, quia licet Domi­
nus excepit istum casum in veteri lege quod adultera occideretur et lapidaretur,
tamen /277/ illum revocavit in nova lege, ut patet Joan. 8 (v. 11), ubi Christus
non condemnavit adulteram, quia postquam adducta fuit ad illum, dimisit
eam nullo alio accusante. Ubi videtur voluisse significare non esse occidendam
pro uno adulterio quia erat grave. Et ideo dicit Scotus leges esse iniquas quae
permittunt occidere adulteram.
4.— Sed contra hanc opinionem Scoti sic intellectam, quia defensores aliter
intelligunt, arguitur primo argumento Doctoris. Illud quod est per se bonum
et laudabile, non prohibetur jure divino. Sed interficere homicidam et
proditorem est de se bonum et laudabile, ut Doctor probavit, quia est
perniciosus communitati, quia de jure naturali optimum est quod unus homo
moriatur ne tota communitas pereat. Dicere ergo quod illo praecepto illud
prohibetur, est absurdum, quia licet Deus nunquam hoc excepisset in lege, id
est licet non dixisset, occidite homicidas et perniciosos, nihilominus liceret
illos occidere, quia lege naturali constare poterat nunquam illud esse prohibi­
tum, quia illud est per se bonum, et bona non sunt prohibita jure divino, sed
mala: ergo illud nunquam est prohibitum a Deo.
Praeterea, vim vi repellere semper fuit licitum jure naturali apud omnes
gentes; sed non possum aliter me defendere quam occidendo invasorem meum:
ergo non prohibetur illo praecepto occidere invasorem, et per consequens
non quaecumque occisio hominis illic prohibetur.

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prohibited. Secondly, [Scotus] says that the inference from this proposition is
that if in some case it is lawful to kill, it is by a legal exception made and given
by God, just as if God would without qualification forbid the eating of meat,
it would not be lawful even for sick persons to eat meat, unless God would
grant an exception. And, therefore, he says that just as God in the Old Law
forbade the eating of pork, in such way that it would not at that time be
lawful for anyone, even in extreme necessity, to eat pork without an exception
made by God himself, so [Scotus] says that in no case is it lawful for anyone
to kill, unless in a case excepted by God. Third, [Scotus] concludes from this
that it is never lawful to kill, except in cases formally mentioned by God in
Sacred Scripture, such as if one were to kill an adultress, a blasphemer, etc.,
which are cases excepted in the law by God. In other cases it is not lawfill to
kill, unless from an exception. But there is no exception unless it is from
Sacred Scripture. Therefore, it is never lawfill to kill, unless it is in a case
excepted by God in Sacred Scripture. Fourth, he [Scotus] infers that it is not
lawfid to kill a thief, that is one who is only a thief “of one hundred ducats,”71
so that it is not lawful to kill a thief only for [such] a theft. This is clear,
because that is not a case excepted in Sacred Scripture. But thieves were pun­
ished with another penalty, that is, quadruple, “that they pay four times as
much”72 [as they stole],73 and not with the death penalty. Briefly, according to
Scotus it is not lawful to kill a thief for any theft. And for the same reason,
neither is it lawful now to kill an adultress. This is evident, because, although
the Lord in the Old Law excepted the case that an adultress be killed by
stoning, still, he revoked that in the New Law, as is clear from John 8, v. 11,
where Christ did not condemn the adultress, since when she was brought to
him and when no one accused her, he let her go. Hence, he apparendy wanted
to indicate she should not be killed for one act of adultery, because that was
harsh. And, therefore, Scotus says that laws which allow the killing of an
adultress are evil.
4. — But against this opinion of Scotus so understood (for his defenders
understand it otherwise) we answer with the first argument of the Doctor [i.e.
St. Thomas]. That which is essentially good and laudable is not forbidden by
Divine law. But, as the Doctor has shown, killing a murderer or a traitor is of
itself good and praiseworthy, because he is dangererous for the community.
For, by natural law, it is best that one man die rather than that the commu­
nity perish. Therefore, it is absurd to say that this is forbidden by that com­
mandment (“Thou shalt not kill”]. For although God never excepted this in
the law, that is, although he did not say: “kill murderers and dangerous men,”
nevertheless, it would be lawfid to kill them, because by natural law it could
be evident that this was never forbidden, since this is essentially good, and it is
not good things which are forbidden by Divine law, but rather bad things. There­
fore, that has never been forbidden by God.

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Ad hoc argumentum diceret Scotus, et bene, quod bene licet occidere
invasorem, non tamen intentione occidendi illum, sed intentione defendendi
se, ut etiam dicit infra sanctus Thomas, quia etiam debeo liberare invasorem
si possum. Et sic hoc argumentum non esset contra Scotum.
5.— Ideo aliter arguitur contra illum. Ante legem scriptam, id est datam
Moysi, aliquando fuit licitum occidere et aliquando non. Et tamen tunc nulla
exceptio particularis facta est a Domino nec de adultera, nec blasphemo, quia
ante legem scriptam quaero, an posset aliquis occidere? Dices quod non. Sed
quaero, nonne licuisset occidere proditorem et homicidam? Et quaero, si
licuisset, qua exceptione licuisset? Certe nulla quia tunc nulla erat. Si ergo
licuisset illos occidere, sequitur quod illo praecepto non fiiit prohibitum omne
homicidium. Unde si licet occidere, non est quia Deus excepit illud, sed quia
non prohibebat tale homicidium illo praecepto.
Item, illud praeceptum de non occidendo est praeceptum juris naturalis, et
etiam ante legem scriptam fuit, ut fatetur Scotus. Et tamen si illo praecepto,
ut dicit Scotus, prohibeatur omnis occisio, oporteret dicere quod fiiit excep­
tio et dispensatio facta in lege. Sed hoc est falsum, quia /278/ nec lex Moysi
nec lex Christi scilicet evangelica est dispensatio legis naturalis, quia nun­
quam aliquis dixit quod dispensaret Deus in jure naturali; non enim venit
solvere legem nec veterem nec naturalem, sed adimplere (Mat. 5,17). Ergo
illud nunquam fiiit prohibitum illo praecepto. Et hoc tenent communiter
omnes, quod illo praecepto non absolute prohibemur occidere omnes. Et etiam
dico quod est licitum occidere aliquem, v. g. furem et homicidam, non quia
exceptum est in lege, sed de se licitum est. Ex quo sequitur quod furem
simplicem occidere non est contra jus divinum. Sed dato quod liceat occidere
furem, verum est quod non est de jure communi, sed fortassis est consuetudo

I

in omni provincia, quod forte accepta est ex falso errore, quia per leges jubentur
occidi latrones, non tamen fures; et quia in omni lingua vocantur fures latrones,
invaluit ut occiderent etiam fiirem, licet per aliquam legem non jubeantur
fures suspendi, sed latrones, quia leges solum condemnabant latronem poena
capitis, et sic ex ignorantia nominis fortassis introducta est consuetudo
occidendi fures. Algun alcalde incoepit falli et occidere fures, cum solum

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Moreover, by natural law it was always lawful, among all nations, to repel
force with force.™ But I may not be able to defend myself in any other way
than by killing my attacker. Therefore, to kill the attacker is not forbidden by
that commandment; and consequently not every killing of a man is thereby
forbidden.
To this argument Scotus would rightly say, that indeed it is lawful to kill an
attacker, but not with the intention of killing him, but with the intention of
defending oneself, as St. Thomas also says below.75 For I should spare the
attacker iff can. Thus, this would not be an argument against Scotus.
5.— Therefore, an argument is made against him in another way. Before
the written law, that is, the law given to Moses, sometimes it was lawful to kill
and sometimes not. And, still, no special exception was made by the Lord,
neither for an adultress nor for a blasphemer, since it was before the written
law. I ask. could someone kill [at that time lawfully]? You say, no. But I ask,
would it not have been lawfill to kill a traitor and a murderer? I also ask, if it
would have been lawful, by what exception would it have been so? By none,
certainly, since at that time there was none. If therefore it would have been
lawful to kill a traitor and a murderer, it follows that not every homicide has
been forbidden by that commandment. Hence, if it is lawfid to kill, it is not
because God has excepted it, but because such a homicide was not forbidden
by that commandment.76
Again, that commandment not to kill is a precept of natural law, and it
existed even before the written law, as Scotus admits. Yet, if by that com­
mandment, as Scotus says, all killing is prohibited, it would be necessary to
say that an exception or a dispensation was made in the law. But this is false,
because neither the Mosaic law nor the evangelical law of Christ is a dispen­
sation of the natural law, for no one has ever said that God would dispense in
a matter of natural law. Indeed, [Christ] came not to destroy either the Old
Law or the natural law, but to fidfill them {Matt. 5, 17).77 Therefore, all kill­
ing was never prohibited by that commandment. And all in common hold
this, that by that commandment we are not absolutely forbidden to kill any­
one. And I also say that it is lawfid to kill some, e.g. a thief and a murderer, not
because an exception has been made in the law, but because it is of itself
lawful. From this it follows that to kill a simple thief is not against Divine law.
However, granted that it is lawfid to kill a thief, it is true that it is not so in the
common law. But perhaps it is the custom in every province, because it has
been by chance accepted from a false error, since robbers, but not thieves are
by law ordered to be killed. And because in every language thieves are called
robbers, it prevailed that they should also kill a thief, although through a cer­
tain law robbers, but not thieves, may be ordered to be hanged. For the laws
condemn only robbers to capital punishment. And thus, perhaps out of igno­
rance of the word, the custom ofkdling thieves was introduced. “Some judge”78

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latrones deberet occidere, et ita inde manavit in omnes illa consuetudo, cum
tamen in toto corpore juris nunquam fores plectantur poena capitis, sed alia
poena, scilicet que paguen septenas, sed solum latrones. Unde qui primo
condemnavit forem, deceptus est, quia in jure videbat condemnari latrones.
Et quia “forem” in sua lingua vocabat “latronem”, sicut etiam in omni lingua
vocatur, inde est quod putavit idem esse “for” et “latro”. Verisimile est etiam
quod foerit factum est ignorantia, quia latrones solum vocantur crassatores,
los salteadores qui obsident vias vel qui armis invadunt; et for vocatur alius
qui facit simplicem fortum. Et quia latro qui vocatur solum ei salteador, vocatur
etiam in omni lingua ille qui facit simplex fortum, inde fores pro simplici
forto occiduntur. Et rationabiliter occiduntur, quia alias si fores scirent non
esse plectendos poena capitis, vergeret in magnum detrimentum commune,
cum adhuc vix possunt coerceri forta. Recte ergo faciunt judices occidendo
illos propter bonum commune.
Secundo dico de adultera, quod in Hispania solum permittitur occidi, non

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tamen in aliis provinciis ut Aragonae, Italia, Gallia. Sed bene faciunt Hispani,
utuntur enim jure communi, quia leges videntur illud permittere. Et ad

argumentum Scoti quo probat illud esse revocatum in lege nova, miror quidem
de illo. Ideo dico quod omnia praecepta veteris legis quae non sunt de jure
naturali, cessaverunt, et praecipue judicialia, quia caeremonialia etiam
cessaverunt. Sed de judicialibus omnes fatentur cessare omnia, et ideo
biasphemus modo non occiditur. Bene verum est /279/ quod possent eadem
illa praecepta judicialia iterum institui, ut quod latro condemnetur ad septenas;
sed tunc non esset praeceptum veteris legis, sed lex humana quae hoc
praeciperet. Ergo quod liceat occidere nunc homicidam, non est propter illam
exceptionem legis, quia illa exceptio cessavit; et ita illud praeceptum de
occidendo cessavit, quia omnia judicialia cessaverunt. Sed tamen quia rex et
imperator potest illa civilia jura nunc imponere et tenebunt, hinc est quod si
licet occidere homicidam, non est quia sit exceptio in veteri lege, sed quia
nunc est lex imperatoris quae praecipit hoc.
Praeterea, de illo quod dicit Scotus de adultera quod revocatum est illud
praeceptum Joan. 8, quando Dominus dixit, Nemo te condemnat, nec ego,
dico quod irrationabiliter hoc dicit Scotus, quia Dominus illic nihil aliud
significare voluit nisi quod illi erant indigni condemnandi eam, et forte
insufficientes testes. Et item, ut verior opinio est, Christus non habebat po-

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145

began to be deceived and to kill thieves, although he should have killed only
robbers, and thus the custom flowed from that to all people, even though in
the whole of the law thieves, as opposed to robbers, were never punished by
death, but by another penalty, e.g., “that they pay seven times.”79 Hence, the
one who first condemned a thief [to death] was deceived, because he saw in
the law that robbers were to be condemned. And because in his language, as is
done in every language, he called a “thief” a “robber,” from that he thought
“thief” and “robber” were the same. It is likely also that it was done from
ignorance, for only footpads {crassatores), “the highwaymen”80 who block the
roads or who attack with arms, are called robbers; while another, who simply
steals, is called a thief. And because in every language he who simply steals is
called “robber,” which is properly said of “the highwayman,”81 thence it is
that thieves are killed for simple theft. And they are reasonably killed, because,
otherwise, if thieves would know that they were not going to be punished with
death, it would tend to great common detriment — when up to now thefts can
scarcely be contained. Therefore, judges do the right thing in killing thieves for
the common good.82
Secondly, about an adultress, Isay that only in Spain is she permitted to be
killed, but not in other jurisdictions, such as, Aragon,83 Italy, or France. But
the Spaniards are acting rightly, because they are using the common law, for
the laws seem to allow that.84 And with regard to the argument by which
Scotus proves that this has been revoked in the New Law, I indeed wonder
about it. Therefore, Isay that all the commands of the Old Law which are not
matters of natural law have ceased, and especially “judicial” commands, for
ceremonial” ones have certainly ceased.83 But with regard to judicial com­
mands, everyone admits that they have all ceased, and for this reason a blas­
phemer is not now killed. It is very true that those same judicial commands
could be re-instituted, so that a robber be condemned to seven fold restitu­
tion.86 But in that case it would not be a command of the Old Law, but rather
human law, which would prescribe this. Therefore, the fact that it is now
lawfid to kill a murderer is not because of an exception to the law, because
that exception has ceased and in the same way that command about killing
has ceased, since all judicial commands have ceased. But, nevertheless, be­
cause the king and the Emperor can now impose laws and they will be bind­
ing, hence it is that if it is lawful now to kill a murderer, it is not because it is
an exception in the Old Law, but because it is now the Emperors law which
prescribes this.
Moreover, with regard to what Scotus says about the adultress, i.e., that the
command was revoked in John 8, when the Lord said: “No one condemns
you; neither will I,” I say that Scotus is saying this without reason. For the
Lord in that place wished only to signify that those [who accused her] were
unworthy to condemn her, and were perhaps faulty witnesses. Again, as the

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Francisco de Vitoria, On Homicide

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testatem condemnandi aliquem, sicut ille dixit: Quis me constituit judicem
inter vosi (Luc. 12, 14). Immo videtur quod approbaverit illam legem et

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praeceptum de occisione adulterae, quia dixit: Qui ex vobis sine peccato est,
mittat primo lapidem in eam (Joan. 8, 7); quasi quod liceret illi.
6.— Sed an liceat modo pro aliquo crimine infligere poenam mortis pro
quo non fuit talis poena in lege? Dicunt scotistae quod sic, ut posset statui de
illo qui daret arma inimicis quod occideretur. Sed quid respondebunt ad

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Scotum dicentem quod absolute prohibetur omnis occisio? Dicunt quod ab­
solute intelligitur non occides, nisi aliter liceat jure naturali. Itaque dicunt quod
Scotus non intelligit solum quod liceat occidere in casu excepto a Deo per
legem scriptam, sed etiam intelligit quod licet occidere in casu excepto per
legem naturalem. Sed vos videtis quod jam hoc non differt ab alia opinione,
scilicet communi. Nescio an ita senserit Scotus. Habemus ergo quod illud
praeceptum, Non occides, non intelligitur absolute.
7.— Et ideo alii dicunt quod illud praeceptum intelligitur, non occides

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aliquem innocentem nec auctoritate publica nec privata, quia sic expositum
est Exodi, 23 (v. 7) et Dan. 13 (v. 53), Insontem etc. Sed nec isto modo valet
limitatio. Arguitur ergo contra istum modum, quia homo privatus occidens
hominem perniciosum, id est hominem qui alias est dignus morte secundum
legem, scilicet homicidii, peccat mortaliter, et non contra aliud praeceptum
nisi contra illud, Non occides·, et tamen ille non occidit innocentem ergo illo
praecepto non prohibetur praecise occisio innocentis, et per consequens non

sic intelligitur.
/280/
8.—Tertius modus est, qui magis accedit ad veritatem, quod in illo praecepto
prohibetur solum occidere privata auctoritate; non occides privata auctoritate,
bene tamen publica. Sed contra istum modum dicendi arguitur sic: Qui
occideret innocentem, quantumcumque publica auctoritate, faceret contra
illud praeceptum, Non occides·, ergo illo praecepto non prohibetur solum
occidere privata auctoritate, quia si sic, jam sequeretur quod qui occideret
innocentem publica auctoritate non peccaret. Sed consequens est falsum, quia
peccat contra illud praeceptum. Patet, quia si rex interficeret innocentem vel
praeciperet occidi, esset homicida; et non contra aliud praeceptum decalogi:
ergo.
Dicunt isti ad hoc quod in illo praecepto prohibentur duo: primum,
prohibetur occidere innocentem quomodocumque, sive privata sive publica
auctoritate; secundum, prohibetur occidere nocentem privata auctoritate. Sed

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147

more true opinion holds, Christ did not have power (potestatem} to condemn
anyone, just as he said: “ Who has appointed mejudge over you?’ (Luke 12,14).
Indeed, it seems he would have approved that law and command about kill­
ing and adultress, for he said: “He that is without sin among you, let him first
cast a stone at her.” (John 8, 7), as though it would be lawful for that man.
6.— But is it lawful now to inflict the death penalty for any crime for
which there was not such a penalty in the [Old] Law? The Scotists say yes; for
example, it could be established that one who gave arms to the enemy would
be killed.87 But what will they reply to Scotus saying that absolutely every
killing is forbidden? They say that “Thou shalt not kill” is understood with­
out qualification, unless it is otherwise lawful by natural law. So then they say
that Scotus does not mean that it is lawful to kill only in a case excepted by
God through written law, but he also means that it is lawful to kill in a case
excepted by natural law. I do not know if this is what Scotus thought. But you
see that this now does not differ from the other opinion, which is the com­
mon one.88 Therefore, we think that the precept, “Thou shalt not kill,” is not
to be understood without qualification.
7.— Accordingly, others say that this commandment is to be understood
as: “Thou shalt not kill any innocent person, either by public or by private
authority,” for it has been so explained in Exodus 23, v. 7,89 and Daniel 13, v.
53, “The innocent, etc.”90 But neither in that way is limitation valid. Against
that way, therefore, the argument is that a private person killing a wicked
man, that is to say a man who otherwise is worthy of death according to law,
commits mortal sin, and this is not in opposition to any other command­
ment but this, “Thou shalt not kill.” Yet he is not killing an innocent man;
therefore, what is prohibited by that commandment is not precisely the kill­
ing of an innocent man, and consequently it is not to be so understood.
8. — There is a third way which is closer to the truth, that in this com­
mandment only killing by private authority is forbidden. That is, “Thou shalt
not kill by private authority, but you may by public authority.” But against
this way of speaking the argument is as follows: He who would kill an inno­
cent man, with however great public authority, would be acting against the
commandment, “Thou shalt not kill:” therefore, by that commandment there
is forbidden not just killing by private authority, for if that were so, it would
now follow that he, who would kill an innocent man by public authority,
would not sin. But the consequent is false, because he is sinning against that
commandment. This is clear, for if a king were to kill an innocent man or to
command that he be killed, he would be a murderer, and not against any
other command of the Decalogue. Therefore.
To this they91 say that in this commandment two things are prohibited:
first, it is forbidden to kill an innocent person in any way at all, either by
private or by public authority; and second, it is forbidden to kill a guilty

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Francisco de Vitoria, On Homiàdt

etiam contra hoc potest argui, quia si quis publica auctoritate occideret
nocentem pro parvo crimine, porque le dijo, anda para hi de puta, peccaret
contra illud praeceptum, Non occides: ergo illo praecepto non prohibetur
occidere innocentem quomodocumque, nec occidere nocentem privata

auctoritate.
Item, quia qui occidit invadentem se, cum moderamine inculpatae tutelae,
id est cum aliter non potest se defendere nisi illud occidendo, non facit nec
peccat contra illud praeceptum; et tamen occidit nocentem privata auctoritate:
ergo non illic prohibetur occidere nocentem privata auctoritate etc. — Dicunt
isti quod iste non occidit invasorem privata auctoritate, sed auctoritate divina
et auctoritate publica reipublicae, quia lex divina et lex civilis dat ei licentiam
ad occidendum invasorem, et sic non facit contra illud praeceptum. — Sed
haec solutio non satisfacit, quia quaero quando dicitur quod qui occidit
invasorem, occidit auctoritate divina, quid intelligunt per auctoritatem
divinam? Dicunt quod illud intelligitur quod per legem divinam licet, et sic
de lege civili. Sed contra hoc sequitur jam quod nunquam licet praeceptoribus
flagellare discipulos nec parentibus filios nisi auctoritate publica et divina.
Consequens autem est falsum, quia praeter hoc quod licet illis flagellare illos
lege divina et humana, quis obsecro diceret quod non liceat illis auctoritate
privam flagellare illos? Item, eodem modo sequeretur quod nec liceret comedere
auctoritate privata, quia qui comedit, lege divina vel civili comedit. Unde
patet quod solutio illa nihil valet.
9. — Ideo relictis opinionibus, pro intellectu illius praecepti, Non occides,
est primo notandum quod illud praeceptum est de jure naturali, et /281/ non
de jure positivo nec humano nec divino. Patet, quia est praeceptum decalogi;
et praecepta decalogi sunt de jure naturali: ergo.
Sequitur ex hoc documento quod illud praeceptum, Non occides, semper
fuit aequale, in lege naturae et in lege scripta et lege evangelica, id est illud
quod prohibetur per illud praeceptum in lege naturae, idem prohibetur per
illud in lege veteri et in lege gratiae, et econtra, quia jus naturale est quod
semper est idem et immutabile, et quod est de jure naturali non mutatur.

Ex quo sequitur contra Scotum, quod si per illud praeceptum prohibetur
occidere adulteram, quod nunquam licuit illam occidere, nec etiam nunc
liceret. Patet, quia illud praeceptum fuit de jure naturali: ergo semper fuit
naturale et immutabile: ergo nunquam licuisset illam occidere, nec modo.

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149

person with private authority. But also against this it can be argued; for if
someone with public authority were to kill a person guilty of a small crime,
“because he said to him, he is the son of a harlot,”92 he would sin against that
commandment: “Thou shalt not kill.” Therefore, by that commandment there
is not [just] forbidden the killing of an innocent person in any way, nor the
killing of a guilty person by private authority.
Again, because he who kills his attacker “within the bounds of blameless
defense,”93 that is, when he cannot defend himself except by killing him, does
not act or sin against that commandment. But, nevertheless, he is killing a
guilty person by private authority. Therefore, killing a guilty person by pri­
vate authority is not forbidden by that commandment, etc.
They94 say that this man is not killing an attacker by private authority, but
rather by Divine authority and by the public authority of the republic, be­
cause both Divine and civil law give him permission to kill an attacker, and
thus he is not acting against that commandment. — But this solution is not
satisfactory. For I ask, when it is said that one who kills an attacker is killing
by Divine authority, what do they understand by “Divine authority?” They
mean that it is permitted by Divine law and so also by civil law. But against
this, it now follows that it is not lawful for teachers to beat students nor for
parents to whip their children except with public and Divine authority. How­
ever, this consequent is false. For, besides the fact that it is lawfill by both
Divine and human law for them to beat them, who, I beg you, would say that
the same is not lawful by private authority?95 Again, in the same way it would
follow that it would not be lawfill to eat by private authority, for one who eats
does so in accord with Divine or civil law. Hence, clearly that solution is of no
avail.96
9. — Therefore, leaving these opinions aside, in order to understand this
commandment, “Thou shalt not kill,” we must first note that it is a com­
mandment of natural law, and not of positive law, either human or Divine.
This is clear, because it is a command of the Decalogue, and commands of
the Decalogue are matters of natural law; therefore.
From this it follows that the command, “Thou shalt not kill,” was always
the same: in the law of nature, in the written law, and in the law of the Gos­
pel.97 That is, what is forbidden by that commandment under the law of
nature is forbidden by it under the Old Law and under the Law of Grace.
And, on the other hand, [it follows that] because the natural law is always the
same and immutable, what is a matter of natural law does not change.
From this it follows against Scotus,98 that if by that commandment it is
forbidden to kill an adultress, then it was never lawfill to kill her, nor would it
be lawful now. This is clear, because that commandment has been a matter of
natural law. Hence, it always was natural and immutable. Therefore, it was

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Francisco de Vitoria, On Homicide

Sed consequens est falsum, quia in lege naturae et in lege scripta erat licitum
illam occidere: ergo sequitur quod etiam modo est licitum occidere adulteram,
et saltem illam occidere non est contra illud praeceptum. Item probatur. Quia
eodem modo sicut absolute prohibitum est occidere hominem, ita etiam ab­
solute prohibitum est verberare hominem, quia licet sit majus peccatum
occidere hominem quam verberare illum, tamen ita unum prohibitum est
jure naturali sicut aliud, et sicut prohibitum est abscindere caput, ita et manum.
Tunc sic: Si propterea quia prohibitum est jure divino occidere hominem,
nunquam liceret illum occidere, nisi esset exceptio facta a Deo in sacra scriptura:
ergo sequitur eodem modo quod nunquam liceret verberare hominem vel
abscindere manum et mutilare alia membra, nisi esset exceptio facta in sacra
scriptura. Quia non habeo majorem licentiam verberandi hominem quam
occidendi, quia de per se est malum unum sicut aliud; et tamen nunquam
talis exceptio est expressa in sacra scriptura: ergo sicut licet unum, ita et aliud.
Item, etiamsi non liceret furem simplicem occidere, ut dicit ipse Scotus: ergo
nec flagellare illum, postquam non est exceptum in jure divino. Hoc etiam
Scotus deberet concedere; et tamen ipse fatetur quod hoc licet, et etiam
verberare et abscindere manum: ergo etiam licebit occidere, dato non sit
exceptum in sacra scriptura. Immo qui abscindit manum, facit contra illud
praeceptum, Non occides, quia totum quod ordinatur ad occisionem hominis,
est contra illud praeceptum et per illud prohibetur, como dalle de cochilladas.
Non est dubium.
10.— Supposito ergo quod illud praeceptum, Non occides, est praeceptum
de jure naturali, sequitur ex illo quod quid prohibeatur per illud praeceptum
vel quid non, oportet considerare ex ratione naturali; quia licet sit lex scripta,

oportet tamen examinare ratione naturali et ex jure
/282/ naturali quid ibi prohibetur vel quid non. Unde pro resolutione materiae
pono aliquas propositiones. Prima: Per illud praeceptum, Non occides, solum
prohibetur homicidium quod de se est malum, et omne tale et solum illud,
stando praecise in jure et ratione naturali. Et si arguas, quod hoc est petere
principium et declarare ignotum per ignotius, quia hoc est quod disputamus
et perimus, scilicet quod homicidium est de se malum: dico quod non est
petitio principii nec est declarare idem per idem, nec ignotum per ignotius,
quia per praecepta decalogi negativa prohibentur illa quae sunt mala secun­
dum se. Et pro hoc animadvertas illud Philosophi 5 et 6 Ethicorum ubi dicit,
quod aliqua sunt mala quia prohibita ita quod antequam prohiberentur, nihil
referebat an sic vel sic fierent; sicut v. g. comedere carnes porcinas in veteri

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Commentary on Summa theologiae IPII", q. 64, aa. 1 -8

never lawful to kill her, nor is it so now. But the consequent is false, because
both in the law of nature and in the written law it was lawful to kill her.
Therefore, it follows that now it is also lawful to kill an adultress, or at least
that to kill her is not against that commandment. Again it is proven: for just
in the same way as it is without qualification forbidden to kill a man, so also
it is without qualification forbidden to beat a man. For, although it is a greater
sin to kill a man than to beat him, nevertheless, one is prohibited as much by
the natural law as the other, and in the same way it is as much forbidden to
cut off a hand as a head. The argument thus is as follows: if then because it is
forbidden by Divine law to kill a man, it would never be lawful to kill him
unless an exception were made by God in Sacred Scripture; so it follows in
the same way that it would never be lawful to beat a man, or to cut off a hand,
or to mutilate other members, unless an exception were made in Sacred Scrip­
ture. For I do not have greater permission to beat a man than to kill him,
because one is essentially as bad as the other.99 Yet, such an exception has
never been expressed in Sacred Scripture. Therefore, one is as lawful as the
other. Again, if also it were not lawful, as Scotus himself says,100 to kill a
simple thief, then neither would it be lawful to flog him, when no exception
has been made in Divine law. This also Scotus should concede, and, still, he
says that this is lawful: both to beat a man and to cut off a hand.101 Therefore,
it will also be lawful to kill, even without an exception in Scripture. Indeed,
there is no doubt, one who cuts off a hand is acting against that precept:
Thou shalt not kill,” because everything which is ordered toward the killing of a
man, “such as to stab him,”102 is against that precept and is forbidden by it.
1θ·— Supposing, therefore, that this command, “Thou shalt not kill,” is a
precept of natural law, it follows that it is necessary to consider by natural
reason what is prohibited by that command or what is not. For, even though
there is a written law, it is still necessary to examine by natural reason and
from the natural law what is there prohibited or what is not. Hence, to re­
solve the matter, I am putting forward some propositions.
First·, by that command, “Thou shalt not kill,” there is prohibited only a
homicide which is of itself evil, every such and only such, staying precisely
within natural law and reason. And if you argue that this is to beg the ques­
tion and to explain the unknown by the more unknown, since this is what we
are disputing and asking about, namely that homicide is of itself evil: I say
that it is not begging the question, nor is it explaining the same thing by
itself, nor what is unknown by what is more unknown, because by the nega­
tive commandments of the Decalogue those things are forbidden which are
of themselves evil. And for this, you may notice what the Philosopher [i.e.
Aristotle] tells us in Books V and VI of his Ethics,103 where he says that some
things are bad because they are prohibited, in such way that before they were
prohibited, it did not matter at all whether they would be this way or that. So,

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Francisco de Vitoria, On Homicide

lege et comedere carnes in quadragesima sunt mala quia prohibita, quia ante
prohibitionem nihil referebat comedere vel non comedere carnes illas. Alia
sunt prohibita quia mala, ita quod antequam prohiberentur erant mala, sicut
perjurium et odium Dei. Jam scitis hanc differentiam.
Unde dico quod illo praecepto, Non occides, prohibetur solum homicidium
quod est malum secundum se, et omne tale, et per consequens non est petitio
principii. Itaque illo praecepto, sive nocentis sit occisio sive innocentis,
prohibetur homicidium quod est malum secundum se, sive publica sive pri­
vata auctoritate occidatur.
Sequitur ex illo quod illo praecepto absolute loquendo non plus prohibetur
occisio nocentis quam innocentis, nec auctoritate publica nec privata, quia
illo praecepto non declaratur cui liceat et cui non liceat occidere, sed solum
agitur illo praecepto quid, id est quem non liceat occidere. Et oportet
considerare quod homicidium sit malum ratione naturali.
Unde nota aliam differentiam, quod dupliciter contingit occidere. Uno
modo, ex intentione ita quod propositum est occidere, sicut judex qui occidit
latronem ex intentione, ut volo occidere, volo quod occidatur. Alio modo,
non ex intentione, sed per accidens, ut quando aliquis non dat operam ad
occidendum, sed intendit aliud ex quo sequitur occisio alterius. Sicut qui
defendit se, cujus intentio est defendere se et non occidere alium, et defend­
endo se occidit alium, et sicut in bello vult aliquis diruere arcem non intendens
occidere aliquem, sed de per accidens ex diruptione arcis sequitur occisio
alterius.
Tunc sit secunda propositio: Loquendo de homicidio ex intentione, stando
in jure naturali, solum licet occidere hominem perniciosum reipublicae. Hoc
declarat sanctus Thomas art. 2, et dicit quod solum peccato- /283/ res qui
nocent reipublicae, licet occidere; hominem vero non perniciosum nec
nocentem nec innocentem, non licet occidere, nec publica nec privata
auctoritate.
Tertia propositio: Hominem talem perniciosum reipublicae, solum licet
occidere publica auctoritate et non privata. Quia quare occiditur est quia est
perniciosus, et pro defensione reipublicae occiditur, cujus defensio pertinet
ad publicas personas. Solum ergo hoc homicidium est licitum.
Quarta propositio: Omne aliud homicidium est prohibitum illo praecepto,
loquendo de homicidio ex intentione, et omne tale est malum jure naturali.
Nec curo an sit auctoritate publica aut privata, quia omne tale est prohibitum
illo praecepto. Dico ergo generaliter quod illo praecepto prohibetur omne
homicidium, sive sit auctoritate publica, sive privata, et omne tale est malum

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153

v.g„ to eat pork in the Old Law and to eat meat in Lent are bad because they
have been prohibited. For, before the prohibition, it mattered not at all to eat
or not to eat that meat. Other things are forbidden because they are evil, so
that before they were prohibited they were evil, like perjury and hatred of
God. You already know this difference.
Accordingly, I say that by the command, “Thou shalt not kill,” there is
forbidden only and every such homicide which is of itself evil, and conse­
quently there is no begging of the question. And so by that commandment
there is prohibited homicide which is of itself evil, whether it be of a guilty or
of an innocent person, and whether it is by public or private authority.
It follows from this that by that commandment, absolutely speaking, the
killing of an innocent person is not forbidden more than that of a guilty one,
nor killing by private authority more by public authority.104 For in that com­
mandment it is not stated for whom it is lawfill and for whom it is not lawful to
kill. But the only thing in question in that commandment is whom it is not lawfill
to kill. And it is necessary to consider that homicide is evil by natural reason.
Note, therefore, another difference: that killing can occur in two ways. In
one way, from intention so that the purpose is to kill, so that I will to kill or I
will that someone be killed, just as a judge from intention kills a robber. In
another way, not from intention but by accident, as when someone does not
aim to kill, but intends something else from which the killing of another
follows. Take, for example, one who is defending himself, whose intention it
is to defend himself and not to kill another, who in defending himself kills
another. Or also, as in war someone wants to destroy a stronghold not in­
tending to kill anyone, but by accident from the destruction of the strong­
hold there follows the killing of some other.105
Then let there be a secondproposition'. Speaking about an intentional homi­
cide, staying within the natural law, it is not lawfill to kill a man unless he is
dangerous to the republic. St. Thomas states this in Article 2, and says that it
is lawfid to kill only sinners who are harming the republic. But it is not lawful
to kill, either by public or private authority, a man who is not dangerous or
harmful,106 or an innocent man.
The thirdproposition·. It is lawfid to kill such a man who is dangerous to the
republic only by public and not by private authority. For he is being killed
because he is dangerous, and to defend the republic, the defense of which
pertains to public persons. Therefore, only this homicide is lawful.
The fourth proposition·. Every other homicide is forbidden by that com­
mandment, speaking of intentional homicide — and every such homicide is
evil by natural law. Neither do I care whether it is by public or private author­
ity, for every such homicide is forbidden by that commandment. Generally,
therefore, 1 say that by that commandment every homicide is forbidden,

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jure naturali, praeter quam homicidium hominis periculosi, quod est licitum
auctoritate publica, et non privata. Unde si homo privatus, per hoc quod
aliquis vult ab illo arripere pallium, occideret illum, esset homicida; quia licet
ille qui vult arripere pallium sit homo perniciosus, tamen occidit illum
auctoritate privata, et hoc non licet, et ideo cadit sub illo praecepto, non
tamen si fieret auctoritate publica. Breviter, ad quaesitum principale non potest
responderi nisi cum distinctione, scilicet quod tantum licet occidere hom­
inem perniciosum, et publica auctoritate.

Articulus tertius
Utrum occidere hominem peccatorem liceat privatae personae.

1.— Respondet sanctus Thomas negative, quod scilicet solum licet occidere
malefactores, non auctoritate privata, sed publica, quia occidere malefactorem
exspectat ad bonum reipublicae, et per consequens hoc exspectat ad personam
publicam et non privatam.
Potest etiam aliter probari confirmando rationem sancti Thomae. Pro quo
notate, quod licet sit de jure naturali et divino punire malefactores, maxime
perniciosos, et ad hoc teneantur judices, tamen non est certa poena taxata
jure naturali nec divino, ut quod latro, v. g. suspendatur, sed de jure positivo.
Unde quod homicida puniatur, de jure naturali et divino est, et si non puniretur
esset facere contra jus naturale et divinum. Tamen taxatio poenae, scilicet
quod homicida plectatur poena capitis non est de iure naturali et divino, sed
est de lege positiva. Tunc arguitur sic: Ista poena qua iste maleficus punitur
est de jure positivo; sed nulli /284/ privatae personae licet de jure positivo,
nec hoc permisit jus positivum quod occidat maleficum: ergo nulli auctoritate
privata licet malefactores occidere.
2. — Ex hoc oritur dubium. Dato quod ita sit, quod nulli licet auctoritate
privata occidere maleficum, an per legem civilem possit dari licentia cuilibet
occidendi auctoritate privata malefactores, etsi non in genere saltem an in
casu, puta quod occidat homicidam auctoritate privata, vel si sit aliquis proditor
patriae et praecipit praetor ut quisquis inveniat interficiat.
Respondetur. Primo dico, videtur fortasse et probabile est quod nullo modo
liceret dare licentiam illo modo, quod possit quilibet passim interficere
malefactores, etiam nominarim, quia nulli licet aliquem occidere inauditum.
Debet enim prius audiri, et postea, condemnari, quia videtur de jure naturali

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155

whether it is by public or private authority, and every such homicide is evil by
natural law, apart from the homicide of a dangerous man, which is lawful by
public, but not by private, authority. Hence, if a private man, for the reason
that someone wants to grab his cloak from him, were to kill him, he would be
a murderer. For, even though he who wants to take the cloak may be a dan­
gerous man, still, he is killing him by private authority and this is not lawful,
and therefore it falls under that commandment, although it would be differ­
ent if it were done by public authority. Briefly, to the principal question an
answer cannot be given without a distinction, namely, that it is lawful to kill only
a dangerous man and only by public authority.

Article Three
Whether it is lawfulfor a private person to kill a sinful man.
1·— St. Thomas answers in the negative, it is lawful to kill felons
(.malefactores), not by private but only by public authority, because to kill a
felon looks to (exspectat) the good of the republic, and thus it pertains to a
public and not a private person.
It can also be proved in another way confirming the argument of St. Tho­
mas. In regard to this, note that although to punish felons, especially danger­
ous ones, is a matter of natural and Divine law, and judges are obliged to do
so, nevertheless, a definite penalty, for instance that a robber be hanged, is
not assessed by either natural or Divine law but rather by [human] positive
law. Hence, that a murderer be punished is a matter of natural and Divine
law, and if he were not punished, it would be to act against natural and Di­
vine law. Nevertheless, the assessment of a penalty, e.g., that a murderer be
punished with death, is not a matter of natural and Divine law but rather of
[human] positive law. Then, the argument is as follows: The penalty by which
the felon is punished is from positive law; but for no private person is it
lawful from positive law to kill a felon, nor does positive law permit this.
Therefore, for no private authority is it lawful to kill felons.
2.— From this there arises a doubt. Granted that no one may by private
authority kill a felon, the question is whether by civil law permission can be
given to anyone to kill felons by private authority. And if not generally, at
least in some case, for example that someone may with private authority kill a
murderer, or if someone betrays his country and a magistrate directs that
anyone who finds him may kill him.
In reply, Isayfirst·, it seems perhaps and it is probable that it would be in no
way lawfill to give that kind of permission: that any person could everywhere
kill felons, even when designated by name, because it is not lawful for anyone
to kill any person without a hearing.108 For, first that person should be heard,

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Francisco de VJtoria, Qn Homid^

guod non condemnetur aliquis in absentia; et si condemnaretur, postea debet
audiri. Secundo dico, dato quod illud de se non sit malu^ nec esset Opus
exaudiri, nec esset hoc prohibitum, dico tamen quod non expediret reipubliae
Saepe esset occasio inimicitiarum, simultatum et rixarum, qU;a sj quilibet
haberet licentiam occidendi, non quilibet posset sine periculo alium occidere,
quia fortasse interficeretur ab alio. Item, quia alius vellet «e defendere, et ha­
bet amicos, et vos etiam habetis amicos, et sic essent simultates. ]tem, quia
non quilibet est potens ad illud, ut si proditor esset valde magnus et praepotens.
Tertio dico, quod bene potest committi non solum ministris publicis, sed
etiam privatis in casu particulari; sicut si rex concederet licentiam cuilibet
filio quod homicidam sui patris interficere possit, tunc bene liceret dare
licentiam, sed non passim liceret.
3.— Dubitatur particulariter de adultera comprehensa in adu]terio, an liceat
illam interficere auctoritate privata. Sit ita quod maritus invenit uxorem in
flagranti delicto: an liceat illi auctoritate privata illam occidere. Videtur quod

sic, quia lex dat licentiam.
Respondeo, ex communi sententia omnium theologorum, qUod ifle peccat,
quantumcumque lex det facultatem interficiendi illam- Ita tenent etiam
juristae. Ratio est quia lex, non solum non dedit, sed nec Potuit dare talem
licentiam, quia est contra jus naturale et contra jus gentium et civile quod
aliquis inauditus, licet pessimus, puniatur et occidatur antequam condemnetur.
Posset enim adultera defendere se. Item, quia etiam nec judex posset illam
interficere, nisi prius audiret eam et condemnaret. Ergo qui occidunt uxores

in flagranti delicto inventas, peccant gravissime.
/285/
Et si dicas: ergo illa lex est iniqua. Patet, quia ut dicitur in cap. finali
[Quoniam] de praescriptionibus, omnis constitutio quae non potest servari
sine peccato mortali, est deroganda; sed illa lex dans facultatem quod vir possit
occidere uxorem comprehensam in adulterio non potest servari sine peccato
mortali: ergo est deroganda.
Respondeo quod omnino est verum illud quod dicitur in illo capitulo, et
quod ita videtur quod illa lex non potest servari sine peccato mortali, qUia est
contra jus naturale. Patet enim quod est contra jus naturale quod aliquis» ut
maritus, sit judex, actor, exequutor et testis. Et illa lex quae hOc permitteret,

non solum esset abolenda propter homicidium, sed proptei jtis naturale cui
contradicit. Respondeo ergo et dico, quod lex illa civilis nOn dat marito
facultatem et licentiam nec auctoritatem occidendi uxorem deprehensam in
turpi actu, sed tantum dat ei impunitatem, id est quod non pimietur si occidat

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and only then, condemned, because it seems a matter of natural law that
someone not be condemned in absentia, or if he were to be condemned, he
should afterwards be heard. Second Isay, granted that this not be of itself evil,
and that it would not be necessary that he be heard, and that this would not
be forbidden, still Isay that it would not be in the best interests of the repub­
lic. For often it would occasion enmities, feuds, and quarrels. For even if
someone had a licence to kill, not just anyone at all could without peril kill
another, since perhaps he himself might be killed by that other. Again, be­
cause that other would want to defend himself — and he has friends and
you109 also have friends — in this way feuds would result. Again, because not
everyone is capable of doing that, for example, if the one who betrays [his
country] is very great and very powerful. Third, Isay that in a particular case
permission can indeed be given not only to public ministers, but also to pri­
vate persons. For example, if the king were to grant permission to some son to
kill the murderer of his father, in that case it would be right to give such

permission, but it would not be generally tight.
3.— In particular, there is doubt about a woman taken in adultery: whether
it is lawful to kill her by private authority? Suppose a husband catches his wife
in the act. Would it be lawful for him to kill her by private authority? It seems
so, because the law gives permission.110
I answer, from the common opinion of all theologians, that he is sinning,
no matter how much the law gives him permission to kill her. The jurists also
hold this. The reason is that the law not only has not given, but it could not
give, such permission. For it is against the natural law, the law of nations, and the
civil law, that even the worst person be punished and killed without a hearing,
before being condemned111 — for an adultress could defend herself. Likewise, not
even a judge could kill her, without first hearing and condemning her. Therefore,
they who kill their wives caugh t in the act of adultery sin most grievously.112
But you may say. therefore that law is wicked [and should be repealed113],
because, clearly, as is said in the final chapter [Quoniam] “On Prescriptions,”114
every law should be repealed which cannot be observed without mortal sin.
But this law giving permission to a husband to kill a wife taken in adultery
cannot be observed without mortal sin. Therefore, it should be repealed.
Ianswer that what is said in that chapter is very true, and that it does indeed
seem that that law, since it is against the natural law, cannot be observed
without mortal sin. For it is obviously against the natural law that someone
such as a husband be judge, prosecutor, executioner, and witness. And the law
that would permit this, should be repealed not only because of homicide, but
also because of the natural law which it contradicts. I answer, therefore, and
say that the civil law does not give a husband permission, licence, or authority
to kill a wife caught in a wicked act. Rather, it gives him only impunity, that

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uxorem repertam in flagranti delicto, ita quod lex illa facit virum exemptum
a poena homicidii. Et sic lex illa solum permittit, non tamen concedit. Et hoc
sine peccato mortali potest fieri, quia revera valde difficile est quod vir honestus
reperiat uxorem cum adultero, et quod tali furori et dolori possit resistere;
ideo lex permittit. Unde dico quod lex illa servatur sine peccato, quia illa non
jubet quod ille occidat illam, sed permittit et facit illum exemptum a poena
homicidii.
4.— Sed dubitatur. Dato quod ita sit quod peccat mortaliter occidendo
illam auctoritate privata, etiam inventam in flagranti delicto, sed dubium est
postquam vir adduxit testes, et illa est condemnata ad mortem a judice, et
traditur illi ut occidat illam, si vult: an tunc licite possit illam occidere. Videtur
quod non, quia videtur esse contra jus naturale quod aliquis sit accusator et
exequutor justitiae. Item, quia maritus non habet mandatum a judice quod
occidat illam sicut habet lictor, sed solum habet licentiam. Patet, quia videtur
quod judex non det illi nisi licentiam quam dat lex, sed lex dat ei facultatem
quod occidat illam repertam in flagranti delicto; et tamen quando in delicto
invenit eam non liceret ei auctoritate privata illam occidere: ergo nec nunc
licet quando est condemnata et tradita sibi a judice, postquam videtur quod
judex non det illi nisi illud quod lex dat.
De hoc est opinio multorum canonistarum quod non licet illam occidere,
ita quod peccat etiam interficiendo illam postquam est damnata. Sed ego
dico quod omnino bene facit interficiendo illam postquam damnata est. Patet,
quia data est ei facultas occidendi sicut datur lictori; sed lictori licet illam
occidere: ergo et marito. Item, quia alias, si peccaret oc- /286/ cidendo illam,

etiam praetores peccarent quia favent illi et tradent illam illi. Item, quia alius
non licite posset defendere illam postquam est condemnata a judice, cui licet
tradere illam ligatam ut eam interficiat; et tamen si maritus peccaret occidendo
illam, licite posset alius defendere illam, sicut posset quando vellet occidere
illam repertam in flagranti delicto. Item, quia si maritus non licite occideret
uxorem condemnatam et sibi traditam, jam praetor cooperaretur peccato illius.
Et si dicas quod nunc non occurrunt plura quam ante: respondeo quod falsum
est, quia nunc fuerunt testes adducti ad condemnandum illam, et sic falsum
est quod ille sit testis et judex, sed tantum habet vicem lictoris. Nec est

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Summa theologiae

q. 64, aa. 1-8

159

is, that he not be punished if he kills a wife found in the very act of adultery,
so that this law exempts a husband from the penalty for homicide. Thus that
law only tolerates, but it does not grant [licence]. And this [tolerance] can be
extended without mortal sin, for indeed if a decent man find his wife with an
adulterer it would be very hard to resist such fury and pain [as he would
feel],115 and so the law is lenient. Hence, Isay that such a law may be retained
without sin, because it does not command that he kill her, but it tolerates it
and exempts him from the penalty for homicide.116
4.— But there is a doubt. Granted that he commits mortal sin who by
private authority kills his wife, even taken in the act of adultery, nevertheless,
when after a husband has brought witnesses, and she has been condemned to
death by a judge, and is handed over to the husband to kill her if he wants,
there is doubt whether he could then lawfully kill her. It seems that he could
not, for it seems against the natural law that someone be both accuser and
enforcer of justice. Again, [it seems so] because the husband does not have a
mandate from the judge, as for instance an executioner has, but he has only
permission. This is clear, because it seems the judge may not give him more
freedom than the law gives. But the law tolerates him killing a wife discovered
in the act of adultery, and still, when he found her in the act it was not lawful
for him to kill her by private authority. Therefore, neither is it now lawful
after she has been condemned and handed over to him, when it is clear that
the judge may give him only what the law gives.
About this the opinion of many canonists is that it is hot lawful to kill her,
so that he sins even when he kills her after she has been condemned. But Isay
that he is acting in a moral way when he kills her after she has been con­
demned. This is clear, because permission to kill has been given to him, just
as it is given to an executioner. But it is lawful for an executioner to kill her.
Therefore, it is also so for the husband. Again, [he is acting in a moral way],
because, otherwise, the judges also would sin since they are favoring him
when they hand her over to him. Again [he would be acting rightly], because
another could not lawfully defend her when she has been condemned by the
judge, for whom it is lawful to hand her over bound so that he may kill her.
And, yet, if the husband were to sin in killing her, another could lawfully
defend her, as he could when [the husband] would want to kill her caught in
the act of adultery. Again, [he is acting in a moral way], because if that hus­
band were to kill his wife unlawfully when she has been condemned and
handed over to him, then the judge would be cooperating in the sin of that
husband. And if you say that this is the same situation as before,1171 answer
that this is not so, because now there were witnesses brought forth to con­
demn her, and thus it is false that he is witness and judge, but he has only the
place of an executioner. Nor is it a problem that he is an executioner, espe-

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Francisco de Vitoria, On Homicide

inconveniens quod sit exequutor, maxime quia hoc fit in favorem uxoris, quae
traditur marito et non lictori ut illam interficiat, vel parcat ei.

5.— Dubitatur an liceat privata auctoritate occidere tyrannum. Aliquis
occupavit hanc civitatem: an liceret cuicumque de republica occidere illum.
Videtur quod non, quia, ut diximus, non licet auctoritate privata occidere
perniciosum; sed iste non fungitur auctoritate publica interficiendo tyrannum:
ergo. Item, quia non licet interficere inauditum et incondemnatum; sed iste,
quamvis sit perniciosus, non est auditus nec condemnatus: ergo.
In contrarium est quia semper fuerunt praemia in republica interficientibus
tyrannos: ergo est licitum. Item, quia cuilibet liceret interficere invadentem
se quando aliter non se potest defendere, quia vim vi repellere licet, cum
moderamine inculpatae tutelae. Ergo multo magis licet occidere invasorem
reipublicae.
Haec quaestio fuit celebrata Parisius tempore regis Ludovici quinti vel sexti
regis Franciae, quando bella aestuabant, et Burgundiae dux occidit
Mediolanensem, ducem tyrannicum, patruum regis Ludovici, qui vi et
tyrannide occupavit regnum et alias terras, et dux Burgundiae, missis
exploratoribus, cepit ducem Mediolanensem et interfecit. Dux Burgundiae
confessus est crimen, et quidam frater scripsit in favorem illius; alius doctor
scripsit contrarium. Res exacta est in concilio Constantiensi, et Parisius, ubi
determinatum est quod non licebat propria et privata auctoritate tyrannum
occidere.

/287/
Respondetur ergo quod duplex potest esse tyrannus. Unus est qui gerit se
pro rege, et non est, ita quod non habet jus ad terras quas occupat, sed tyrannice
occupat; no es suya esta republica, y Ia torna. Alius est qui est legitimus domi­
nus suae reipublicae et regni, sed tyrannice gubernat et administrat illam ad
utilitatem suam et suorum, et non ad utilitatem ipsius reipublicae, sed ad
perniciem. Tunc sit prima conclusio: Tyrannum secundo modo non licet per­
sonae privatae occidere, ut legitur de don Pedro el Cruel. Respublica quidem
posset se defendere ab illo, sed non privatus homo, quia est contra jus natu­
rale quod aliquis inauditus et indamnatus occidatur; sed iste est talis: ergo.
Item, quia est contra jus naturale quod quis sit actor, judex et exequutor; sed
talis esset qui private occideret tyranuum secundo modo: ergo non licet illum
occidere. Item, quia poena est de jure positivo; sed poena illa, quod scilicet

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161

dally since this is done in favor of the wife, who is handed over to her hus­
band, and not to an official executioner, so that he may kill her or may spare

her.118
5.— There is a doubt about whether a tyrant may be lawfully killed on
private authority. [For example,] someone has seized this city: would it be
lawful for any citizen of the republic to kill him? It seems that it would not,
because, as we have said, it is not lawful to kill a pernicious person on private
authority. But that citizen does not enjoy public authority in killing the ty­
rant. Therefore. Again, [it would not be lawful] because it is unlawfid to kill
anyone without his being heard and condemned. But that tyrant, even though
he is pernicious, has not been heard or condemned. Therefore.
Against this is the fact that there have always been rewards in the republic
for those who kill tyrants. Therefore, it is lawfid. Again [it is lawfid], because
it is lawfid for anyone to kill someone attacking him, when he cannot otherwise
defend himself. For it is lawfid “to repel force with force, within the bounds of
blameless defense.”119 Therefore, it is much more lawfid to kill an attacker of the
republic.
This was a famous question at Paris in the time of King Louis V or VI,120 of
France, when wars were raging, and the duke of Burgundy killed the tyranni­
cal duke of Milan, the paternal uncle of King Louis, who by force and by
tyranny seized the kingdom and other lands, and the duke of Burgundy, hav­
ing sent out agents, captured and killed the duke of Milan. The duke of Bur­
gundy confessed his crime, and a certain friar wrote in his favor,121 while
another doctor wrote against him.122 The matter was judged at the Council of
Constance,123 and at Paris,12·4 where it was determined that it was not lawfill
to kill a tyrant on one’s own private authority.
The answer, therefore, is one can be a tyrant in two ways. One [kind of
tyrant] is someone who acts as king when he is not a king, in such way that he
has no right to lands he is occupying, but rather is tyrannically occupying
them. “This republic is not his, and yet he takes it.”125 A second kind of tyrant
is one who is a legitimate lord of his own republic or kingdom, but who tyranni­
cally governs and administers it for his own advantage and that of his relatives,
and not for the advantage, but for the destruction, of the republia
Then let this be the first conclusion·. It is not lawful for a private person to
kill the second kind of tyrant, such as we read was Don Pedro the Cruel
[1334-1369].126 Indeed, the republic, but not a private person, could defend
itself from him.127 For it is against the natural law that someone be killed
unheard and uncondemned; but that [tyrant] is such; therefore. Again [it is
not lawful] because it is against natural law that someone be prosecutor, judge,
and executioner. But such he would be who privately killed a tyrant of the
second sort. Therefore, it is not lawfill to kill him. Again [it is not lawfill],
because punishment is a matter of positive law; but that punishment, namely,

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tyrannus occidatur auctoritate privata, non est taxata in jure: ergo non licet
illum occidere.
Secunda conclusio: Tyrannum primo modo licet cuicumque privato homini
occidere, dummodo id facere possit sine tumultu reipublicae et sine majori
detrimento ipsius reipublicae. Patet, quia respublica potest gerere bellum contra
tyrannum ut defendat se ab illo; sed jam habet bellum cum illo, et nondum
est finitum: ergo durante illo bello licet cuicumque privato homini occidere
illum. Nec occidit illum auctoritate privata, sed publica, quia bellum non est
finitum. Item, licet interficere ipsum pro defensione reipublicae; sed non potest
alias defendi respublica nisi ipsum interficiendo: ergo licet illum interficere.
Dico ultimo, quod nihilominus est periculosum quod fiat sine tumultu et
sine eo quod vergeret in damnum reipublicae. Unde oportet quod, omnibus
pensatis, fiat, pensato commodo reipublicae, et sine seditione et periculo
reipublicae, et habita spe de nece tyranni. Vide sanctum Thomam supra, q.
42, a. 2 in solutione ad tertium, ubi credo quod aliquid diximus de hoc.

Articulus quartus

Utrum occidere malefactores liceat clericis.
1.— Respondet sanctus Thomas quod non.

Dubitatur an hoc quod dicit sanctus Thomas sit de jure divino, aut de jure
positivo.
Respondetur quod jus divinum dupliciter capitur aliquando a doctoribus.
Uno modo, pro omni illo quod continetur et invenitur in sacris Iit- /288/
teris, quia tota sacra scriptura vocatur jus divinum; et sic quidquid in illa
invenitur, dicitur jus divinum. Et isto modo communitas rerum in principio
Ecclesiae non esset de jure divino, quia de illo nihil habetur in ea bene tamen
abstinere a sanguine et suffocato est de jure divino, quia continetur in sacra
scriptura, scilicet in Actibus Apostolorum·, et sic multa alia sunt de jure divino
quae non sunt necessaria. Et isto modo valde improprie sumitur jus divinum,
quia praecepta Apostolorum et ea quae ab illis tradita sunt, non ita sunt de
jure divino sicut illa quae praecepit Deus, qui majorem auctoritatem habet,
sed de jure positivo. Paulus enim apostolus non habebat majorem potestatem
quam nunc habet papa Paulus tertius, loquendo de potestate jurisdictionis,
sed tantam habet nunc papa quantam habebat Paulus. Hoc modo loquendo
de jure divino, esset clericis prohibitum de jure divino quod non occiderent,

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163

that he be killed by private authority, is not established in the law. Therefore,
it is not lawful to kill him.
The second conclusion: It is lawful for any private man to kill the first kind
of tyrant, as long as he can do this without an uproar in the republic and
without greater loss for the republic. This is clear, because the republic can
wage war against a tyrant, to defend itself from him. But now it is at war with
him, and it is not yet finished. Therefore, while that war is in progress, it is
lawful for any private man to kill him.128 And, since the war is not finished,
he is killing him not by private but by public authority. Again, it is lawful to
kill129 in defense of the republic. But the republic cannot otherwise be de­
fended except by killing him. Therefore, it is lawful to kill him.
Last, Isay that it is, however, difficult that it be done without an uproar and
without verging on loss to the republic. Hence, it is necessary that it be done,
with everything thought through, weighing the advantage to the republic,
and without sedition and danger to the republic, and with hope of the death
of the tyrant. See St. Thomas above, at question 42, article 2, in his solution
to the third objection, where I think we said something about this.130

Article Four
Whether it is lawfidfor clerics to killfelons.
L— St. Thomas answers that it is not lawful.

There is doubt whether what St. Thomas is saying is a matter of Divine law
or of [human] positive law.
In reply, the doctors take Divine law in two ways. In one way, it is taken for
everything contained in sacred literature, inasmuch as the whole of Sacred
Scripture is called Divine law. Thus whatever is found in the Scripture is said
to be Divine law. And in this way the community of possessions in the early
Church would not be a matter of Divine law, for there is nothing about that
in the Scripture. However, to abstain from blood and from what has been
strangled is a matter of Divine law, since it is contained in Sacred Scripture,
viz., in the Acts of the Apostles.151 And in this same way many other things,
which are not [of themselves] necessary are matters of Divine law. But also in
this way “Divine law” is taken very improperly, because the commands and
traditions of the Apostles are not matters of Divine law in the same manner as
are those more authoritative things which God has commanded, but are rather
matters of [human] positive law. For, if we speak of the power of jurisdic­
tion,132 Paul the Apostle did not have greater power than Pope Paul III (15341549)133 has now, but the pope has as much now as Paul had. Speaking in this
way about Divine law, it would be forbidden by Divine law for clerics to kill

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ut citat sanctus Thomas, quod non sit vinolentus etc.; sed non esset praeceptum
Dei, quia non ab illo immediate praecipitur. Alio modo sumitur jus divinum
magis proprie, quod est conditum a Deo non interposita auctoritate hominis,
id est nullo praecepto humano mediante. Et sic praecepta decalogi sunt de
jure divino, et praeceptum de baptismo et de confessione. Proprie ergo jus
divinum est illud quod est ex auctoritate divina, id est quod est immediate
conditum a Deo non mediante aliquo praecepto humano.
Primo modo loquendo de jure divino, bene est de jure divino quod presbyteri
non occidant, nec sint percussores nec percutiantur, quia Paulus dicit: Oportet
episcopum sine crimine esse, non vinolentum, nec percussorem (1 Ttm. 3, 3; Tit.
1,7). Sed secundo modo loquendo de jure divino, quod clerici non occidant
non est de jure divino, sed de jure positivo humano, quia licet sit conditum
ab Apostolis quod non occidant, et sicut jejunium quadragesimale dicitur ab

Apostolis institutum, tamen hujusmodi praecepta Apostolorum non sunt
divina praecepta, sed pure positiva. Et sic de jure positivo humano est quod
clerici non occidant. Hoc explicatur ab apostolo Paulo. Nam quando est
praeceptum suum, dicit: Dico ego, et non Deus·, praecipio, non Dominus, sed

ego, id est hoc praeceptum est meum et non Dei. Sed quando est praeceptum
Dei, dicit: Praecipit Dominus, non ego·, dicit Dominus, non ego, uxorem a viro
non recedere.
2.— Ex hoc sequitur aliud dubium. Dato quod sit de jure positivo, an papa
possit in illo dispensare. Hic est notandum quod duo sunt hic consideranda,
scilicet prohibitio et irregularitas. Unde dato quod ita sit, quod est praeceptum
Apostolorum quod clericus non sit percussor nec occidat, tamen irregularitas
quae nunc est in Ecclesia, non videtur quod sit de /289/ praecepto
Apostolorum. Prohibitio Apostolorum est quod non ordinetur percussor; sed
quod sit irregularis non est de praecepto Apostolorum quia non exprimitur in
sacra scriptura ab Apostolis. Dato quod concubinarius ordinetur in clericum,
bene posset ministrare sine dispensatione; sed si percussor ordinetur, non posset
ministrare sine dispensatione. Non quod ista irregularitas sit ab Apostolis
instituta, sed solum videtur quod irregularitas post Apostolos introducta sit
in Ecclesia. Prohibitio ergo orta est ab Apostolis; irregularitas vero ab Ecclesia
inventa est multo post tempus Apostolorum.
His ergo notatis, respondetur ad dubium. Alterum est prohibitio
Apostolorum, et alterum irregularitas instituta ab Ecclesia. Loquamur de
praecepto Apostolorum, an papa possit dispensare quod occisor ordinetur
sine peccato. Respondeo absolute quod, existente rationabili causa, non solum

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165

— as St. Thomas cites [Scripture], that [a bishop] should not be a drunkard,
etc.134 But it would not be God’s commandment, because it was not immedi­
ately prescribed by Him. In a second way, “Divine law” is taken more prop­
erly for that which is established by God without human authority inter­
posed, viz., with no human commandment mediating. In this way, the com­
mandments of the Decalogue are matters of Divine law, as are also the com­
mandments relating to baptism and to confession. Properly, therefore, Di­
vine law is that which is from Divine authority, that is, immediately estab­
lished by God, without the mediation of any human commandment.
Speaking about Divine law in the first way, it is indeed a matter of Divine
law that priests should not kill, nor be strikers (percussores)'35 or be struck,
because Paul says: “A bishop should be without crime, not given to wine, nor a
striker (1 Tim. 3, 3; Tit. 1, 7). But speaking about Divine law in the second
way, that clerics should not kill is not a matter of Divine law, but of human
positive law. For although it was established by the Apostles that they should
not kill, just as the Lenten fast is said to have been established by the Apostles,
nevertheless, Apostolic precepts of this kind are not Divine commandments,
hut rather purely positive [human enactments]. And thus it is a matter of
human positive law that clerics should not kill. This is explained by the Apostle
Paul: for when a precept is his, he says: “I say, and not God,”'36 or “I com­
mand, not the Lord, but I,” that is, this precept is mine and not God’s. But
when it is God’s command, he says: “The Lord commands, not I” or “The
Lord says, not I, a wife should not leave her husband.”'37
2.— From this there follows another doubt. Granted that it is a matter of
positive law, can the pope dispense from it? Here it should be noted that two
things must be considered: namely, the prohibition and irregularity.138 Hence,
granted that it is a command of the Apostles that a cleric should not be a
striker nor should kill, still, the present irregularity in the Church does not
seem to be from an Apostolic command. The Apostolic prohibition is that a
killer (percussor) not be ordained. But that one be irregular is not from an
Apostolic command, since it is not expressed in Sacred Scripture by the
Apostles. Given the case of one living in concubinage being ordained a cleric,
he could rightly minister without a dispensation. But if a killer be ordained,
he could not minister without a dispensation, not because this irregularity
has been established by the Apostles, but only it seems because the irregular­
ity has been introduced in the Church after the Apostles. The prohibition,
therefore, stems from the Apostles, but the irregularity came from the Church
long after the time of the Apostles.
Therefore, these points noted, the answer to the doubt is as follows. The
prohibition of the Apostles is one thing; the irregularity instituted by the
Church is another. Let us speak of an Apostolic precept: can the pope with­
out sin dispense from it so that a killer be ordained? I answer without qualifi-

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Francisco de Vitoria, On Homicide

papa potest dispensare in irregularitate, sed etiam in praecepto Apostolorum.
Dato quod aliquis sit occisor, potest papa dispensare cum illo quod licite
ordinetur ex causa rationabili. Et probatur, quia papa nunc non habet minorem
potestatem jurisdictionis quam Petrus et Paulus et alii apostoli habebant.
Secundo dico, quod etiam Apostoli ex rationabili causa dispensassem, et forsan
Paulus ita fecit, quod aliqui vinolenti et qui fuerunt duces in bello et
percussores, dispensavit cum illis quod ordinarentur. Sic nunc Ecclesia etiam
in bigamia dispensat, licet Apostolus dicat: Oportet presbyterum esse unius ux­
oris virum (1 Tim. 3, 2).
3.— Sed dubitatur. Si papa sine rationabili causa dispenset, an factum teneat.
Clarum est quod peccat, si sine rationabili causa dispenset. Sed an teneat
factum, scilicet quod non sit irregularis ille cum quo sine causa rationabili
dispensat? Potest dici quod non, quia si ad hoc quod lex teneat oportet quod
sit aequa, ut saepe diximus, non videtur dubium quin nihil faceret quando
constat de iniquitate, et cum hoc facit. Unde si propter crimen alicujus dedisset
illi papa un deanazgo, certe si sine scandalo qui debent dare possessionem
non darent, licite facerent. Ergo lex humana, si sit irrationabilis, non habet
vim: ergo eadem ratione videtur quod dispensatio irrationabilis non teneat,
quia etiam est actus jurisdictionis, et abutitur potestate et auctoritate sua.
Sed licet hoc possit dici, oppositum tamen est verius; et dicimus quod papa
dispensante sine rationabili causa, dispensatio tenet et tollitur irregularitas,
licet papa peccet, et forte etiam ille cum quo dispensatur, quia habet
difformitatem ad alia membra ecclesiastica. Sed nihilominus dispensatio te­
net. Quia sicut papa potest in quadragesima dispensare cum aliquo pro libito
suo sine rationabili causa, licet peccaret mortaliter, quia /290/ faceret injuriam
aliis, et etiam ille cum quo dispensaret saltem venialiter peccaret, quia postquam
omnes de communitate laborant pro communitate ad invicem, ille faceret eis
injuriam non simul laborando, id est jejunando cum illis, sed nihilominus
dispensatio teneret, ita quod ab eo obligatio de jejunio ablata esset; ita licet
papa dispenset sine rationabili causa, nihilominus factum tenet, quamvis
peccet. Et ita alia praecepta facta ab aliis pontificibus, potest tollere. Et si sine
rationabili causa tollat, licet peccet, factum tamen tenet. Verum est quod
quantumcumque justo titulo detur dispensatio, et papa tollat irregularitatem,
nihilominus semper manet quaedam difformitas naturalis quae non potest
tolli. Quia cum clerici sint ministri Ecclesiae repraesentantes passionem Christi,

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q. 64, aa. 1-8

167

cation that, when there is reasonable cause, not only can the pope dispense in
a matter of irregularity, but also from an Apostolic command. Given that
someone is a killer, the pope can, with reasonable cause, dispense him to be
lawfully ordained. This is proven: because the pope does not now have less
power of Jurisdiction than Peter, Paul, and the other Apostles had. Second, I
say that the Apostles also would have dispensed from reasonable cause, and
perhaps Paul acted in such a way that he allowed that some drunkards and
some who were leaders in war and killers be ordained. So now the Church
also dispenses in a case of second marriage,139 even though the Apostle says:
“A priest should be the husband ofone wife” (1 Tit. 1,6).140
3.— But there is a doubt. If the pope dispenses without reasonable cause,
does it in fact hold? It is clear that he is sinning if he dispenses without a
reasonable cause. But is in fact one whom the pope dispenses without reason­
able cause not irregular? It can be said that he is not [in fact not irregular]. For
if in order that a law hold it is necessary that it be fair, as we have often said,
it does seem that it would have no effect when it is established in sin and
when it prescribes in line with this. Hence, if because of someone’s crime the
pope gave him “a deanship”141 and if, without scandal, those who should give
him possession were not to give it to him, they would certainly be acting in a
lawful way. Thus, human law, if it is irrational, does not have force;142 and for
the same reason it seems that an irrational dispensation does not hold. For it
is also an act ofjurisdiction and [the one dispensing] is abusing his power and
authority.
But although this can be said, still the opposite is more true. And we say
that, in a case where the pope dispenses without a reasonable cause, the dis­
pensation holds and the irregularity is removed, even though the pope sins,
and perhaps also the one who is dispensed, since he has an asymmetry with
other members of the Church. But, still, the dispensation holds. For just as
the pope can arbitrarily and without reasonable cause dispense someone in
Lent, even though he would sin mortally inasmuch as he would injure others,
and even he whom he dispensed would sin venially, because when all mem­
bers of the community are working for their community with one another, he
would do them an injury by not working with them,143 that is by not fasting
with them,144 but, nevertheless, the dispensation would hold, so that his obli­
gation to fast would be removed by it — in the same way, though the pope
dispenses without a reasonable cause, still the dispensation is a fact even though
he is sinning. Thus, also, he can repeal commandments issued by other popes.
And if he repeals them without a reasonable cause, even though he sins, what
he has done still holds. It is true that by however just a title the dispensation
is granted and the pope removes an irregularity, nevertheless, there always
remains a certain natural difformity which cannot be taken away. For, since
clerics are ministers of the Church representing the suffering of Christ, who

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Francisco de Vitoria, On Homicide

qui cum percutiebatur non repercutiebat etc. (1 Pet. 2, 23); etiam quia sunt
ministri evangelii et debeant praedicare, ideo non debent operibus suis
praedicationem suam profligare. Unde si episcopus illum cum quo sine
rationabili causa esset dispensatum, ordinasset, peccaret, licet non mortaliter.
4.— Hic possemus loqui de irregularitate.
Sed dubitatur, an hoc quod dicit sanctus Thomas de clericis, sit generale de
omnibus clericis intelligendum; quia Paulus solum de episcopis loquitur, per
quos clerici et presbyteri intelliguntur. An ergo de conjugatis et primae tonsurae
intelligatur. Videtur quod non, quia clerici de prima tonsura eunt ad bellum
et occidunt etc.
Respondeo quod de omnibus intelligitur.— Contra, quia Paulus solum de
presbyteris intelligit.— Dico quod suo tempore non sic ordinabantur sicut
nunc; non enim erant isti minores ordines, non erat tunc prima tonsura, sed
Ecclesia ordinavit ad omnes. Sed si ad bellum justum vadant hujusmodi, non
peccant mortaliter, licet semper incurritur irregularitas.
5.— Pro quo dubitatur, an si clericus primae tonsurae petat in bellum justum,
et occidat sarracenos, an peccet. Dico ut diximus supra, quod aliquando
contrahitur irregularitas sine peccato, ut in isto casu. Dico ergo, qui in justo
bello occidunt sarracenos v. g. non peccant, sed nihilominus incurrunt
irregularitatem. De ista poena irregularitatis quando incurratur et quando
non, esset late dicendum; de quo videatis summistas ponentes multos casus
in quibus incurritur, quos in medium adducere esset oleum et operam perdere,

postquam unusquisque vestrum potest hoc apud illos videre, maxime cum in
istis non sit magna difficultas. Dico tamen generaliter, quod incurritur
irregularitas per mutilationem membrorum et per homicidium, et generaliter
per consensum et concausam ad mortem alterius. Nec videaris quid aliquae
glossae dicant, quia si quis /291/ percusit asinum in quo fertur aliquis ad
supplicium, non est irregularis, nec si mittat ligna ad comburendum illum. Et
tamen aliquae glossae dicunt oppositum, scilicet quod est irregularis. Ideo
dico quod non videatis illas, sed jura.
Articulus quintus

Utrum alicui liceat seipsum occidere.

1.— Respondet sanctus Thoma quod non. Probat, quia est contra
inclinationem naturalem qua quisque inclinatur ad amandum se et conser­
vandum se in esse. Secundo, quia facit injuriam reipublicae cujus est pars.

Commentary on Summa theologiae ΙΡΠ”, q. 64, aa. 1-8

169

when he was struck did not strike back, etc. (I Peter 2, 23), and also because
they are ministers of the Gospel which they must preach, they should not
therefore in what else they do debase their preaching.145 Hence, if a bishop
were to ordain a man whom he had without reasonable cause dispensed, he
would sin, although not mortally.
4.— Here we could speak about irregularity.
But there is doubt whether what St. Thomas says about clerics is to be
generally understood about all clerics. For Paul spoke only about bishops, by
which clerics and priests are to be understood. Is it then to be understood
about those who are married146 and those with simple tonsure? It seems not,
because those with simple tonsure go to war and they kill, etc.
I answer that it is to be understood about all. — But against this is the fact
that Paul understood it only about priests. — My view is that in his time they
were not ordained in the way they are now. For at that time there were not
those minor orders and there was not simple tonsure, but the Church [later]
ordered these for all. But if persons of this sort go off to a just war, they are
not sinning mortally, although an irregularity is always incurred.
5.— With regard to this there is a doubt: whether a simple cleric sins if he
takes part in a just war and kills Saracens. I say, as we said above, that some­
times an irregularity is incurred without any sin. In this case, therefore, I say,
those who, for instance, in a just war kill Saracens, do not sin, but nevertheless they incur an irregularity. About this penalty of irregularity, when it is
incurred and when not, we should speak at length. [In the meantime,] you
may see the Summists™7 treating many cases in which irregularity is incurred,
which to bring forward would be to lose time and effort, when each of you

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can see this in the Summists, especially since there is no great difficulty in
them. But I say that irregularity is generally incurred by the mutilation of
members and by homicide, as well as generally by consent and cooperation in
the death of another. Nor should you trouble yourself about what some
glosses148 say, for if someone whips on an ass upon which some other is being
borne to capital punishment, he is not irregular. And neither is he irregular ifhe
brings faggots to bum him. Yet, some glosses say the opposite, which is that he is
irregular. Therefore, Isay that you should not worry about them but about the
laws.

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Article Five

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Whether it is lawfulfor anyone to kill himself.

1__ $t. Thomas answers that it is not. He proves this, inasmuch as it is
against the natural inclination by which everyone is inclined to love himself
and to keep himself in existence. He proves it, second, because [a person

H

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170

Francisco de Vitoria, On Homicide

Tertio, quia homo non est dominus suae vitae sicut est dominus aliarum re­
rum; non enim Deus dedit ei vitam ad alium usum, nisi ad hoc ut bene vivat,
quia Deus est dominus vitae et mortis. Unde qui se occidit, facit injuriam:
ergo peccat. Quarto, quia est contra caritatem qua quilibet tenetur seipsum
diligere. Qui ergo seipsum occideret, peccaret mortaliter. Non est dubium
nisi quod qui occideret se, faceret contra illud praeceptum, Non occides, quia
ut diximus, solum unum homicidium est licitum, scilicet occisio hominis
perniciosi, et hoc auctoritate publica quando damnatus est, et non auctoritate
privata. Cum ergo qui seipsum occideret, etiamsi sit perniciciosus, occideret
se auctoritate privata, sequitur quod faceret contra illud praeceptum de non
occidendo, et per consequens peccaret mortaliter. Non ergo licet seipsum
occidere.
2.— Nihilominus contra hanc conclusionem sunt aliqua argumenta. Pro
quo est prius notandum quod dupliciter potest haec conclusio sancti Thomae
intelligi. Primo, an intelligatur sic quod non liceat plus occidere seipsum quam
occidere alium, ita quod non plus extendamus sed quod sicut in aliquibus
casibus licet occidere alium, an ita etiam liceat in aliquo casu seipsum occidere.
Alio modo potest intelligi extendendo illam valde generaliter, scilicet quod in
nullo casu et nullo modo liceat seipsum interficere. In quo ergo sensu intelligit
sanctus Thomas, vel primo vel secundo modo? Respondeo quod intelligit
illam sicut omnes dicunt quod illa est vera, scilicet generaliter, ita quod nullo
modo licet seipsum occidere. Et in hoc sensu intelligendo conclusionem sunt
plurima argumenta contra illam, quae probant quod in aliquo casu licet
seipsum occidere.
Primo ergo arguitur sic: Licet praeparare ad mortem, immo adhortari alium
ad hoc quod ipsummet occidat: ergo licet seipsum occidere. Patet consequentia
ex Paulo dicente, quod non solum digni sunt morte qui /292/ mala faciunt,
sed qui consentiunt facientibus. Probatur antecedens, quia legimus de
Vincentio et de multis sanctis martyribus quod adhortabantur alios ut
interficerent illos. — O, dicetis quod erant parati. — Certe non liceret mihi
movere alium, etsi ipse esset paratus, ad interficiendum me. Item, probatur
etiam quod de facto seipsos occidebant, quia de beata Apollonia dicitur quod,
evadens se a manibus tyrannorum, projecit se in ignem paratum; et hoc non
solum fuit licitum sed laudabile: ergo licet in casu interficere seipsum.
Respondetur quod ita est, scilicet quod hoc factum de martyribus, non
solum fuit licitum, sed etiam laudabile quod adhortarentur alios etc. — Con­
tra, quia consentiebant peccato illorum. — Nego illud, immo dissuadebant

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171

killing himself] does injury to the republic ofwhich he is a part. He proves it,
third, because a man is not the master of his own life in the way in which he
is the owner of other things. For God did not give him life for any other
reason but to live rightly, because God is the master of life and death. Hence,
one who kills himself does injury [to God].149 Therefore, he sins. Fourth, he
argues, because it is against the charity by which everyone is obliged to love
himself.150 One, therefore, who would kill himself, would commit mortal sin.
The only doubt is whether one killing himself would be acting against this
commandment, “Thou shalt not kill.” For, as we have said, only one homi­
cide is lawful, viz., the killing of a condemned pernicious man by public, and
not private authority. Since, therefore, one killing himself, even though he
might be pernicious, would be doing so by private authority, it follows that he
would be acting against that command, not to kill, and that he would conse­
quently be committing a mortal sin. Therefore, it is not lawful to kill oneself.
2.— Nevertheless, there are some arguments against this conclusion —
with respect to which we should first note that this conclusion of St. Thomas
can be taken in two ways. First, is it to be so understood that it is not more
lawful to kill oneself than to kill another, in such way that we do not extend it
further [for one than the other]; but just as in some cases it is lawful to kill
another, is it also lawful in some case to kill oneself? But it can be understood
in a second way, by extending it most generally, viz., that in no case and in no
way is it lawful to kill oneself. In which sense, then, is St. Thomas under­
standing it — in the first or in the second way? I answer that he understands it in
the way that all say it is true, that is, generally, so that in no way is it lawfill for
anyone to kill himself. And understanding the conclusion in this sense, there are
against it several arguments to prove that in some cases it is lawfid to kill oneself.
Thefirst argument is as follows: It is lawful to prepare for death, and indeed
to exhort another to kill oneself. Therefore, it is lawful to kill oneself. The
consequence is clear from Paul saying that not only are they deserving of
death who do evil, but also those who consent to those doing evil.151 The
antecedent is proven: because we read of Vincent152 and many other martyrs
that they exhorted others to kill them. — Oh, you will say that these others were
prepared to do so.153 — Certainly, it would not be lawful for me to move another
to kill me, even though he would be prepared to do so. Again, [the antecedent] is
proven also because as a matter of fact [martyrs] did kill themselves. For it is said
of St. Apollonia154 that, escaping from the hands of her oppressors, she hurled
herself into the fire that was prepared for her. And this was not only lawfill but
honorable. Therefore, in some cases it is lawfill to kill oneself
The answer is that it is lawful — indeed, what the martyrs did was not only
lawful, but it was also laudable that they exhorted others, etc. — But against
this [it seems unlawful], because they consented in the sin of those oppres­
sors. —155 I deny that. Indeed, they were dissuading others from killing Chris-

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Francisco de Vitoria, On Homicide

aliis quod non occiderent christianos, et cum viderent se nihil prodesse,
monebant illos ut ipsosmet occiderent. Nec propter hoc consentiebant peccato
illorum, quia ipsi sancti non hoc faciebant ad movendum illos ad malum, sed
ad ostendendum et comprobandum veritatem fidei; quia ipsi alias passuri
erant, et illa adhortatio solum est non resistere. Unde dico quod qui a sarracenis
occideretur et pateretur hoc modo pro fide Christi, licite faceret si illo modo
faceret, quia hoc solum est non resistere.
3.— Secundo arguitur: Licet abbreviare vitam: ergo et occidere se. Patet
consequentia ex beato Hieronymo. Nihil interest quod subito vel quod multo
tempore interimas te. Probatur antecedens, quia licet strictam et asperam ducere
vitam per quam appropinquat quis ad mortem. Licet enim alicui per
poenitentiam et abstinentiam corporis abbreviare vitam, quia solum comedere
panem et bibere aquam licite fit; et tamen per hoc abbreviatur vita: ergo. Etsi
dicas quod iste ignorat quod abbreviet vitam, dico quod hoc nihil est quia
bene scit. Et pono quod illud sciat, et tamen licite facit: ergo. Item patet idem
antecedens, quia carthusienses licet sint moniti a medico quod morientur nisi
comedant carnes, licite et scienter possunt non comedere carnes: ergo.
Respondeo quod omnino ex intentione abbreviare vitam, est peccatum
mortale. De per accidens tamen, bene licet illam abbreviare per abstinentiam
comedendo pisces, quia de se bonum est illos comedere. Et quidquid ex illo
sequatur, est licitum, etiamsi sequatur abbreviatio vitae, quia ille non dat
operam ad abbreviandum vitam, sed ad opus poenitentiae.— O contra, quia
veniet in infirmitatem. — Dico quod bene volo, quia ille utitur jure suo
comedendo pisces illos, id est licet ei comedere illos, quia Deus creavit pisces
ad comedendum. Et ita de carthusiensibus dico, quod licitum est eis non
comedere carnes, quia utuntur jure suo, utuntur enim /293/ alimentis quae
Dominus dedit ad usum hominis. Non tamen licet comedere toxicum vel
solimdn, quia Dominus alimentum istud non dedit ad usum hominum. Nec
tamen solum per comestionem carnis impeditur mors in infirmis, cum sint
alia salubriora medicamenta et cibaria convenientiora. Licite ergo potest quis
illo modo vitam abbreviare. Et hoc intelligo quando notabiliter non videt se
abbreviare illam, sicut si videret incurrere febrim ex comestione piscium, tunc
non liceret illos comedere et vitam abbreviare; secus autem bene licet. Sic
etiam si aliquis infirmatur hic, non tenetur ire ad aliam terram, quia sufficit
quod vivit in terra habitabili. Ubi tamen modo arctissimo et singulari quis
viveret, puta non comedendo perpetuo nisi panem et aquam ut vitam
abbreviaret, forte non liceret, vel etiam semel tantum in hebdomada comedere

Commentaryon Summa theologiae

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173

tians, and when they saw that this was gaining nothing, they admonished
those others to kill them. Nor were they on that account consenting in the sin
of those people, since the saints themselves were not doing this in order to
move those others to evil, but in order to show and prove the truth of faith.
For, in any event, they themselves were going to suffer, and that exhortation
was only non-resistance.
3.— A second argument is: It is lawfill to shorten ones life; therefore, it is

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lawful also to kill oneself. The consequence is evident from St. Jerome: it
makes no difference whetheryou killyourselfsuddenly or over along time.156 The
antecedent is proven, since it is lawful to lead an austere and ascetic life by
which one may come close to death. Indeed, it is lawfill that someone shorten
his bodily life through penance and abstinence. For it is lawfill to eat and
drink only bread and water; and, still, by so doing, ones life is shortened;
therefore. And if you say that such a one is not aware that he may shorten his
life, I say157 that this is nugatory because he knows it well. And I stipulate that

he knows that, and still he is acting licitly: therefore. Again, the same antecedent is evident, because Carthusians,158 even though they have been warned by
a physician that they will die unless they eat meat, can both lawfully and
knowingly not eat meat: therefore.
I answer, that just intentionally to shorten one’s life is a mortal sin. How­
ever, it is very lawful to shorten it in an incidental way by eating fish as a
matter of abstinence, since of itself it is good to eat fish. And whatever may
follow from that is lawful, even a shortening of life, for the one abstaining
does not intend to shorten his life, but rather intends to do penance. — But
against this, [he does intend to shorten life] because he will become sick. — I
say that I am well disposed toward him, because in eating that fish he is exercising his right, that is to say, it is lawful for him to eat it, since God created
fish to be eaten.159 Thus, with regard to the Carthusians, I say that it is lawfill
for them not to eat meat, because they are exercising their right, inasmuch as
they are eating foods which the Lord gave men to eat.160 It is not, however,
lawfid to eat poison or “something corrosive,”161 for the Lord did not give
such to men to eat. But neither is it only by eadng meat that death is held at
bay, since there are other more healthul medicines and more fitting foods.
Therefore, anyone can lawfully shorten life in that way. And I understand this
when such a person is not noticeably aware that he is shortening it. Thus, if
he were to see that he would be feverish from eating fish, then it would not be
lawfid for him to eat fish and shorten his life; but otherwise it would be
lawful. So also if someone is sick in this country, he would not be obliged to
go to another country, because it would be enough that he live in a country
that is habitable. However, where someone would be living in a most austere
and unusual way, for example, never consuming anything but bread and wa­
ter, with the result that he would shorten his life, perhaps it would not be

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174

Francisco de Vitoria, On Homicide

non liceret. Sed debet hoc fieri modo communi hominum bonorum, ut praeter

intentionem mors sequatur, et non ex intentione.
4.— Tertio arguitur. Licet properare ad mortem, non solum de per ac­
cidens, sed ex intentione: ergo solutio praedicti argumenti nulla, et per
consequens licet seipsum occidere. Antecedens probatur de beata Apollonia,
quia parata pyra ignis coram ipsa, cum vellent lictores persuadere illi quod
relicta fide christiana transiret ad sectam illorum, praecipitavit se in ignem; et
tamen hoc est ex intentione occidere se: ergo. Quaeritur ergo an hoc fuit
laudabile.
Aliqui volunt dicere quod temere fecit non exspectando quod a tyranno
infligeretur mors, sed quod excusata fuit per ignorantiam; ita quod non fuit
licitum et laudabile se projicere in ignem, sed debebat exspectare quod alii
projicerent eam, sed quod excusata fuit per ignorantiam. Sed melius est si
dicamus quod lex divina est plana et aequa, id est non utitur sophismatibus.
Itaque dico quod Deus non quaerit sophismata et occasiones peccatorum ad
condemnandum homines. Dico ergo quod licitum fuit et laudabile quod ipsa
projiceret se in ignem, non exspectando illos. Ratio est quia illa erat moritura.
Quid enim refert quod ipsa moritura post horam, velit accelerare mortem
ante illam horam? Quod ergo nunc moriatur vel post horam, nihil refert quoad
Deum. Unde pro certo tenendum est quod et laudabiliter fecit, et quod non
est operata ad mortem suam, cum jam decretum esset a tyrannis se morituram.
Simile legitur de beato Vincentio, qui non exspectavit ut mitteretur in ignem,
sed ipse projecit se, quod certe laudabile factum fuit ad ostendendum robur
animi, et ad ostendendum quod libenter pro Christo patiebatur, postquam
erat moriturus. Unde dato quod qui suspendendus est ponat restim ad col­
lum, non peccat.
/294/
5.— Sed ex hoc argumento oritur aliud dubium: an illi qui est damnatus ad
mortem, liceat praevenire lictores sumendo venenum ad quod genus mortis
est damnatus, scilicet ut sumat venenum, saltem apud Athenienses apud quos
solet venenum dari malefactoribus. Videtur quod non quia non liceret jugulare
se, ergo nec bibere venenum.
Respondeo quod oporteret primo videre an illae leges de dando veneno sint
justae, et si sic, certum est quod esset licitum potare venenum. Cum ergo lex
illa fuerit, non apud barbaros, sed apud rempublicam bene ordinatam, possu­
mus dicere quod licebat illi potare venenum quando erat condemnatus ad
mortem. —- O contra, quia ille talis habet se active ad mortem et occisionem
suiipsius. — Respondeo quod oportet videre aequitatem, nec oportet respicere
ad sophismata, maxime in materia morali. Ideo dico quod nihil refert quod se

Commentary on Summa theologiae Π*Π“, q. 64, aa. 1-8

175

lawful. Or, again, eating only once a week would not be lawful. But this
should be done in the usual way of good men, in such manner that death
would follow unintentionally rather than intentionally.
4.— The third argument is as follows: It is lawful to hasten death, not only
in an accidental way, but also by intention. Therefore, the solution of the
previous argument is null, and consequently it is lawful to kill oneself. The
antecedent is proven from St. Apollonia. For when the fire was prepared be­
fore her, although the executioners wanted to persuade her to abandon the
Christian faith and to join their sect, she hurled herself into the fire. But this
was killing herself intentionally; therefore. The question, then, is whether
this was praiseworthy.
Some want to say that she acted rashly in not waiting for death to be in­
flicted by an oppressor, but that she was excused by her ignorance — so that
it was not lawful and laudable to throw herself into the fire, but she should
have waited for others to throw her in, and that she was excused by ignorance.
But it is better to say that the Divine law is plain and fair and does not employ
sophisms. Thus, Isay that God is not looking for sophisms and occasions of
sin in order to condemn people. Therefore, I say that it was lawful and laud­
able that she would hurl herself into the fire and not wait for them. The
reason is that she was going to die [anyway]. For what matter that she, about
to die in an hour’s time, might wish to hasten death before that? Therefore,
that she should die now or an hour from now matters nothing with respect to
God. Hence, we should be certain that she acted laudably, and that she did
not cooperate in her own death, since that was already decreed by her oppres­
sors. We read much the same about blessed Vincent, who did not wait to be
thrown into the fire, but threw himself in — which was certainly a laudable
deed, done to show both strengh of soul and that he was voluntarily suffering
for Christ, when he was about to die. Thus, if someone who is about to be
hanged puts the rope around his own neck, he is not committing sin.
5. — But from this argument another doubt arises: whether it is lawful for
one condemned to death to anticipate his executioners by taking poison, for
which kind of death he has been condemned, viz., that he take poison — at
least among the Athenians for whom it was the custom that poison be given
to felons. It seems that it would not, for it would not be lawful to cut one’s
throat, and so neither would it be lawful to drink poison.
I answer that it would first be necessary to see whether those laws about
giving poison are just; and if they are, it is certain that it would be lawful to
drink it. Since, therefore, that law existed not among barbarians, but within a
well ordered republic,162 we can say it was lawful for him to drink poison
when he was condemned to death.163 — But the opposite seems true·, because
such a person is actively killing himself. — I answer that, especially in a moral
matter, it is necessary to look for equity and not to resort to sophisms. There-

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Francisco de Vitoria, On Homicide

habeat active vel passive, nam tam homicida esset habendo se passive sicut
habendo se active. Patet. Si ipse exspectaret lapidem molarem cadentem, ita
operaretur ad suam mortem sicut si illum lapidem acciperet supra se et se
interficeret. Sic nihil refert quod ego manu mea accipiam venenum et bibam
illud, vel quod alius illud infundat in os meum, quando lex est justa. Et sic
dico quod Socrates inter Athenienses, si juste fuit damnatus, bene fecit
sumendo venenum. Sicut si aliquis esset damnatus ad hoc quod praecipitetur
in flumen, que le ahoguen, nihil refert quod ipse exspectet quod praecipitetur,
vel quod ipse praecipitet se. Hoc modo potest dici. Si dicatis oppositum,
scilicet quod nullo modo licet active se habere nec potare venenum, dicas
quod nullus debet subire poenam aliquam quousque illa infligatur ab aliis.

Sed melius est dicere primo modo.
6. — Quarto arguitur: Existens in extrema necessitate, potest licite dare
panem quem habet ad suam vitam servandam patri suo, vel saltem proximo
suo, ut regi patienti similem necessitatem; sed ob hoc interficit se: ergo licitum
est alicui interficere seipsum.
Respondeo concedendo antecedens, quod licet dare alteri panem mihi nec­
essarium ad evadendam mortem. Sed nego quod hoc sit occidere se, quia non
occidit se ex intentione, sed per accidens per hoc [quod] subvenit proximo.
Unde quidquid sequatur, est licitum, quia non ex intentione occidit se, immo
multum dolet quod moritur, et non potest esse superstes.
7. — Ex hoc oritur dubium. Simus v. g. viginti in naufragio, ita quod
sumergitur navicula quae non potest sustinere nisi decem. An liceat aliis de­
cem praecipitare se in mari ut alii decem salventur. Vel mittatur sors inter
omnes viginti qui sunt in illa navicula, et sit casus quod sors ceci- /295/ dit
super illos decem. Tunc si praecipitent se, est licitum; et hoc est occidere se;

ergo.
Respondetur. Aliqui dicunt quod si servent rigorem sui juris, non est licitum
praecipitare se in mari, sed debent exspectare ut alii praecipitent illos. Certe
videtur quod alii facerent illis injuriam. Ideo dico quod ex pacto licet illis se
praecipitare. Praesertim si ibi esset servus et dominus, licet servo praecipitare
se propter salutem domini. Sic si sit filius et pater, vel unus privatus homo et
una persona publica. Dico ergo quod licet illis decem praecipitare se in mari
ut alii decem salventur. Patet, quia sicut licet mihi praecipitare me in mari ut
non pereat pater sed salvetur, ita ergo in illo licet illis decem praecipitare se in
mari ut alii salventur, quia tollere vitam est malum temporale et non spirituale.

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177

fore, Isay that it makes no difference whether he is active or passive, for he
would be as much a killer whether he is passive or active. This is clear: for if
that man were to wait on a falling millstone, he would be working toward his
death just as if he were to take that stone upon himself and kill himself. So,
when the law is just, it does not matter whether I, with my own hand, take
poison and drink it, or that someone else pour it into my mouth. Thus Isay
that, if among the Athenians Socrates was justly condemned, he did the right
thing in drinking poison. So, if someone were condemned to be thrown into
a river, “which would drown him,”164 this now can be said: it does not matter
whether he waits to be thrown or that he throws himself. Ifyou say the oppo­
site, namely, that in no way is it lawfol to be active and drink the poison, you
ought to say that no one should submit to any punishment until it is inflicted
upon him by others. But it is better to speak in the first way.
6. — Thefourth argument·. Someone in dire necessity can lawfully give bread,
which he needs to preserve his own life, to his father, or even to his neighbor,
for instance, to a king suffering a similar necessity. But because of this he is
killing himself; therefore, it is lawful for someone to kill himself.
I answer by conceding the antecedent, that it is lawful to give to another
bread which I need in order to avoid death. But I deny that this is killing
oneself, for such a one is not killing himself intentionally, but by accident through
helping a neighbor. Hence, whatever may follow is lawfill, since he is not inten­
tionally killing himself. Indeed, it pains him greatly to die and be unable to sur­
vive.165
7. — From this a doubt arises. Let there be, for example, twenty of us in a
shipwreck, in such way that a lifeboat (navicula), which can hold only ten, is
sinking. Would it be lawful for ten to throw themselves into the sea so that
the other ten might be saved? Alternatively, lots may be cast among the whole
twenty in the lifeboat with the chance that the lot fell on those ten. Then if they
throw themselves in the sea, it is lawful; but this is to kill themselves; therefore.
In answer, some say that if they keep stricdy to their own rights (si servent
rigorem sui juris),166 it is not lawfill to throw themselves in the sea, but they
should wait for others to throw them in. It seems [however] that the others
would [thus] certainly do injury to them; therefore, I say that by consent it is
lawfid for them to throw themselves in. Particularly, if in that situation they
are slave and master, it is lawfill for the slave to throw himself in to save his
master. It would be the same if they are son and father,167 or a private man and
a public person. Therefore, I say that it is lawfol for those ten to cast them­
selves into the sea in order that the other ten be saved. This is clear, for just as
it is lawful for me to throw myself into the sea in order that my fether not
perish but be saved, so therefore in that case it is lawful for the ten to throw
themselves into the sea in order that the others be saved, because to destroy
life is a temporal, and not a spiritual, evil.168

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Francisco de Vitoria, On Homicide

8. — Praeterea arguitur: Si sit aliquis damnatus ad inediam, utputa est aliquis
comprehensus en un algibe, y danle a comer por onzas ut sic abbrevietur vita.
Tunc quando juste est condemnatus, licet illi habito pane non comedere
panem. Patet, sicut licet ferre patienter sententiam illam, sic licet ei hoc facere;
et sic faciendo interficit se ex intentione: ergo.
Respondetur quod licet varie ad hoc dici soleat, tamen malim tenere quod
tenetur comedere, quia non est damnatus ad hoc quod non comedat per
sententiam; quia si sic, jam sententia esset iniqua quae diceret quod si haberet
panem, non comedat. Et cum in sententia solum habeatur quod condemnatur
ad inediam, videtur quod si habet panem, teneatur comedere, et sic male facit
non comedendo. Nec est simile de hoc casu et de aliis, eo quod in aliis, sive
illud faciant, sive non, id est sive praecipitent se sive non, nihilominus absque
dubio morientur. Sed in hoc casu non ita est, quia si non comedat, certum est'
quod morietur, alias non moriturus si comedat, et ideo tenetur comedere.
9.— Sed est dubium de damnato in carcere ad mortem, qui licet bene faceret
fugiendo, an tamen teneatur fugere si potest. Videtur quod sic, quia alias
cooperatur morti suae exspectando. Sed de hoc inferius dicemus. Pro nunc
dico quod licet sit licitum fugere, non tamen tenetur fugere, etiamsi videat
carcerem apertum. Nec hoc est occidere seipsum, sed patienter ferre sententiam
latam pro suo crimine. Et per hoc potest responderi ad multa alia, utpote ad
illud quod solet argui, quia licet navigare cum periculo mortis: ergo et occidere
se. Probatur, quia ponere se in periculo occidendi alium, et occidere alium,
pro eodem reputantur. Ad hoc dico, distinguendo antecedens. Cum periculo
manifesto et imminente pro negotio particulari ad augendum rem familiarem,
non liceret navigare. Sed pro bono reipublicae, ut v. g. liberetur communitas,
vel pro /296/ fide, bene liceret. Nihilominus cum periculo probabili mortis
bene liceret navigare pro negotio particulari, id est quando periculum est
ordinarium sine quo non potest fieri navigatio, licitum est navigare. Secus
enim perirent contractationes. Quia tunc dant operam rei licitae, scilicet ad
augendam rem familiarem; non enim dant operam morti.
Et ad illud quod solet argui: quia licet exerceri officia militaria, utputa justas
y torneos; et tamen ibi est periculum mortis: ergo. Ad hoc dico quod illa
exercitia expediunt reipublicae ut strenue se gerant milites in bello; etiam pro
bono reipublicae. Nec tamen est ibi manifestum periculum mortis, sed raro
et de per accidens sequitur. Unde dico quod licite exercentur, quando non est

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179

8.— Furthermore it is argued: If someone is condemned to hunger, as for
instance if someone is confined “in a cistern, and they feed him very little,”169
so that in this way his life will be shortened, then, when he has been justly
condemned, it is lawful for him, even if he has bread, not to eat it. This is
clear: just as it is lawful for him to patiently bear that sentence, so it is lawful for
him to do this. And in doing so, he is intentionally killing himself. Therefore.
The answer is that although it is usual to speak to this in different ways, I,
however, would prefer to think that he is obliged to eat. For by the sentence
he has not been condemned to not eating; because if that were the case, then
the sentence would be sinful which would say that though he had food he
should not eat. And since in the sentence there is only a condemnation to
hunger, it seems that if he has bread, he is obliged to eat, and thus he is acting
badly in not eating.170 Nor is there similarity between this case and the others, for
in the other cases, whether they do it or not, that is, whether they throw them­
selves into the sea or not, they will still without doubt die. But in this case that is
not so, because if he does not eat, it is certain that he will die, while, on the other
hand, if he eats, he will not die; and therefore, he is obliged to eat.
9.— But there is doubt about someone in prison who is condemned to
death — even though he might be acting rightly to flee, still, is he obliged to
flee if he can? It seems that he is, for, otherwise, he is cooperating in his
upcoming death.171 About this we will speak below,172 but for now I say that
even though it is lawful to flee,173 he is not, however, obliged to do so, even if
he sees the prison door open. And this is not to kill himself, but rather to
patiently bear the sentence imposed upon him for his crime.174 Moreover,
through this it is possible to answer many other arguments, such as the com­
mon contention that because it is lawful to navigate with the risk of death, it
is therefore lawful also to kill oneself. This is proven, because to place oneself
in danger of killing another, and to kill that other, are judged to be the same.
To this I reply by distinguishing the antecedent. It would not be lawful to sail,
in face of an obvious and imminent risk, on a private enterprise in order to
increase one’s family fortune. But it would indeed be lawful to sail for the
good of the republic, v.g. that the community be saved,175 or for the Faith.176
Moreover, it would be very lawful to sail on private business, in face of rea­
sonable danger —- that is to say, it is lawful to sail when that danger is of the
ordinary kind without which there can be no sailing — for, otherwise, trade
and commerce177 would perish. [Furthermore, it is lawful] inasmuch as in
that case [those sailing] intend a lawful thing, namely to increase their family
fortune, and they are not looking for death.
And in reply to the common argument, which is: “It is lawful to engage in
military exercises, such as jousts and tournaments,178 although there is danger
of death in them; therefore... “ — I say that those exercises are usefill for the
republic in order that its soldiers act vigorously in war for the good of the

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periculum imminentis mortis. Et ita de cursu taurorum, quia si sequitur
periculum, est de per accidens.
Et ad illud: si aliquis est dives et captivus, non volens aliquid dare ut liberet
se a morte, videtur quod cooperetur morti: ergo. An ergo teneatur aliquid
dare ut non occidatur. Respondetur quod non, nec ideo occidit se ex inten­
tione, immo nollet mori, nec dat operam rei illicitae, quia alteri imputabitur

et non sibi.
10.— Ultimo arguitur: Ad vitandum peccatum mortale licet se occidere. V.
g. si aliquis sollicitat virginem, quae habet pro certo quod consentiet et peccabit
mortaliter. Huic virgini licet interficere se ut liberet a peccato mortali, cum
minus damnum sit incurrere damnum corporale quam spirituale. Ergo licet

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occidere seipsum.
Respondetur quod non licet occidere se, quia si consentiat, erit ex libertate
sua. Itaque dico quod propter hoc absolute non licet homini occidere se, quia
quod peccet, sequitur ex malitia hominis, possetque evitare. Unde mors
corporalis nunquam est necessaria ad vitandum peccatum mortale. Dico ergo
primo, quod nunquam licet alicui ex intentione occidere se, scilicet volo mori.
Secundo dico, quod de per accidens bene licet, ut quando quis dat operam rei
licitae, si ex illo sequatur mors, non est peccatum, quia non dabat operam
morti; sicut si ex hoc quod subvenio patri meo, mihi evenit mors, licite facio.
11.— Pro quo etiam est notandum, ut admonet sanctus Thomas Prima
secundae, quod dupliciter aliquid est voluntarium: uno modo, formaliter, sicut
quod aliquis vult comedere, legere; alio modo, virtualiter, ita quod nolo, sed
est in potestate mea vitare et non vito, ut quando possum evitare et impedire
mortem et non impedio. Et dicit quod ad hoc quod aliquid sit voluntarium

virtualiter, non solum requiritur quod possit quis illud impedire, sed etiam
quod teneatur illud impedire; ita quod qui potest impedire et tenetur impedire
malum, si non impediat, dat operam /297/
tali malo. Sicut v. g„ submersio navis tempore tempestatis non est voluntaria
nec imputatur illi qui, licet poterat illam evitare, non tamen tenebatur. Sed de
nauta qui deserit navim tempore tempestatis, est dicendum quod illa submersio
vocatur virtualiter voluntaria, id est volita, quia licet nauta nollet submersionem
illam, tamen quia poterat vitare illam et tenebatur vitare, ideo est voluntaria
virtualiter. Sic in proposito: si quis non tenetur impedire mortem, licet non
impediat et sequatur mors, non est voluntaria illa mors et per consequens
non peccat; sicut quando solum habeo panem necessarium ad vita[m] meam

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republic. But neither is there in this any obvious danger of death, for only
rarely and by accident does death follow.179 Hence, I say that these exercises
are lawful, when they do not entail an imminent danger of death.180 And the
same is true of bull fights,181 for if they entail danger it is by accident.182
And in reply to the argument: “If some rich man is a captive, and he is not
willing to give anything to be saved from death, it seems that he is cooperat­
ing in his death; therefore” — the question is whether he is obliged to give some­
thing in order not to be killed? The answer is no, and therefore he is not intention­
ally killing himself. Certainly, he does not want to die, and it is not he who intends
anything unlawful, for the deed will be imputed to another and not to him.
10.— Finally, it is argued: In order to avoid mortal sin, it is lawful to kill
oneself. For example, if someone were to solicit a virgin, who knows for cer­
tain that she will consent and sin mortally, it is lawful for that virgin to kill
herself in order to save herself from mortal sin, since it is less to suffer a
corporal loss that a spiritual one. Therefore, it is lawful for her to kill herself.
The answer is that it is not lawful for her to kill herself, because if she
consents, it will be of her own free will. Therefore, Isay that for this reason it
is absolutely unlawful for a man to kill himself, because the fact that he will
sin follows from human malice and he could avoid it. Hence, the death of the
body is never necessary in order to avoid mortal sin. Therefore, Isayfirst, that
it is never lawful for anyone intentionally ([saying] that is, “I will to die”) to
kill himself. Second, I say, that accidentally it is indeed lawful — as when
someone intends something lawful, if death follows from it, it is not a sin,
because he was not intending death. For example, if from the fact that I go to
help my father death comes to me, I am acting in a lawful way.
11.— With regard to this, it should also be noted, as St. Thomas in the
First Part of the Second Part of his Summa advises,183 that there are two ways
in which something is voluntary: in one way, formally, as when someone wills
to eat or to read. In a second way, virtually, such that I do not will, but it is in
my power to avoid and I do not avoid, as when I can avoid and impede death
and I do not do so. And he says that in order that something be virtually
voluntary, not only is it required that someone can impede it, but also that he
be obliged to impede it — so that he who can impede and is bound to impede
an evil, if he does not impede it, intends that evil. For example, the sinking of
a ship in a storm is not voluntary nor is it imputed to one who, although he
could have avoided it, was nor, however, obliged to do so. Bur with respect to
a sailor, who deserts a ship in a storm, it must be said that its sinking is called
virtually voluntary, that is willed. For, although the sailor would not will that
sinking, nevertheless, because he both could and was bound to avoid it, it is
therefore virtually voluntary. Similarly in the case proposed, if someone is not
obliged to impede death, granted he does not impede it and death follows,
that death is not voluntary and consequently he does not sin. So also, when I

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Francisco de Vitoria, On Homiàdt

servandam, et subvenio patri extreme indigenti, et ego morior, non est a me
virtualiter volita mors nec pecco, quia tenebar subvenire patri meo in extrema
necessitate. Sic potest subvenire regi existenti in extrema necessitate, omisso
patri existenti in eadem necessitate, quia in illo casu non-tenetur subvenire
patri. Et sic illa mors non est illi voluntaria nec illi dat operam. Unde ex his
patet quod haec consequentia nihil valet: iste potuit vitare submersionem
navis, et non vitavit, ergo sibi imputabitur; quia oportet quod in antecedente
dicatur hoc modo: iste potuit vitare submersionem navis, et non vitavit, et
tenebatur vitare, ergo sibi imputabitur. Habemus ergo quod duplex est
voluntarium, scilicet formaliter, et virtualiter, et quod nullo horum modorum
licet alicui occidere se. Sed ad voluntarium virtualiter requiritur quod velit, et

possit, et teneatur impedire malum.
12.— Sed dubitatur. Dato quod in nullo casu licet ex intentione occidere
se, quaeritur an hoc praeceptum sit ita notum quod non possit ignorari, vel

an in illo possit cadere ignorantia. Videtur quod sic, quia Brutus et Cassius et
multi alii occiderunt se ne paterentur infamiam, et putabant melius et
laudabilius facere quam in vita manere.
Ad hoc primo dicimus quod quantum est de se, male fecerunt et contra jus
divinum. Sic beatus Augustinus damnat Lucretiam, quia seipsam interfecit.
Arguit enim: si erat innocens, occidit innocentem, quod est peccatum; si erat
adultera, cur laudatur? Secundo dico, quod illi excusati sunt per ignorantiam.
Unde in illo potest cadere ignorantia, si alias essent boni viri.
13.— Restat respondere ad argumenta sancti Thomae. Vide illa. Circa
quartum argumentum probat Thomas Waldensis quod fecerit Sanson instinctu
Spiritus Sancti et praecepto et auctoritate divina, etiamsi hoc non inveniatur
in scriptura sacra, quia satis est quod Dominus Deus elegerit eum et laudaverit
sanctitatem ejus, et sat est quod beatus Paulus /298/ connumerat illum inter
sanctos. Dato enim quod non legeremus praeceptum datum Abrahae de
occisione filii, si tamen Abraham occideret illum, crederemus quod illud Deus
illi praecepit. Ita de Sansone dicendum est.
Hoc bene dictum est. Sed an sit necessarium illum excusare? Videtur quod
liceret Sansoni occidere se, etiamsi non praecepisset Dominus. Probatur, quia
Sanson erat dux populi Dei, ideo pro illo licebat occidere se ut tam cladem
faceret inimicorum. Licebat ergo interficere multitudinem philisthinorum ut
liberaret patriam: ergo et seipsum.

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183

have only as much bread as is needed to preserve my own life, and I give it to
my father who is in extreme want, and I die, I am not virtually willing my
death, and I do not sin, because I am obliged to help my father in extreme
need. And so one can help his king, who is in extreme need, while neglecting
to help his father in the same need, because in that case he is not obliged to
help his father. So also that death is for him not voluntary, nor does he intend
it. From this, then, it is clear that this consequence is invalid: that man could
have avoided the ship’s sinking and he did not do so, therefore it will be
imputed to him. For it is necessary that in the antecedent it be stated this
way: “that man could have avoided the ship’s sinking, and he did not avoid it,
and he was obliged to avoid it” — hence it will be imputed to him. We hold,
therefore, that voluntary is said in two ways: namely, formally and virtually,
and that in neither way is it lawful for someone to kill himself. But also to-be
virtually voluntary there is required that one will, and that one can impede as
well as be obliged to impede, an evil.
12. — Bur there is doubt, granted that it is in no case lawful to kill oneself
intentionally, the question is whether this precept is so evident that it cannot
be unknown, or whether one can be ignorant of it. It seems that one can,
because Brutus and Cassius, and many others, killed themselves lest they suf­
fer disgrace, and they thought they were acting better and more laudably than
by staying alive.
To this, first let us say that, absolutely speaking, they acted wrongly and
against Divine law. In line with this, St. Augustine condemned Lucretia, be­
cause she killed herself. Thus he argued: if she was innocent, she killed an
innocent person; if she was an adultress, why is she being praised?1841 say,
second, that they were excused through ignorance. For ignorance can enter
into it, if otherwise they were good men.
13. — It remains to answer the arguments of St. Thomas. Look at them.
With respect to the fourth argument, Thomas Waldensis (a.k.a. Thomas Netter
[1375-1430]) reasoned that Samson acted on the impulse of the Holy Spirit,
and by Divine command and authority, even if this is not found in Sacred
Scripture. For it is enough that the Lord chose him and praised his holiness,
and that St. Paul numbered him among the saints.185 For, supposing that we
would not have read the command given to Abraham to kill his son, if how­
ever, Abraham had killed him, we would believe that God commanded him
to do that.186 And so we should say about Samson.
This is well said. But is it necessary to excuse him? It seems that it would
have been lawful for Samson to kill himself, even if the Lord had not com­
manded it. This is proven, because Samson was a leader of God’s people;
therefore, for that reason it was lawful for him to kill himself, to cause so great
a destruction of their enemies. Thus, it was lawful to kill a host of Philistines
in order to save his nation, and in consequence also to kill himself.

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184

Item arguitur, quia 1 Machabaeorum 6 (w. 44-46) excusatur Eleazarus qui
omnino idem fecit, quia submisit se elephanto ut liberaret patriam; metiose

debajo, et ipsummet interfecit ut inimicos etiam occideret. Iste licite et bene
interfecit se interficiendo elephantum, ut dicit Augustinus. Ergo etiam Sanson
licite fecit.
Respondeo quod ita credo, quod liceret ei se occidere, etiam sine praecepto
divino. Sed non dubitamus quin Sanson instinctu Spiritus Sancti illud fecit,
quia quando accepit columnas, non habebat vires naturales, et oravit Dominum
ut restitueret sibi vires. Unde constat quod miraculose illud fecit ex instinctu
Spiritus Sancti, postquam viribus naturalibus non poterat tollere columnas.
Secundo dico quod etiam sine tali instinctu Spiritus Sancti liceret illi. Sicut
Scaevolae licuit ire castra, quia non ex intentione, ita Sanson, quidquid
sequeretur, voluit interficere illos, etiamsi sequeretur mors illius quam non
intendebat. Hoc modo potest dici. Et sic de Eleazaro et de quolibet qui pro
republica sic se interfecit, est excusandus.

Articulus sextus
Utrum liceat in aliquo casu interficere innocentem.

1.— Non quaerit an absolute et de se liceat, sed an in aliquo casu liceat. Ponit
distinctionem, quod homo dupliciter potest considerari: uno modo, secun­
dum se. Prima conclusio: Hoc modo non licet illum occidere, quia etsi sit

peccator, nihilominus tenemur illum diligere.
Alio modo potest considerari in ordine et in comparatione ad alium. Se­
cunda conclusio: Hoc modo bene licet illum occidere.
Tertia conclusio: quod nullo modo licet occidere innocentem.
2.—Sed dubium est an detur aliquis casus in quo liceat illum occide- /299/
re. Videtur quod sic, quia sanctus Thomas dicit quod hominem peccatorem
licet occidere pro bono reipublicae; nec causa propter quam occiditur est
peccatum, sed praecise bonum reipublicae: ergo etiam si expediat mors
innocentis ad bonum reipublicae, licitum erit illum occidere, utputa si rex
turearum invadens regna Christianorum, — quod Deus avertat — promittat
quod nullum interficiet si ei tradatur innocens praedicator, qui praedicavit
contra sanacenos, ut illum occidat, vel si petat quod ipsi illum occidant, videtur
quod liceat illum occidere ad liberandum regnum vel civitatem. Confirmatur,

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185

Again it is argued, because in I Machabees 6 (w. 44-46), Eleazar is excused,
who did exacdy the same thing, inasmuch as he put himself under an el­
ephant in order to save his country. “He put himself under,”187 and he killed
himself in order to also kill the enemy. As Augustine says,188 in killing the el­
ephant, he well and lawfully killed himself. Therefore, Samson also acted lawfully.
I answer that I also think it would have been lawful for him to kill himself,
even without a Divine command. But we do not doubt that Samson did that
on an impulse of the Holy Spirit, for when he grasped the columns he did not
have his natural strength and he prayed the Lord to restore his strength to
him. Thus, it is evident that he did this miraculously from the impulse of the
Holy Spirit, when by his natural strength he was unable to bring down the
columns. I say, second, that even without such impulse of the Holy Spirit, it
would have been lawfol for him to do so. Just as it was lawfol for Scaevola “to
go to the camp,” because it was not intentional,189 so Samson, whatever would
follow, wanted to kill them even though his own unintended death would
result. In this way, it can be said of Eleazar and of anyone else who has so
killed himself for the republic: he should be excused.
Article Six

Whether it is lawfill in some case to kill an innocentperson.

1.— [St. Thomas] is asking not whether of itself and without any qualifica­
tion [such killing] is lawful, but whether it is so in a particular case. He makes
a distinction to the effect that a man can be considered in two ways: first, in
himself as such, [which leads to] a first conclusion: It is not lawful to kill a
man considered in this first way, because even though he is a sinner, we are
still obliged to love him.
In a second way, a man can be considered in order and comparison to
someone else, which leads to a second conclusion: It is indeed lawfol to kill a
man when he is considered in this way.
A third conclusion is that it is in no way lawfol to kill an innocent man.
2.— But there is doubt whether there is some case in which it is lawful to
kill that man. It seems that there is, because St. Thomas says that it is lawfill
to kill a sinful man for the good of the republic. And the reason for which he
is killed is not his sin, but it is precisely the good of the republic. Therefore,
also if the death of an innocent man is expedient for the good of the republic,
it will be lawful to kill him. For example, if the sultan of the Turks, invading
Christian kingdoms190 — which may God turn away — were to promise that
he would kill no one, if an innocent preacher, who had preached against the
Saracens, were handed over to him that he might kill him, or if he asked that
they kill him, it seems it would be lawful to kill him in order to save a king-

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quia majus malum est quod omnes occidantur quam quod unus. Secundo,
quia si peteret rex turearum unum praedicatorem christianorum ad
occidendum ut sic salventur omnes, liceret dare illum illi: ergo et occidere
illum. Item, praedicator iste tenetur ponere vitam ut liberet patriam suam:
ergo alii quare non possent ponere vitam illius et illum occidere? Item, quia
pro salute totius corporis, non solum licet scindere membrum putridum, sed
etiam membrum sanum; sic etiam pro liberatione totius reipublicae licebit,
non solum nocentem, sed etiam innocentem occidere. Comparatur enim
quilibet homo de republica ad totam rempublicam sicut membrum ad totum
corpus, et ut dicit Aristoteles, homo quidquid est, est reipublicae, et plus
reipublicae quam sui ipsius. Sicut ergo liceret abscindere membrum sanum
pro salute totius corporis, ita ergo videtur quod liceat innocentem occidere
pro salute totius reipublicae.
Ad hoc absolute respondeo, quod nullo modo licet innocentem occidere,

nec invitum nec volentem. — Sed contra, quia vita hujus innocentis est nec­
essaria ad salutem reipublicae. — Nego illud, quia illud est ex malitia alterius,
scilicet tureae. Secundo dico, dato concedamus quod sit necessaria vita illius,
tamen non licet illum interficere. Non enim est medium necessarium quod
isti interficiant illum, quia de se est malum; et non sunt facienda mala ut inde
veniant bona. Unde dico quod etiam in illo casu non est licitum, quia ibi,
cum ex intentione sequatur mors innocentis, provenit ex malitia et dant operam
rei illicitae qui illum interficiunt. Unde dico ad argumenta quod non est nec­
essarium, quia essemus lictores tureae si innocentem interficeremus, et male
faceremus. Sicut si turea diceret lictori suo: occide christianum, nisi [i. e., si
non occidis], comburam totam civitatem, clarum est quod non liceret lictori
occidere christianum ut turea non combureret civitatem. Ita nec aliis liceret
occidere innocentem ut liberarent rempublicam. Sanson tamen et alii licite /
300/
se interfecerunt, sed illud fuit utendo jure suo et dando operam rei licitae,
scilicet defensioni reipublicae. Unde sic bene posset innocens mori; alias non.
Et isto modo tenetur innocens se offerre morti defendendo rempublicam.
Et ad illud de membro respectu corporis, dico quod non est simile, quia
membrum non potest pati injuriam, cum non habeat bonum proprium ad
quod habeat jus. Sed homo potest pati injuriam, habet enim homo bonum
proprium ad quod habet jus. Et sic dico quod bene licet abscindere manum,
quia illa non de se patitur, sed homo, et quia illa est membrum et bonum

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q. 64, aa. 1-8

187

dom or a city. This is confirmed, because it is a greater evil for all to be killed
than for one. [It is confirmed] second, because if the Turkish sultan were to
ask for one Christian preacher in order to kill him, with the result that all
would thus be saved, it would be lawful to give that man to him. Therefore, it
would also be lawful to kill him. Again, that preacher would be obliged to lay
down his life to save his country. So why could not others lay down that same
man’s life and kill him? Again, [it is confirmed], because for the health of the
whole body it is lawful to cut offnot only a rotted member but even one which
is sound. So also for the freedom of the whole republic it will be lawful to kill not
only a guilty person but even one who is innocent. For each man of the republic
is compared to the whole republic as a member is compared to the whole body.
And, as Aristotle says,191 man, whatever he is, belongs to the republic, and more to
the republic than to himself.192 Therefore, just as it would be lawful to cut off a
sound member for the health of the whole body, so it seems it would be lawfid to
kill an innocent man in order to save the whole republic.
To this / reply simply that it is in no way lawfid to kill an innocent person,
whether he is unwilling or willing.193 — But against this·, [i t is lawfid] because
the life of this innocent is necessary for the salvation of the republic. — I deny
that, because this situation obtains from the malice of another, viz., the Turk.
Second I say, granted that the life of that innocent man is necessary for the
salvation of the republic, nevertheless, it is not lawfid to kill him. For it is not
a necessary means that they kill him, since this is of itself evil and evil things
should not be done in order that good things come from them.194 Hence, I
say that even in that case it is not lawfid [to kill an innocent man], for, in that
case, since the death of the innocent person follows intentionally, it results
from malice and they who kill him intend an unlawfid thing. Hence, to the
arguments Isay that it is not necessary; for we would be the Turk’s execution­
ers if we were to kill an innocent person and we would be acting badly. Thus
if the Turk were to say to his executioner, “kill the Christian, otherwise [i. e.,
if you do not kill him], I am burning the whole city,” it is clear that it would
not be lawfid for the executioner to kill the Christian so that the Turk would
not burn the city.195 In the same way, neither would it be lawful for others to
kill an innocent person in order to free the republic.196 At the same time,
Samson and others lawfully killed themselves, but this was by exercising their
right and intending a lawfid thing, namely, the defense of the republic. Hence, in
this way an innocent person could righdy die, but otherwise not. And in this way,
an innocent person is obliged to offer his life in defense of the republic197
And to the argument about the member in relation to the body, Isay that it
is not similar. For a member cannot suffer injury, since it does not have its
own proper good to which it has a right.198 But a man can suffer an injury,
since a man has a proper good to which he has a right. So Isay that it is indeed
lawfid to cut off a hand, for it is not the hand which of itself suffers, but

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188

Francisco de Vitoria, On Hemicuk

dumtaxat hominis, et non suiipsius. Sed innocens est bonum suiipsius et ipse
dumtaxat patitur, et ideo non licet illum occidere.
3.— Sed secundo arguitur: quia rex potest mittere ad bellum innocentem
militem, dato quod sit certus de morte ejus; sed illud est occidere innocentem:
ergo. Ad hoc dico quod falsum est; quia rex non mittit militem de per se ut
occidatur, sed ut debellet inimicos, et hoc licitum est. Si tamen possit evadere,

evadat. Alias, quod moriatur, est utendo jure suo et dando operam rei licitae.
4. —Tertio arguitur, quia licet occidere innocentes in bello scienter, id est
ex intentione: ergo. Probatur antecedens, quia licet indifferenter occidere omnes
homines invadentes, inter quos sunt aliqui innocentes: ergo licet ex inten­

tione occidere innocentem.
Respondetur quod in bello justo omnes praesumuntur nocentes. Sed haec
solutio non satisfacit, quia non semper praesumuntur nocentes, imino
multoties constat esse innocentes, praesertim quia non exspectat ad illos scire
quod rex iniat bellum justum, et tamen tenentur ire, sive sit justum, sive
injustum; immo si non venirent, peccarent mortaliter, quia tenentur parere
praeceptis regis et aestimare quod bellum sit justum. Unde si imperator
invaderet Galliam, Galli tenentur defendere regnum, quia non constat eis
quod non liceat regi suo defendere regnum. Non solum ergo faciunt quod
licet, sed quod tenentur facere. Ibi ergo multi innocentes occiduntur.
Ad hoc respondetur, distinguo: aut ex intentione, nego; aut de per accidens,
concedo. De per accidens enim bene licet occidere innocentes, quia putatur
innocens ex ignorantia. Unde de per accidens est innocens, et sic de per ac­
cidens licet occidere quia invadit tamquam nocens et tamquam hostis, licet
putet se innocentem ex ignorantia; aliter enim non potest geri bellum justum.
Sic etiam potest occidi innocens qui defendit rem meam ad quam capiendam
habeo jus. Verum est quod haec est una causa propter quam valde timendum
est de istis bellis quae geruntur inter /301/ christianos, quia grave est quod
occidantur innocentes quando ex utraque parte sunt innocentes. Sed tamen
quando aliter non potest recuperari res, licet occidere.
5.— Juxta hoc dubitatur an liceat occidere hujusmodi hostes quos scimus
innocentes, quando illos occidere non est necessarium ad victoriam utputa
quia jam victoria est obtenta. Sicut v. g., postquam vicimus Gallos, datur
civitas in praedam. An tunc quando constat esse innocentes liceat illos occidere.
Hic casus est communis in bellis Christianorum, sed non in aliis bellis in

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189

rather the man, and because the hand is a member and only a good for the
man, and not for itself. But an innocent person is his very own good and
alone he suffers, and therefore it is not lawful to kill him.199
3.— But, second, it is argued that the king can send an innocent man to
war, certain that he will die; but this is to kill an innocent person; therefore.
In answer, Isay that is false. For a king does not send a soldier expressly that
he be killed, but rather that he fight the enemy, and this is lawful. Nevertheless, if
he can avoid [sending him], he should do so. But in the other event that he should
die, [the king] is exercising his right and intending to do something lawfill.
4. —Third, it is argued that in war it is lawful to knowingly, i.e., intention­
ally, kill innocent persons; therefore. The antecedent is proven: because it is
lawfid indiscriminately to kill all attackers, among whom there are some in­
nocent men; therefore, it is lawful to intentionally kill an innocent person.
One answer is that in a just war all are presumed guilty. But this solution is
not satisfactory, because they are not always presumed to be guilty. Indeed,
oftentimes it is evident that there are innocent persons, especially inasmuch
as it is not their place to know that the king is entering upon a just war, and
still, they are obliged to go, whether it is just or unjust. In fact, if they would
not go, they would commit mortal sin, because they are obliged to obey the
commands of the king and to judge that the war is just.200 Thus, if the Em­
peror were to invade France, the French would be obliged to defend their king­
dom, because it is not evident to them that it may not be lawful for their king to
defend his kingdom. Not only, then, are they doing what is lawfid, but also what
they are obliged to do. Therefore, in war many innocent persons are killed.
In answer to this, I distinguish·, intentionally, I deny, by accident, 1 concede.
For from an accidental condition it is indeed lawfid to kill innocent persons.
For someone is judged innocent from his ignorance (hence, from an acciden­
tal condition he is innocent), and thus from an accidental condition it is
lawful to kill him, since he is attacking like a guilty enemy, even though from
ignorance he thinks himself to be innocent. Were it otherwise, a just war
could not be waged.201 In this way also an innocent man can be killed who is
seeking to retain my possessions which I have a right to take by force.202 Ίο be
sure, this is one reason why we should be very much afraid of those wars
which are waged among Christians, because it is painful that innocents on
both sides be killed. However, when possessions cannot be otherwise recov­
ered, it is lawful to kill.203
5,— In line with this, there is doubt whether it is lawful to kill enemies of
this kind, whom we know are innocent, when it is not necessary for victory,
for instance, because victory has already been achieved. For example, after we
have defeated the French, a city is given for plunder — is it then lawfid to kill
them when it is clear that they are innocent? This is a common question
(casus) in wars among Christians, although not in other wars in which all are

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Francisco de Vitoria, On Homicide

quibus omnes reputantur hostes. Et sic in bellis christianorum ubi omnes

essent nocentes, quia ipsi moverunt bellum licet eos interficere facta victoria.
Ad hoc dico quod si non est necessarium ad victoriam et ad recuperandas
res nostras, nullo modo licet, quia nullo modo licet occidere innocentem nisi
de per accidens. Ubi tamen est facta victoria, et jam sunt in tuto, si occiderent
innocentem, illud esset de per se et non de per accidens, scilicet pro defensione
sua, cum jam sint in tuto. Tertio dico, quod etiam peracto periculo, quandiu
non sunt in tuto nec sunt multum securi, tunc bene licet occidere innocentes
qui praestiterunt auxilium et tulerunt arma, quia tunc illud fit propter
defensionem. Timent enim quod innocentes tales, si maneant superstites,
rebelabunt et facessent periculum in tali negotio, quia hinc ad annum invadent
illos armis. Proceditur enim secundum allegata et probata; ab illis enim timetur
periculum: ergo sunt nocentes. Quando tamen nullum est periculum, secus
est.
6. — Sed contra hoc instatur, quia in bello sarracenorum licet occidere
infantes; et tamen hoc est occidere innocentes ex intentione, quia constat
illos esse sine usu rationis. Ita factum est, ut mihi significatum est, in bello
Tunicensi a militibus germanis, que un alemàn occidit infantem tureum.
Ad hoc posset quis male dicere quod illud licet quia timetur periculum,
quod scilicet pueri quando ad provectiorem aetatem pervenerint, arripient
arma et facient nocumentum. Sed haec solutio credo quod est falsa et non
secura. Unde dico quod nullo modo licet occidere nec pueros nec mulieres in
bello sarracenorum, nec in bello christianorum, quia constat ab illis nullum
imminere periculum. Constat etiam illos nullo modo nocere. Secundo dico
quod jure belli de per accidens licet innocentes pueros occidere, ut quando
mittimus machinas contra muros et domos quibus machinis obruitur civitas,
et pueri occiduntur, licet, quidquid ex illo sequatur, quia utitur jure belli
volendo recuperare res suas.
7.— Ultimo arguitur. Licet expoliare innocentes, ut agricolas, quan- /302/
do constat esse innocentes, et etiam illos captivos ducere in bello justo; et
tamen captivitas comparatur morti: ergo licet innocentem occidere. Etiam
licet praedari ab innocentibus in bello justo, quia bona omnia reputantur
reipublicae et tamquam si a republica auferentur.
Ad hoc respondetur quod hoc licitum est, sed hoc est de per accidens, nam
de per se solum in rempublicam nocentem initur bellum. Sed cum innocentes
sint membra reipublicae, ut nocumentum inferatur reipublicae, ideo
captivantur innocentes et depraedantur. Sed ex hoc non sequitur quod liceat
occidere ex intentione.

Commentary on Summa theologiae

q. 64, aa. 1-8

191

j

judged to be enemies.204 And so, in wars among Christians, where all are guilty
because they have made war, it is lawful to kill them when victory has been achieved.
To this, Isay that if it is not necessary for victory and for the recovery of our
possessions, it is in no way lawfid, because it is in no way, except from some
accidental condition, lawful to kill an innocent person. However, where victory has been achieved, and [the victors] are now safe, if they killed an innocent person, that would be direct [killing], and not by accident such as for
their own defense, since now they are safe. I say, third, that even when the
danger has passed, as long as they are not safe and are not quite secure, then it
is indeed lawful to kill innocent persons who have given help and borne arms,
because this is then done in defense. For they fear that such innocents, if they
survive, will rebel and cause dangerous trouble — [say] that within a year
they will attack them with weapons. For according to what is alleged and
what is proven, it is argued: danger is feared from them; therefore they are
guilty.205 When, however, there is no danger, the conclusion is otherwise.
6.— But against this last, it is objected that in war with the Saracens it is
lawful to kill infants. But this is to intentionally kill innocent persons, since
obviously these infants do not have the use of reason. So it was done in the
Tunisian war by German soldiers,206 as it was told to me “that a German”207
killed a Turkish infant.
To this someone could wrongly say that this is lawful because danger is
feared: viz. that children when they get older will take up arms and will do
damage. But I think that this answer is false and imprudent. Hence, Isay that
it is in no way lawfid to kill children and women in war either with the
Saracens or with Christians, because it is evident that from these there is no
danger threatening. It is also evident that it is in no way lawfid to harm them.208
Second, I say that by the law of war, from some accidental condition, it is
lawful to kill innocent children. For example, when we employ military ma­
chines, by which a city is overpowered, against walls and homes, and children
are killed, it is lawfid, whatever the consequence, inasmuch as one is exercis­
ing a right of war with the aim of recovering his possessions.209
7.— Last it is argued: in a just war it is lawfid to despoil innocent people,
for example, farmers, when it is clear that they are innocent, and even to take
them as captives. But captivity is comparable to death. Therefore, it is lawful

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to kill an innocent person. It is also lawfid in a just war to plunder the innocent, because all goods are judged as belonging to the republic and as if they
will be taken from the republic.
The answer is that this is lawfid, but only from an accidental condition. For
war is direcdy waged only against a guilty republic. But since innocent persons are members of the republic, they may, therefore, be taken captive and
despoiled, in order to inflict harm on that republic.210 From this, however, it
does not follow that it is lawfid to kill them intentionally.2”

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192

Francisco de Vitoria, On Homicide

Circa argumenta sancti Thomae, et maxime circa secundum, est difficultas
communis, an liceat judici secundum allegata et probata interficere innocentem

quem scit esse innocentem. Respondet quod sic, de quo infra, q. 67 facit
quaestionem particularem. Ideo nunc supersedeo.
Articulus septimus
Utrum alicui liceat occidere aliquem se defendendo.

1. — Prima conclusio: Occidere invadentem non est illicitum. Ad
probationem hujus conclusionis, praesupponit sanctus Thomas quod ex una
operatione possunt provenire duo effectus, quorum unus est ex intentione
operantis, alius praeter intentionem operantis. Sic ex defensione mea sequi­
tur unus effectus per se intentus, scilicet defensio mea, et alius effectus est
vulneratio invadentis, sed est praeter intentionem. Unde hic effectus, quia
praeter intentionem, nec imputatur nec est culpabilis.
Secunda conclusio, quae est declarativa primae: Licet alium occidere ad
defensionem suam. Intelligitur cum moderamine inculpatae tutelae, id est
quod non faciam plus ad defensionem meam quam opus sit, ita quod si sufficit
ponere clypeum, non debet stringi ensis nec habere alia arma.
Tertia conclusio: Etiam cum moderamine inculpatae tutelae, non licet
intendere occidere hominem tamquam in vindictam ut seipsum defendat, id
est requiritur quod non sit intentio interficiendi alium.
2. — Hic sunt multa dubia. Et primo circa conclusionem tertiam dubitatur
quomodo intelligatur, utrum liceat intendere mortem invasoris quando alias
non potest quis se defendere. Moderni dicunt quod sic. Et arguitur pro eis
contra conclusionem: licet velle occidere invasorem: ergo licet intendere, quia
non est aliud volitio quam intentio, quia intentio est actus voluntatis.
Antecedens probatur. Quia cuicumque licet velle /303/ finem, licet velle me­
dium necessarium ad finem; si enim licet velle navigare, licet conducere navim
tamquam medium necessarium. Sed licet velle defendere me et servare vitam
meam. Iste est finis; et judico quod non possum servare et defendere vitam
meam nisi occidendo istum, quia hoc est medium necessarium ut suppono.
Ergo licet velle interficere illum, quia alias occidet me nisi occidam illum.
Ad hoc respondendo ad rigorem possemus primo negare quod liceat velle
occidere illum. Patet quia nunquam licet velle occidere aliquem privata
auctoritate, nisi sit necessarium ad defensionem ipsius hominis; sed non est
necessarium ad defensionem meam quod velim interficere: ergo non licet

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193

With regard to the arguments of St. Thomas, especially the second argu­
ment,212 there is a common difficulty: whether it is lawful for a judge, follow­
ing what is alleged and what is proven, to kill a person whom he knows to be
innocent. St. Thomas answers that it is, and below in question 67, he raises a
particular question about this.213 Therefore, I am now omitting it.214

Article Seven
Whether it is lawfitl to kill someone in self-defense.

1.— Thefirst conclusion·. It is not unlawful to kill an attacker. To prove this
conclusion, St. Thomas supposes that two effects can follow from one opera­
tion, of which one is intended by the operator and the other is unintended.
Thus, from my defense there follows one directly intended effect, namely, my
defense itself, and another unintended effect which is the wounding of my
attacker. And this last effect, because it is unintended, is not imputed to me
nor is it blameworthy.215
The second conclusion, which is explanatory of the first: It is lawful to kill
another in self-defense, is to be understood “within the bounds of blameless
defense.” That is to say, that I not do more to defend myself than is necessary,
so that if it is enough to use a shield, a sword should not be drawn nor other
weapons be used.
The third conclusion: even “within the bounds of blameless defense,” it is
not lawful to intend to kill a man, as in revenge while defending oneself. That
is to say, it is required that there not be an intention to kill another.
2.— There are many doubts here. First, with respect to the third conclu­
sion, there is doubt about how it is to be understood — is it lawful to intend
the death of an attacker when there is no other way in which one can defend
himself? “The moderns”216 say yes. For them, the argument against the con­
clusion is: it is lawful to will to kill an attacker; therefore it is lawful to intend
that, because willing is the same as intending, inasmuch as intention is an act
of the will. The antecedent is proven: because for whomever it is lawful to will
an end, it is lawful to will a means which is necessary for that end. For if it is
lawful to will to sail, it is lawful to employ a ship as a necessary means. But it
is lawful to will to defend myself and to save my own life. That is the end; and
I judge that I cannot save and defend my life except by killing that attacker,
for I am supposing that this is a necessary means. Therefore, it is lawful to will
to kill him, since otherwise, if I do not kill him, he will kill me.
Responding to this with rigor, we couldfirst deny that it is lawfill to will to
kill him. This is clear, because it is never lawful to will to kill someone by
private authority, unless it is necessary for the defense of oneself. But that I
would will to kill is not necessary for my defense. Therefore, it is not lawful to

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Francisco de Vitoria, On Homicide

velle occidere. Minor probatur, quia sufficit velle me defendere et velle ponere
clypeum et pugnare: ergo non est necessarium velle occidere: ergo non licet.
Et sic possumus retorquere argumentum contra illos. Et ad argumentum
ipsorum possumus negare maximam, quod cuicumque licet velle finem, licet
velle medium necessarium ad finem, quando ad consequutionem finis non
est necessarium medium, ut in praesenti, quia non est necessarium velle
occidere, sed satis est velle se defendere. Quando autem non solum medium
est necessarium, sed etiam volitio medii, concedenda est maxima illa. Sed
supposito quod non est necessaria volitio medii, licet sit necessarium me­
dium; ut si ad salutem meam sit necessaria abscissio brachii mei, licet sit
necessaria abscissio brachii, non tamen volitio illius abscissionis. Secundo,
potest dici negando quod bene iudicet esse necessarium quod occidat illum
ad sui defensionem, quia falsum est quod sit semper necessaria occisio alterius
ad defensionem meam, quia sufficit debilitare illum abscindendo membrum
et extenuare vires ejus, amortecello.
Sed quia Deus non respicit ista sophismata, ideo aliter respondetur
concedendo quod, sicut licet scienter occidere, ita licet velle occidere invasorem
in casu illo. Si enim qui se defendit non habeat alia arma sino un arcabuz,
tunc clarum est quod non potest se defendere nisi occidendo. Ergo etiam licet
velle occidere. Et quando ultra arguitur: ergo licet intendere: nego conse­
quentiam, quia differentia est inter electionem et intentionem, quia intentio
est ejus quod per se intentum est ut finis. Sic ergo non licet propter se intendere
mortem alterius, sed solum facere totum quod probabiliter potest ad
defensionem suam. Sic etiam infirmus propter salutem vult abscindere
brachium, sed non hoc intendit, cum non vellit de per se quod abscindatur
brachium. Et breviter, ne in hoc maneat scrupulus, dicimus quod totum quod
est necessarium ad defensionem, totum illud licet velle, sed non intendere.
/304/
3.— Sed juxta hoc dubitatur an hoc sit generaliter verum, quod licet alicui
invasorem semper occidere defendendo se. Et intelligimus semper de invadente
injuste et sine causa. An ergo regem qui me invadit injuste liceat occidere; an
patre invadente filium, liceat filio occidere patrem defendendo se. Videtur
quod non, quia rex est persona publica. Etiam, cum ex illo sequatur magnum
scandalum in regno et turbabitur respublica. Et praeterea, quia quilibet tenetur
ponere vitam pro rege, quia teneor defendere regem cum periculo vitae meae.

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195

will to kill. The minor is proven: because it suffices to will to defend myself
and to will to use my shield and to fight. Therefore, it is not necessary to will
to kill, and, hence, it is not lawful. Thus, we can turn the argument back
against them, and answering their argument we can deny the maxim — that
to whomever it is lawful to will an end, it is lawful to will a means necessary
for that end — in the present case, when the means is not necessary for the
attainment of the end. For it is not necessary to will to kill, but it is enough to
will to defend oneself. When, however, not only the means is necessary but
also the willing of the means, then the maxim should be conceded. But, on a
supposition that the willing of the means is not necessary, even though the
means itself is necessary — as when to save my life the amputation of an arm
is necessary, the necessary amputation of the arm is lawful, but not the willing
of that amputation. In a second way, one could respond by denying that he is
righdy judging that it is necessary to kill that man in order to defend himself.
For it is false that the killing of another is always necessary to defend myself,
because it is enough to weaken him by cutting off a member and to reduce his
strength, “to disable him.”217
But because God has no regard for such sophisms, there is another answer
which is to concede that just as it is lawful to knowingly kill an attacker, so it
is lawful to will to kill in that case. For if someone defending himself has no
other weapon “but an arquebus,”218 then it is clear that he cannot defend
himself except by killing [his attacker]. Therefore, it is also lawful to will to
kill. And when it is further argued: therefore, it is lawful to intend to kill — I
deny the consequence. For there is a difference between a choice and an in­
tention, because an intention is of that which is directly intended as an end.
In this way, then, it is not lawful to intend as an end in itself the death of
another, but only to do all that can reasonably be done for ones own defense.
So also a sick man on account of health wills the amputation of an arm, but
he does not intend this, since he does not will that the arm be cut off as an
end in itself. Briefly, lest there still be any scruple in this, we say that it is
lawful to will, but not to intend, all that is necessary for defense.
3.— But in line with this, there is doubt whether this is generally true: that
it is always lawful for someone defending himself to kill his attacker. And we
are understanding this always about one attacking unjustly and without cause.
Thus, is it lawful to kill [my] king who is attacking me unjustly? Or if a father
is attacking a son, it is lawfid for the son to kill the father in his own defense?
It seems that it is not, for the king is a public person. Also, [it seems not],
since from that there would follow great scandal in the kingdom and the
republic will be thrown into disorder. Moreoever, [it seems not], because ev­
eryone is obliged to give his life for his king, for I am obliged to defend the
king at the risk of my own life.

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Respondetur ad hoc quod absolute loquendo, id est si solum ponamus quod
est rex, ita quod non veniat periculum in republica ex occisione regis, scilicet
turbatio et bellum in regno etc., tunc bene licet subdito defendere se a rege
injuste invadente et illum occidere, quia rex non habet jus ad sic invadendum
innocentem. — O contra, quia quilibet tenetur ponere vitam pro rege.—
Quando est necessarium, concedo; sed in casu non est necessarium, quia potest
me permittere vivere in pace. Et quando non est necessarium, non tenetur
quis ponere vitam pro rege. Sed ubi sequitur magnum malum in republica et
turbatio, et insurgerent bella, sequitur occisio multorum, tunc debet permittere
se interimi a rege, postquam respublica esset in periculo; quia si rex moreretur,
sequeretur bellum et turbatio in regno, ut suppono.
Sed de patre, quando me invadit, quid debeo facere? Respondetur quod

pietas magna esset in filio non defendere se et patienter ferre mortem a patre.
Sed an filius teneatur ad servandum hanc pietatem, scilicet non defendere se
et non occidere patrem, respondetur quod credo quod non, sed quod potest
illum occidere quando aliter non se potest defendere, non magis quam si esset
extraneus invadens. Sicut ergo licet occidere alium extraneum, ita et patrem,
quia non majus jus habet in hoc pater in filium quam alius extraneus.
-Dubium majus est, an teneatur quis defendere se ab invadente occidendo
4.
illum; an ergo teneatur quis occidere latronem vel alium invadentem se, quando
aliter non se potest ab illo defendere.
Opiniones sunt de hoc. Aliqui tenent quod tenetur se defendere et conservare
vitam. Probatur. De jure naturali tenetur conservare vitam; sed occisio illius
est medium necessarium et licitum ad conservandum illam: ergo. Item, quia
alias videtur occidere se, sicut qui habet panem ad conservandum vitam et
non vult sumere. Sicut ergo licitum est comedere panem necessarium ad
conservationem vitae, ita ergo videtur quod sit licitum illum occidere.
Oppositum tenet Cajetanus, et est communis opinio quam puto veram, /
305/ intelligendo quando occisio est necessaria, quod non tenetur quis pro
privata persona, scilicet pro se occidere alium invadentem injuste. Probatur.
Quia aliquando martyrium est de consilio et non semper est in praecepto; sed
multi patienter tulerunt martyrium de consilio, sicut martyres milites possent
defendere se cum essent decem millia martyrum, et tamen noluerunt se
defendere: ergo non tenebantur se defendere. Item, quia illa maxima, quod
quilibet tenetur servare vitam quando habet medium necessarium et licitum
ad illum, multoties est falsa. Si enim esset captivus rex [lege dux] Albanus, et
non posset aliter redimi a morte nisi dent totum suum majoricatum, clarum

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197

The answer to this is that absolutely speaking, that is if we stipulate only
that he is the king, in such way that there would be no danger resulting to the
republic from his being killed, such as disturbance and civil war etc., then it is
indeed lawful for a subject to defend himself against the king unjustly attack­
ing him and to kill him, because the king has no right to attack an innocent
man in this way.219 —Against this it is argued that everyone is obliged to lay
down his life for his king. — When it is necessary, I concede·, but in this case,
it is not necessary; for he can let me live in peace. And when it is not necessary
one is not obliged to give his life for the king. But where great evil and distur­
bance follows in the republic, and wars would break out, with the killing of
many ensuing, and rhe republic would thus be in peril, then he ought to
allow himselF20 to be killed by the king. For, as I am supposing, if the king
would die, there would follow war and disorder in the kingdom.
But about my father attacking me, what should I do? One answer is that it
would be great piety221 in a son not to defend himself and to patiendy bear
death at the hands of a father. But is a son obliged to observe such piety, that
is, not defend himselfand not kill his father? In answer, I think not. Rather, he
may kill him, not less than if he were an attacking stranger, when he cannot
defend himself otherwise. Therefore, just as it is lawful to kill some stranger,
so it is also lawful to kill one’s father, because a father does not in this have a
greater right against his son than does a stranger.
4.—There is a greater doubt·, whether someone is obliged to defend himself
against an attacker by killing him? Thus, is one obliged to kill a robber or some
other attacking him, when he cannot otherwise defend himself from that person?
There are [different] opinions about this. Some maintain that he is obliged
to defend himself and to preserve his life. This is proven: He is bound by
natural law to preserve his life; but killing his attacker is a necessary and
lawfid means for preserving his life; therefore. Also, [he is obliged], because
otherwise he seems to be killing himself, just as one who has food to preserve his
life and wills not to eat it. Therefore, just as it is lawful to eat bread which is
necessary for preserving life, so therefore it seems that it is lawfid to kill him.
Cajetan holds the opposite,222 and this is the common opinion which I
think is true, understanding that when a killing is necessary, one is not just a
private person, killing on his own another who is unjusdy attacking him.
This [i.e. the common opinion] is proven: because sometimes martyrdom is a
matter of counsel and it is not always commanded. But many have patiently
suffered martyrdom as a matter of counsel. For example, the martyred sol­
diers could have defended themselves, since there were ten thousand of them,
but they were unwilling to do so.223 Therefore, they were not obliged to de­
fend themselves. Again [it is shown], because that maxim, that everyone is
obliged save his life when he has a necessary and lawful means to do so, is
oftentimes false. For if the Duke of Alba were a captive, and he could be

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Francisco de Vitoria, On Homicide

est quod non tenetur dare, sed quod potius licet mori. Sic etiam qui habet
panem necessarium ad conservandum vitam suam, potest dare patri vel amico
et patienter amplecti mortem. Item, qui est in carcere damnatus ad mortem,
licite potest fugere et liberare se a morte, quia habet medium necessarium ad
conservandum se, scilicet carcerem apertum; et tamen non tenetur fugere,
sed patienter ferre mortem licet: ergo. Item, licet pro amico in mari ponere
vitam meam, dando illi tabulam ut evadat periculum submersionis et mortis,
me manente in illo; sic etiam pro patre possum ponere vitam et pro amico.
Ergo etiam pro inimico, licet plus pro amico, quia quod sit inimicus meus
non tollit a me libertatem quin possim non occidere illum. Dico ergo quod
non tenetur se defendere ab inimico invadente injuste, sed quod licite potest
permittere se occidi quando aliter non potest se defendere nisi occidendo
invasorem, praesertim considerando malam vitam inimici, qui damnabitur si
a me interficiatur. Et hoc confirmatur ex Hugone de Sancto Victore, qui putat
esse praeceptum illud Pauli: Non vos defendentes, fratres, sed dantes locum irae

(Rom. 12, 19).
5.— Sed contra hoc arguitur, quia plus tenetur quisque ex ordine caritatis
diligere se quam proximum; patet, quia plus tenetur quis diligere propinquum
quam extraneum: ergo plus tenetur ad conservationem propriae vitae quam
alienae ex ordine caritatis.
Ad hoc respondetur: quando dicitis quod plus tenetur quisquam etc., dico,
ex mente sancti Thomae, quod verum est in spiritualibus bonis, et alias non,
quia in temporalibus potest quis cedere juri suo, et consulere bono spirituali
proximi cum detrimento corporali. Unde quando non possum servare vitam
meam sine periculo spirituali alterius, scilicet sine damnatione, licite possum
non me defendere.
/306/
Secundo dico, quod licet omnino occidere furem invadentem, licet ad illud
non teneatur. Et ad argumentum, quia non est praeferendum bonum corporale
bono spirituali; sed ego quando occido latronem praefero vitam meam
corporalem bono spirituali quod perdit propter mortem quia damnabitur:
ergo: respondetur quod nihilominus illo non obstante, licet, quia bonum meum
corporale non est necessarium ad bonum spirituale alterius; quia si alius non
habet bonum spirituale, est ex sua malitia. Unde dato quod fur damnetur,
hoc est ex culpa sua.
6.— Dubitatur consequenter, an etiam pro defensionem aliarum rerum
temporalium liceat occidere invasorem, ut v. g. latronem quaerentem a me
pecuniam.

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199

redeemed from death only if he gave up his whole dukedom {majoricaturrd2i),
it is clear that he is not obliged to do that, but rather it is lawful for him to
die. So also, one who has bread which is necessary to sustain his life can give
it to his father or to a friend and can serenely embrace death.225 Again, one
who is in prison condemned to death, can lawfully flee and save himself from
that death, inasmuch as he has the means necessary to save himself, namely,
an open prison door. And yet, he is not obliged to flee, but he can with
patience lawfully suffer death; therefore. Again, it is lawful to give my life for
a friend, by giving him a plank to avoid the danger of death by drowning,
while I remain in the sea. In the same way, I can also give my life for my father
as for my friend.226 Also, then, I can give it for an enemy, although more for a
friend, because the fact that one is my enemy does not take away from me the
liberty of being able not to kill him. Isay, therefore, that one is not obliged to
defend himself from an enemy who is unjustly attacking. But he can lawfully
allow himself to be killed when he cannot defend himself except by killing his
attacker— especially considering the evil life of the enemy, who will be damned
if he is killed by me. And this is confirmed from Hugh of St. Victor,227 who
thinks that this is a commandment of St. Paul [when he says] : “Not defending
yourselves, brothers, but givingplace to wrath”.226
5.— But against this it is argued that, from the order of charity,229 everyone
is more obliged to love himself than to love his neighbor. This is clear, because
one is obliged to love someone near to him more than a stranger. Therefore,
from the order of charity one is more obliged to preserve his own life than the
life of another.
In reply to this, when you say that everyone is more obliged, etc., I say.
according to the mind of St. Thomas,230 that is true in spiritual goods, but
otherwise not. For in temporal things someone can give up his right, and,
with some corporal loss, look for the spiritual good of his neighbor. Hence,
when I cannot preserve my life without spiritual harm to another, viz., with­
out his damnation, I may lawfully not defend myself
Secondly Isay that it is completely lawful to kill a thief (fur) who is attack­
ing, although one is not obliged to do so. And to the argument — that a
corporal good should not be preferred to a spiritual good; but when I kill a
thief (Λζζζ»)23! I am preferring my corporal life to the spiritual good he is
losing inasmuch as in dying he will be damned; therefore — the answer is
that, notwithstanding this, it is lawful — because my corporal good is not
necessary here for the spiritual good of another. For if that other loses a spiri­
tual good, it is from his own malice. Therefore, granted that a thief will be
damned, this is his own fault.
6.— Consequently, there is doubt: whether, also in defense ofother tempo­
ral goods, it is lawfill to kill an attacker, as for example, a robber demanding
money from me.

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Respondetur quod non solum pro defensione vitae, sed etiam pro defensione
rerum temporalium licet occidere invasorem, quia licet defendere pallium et
quodcumque bonum temporale. Ita dicit Cajetanus, quia utitur jure suo, id
est sibi licet: ergo quidquid sequatur, non ei imputabitur. Secundo dico, quod
non est dubium nisi quod multo melius esset permittere se expoliari pallio vel
pecunia, quam occidere furem et mittere illum in infernum. Et si res esset
parva, ut ducatum, et pro defensione illius occideret latronem, non excusarem
illum a peccato mortali, quia videtur contemnere vitam proximi. Si tamen sit
magna res, ut viginti vel decem aurei, considerata qualitate personae, tunc
liceret occidere. Et si arguas: quia praefero pecuniam vitae alterius: respondetur
quod dato illo, licitum est quando pecunia mea non est necessaria ad vitam
alterius. Unde tunc licet occidere. Sed hoc scilicet quod licet occidere illum,
sane intelligendum est, quando videlicet alias non possum recuperare res meas
nisi occidendo. Quia si cognoscerem istum qui vult a me capere pallium, et in
judicio possem illud recuperare, tunc non liceret illum occidere.
7. — Est aliud dubium morale gravius. Si possum me defendere ab invasore
fugiendo, an tenear fugere, vel an possem exspectare et occidere illum. Videtur
dubium, quia si illum et meipsum possum liberare ne moriamur, videtur con­
tra caritatem illum occidere et mittere in infernum, et sic videtur quod tenear
fugere.
Respondetur quod quando per fugam venit sibi detrimentum, ita quod
amitterer aliquid magnum, ut honorem, si fugeret, como si fuese un caballero, tunc non tenetur fugere. Praesertim si sit vir honestus de cujus honore
agitur, esset magna denigratio suae famae, si fugeret. Certe videtur quod non
teneatur fugere, quia majus detrimentum est inhonoratio in nobili quam
amissio domus suae. Sed pro defensione domus suae ne alius diruat illam et
ne perdat illam, potest occidere illum, ut jam dictum /307/ est. Ergo etiam ne
perdat honorem. Secundo dico, quod si esset homo infimus ex cujus fuga non
sequitur magnum detrimentum in fama, nec agitur multum de fama, tunc
tenetur fugere. Tertio dico, quod si res sit parva propter quam alius invadit
me, sunt v. g. duo aurei vel tres aurei, tunc tenetur fugere si potest, et non
occidere illum; quia quomodo compatiuntur haec duo, scilicet quod ego
diligam proximum sicut meipsum, et quod occidam eum pro parva re?
8. — Dubitatur consequenter, si conclusio Doctoris est vera, scilicet quod
licet interficere invadentem, scilicet inimicum, an liceat illum praevenire et
quaerere eum ad interficiendum et interficere. V. g„ si ego essem homo pau­
per, et non haberem unde emerem satellites et commilitones, et inimicus meus

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One answer is that it is lawful to kill an attacker not only in defense of life
but also in defense of temporal goods, for it is lawful to defend one’s cloak or
any other temporal good. This is what Cajetan says,232 for [such a one] is
exercising his lawful right; therefore, whatever may follow, it will not be im- puted to him. Secondly, I say that there is no doubt that it would be much
better to allow oneself to robbed of a cloak or of money than to kill the robber
and send him to hell. And if the matter were trivial, e.g., a ducat,233 and one
were to kill a robber in its defense, I would not excuse that person of mortal
sin, because he apparently is holding the life of his neighbor in contempt. If,
however, it is a large matter, such as ten or twenty gold pieces,234 taking into
account the rank of the person,235 then it would be lawful to kill. And ifyou
argue, that I am preferring money to the life of another, I answer, even grant­
ing that, it is lawful when my money is not needed for that other’s life. Hence,
it is then lawfid to kill him. But this, that it is lawful to kill him, must cer­
tainly be understood as meaning when I cannot recover my possessions oth­
erwise than by killing him. For if I knew [i.e. could identify] the one wanting
to take my cloak236 from me, and I could recover it in a [court] judgment,
then it would not be lawfid to kill him.237
7.— There is another more serious moral doubt. If I can defend myself by
fleeing from an attacker, am I obliged to flee or can I stand fast and kill him?
The doubt is evident, because if I can save myself and him without either of
us dying, it seems uncharitible to kill and send him to hell, and thus it seems
that I am obliged to flee.
The answer is that when by fleeing one would suffer damage, suchwise that,
if he were to flee, he would lose something great, for example, honor, “as
[would be the case] if he were a knight,”238 then he is not obliged to flee.
Especially if it is a man of honor whose honor is in question, it would be a
great stain on his reputation, were he to flee. It seems certain that he would
not be obliged to flee, because dishonor in a nobleman is greater damage than
the loss of his home. But to defend his home, lest someone else destroy it and
he lose it, he can kill that person, as has been said.239 Therefore, he also may
do so in order not to lose his honor.2401 say, second, that if it were a man of
lowest rank, from whose flight no great loss of reputation would follow, and
who is not much concerned about reputation, then [such a one] is obliged to
flee.241 Third, Isay that if it is a small thing for which another is attacking me,
for instance, two or three gold pieces,242 then, if it is possible, one is obliged to
flee and not to kill him. For how are these two thing compatible, viz., that I
love my neighbor as myself and that I kill him for a small thing?243
8.— Consequendy, there is doubt·, if the Doctors [i.e. Aquinas’] conclusion
is true, i.e., that it is lawful to kill an attacking enemy, would it be lawful to
anticipate him and seek to intercept244 and kill him? For example, if I were a
poor man, and did not have the wherewithal to hire guards and allies, and my

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esset nobilis vir vel dives, et scio quod ipse parat satellites et commilitones ad
interficiendum me, tunc est dubium an liceat mihi praevenire et interficere
illum, matalle antes que me mate.
Videtur quod sic, quia ego habeo jus ad defendendum me et vitam meam
cum moderamine inculpatae tutelae; sed non est alia via ad defendendum me
nisi praeveniendo ipsum, id est quaerendo ad interficiendum: ergo videtur
quod liceat praevenire illum, id est quaerere et interficere.
In contrarium est quia daretur magna ansa hominibus ad interficiendum
passim homines. Item, quia hoc nunquam versatur in usum. Item, nec auderet
aliquis hoc praedicare et monere nec ad illud exhortari poenitentem ut sic
praeveniat inimicum et occidat ipsum. Item, leges obligant in foro conscien­
tiae; sed leges hoc prohibent: ergo non licet inimicum praevenire et interficere.
Respondetur ad hoc. Primo, quod certe est periculosum universaliter hic
[sic?] loqui et daretur nimia licentia hominibus ad passim occidendum hom­
ines inimicos. Unde oportet cum moderamine et cautela loqui ne insurgant
scandala, et ideo hoc nullatenus debet praedicari. Secundo dico, quod si iste
habet medium aliquod ad defendendum vitam suam, scilicet fugiendo ad
aliam civitatem, sine magno detrimento rei suae ubi erit tutus ab inimico suo,
illud debet facere et non praevenire inimicum; quia sic praevenire illum non
esset medium necessarium ad se defendendum cum moderamine inculpatae
tutelae, cum alias possit defendere vitam suam. Tertio dico, quod si nullum
aliud medium sit ut defendat vitam suam nisi praevenire interficiendo illum,
utputa quando dato quod /308/ peragretur ad aliam civitatem, scit certitudine
scientiae quod quaeret eum et interficiet, tunc licet praevenire et occidere. Et
si arguas, quod nulli licet invadere alium; sed iste jam videtur invadere quando
quaerit inimicum ad occidendum: ergo: respondetur quod illud non est
invadere, sed potius est defendere se, immo alius invadit cum paret seipsum
interficere. Unde de hoc non est dubium sic intelligeudo, scilicet quod non
supersit aliud medium ad defendendum se nisi praeveniendo ipsum inimicum.
9.— Nota tertium argumentum, circa cujus solutionem adverte quod illud
jus allegatum a sancto Thoma est jus antiquum, et sic solutio sancti Thomae
procedit secundum jus antiquum. Sed nunc post tempus sancti Thomae fuit
determinatum secundum jus novum in clementina unica de homicidio [S:
furiosus], quod clericus qui interficit non valens aliter se defendere, non incurrit
irregularitatem.

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enemy were a noble or rich man, and I know that he is recruiting guards and
allies to kill me, then the question is whether it is lawful for me to preemp­
tively kill him, “to kill him before he kills me,”245
It seems to be so, for I have a right to defend myself and my life “within the
bounds of blameless defense.” But there is no other way to defend myself
except to anticipate him, that is to seek to kill him. Therefore, it seems that it
is lawful to anticipate him, that is to seek and to kill him.246
Against this is the fact that it would give a great excuse to men everywhere
to kill other men. Against it also is the fact that this is never put into practice.
Again, neither would anyone dare to preach and advise this, nor to exhort a
penitent to this that he should preemptively kill an enemy. Again, laws oblige
in the forum of conscience;247 but laws prohibit this; therefore, it is not per­
mitted preemptively to kill an enemy.
To this, I answer, first, that it certainly is dangerous to speak so and too
much licence would be given to men everywhere to kill their enemies. Thus,
it is necessary to speak with moderation and caution lest scandals arise, and
therefore, this should in nowise be preached. Second, I say that if the man has
some [other] means to defend his life, such as flight to another city where,
without a great loss of his property, he would be safe from his enemy, he
should do that and not preemptively strike his enemy. For so to strike him
would not be a means necessary to defend himself “within the bounds of
blameless defense,” since he could defend his life in another way. Third, Isay
that if there is no other means to defend his life except preemptively to kill his
enemy, for example, when, supposing that he has journeyed to another city,
he knows with scientific certitude that his enemy will seek him and kill him,
then it is lawful to anticipate and kill the enemy. And if you argue: it is not
lawful for anyone to attack another; but this man now seems to be attacking
when he seeks to kill his enemy; therefore — the answer is that this is not to
attack, but rather it is to defend oneself. Indeed, the other is attacking when
he is preparing himself to kill him. Thus, there is no doubt about this, under­
standing it in such way that no other means to defend oneself remains except
preempting the enemy.248
9.— Note the third argument.249 About its solution, notice that the law
alleged by St. Thomas is an ancient law,250 and thus his solution proceeds
according to ancient law. But now, after the time of St. Thomas, it has been
decreed according to the new law in the single Clementine passage about
homicide,251 that a cleric who kills, when he is not able otherwise to defend
himself, does not incur an irregularity.

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Articlulus octavus
Utrum aliquis casualiter occidens hominem incurrat homicidii reatum.

1.— Sunt multi casus contingentes, ut si quis scindens arborem in nemore,
a casu, ad ruinam arboris puer transiens occisus est: an ille sit irregularis.
Doctor primo ponit unam conclusionem fundamentalem, quod quicumque
ponit causam homicidii quam potuit tollere et tenebatur tollere et non tollit,
tale homicidium est voluntarium et per consequens peccatum. Consequenter
ponit distinctionem, quod dupliciter potest dare aliquis causam homicidii.
Uno modo, dando operam rei illicitae, ut si quis sagittaret in loco ubi
peragrantur homines et pueri, et sequatur homicidium, imputabitur ei. Alio
modo, dando operam rei licitae et adhibita sufficienti diligentia ad hoc quod
non sequatur homicidium. Et tunc si sequatur, illud praeter intentionem est

et non imputabitur ei.
2.— Dominus Cajetanus sufficienter tractat istud articulum, et ex mente
ejus nos ponemus aliqua dubia, notando prius, ut ipse notat, quod illud quod
est intentum, nullo modo est casuale; ut si sarracenus sagittaret in nemore ad
necandum feras, sed tamen vellet quod a casu transiret christianus ut interficiat
eum, si sagita interficiat christianum a casu transeuntem, erit reus homicidii.
Secundo notandum etiam est ex illo, quod quantumcumque quis ponat causam
homicidii, si tamen ex illa re non sequatur homicidium, tunc illud homicidium
non imputabitur ei; ut /309/ si quis vulneravit aliquem male, et postea ille
vulneratus mortuus est ex sua mala dispositione, et quia male se tractavit et
rexit, puta quia percussus illo vulnere accessit ad meretricem, tunc homicidium
non imputabitur illi qui vulneravit illum.
Sed arguitur contra istud secundum notabile, quia quicumque praeter
intentionem facit aliquid cum periculo occidendi, si inde sequatur homicidium,
ei imputabitur, quia peccat peccato homicidii, sive sequatur homicidium, sive
non: ergo. Probatur, quia actus exterior nihil agit ad actum interiorem quo,
dato quod sequatur homicidium, vel non sequatur, adhuc imputabitur
homicidium. Respondetur pro Cajetano quod ipse intelligit homicidium
causale non imputari ei, si ipse non fuit causa homicidii. Non tamen negaret
Cajetanus quod si aliquis dat operam alicui actui ex quo vel sequatur
homicidium, vel natum est sequi homicidium, quod iste non sit reus homicidii.
3.— Dubitatur. Si quis percussit aliquem qui ex vulnere mortuus est ex eo
quod non vixit temperate, vel quia non quaesivit bonum chirurgum, an sit

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Article Eight

Whether someone who kills a man by chance is guilty ofhomicide.

1.—There are many contingent events, e.g., someone cuts down a tree in a
grove, and by chance a passing child is killed by the fall of the tree. Is then the
one felling the tree irregular?
St. Thomas first lays down one basic conclusion: if anyone gives cause for a
homicide, which he could have removed, and which he is obliged to remove
and he did not, for him such a homicide is voluntary and consequently a sin.
Accordingly, he posits a distinction to the effect that someone can give cause
for a homicide in two ways. One way is by intending something unlawful,
e.g., if someone were to shoot arrows in a place where men and boys are
passing by and a homicide results, it will be imputed to him. A second way is
when one intends something lawfid, and uses sufficient diligence in order
that a homicide not follow. Then, if it does follow, it is outside his intention
and will not be imputed to him.
2. — Master Cajetan treats this article well enough,252 and it is from his
understanding that we will raise some doubts, noting first, as he himself notes,
that something which is intended is not at all by chance. For example, if a
Saracen were to shoot arrows in a forest in order to kill wild animals, but he
were also to wish that a Christian would by chance pass by so that he might
kill him, if an arrow kill a chance Christian passing by, he will be guilty of
homicide. Second, it should also be noted that howevermuch anyone puts in
place a cause of homicide, if the homicide still does not follow from that
cause, then that homicide will not be imputed to him. For example, if some­
one has badly wounded someone else, and afterwards that person has died
from his own bad inclination and because he has behaved and conducted
himself badly, if, say, wounded he visited a prostitute, then the homicide will
not be imputed to the one who wounded him.
But against this second point, an argument is made: that, intention aside,
whoever does something with a danger of killing attached, if a homicide fol­
lows from that, it will be imputed to him; for he commits the sin of homi­
cide, whether a homicide follows or not; therefore. This last is proven, be­
cause the external act adds nothing to the internal act,253 from which, whether
we suppose a homicide to follow or not, a homicide will still be imputed. On
behalf of Cajetan, the answer is that he understands that a chance homicide is
not imputed to one who was not the cause of that homicide. However, Cajetan
would affirm that, ifsomeone intends some action from which either a homicide
may follow or a homicide is apt to follow, that man is guilty of homicide.25*
3.— Here there is a doubt. Is someone irregular, if he has struck another,
who died from the wound, because he had not lived in a temperate way or

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irregularis. Cajetanus dicit quod non nec imputabitur homicidium. Sed
probabilius puto quod sit irregularis, tum quia sufficiens fuit causa homicidii
illius, tum quia non ex alio nisi ex ipso vulnere mortuus est, tum quia si
percussus quaerit medicum et non invenit et interim moritur, alius qui percussit
non est dubium quin sit irregularis. Secundo dico, quod si vulnus non esset
letale sed parvus, quod etiam sanaretur absque alio medicamento, tunc, si
quia apponit medicamentum noxium vel aliquid malum moritur, non
incurritur irregularitas nec homicidii reatus, ut vidi semel contigisse, quod
quis propter hoc ex parvo vulnere mortuus est.
4.— Sed dubitatur quomodo intelligitur distinctio Doctoris quam accepit
a dominis juristis, scilicet vel dat operam rei licitae, et sic non imputatur ei
homicidium, vel dat operam rei illicitae, et si sequatur homicidium,
imputabitur ei. Istam distinctionem ponunt juristae generaliter, quod sive
adhibeat diligentiam, sive non, dummodo det operam rei illicitae, si sequatur
homicidium, incurritur irregularitas et homicidii reatus.
Sed contra hoc arguitur. Et primo, contra illud secundum membrum et
secundum intellectum ut juristae intelligunt, scilicet quod qui dat operam rei
illicitae, sive apponat sufficientem diligentiam, sive non, si sequatur
homicidium, est irregularis. Arguitur sic: Ponamus quod quis scindat die festo
unam arborem, et a casu transivit puer, quem arbor ruens interfecit. Tunc
talis non peccavit alio peccato nisi peccato de non observatione festi, et non
peccato homicidi: ergo.
/310/
Item arguitur. Volo quod quis velit diruere domum inimici ut sic interficiat
inimicum, et ponatur diligentia ad hoc quod nullus transeat ne interficiatur,
sed a casu transivit puer, et domus ruens eum interfecit. Iste non peccat peccato
homicidii: ergo. Probatur, quia si iste dirueret domum suam, secundum hos
juristas, adhibita eadem diligentia, non esset reus homicidii, et per consequens
nec irregularis: ergo nec diruendo domum inimici.
Item, si quis clericus equitaret equum in via que va en posta, et a casu
transivit puer et occidit ipsum, talis non est reus homicidii, ut recte sentienti
patet: ergo.
5.— Ad hoc dominus Cajetanus dicit quod dupliciter possumus loqui de
hoc homicidio casuali: uno modo, quantum ad culpam; alio modo, quantum
ad irregularitatem. Primo, quantum ad culpam dico quod si ille qui dat operam
rei illicitae, adhibeat sufficientem diligentiam, non plus peccat quam ille qui
dat operam rei licite si adhibeat etiam sufficientem diligentiam. Itaque quan-

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207

because he did not seek the help of surgeons? Cajetan says he is not and that
a homicide will not be imputed to him.255 But I think it more probable that
he is irregular, because he was the sufficient cause of that homicide, because
the man did not die from anything but that wound, and because if as soon as
he was struck he sought a medical doctor and did not find one and died in the
interim, there is no doubt that [the one who struck him] would be irregular.
Second, Isay that if the wound would not be lethal, but rather a small one,
which would heal without any other medical treatment, then, if he dies be­
cause he uses some noxious or bad medicine — as I saw once happen, that
someone died because of a small wound — an irregularity is not incurred,
nor is [the one wounding him] guilty of homicide.
4.— But there is doubt about understanding Aquinas’ distinction,256 which
he took from the legal masters,257 namely, either one intends something law­
ful, and in that case a homicide is not imputed to him, or one intends some­
thing unlawful, and if a homicide follows, it will be imputed to him. The
jurists posit this distinction in a universal way, so that whether one exercises
diligence or not, as long as he intends something unlawful, he incurs an ir­
regularity and is guilty of homicide.
But there are arguments against this. The first argument is against the sec­
ond member [of the distinction] understood as the jurists understand it, viz.,
that one who intends an unlawful thing, whether he uses sufficient diligence
or not, is irregular if a homicide follows. The argument then is as follows: let
us suppose that on a feast day someone cut down a single tree, and by chance
a child passed by, whom the falling tree killed. In that case, such a one did not
sin in any other way except by the sin of not observing the feast day — and
not by the sin of homicide; therefore.
Again, I would argue: that someone might will to destroy the house of his
enemy, so as to kill his enemy, and care may have been taken that no passerby
be killed, but by chance a child passed by and the falling house killed him.
That man does not sin by the sin of homicide; therefore. This is proven: for if
that man destroyed his own house, using the same diligence, then, according to
these jurists, he would not be guilty ofhomicide and, thus, would not be irregular.
Therefore, neither would he be so from destroying the house of his enemy.
Again: if some cleric were to ride a horse on a “post”258 road, and by chance
a boy passed by and he killed him, the cleric would not be guilty of homicide,
as is clear to any right thinking person; therefore.
5.— To this Master Cajetan says that we can speak of such an accidental
homicide in two ways: in one way, with respect to fault and in a second way,
with respect to irregularity.259 In the first way, with regard to fault, I say that if
one who intends something unlawful exercises sufficient diligence, he does
not sin any more than one who intends something lawful if he also exercises
the same diligence. Therefore, with regard to fault, the judgment is the same

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tum ad culpam, idem est judicium de dante operam rei illicitae et de dante
operam rei licitae, posita aequali diligentia.
Alio modo possumus loqui de homicidio casuali quantum ad irregularitatem.
Et dicit quod qui dans operam rei illicitae adhibita omni diligentia, si sequatur
homicidium, talis esset irregularis. Probatur, quia forte hoc institutum est ita
in odium homicidii. Hoc tenet dominus Silvester verbo Homicidium 2, s 1, et
adducit ad hoc multa jura. Et juristae adducunt sequentia, scilicet cap.
Suscepimus, et cap. De caetero et cap. Tua, et Sicut ex litterarum, de homicidio;
ex quibus omnibus capitulis habetur quod si aliquis dat operam rei illicitae, et
sequatur homicidium, adhibita omni diligentia, est irregularis.
6.— Sed certe judicio meo nihil probant illa capitula, precipue in casibus
trium primorum capitulorum, quia non ponuntur ibi casus de dante operam
rei illicitae. Casus primi capituli est de monachis qui alligaverunt malefactores
quosdam repertos in domo sua, qui postea mortui sunt ex illo; vide ibi. Et in
cap. Tua nos est casus de monacho qui erat expertus in arte chirurgiae, qui
curavit quamdam mulierem a gutturi, sed ipsa sua culpa mortua est, quia
scilicet vento se opposuit, mandato monachi spreto. Sed dicitur ibi quod daret
operam rei illicitae. Sed juristae arguunt a contrario sensu sic: scilicet iste
monachus dabat operam rei licitae: ergo si non dedisset operam rei licitae sed
illicitae, esset irregularis. Sed ego credo quod papa nunquam somniavit quod
si aliquis clericus vel monachus rei illicitae operam daret, sine periculo quod
inde sequatur ho-/311/ micidium, et sine intentione perpetrandi homicidium
et sine peccato homicidii, quod talis esset irregularis. Sed intelligit quod si
quis daret operam rei illicitae cum magno periculo homicidii, quod talis esset
irregularis. Probatur, quia istae sunt poenae; sed poenae sunt restringendae et
favores ampliandi: ergo. Bene scio quod praetor occidens malefactores est
irregularis; sed ibi est aliud, scilicet intentio homicidii.

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209

i' ;l*
;
i

for one intending something unlawful as for someone intending what is lawfol, assuming that both exercise similar diligence.
In the second way, we can speak of an accidental homicide with respect to
irregularity. And Cajetan says that he would be irregular who intends an un­
lawfol thing and who exercises all manner of diligence, if a homicide in fact
results.260 This is proven, because perhaps it has been decreed so in order to

reprehend homicide. Master Sylvester holds this, at the word “Homicide,” 2,
s. 1, and brings forward many laws to show it so.261 And the jurists bring
forward corollaries, e.g., the chapter, “Suscepimus,”161 the chapter, “De
caetero,”263 the chapter, “ Tua”1M and the chapter, “Sicut ex litterarum,”165 with
respect to homicide. From all these chapters it is held that if someone intends
an unlawful thing, and a homicide results, even though he has exercised every
care, he is irregular.
6.— But in my judgment, those chapters prove absolutely nothing. This is
especially so as regards the first three chapters, because they do not pertain to
cases involving the intention of an unlawfill thing. The case in the first chapter concerns monks who tied up some felons discovered in their monastery,
and these later died as a result of that; look at it. In the chapter, “ Tua nos,” the

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case is that of a monk who was an expert surgeon, who cured a certain woman
from a goiter, but she died by her own fault, because, that is, disregarding the
monk’s prescription, she exposed herself to a draft. — But it is said there that
the monk intended something unlawful. — However, the jurists argue from
the opposite direction, as follows: that monk intended something lawful: there­
fore, if he had not intended something lawful, but rather something unlaw­
ful, he would be irregular. But I believe that the pope never dreamed that if
some cleric or monk were to intend an unlawful thing, without danger of a
homicide following from it, and without the intention of committing a ho-

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micide, and without the sin of homicide, that such a man would be irregular.
But he meant that if someone were to intend something unlawful, with a
great danger of homicide, that such a person would be irregular. This is proven:
because these are penalties; but penalties should be restricted and indulgences
should be broadened;266 therefore. I am well aware that a magistrate who kills
felons is irregular; but in that case there is something else, namely, the inten­
tion of homicide.

|
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Translator’s Notes
1 Spanish: “segar los prados.
1 For Ovids Metamorphoses as a probable source of this, cf. Vitoria, On Temperance, n. 3,
Urddnoz, p-1020. On Pythagorean vegetarianism and its possible connection of this
with metempsychosis, cf. e.g. Frederick Copleston, SA History ofPhilosophy, newrevised edition, Vol. I (Westminster, Md.: The Newman Press, 1953), pp. 30-1.

3

c. 9: 3.

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;

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210

Francisco de Vitoria, On Homicide

4 This is puzzling. In Genesis 4: 4, Cain is said to have been a husbandman. But we
also read that, after the death of Abel, Cain “dwelt as a fugitive on the earth” (4:
16), which could easily entail his being, at least for a time, a nomadic hunter.
5 On this, cf. St. Thomas, Summa Theologiae Ia-IIae, q. 102, 6, ad 2; and Vitoria, On
Temperance, n. 3, Urdânoz, 1018-24.
6 The Scholastic teachers of theology, scripture, and canon law.
7 Spanish: “las manas.”
8 With this compare: “Irrational creatures cannot have dominion. This is clear, be­
cause, as Conrad [i.e. Conrad Summenhart (1465-1511) De contractibus, 1, c. 6]
himself says, dominion is a right (jus). But irrational creatures cannot have a right.
Therefore, neither can they have dominion. The minor is proven, inasmuch as
they cannot suffer a wrong {injuria}·, therefore, they do not have a right. A proof
of this [last antecedent] is that anyone keeping a wolf or a lion from its prey, or an
ox from its pasture, would do them no wrong. Nor would anyone who closed a
window to prevent the sun from shining in do any wrong to the sun.” On the
Indians, I, n. 20; ed. Urdanoz, p. 661.
9Cf. In IP-IP', q. 62, a. 1, esp. nn. 11-12, Comentarios ... Ill, pp. 70-72.
10 Actually: “nocent.” {'they are harming’)
11 “porci monteses”
12 Vitoria’s Latin: Vae terrae cujus principes male comedunt. The verse in the DouayRheims version, “Woe to the land whose princes eat in the morning,” obviously
translates “mane” instead oî“maleT
13 Cf. Decreti Prima Pars, Distinctio 86, VPars, c. xi, Item leronimus in Psalm. XC, in
Corpus iuris canonici, editio Lipsiensis secunda, Aemilii Ludovici Richteri et Aemilii
Friedberg, Pars Prior Decretum Magistri Gratiani (Graz: Akademische Druck-u.
Verlagsanstalt, 1959), col. 300.
14 Ibid. For the reference in Jerome, cf. Brev. in Psalm. (P.L. 26, 1163).
15 Cf. Dist. 86, V Pars, c. 12; Corpusjuris canonici, pars prior, ed. Richter and Friedberg,
I, col. 300.
16 Decretalium Gregarii IX, lib. V, tit. 24, c. 1 ; in Corpusjuris canonici, pars secunda,
ed. Richter and Friedberg, II, 825.
17 Cf. c. 3,1256bl7-27.
18 Chapter 1 of Episcopum.
15 Here Vitoria’s text reads: “exercitium et consuetudo,” i.e., “the practice and habit.”
In my translation, I am taking the “et” (and) to have an exegetic function.
20 Spanish: “de cualquier caza.”
21 On Church law and the distinction between hunting as such and clamorous hunt­
ing, cf. William H.W. Fanning, “Hunting,” The Catholic Encylopedia (New York:
The Encyclopedia Press Inc, 1913), VII, 563-4.
22 Spanish: “que su vida sea cazar.”
23 Decreti Prima Pars, Distinctio 86, VPars, c. xi, Pars Prior, ed. Richter et Friedberg,
I, col. 300.
24 lustiniani Institutiones, Lib. II, lit. I, De rerum divisione, in Corpus iuris civilis,
editio sexta decima, volumen primum, recognovit Paulus Krueger (Berolini: Apud
Weidmannos, 1954), p. 10.

I

Translator’s Notes to the Commentary on Summa theologiae

I

sIbid.,n. 12.

211

» Ibid., n. 1.
”Ibid, a. 2.
28 Instit., L II, 1.1, §§ 1, 2, 12.
2’ With this, cf.: “... since those things which are in no ones possession, by the law of
nations (jure gentium) belong to the one taking them; cf. the Institutes, De rerum
divisione, § Ferae bestiae [II, 1, 12). Therefore, if gold in a field, or pearls in the
sea, or whatever else is in the rivers, is not owned (appropriatum}, then by the law
of nations (jure gentium) it belongs to the one taking it, just like fish in the sea.
And, indeed, many things seem to follow from the law of nations (exjure gen­
tium), which because it is sufficiently derived from natural law (exjure naturali)
clearly has power (vis) both to impart a right and to oblige. But even granted that
this may not always be derived from natural law, the consensus of the greater part
of the whole world seems to be enough, especially when it is for the common
good of all.” On the Indians, III, n. 4; ed. Urdanoz, p. 710.
30 Institutes, § Ferae.
31 lustiniani Digesta, Lib. XLI, Tit. I, n. 1, in Corpus iuris civilis, editio sexta decima,
volumen primum, recognovit Theodorus Mommsen, retractavit Paulus Krueger
(Berolini: Weidmannos, 1954), p. 690. For Vitoria himself citing this law in an­
other place to the same effect, cf. In IF-II", q. 62, a. 1, n. 26, in Comentarios...
Ill, pp. 80-81.
32 lustiniani Institutiones, Lib. II, Tit. I, De rerum divisione, in Corpus iuris civilis,
editio sexta decima, volumen primum, recognovit Paulus Krueger (Berolini: Apud
Weidmannos, 1954), p. 10.
33 On Vitoria’s doctrine here, cf. Santiago Ramirez, O.R, Elderecho degentes: examen
critico de la filosofia del derecho de gentes desde Aristoteles hasta Francisco Sudrez
(Madrid/Buenos Aires: Ediciones studium, 1955), pp. 136-45.
34 Vitoria is never in doubt about the subject of political power — in Aristotelian
terminology, its material cause (τό υποκείμενον); cf. On Civil Power, n. 7; ed.
Urdanoz, p. 159. Both before and after its transfer to a king, such power is in the
republic as such. Rulers, even kings, do not have a different power from that of
the republic; ibid. n. 8; p. 164. What they have is the authority to exercise the
single power given to the republic by Nature, and ultimately by Nature’s God.
The power would be one and the same whether the republic would be a democra­
cy, an aristocracy or a monarchy; ibid., η. 11; pp. 166-67. As such it would be of
natural and ultimately divine origin. Its exercise, however, would be immediately
a matter of the republics choice. Thus he can hold with perfect consistency that
the power of the king is from God rather than the republic (ibid. n. 8; pp. 16162), while the authority to exercise it is conferred by the republic; cf. In Ia-IIae,
qu. 105, art. 2, in Comentarios..., VI, p. 483.
i Vitoria’s blend of Latin and Spanish here reads: “cervi essent de los hidalgos y las
liebres de otros.” On the class of “hidalgos” in Vitoria’s time, cf. Lyle N. McAlister,
Spain and Portugal in the New World 1492-1700 (Minneapolis: University of
Minnesota Press, 1984), pp. 27-8.
Spanish: “las liebres y conejos a los hidalgos.”

212

Francisco de Vitoria, On Homicide

37 Spanish: “partamoslo desta manera: ileven tanto los hidalgos, y tanto los labradores.”
38 Spanish: “de prendar los que entran a cazar en su monte, y los prenda”.
39 On “optimates” or “magnates” as the upper caste of hidalgos, cf. L. McAlister, Spain
and Portugal..., p. 28.
40 With this, compare: "... other petty kings or princes, who do not rule over a perfect
republic but are parts of another republic, cannot carry on or wage war. Examples
would be the Duke ofAlba or the Count of Benavente; for these are parts of the
kingdom of Castille and, as a result, they do not rule over perfect republics.” On
the Law ofWar, n. 9; ed. Urdânoz, pp. 822-3.
41 Spanish: “No puede acotar la caza”.
42 Spanish: “lo que puede hacer un concejo para que no se pierda la caza y se acabe.”
43 Spanish: “[ni] con hurones ni con redes, sino con galgos.”
44 This is Vitoria’s third mention of an exhaustion or depletion of hunting. His con­
cern, however, is not for endangered animals, but rather for the good of human
beings.
45 Spanish: “quitale las alcabalas.”
46 Cf. the relection, On Homicide, n. 22.
47 Note the parallel here with Vitoria’s remarks on a “voluntary election” by the Ameri­
can Indians as an illegitimate title for Spanish sovereignty over them; cf. “There
remains another, a SIXTH TITLE, which can be or is alleged, namely, by volun­
tary election. For when the Spaniards first came to the barbarians, they told them
how the King of Spain had sent them for their [i.e. the barbarians’] advantage and
they urged them to receive and accept him as their lord and king. And the barbar­
ians answered that this was agreeable to them, and there is nothing so natural as
to ratify the will of one owner (doming wanting to transfer his possession to
another, cf. The Institutes, De rerum divisione, paragraph, per traditionem [II, 1, n.
40].
“But I conclude: This tide is not valid. This is clear, first, because it would have to
be without the fear and ignorance which invalidate any election. But these were
especially present in the elections and acceptances in question. For the barbarians
did not know what they were doing; indeed, perhaps they did not understand
what the Spaniards were asking. Moreover, these standing around armed were
asking it from an unarmed and fearful throng.” On the Indians, II, n. 16, ed.
Urddnoz, pp. 701-2,
48 Spanish: “sisas y pechos.”
49 Spanish: “no pueden perdonar la muerte de lino.”
50 Spanish: “los ejidos que se rompan.”
51 Spanish: “como las mercedes que hizo de los ejidos de Medina del Campo para que
los rompiesen.”
521 have not found an exact reference to this. But on a boundary dispute at Medina
del Campo, which grew out of royal cédulas that were brought for revocation
before the Royal Council in 1496, see Stephen Haliczer, The Comuneros ofCastille:
the Forging ofa Revolution, 1475-1521 (Madison, Wis.; University of Wisconsin
Press, 1981), pp. 84-85.
53 Spanish: “y que prende a los que cazan.”

I

Translator’s Notes to the Commentary on Summa theologiae

213

M Spanish: “pero agora quierenlo hacer todo a costa agena.”
” Spanish: “En un cercado.”
% Spanish: “y penar a los que las cazen.”
17That is, Institutes, § Ferae·, ed. Mommsen and Krueger, I, p. 11.
S! Spanish: “y dejan de ganar de comer por andar a caza.”
’’Spanish: “que es quitarles la caza.”
“Spanish: “ygane de comer.”
“ On the value of a maravedi as compared with other denominations at the time; cf.
“Responding to complaints of money shortages and monetary disorder coming
from the Indies, Emperor Charles authorized the establishment ofa mint in Mexico
City, which began operation in 1536. It struck three kinds ofcoins, one being the
silver real, which weighed 3.196 grams, 0.9306 fine, and had a tariff of 34
maravedis. It was issued in denominations of 1/4, 2, 3, and 4. A second was a
silver peso with the same fineness but a weight of25.56 grams and a tariff of 272
maravedis. It was considered to contain eight reales, and therefore contemporaries
named it the peso real de â ocho.... A third type of coin struck consisted of small
copper pieces for petty change, but the Indians distrusted them and threw them
into the lakes or melted them down for use in their artisanry. In 1564, therefore,
the mint discontinued their coinage.” L. McAlister, Spain and Portugal..., pp.
240-2. With this compare the note of V. Beltran de Heredia on the Latin and
Spanish names of monetary denominations mentioned by Vitoria: “Dipondium =
maravedi; argenteum = real = regale = 34 maravedis; libra = 3 ducados; aureus =
ducado. El ducado equivale a once reales y un maravedf = 375 maravedis; la dobla
a 365, y el florin a 265.” Comentarios.... I, xlvii and III, xi.
Spanish: “so pena de mil maravedis la primera vez, y la segunda de cien azotes al
que cazare.”
631 have not found Vitoria’s reference here to Cajetan. But for Sylvester, cf.: Summa
summarum quae Silvestrina nuncupantur (Lugduni: Impressa per Benedictum
Bounyn, 1528), Restitutio ZZZ(II, fol. 234v, b), where he says that lords who would
mutilate a man taking a rabbit one time without permission would commit mor­
tal sin.
64 Cf. note 61, above.
65 Cf. Las Siete Partidas del Rey Alfonso elSabio, cotejadas con varios codices antiguos,
por La Real Academia de la Historia (Madrid: En la Imprenta Real, 1807) VU,
titulo xv, ley xxii y ley xxiii (HI, 636-7).
“ Spanish: “Y antes ha de ser mas que menos.”
67 Spanish: “acotar la caza.”
68 Spanish: “Una cosa suya bien la puede el sefior arrendar a algunos.”
65 On woods, c£ Vitoria, ZnZP-ZI
*,
q. 62, a. 3, nn. 8-12; Comentarios..., Ill, pp. 154-6.
70 Cf. Joannnes Duns Scotus, Doctor subtilis, Ordinis Minorum, In Sent. IV, d. 15,
q. 3; in Opera omnia (Paris: L. Vivès, 1891), XVIII, 374-5.
71 Spanish: “de cien ducados.” For the value of a ducat, see endnote 61.
72 Spanish: “que pagascn cuatrotanto.”
73 With this, cf. Las Siete Partidas del Rey Don Alfonso el .Sz&h, VII, Tit. 14, Ley 18
(ed. 1807; III, 618); Las Siete Partidas, Translation and notes by Samuel Parsons

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214

Francisco de Vitoria, On Homicide

Scott, MA, Introduction, table ofcontents and index by Charles Sumner Lobinger,
Bibliography by John Vance (Chicago/New York/Washington: Commerce Clear­
ing House, 1931), VII, Tit. 14, Law 18 (p. 1386).
74 Cf. Digesta, Lib. I, Tit. I, n. 3; ed. Mommsen and Krueger, I, 29. For the phrase
itself, cf. Decretalium Greg. IX, lib. V, tit. 12, c. 18, Significasti·, ed. Richter and
Friedberg, II, 801.
75IF-II», 64, 7.
76 In all of this there is a related question about natural law, the commandments in
the second table of the Decalogue, and God’s ability to change them at will. In
theThomistic understanding of Vito ria, even God cannot change the natural law
nor prescribe something which of its nature is proscribed by that law or by a
command of the Decalogue. Thus, apparent exceptions such as Abraham being
instructed to kill Isaac, the Jews being given the spoils of Egypt, or Osee being
commanded to marry a harlot are not truly exceptions from the law, because God
as master of life and death, the Lord of all creatures, is not subject to laws in their
regard. Hence the cases in question simply do not fall under the law. For Scotus,
however, such cases do fall under natural law and the exemptions which God may
grant amount to his arbitrarily changing the law in certain cases. On the issue
here of homicide, where Scotus would say that all homicide is forbidden by natu­
ral law and by the Decalogue, unless excepted by God, Vitoria would say that
certain homicides were never covered by the proscriptions of the natural law or
the Decalogue. Cf. In Ila-IIae, q. 104, a. 4, Comentarios... V, pp. 210-211.
77 Cf. “Do not think that I am come to destroy the law or theprophets. I am not come to
destroy, but tofulfill.” Matthew, 5: 17. Obviously, Vitoria is extending this to cover
the natural law.
78 Spanish: “Algun alcalde.”
79 Spanish: “que paguen septenas.” Cf. Proverbs 6: 31 ; Genesis 4:15, 24; Leviticus 26:
18,21. This would seem to be an alternative to the fourfold payment of the Siete
Partidas.
80 Spanish: “los salteadores.”
81 Spanish: “el salteador.”
82 While such an observation is harsh, it should be viewed against the background
that in Vitoria’s time there were no huge prisons or penitentiaries capable of hous­
ing thousands of thieves and other criminals.
83 In this connection, cf.: “La uniôn de dos naciones perfectas bajo un mismo rey
puede set circumstancial, proveniente de combinaciones matrimoniales y sucesiones
hereditarias que en nada prejuzgaban la independencia de esas naciones unidas
bajo la misma corona. Cada una de ellas podia tener su propio régimen y legislaciôn
y en virtud de la misma podia acordar una declaraciôn de guerra — v. gr., por
acuerdo de una asamblea legislativa — que no podria ser anulada por el principe
comûn. Es un parecido sistema democrâtico que piensa sin duda Vitoria, y en la
uniôn circumstancial de los reinos de Aragôn y Castilla bajo los Reyes Catôlicos,
que aùn respetaban la administraciôn autônoma, leyes y cortes propias de cada
uno de ellos. En tal situaciôn, una guerra dedarada en defensa de los intereses y
derechos de Aragôn no hubiera podido ser vetada por el principe titular del otro

Translator’s Notes to the Commentary on Summa theologiae

215

reino; y al contrario, las guerras de Castilla en Indias eran independientes del
Gobiemo de Aragôn.” Urdânoz, p. 763.
84 Compare Domingo Soto (1495-1560), Vitoria’s friend, disciple, and successor in
the Catedra de prima at Salamanca: “There are two questions implied here. The
first is whether the law is licit. For in antiquity it was licit for a father to kill a
daughter who was taken in adultery (as is clear from the law, Patri, the law, Neque
in ea, if. up to the law, luliarn de adulter., and the law, Castitati, C. in eodem
titulo}. But later the law was changed, as is clear in C. eodem titulo, in Aucten. sed
hodie, namely, that having been beaten she should be shut up in a monastery. And
that law is in use now in France, and in other countries with respect to a husband,
for with respect to a father it has fallen into disuse. But the law of Spain still
follows the old law; but not indeed with such rigor that an adultress will necessar­
ily be condemned to death, but that she be handed over to her husband, whose
choice it is to kill her if he wishes. And there is no reason to doubt whether the
law is just. For besides the fact that the crime merits that [punishment], indeed,
from the nature of the Spaniards, satisfaction for such a thing could hardly be
made in any other way.” (Duplex autem hic implicatur quaestio. Prior de lege, an sit
licita. Antiquitus enim licebatpatrifiliam in adulterio captam interficere: utpatet l.
patri, et l. neque in ea. ff. ad l. luliam de adulter., et L castitati C. eodem titulo.
Postea vero mutata est lex, utpatet (?), C. eodem titul. in Aucten. sed hodie, ut scilicet
verberata in monasterio occluderetur. Et ista lex in usu est nunc in Galliis, et in aliis
multis provinciis respectu mariti: nam illa patris iam abolevit ab usu. Sed tamen lex
Hispaniarum sequitur antiquam: non quidem cum illo rigore ut adultera necessaria
morte damnetur, sed traditur marito cuifacultas sit, si eam velit occidere. Et quod lex
sit juste, non est cur dubitetur. Nam praeterquam quod crimen id videtur mereri,
profecto Hispanorum de hac re ingenio vixfieri aliterposset satis.) Dejustitia etjure,
V, q. 1, a. 3 (Salamanca, 1556), pp. 390-1, as reproduced in Dejustitia etjure,
libri decem. De lajustitia y del derecho, en diez libros, por el Maestro Domingo de
Soto, O.P., introducciôn historico y teolôgico-juridica por el Dr. R Venancio Di­
ego Carro, O.R, version espaüola del R Marcellino Gonzdlez-Ordôfiez, O.R
[Madrid: Instituto de Estudios Politicos, 1968)). For a related point on Spaniards
defending their honor, see note 241 below.
85 On “judicial” and “ceremonial” commands, cf. St. Thomas, Summa TheologtaePII", qu. 99.
86 Cf. note 81, above.
87 Note that in 1179 the Second Lateran Council decreed excommunication for those
supplying arms co the Saracens; cf. Decreta Concilii Lateranensis, cap. 24, in J,
Harduin, S.J., Acta Conciliorum et epistolae decretales ac constitutiones summorum
pontificum (Parisiis, 1714) Tomi V Pars II, anno 1179. Also cf Vitoria, On the
Indians, I, η. 14; ed. Urdânoz, p. 659.
88 Here I have reversed the order of two sentences in the Latin text.
85 “The innocent and thejustperson thou shalt notput to death.”
90 “ The innocent and thejust thou shalt not kill. ”
51 That is, the proponents of this third way of understanding the commandment.
n Spanish: “porque le dijo, anda para hi deputa.”

216

Francisco de Vitoria, On Homicide

93 Vitoria uses this legal phrase in a number of places. E.g. in his relection, On the
Indians, III, η. 6, Urdânoz, p. 711, where speaking of the Spaniards right to de­
fend themselves against attacks by the American Indians, he also explicitly puts a
number of things outside the realm of “blameless defense;” also cf. “On the Law
ofWar,” n. 4, Urdânoz, p. 819. For the exact phrase, cf. Decretalium Greg. IX, lib.
V, tit. 12, c. 18, Significasti·, ed. Richter and Friedberg, II, 801.
94 Again, the proponents of the third way of understanding the commandment.
95 On fathers’ rights to beat their children and masters’ rights to beat their slaves, cf.
Summa Theologiae, II
*-II “, q. 65, a. 2. For Vitoria’s thoughts on this and related
matters, cf. In Ila-IIae, q. 65, a. 2, nn. 1-11, Comentarios... Ill, pp. 314-318. On
teachers using corporal punishment, cf. esp.: “... there is no doubt that it is a bad
education of children to use the rod daily and frequently and to drive them with
such hard and servile chiding. Second, if children are of good character, good
counsel, good teaching, and reproving words are enough. Third, if however chil­
dren are stiff-necked, there is need for the rod.” (... non est dubium quin sit mala
institutiopuerorum, quotidie etfrequenter uti virga et eos agitare tam dura increpatione
et tam servili. Secundo, si pueri sint bonae indolis, sufficiunt bona consilia, bona
doctrina, et verba increpatoria. Tertio, si vero filii sint durae cervicis, opus est virga}
ibid., n. 4, p. 316. Also, cf. D. Soto: “It is not lawful for parents to mutilate [their
children], nor for any mortal [to mutilate anyone] apart from public authority,
but [it is lawful for parents] to chastise with a stick or a rod. For a man is intro­
duced to virtue in three ways: he is led by reason, he is forced by fear, and he is
lured by reward. Hence, before the star of reason shines, nature has provided that
a boy be forced by fear and be influenced by little rewards.” (Mutilare ergoparentibus
non licet, neque mortalium ulli praeter publicam potestatem, sedfuste caedere aut
ferula. Id enim est illis iure naturae concessum. Homo namque tribus viis ad virtutem
instituitur: nam et ratione ducitur, et metu cogitur, et allicitur praemio: antea ergo
quam rationis sydus eluceat, natura providit ut puer et metu cogatur et afficiatur
munusculis.) Dejustitia etjure, V, q. 2, a. 2 (p. 413).
96 For Vitoria, in line with Duns Scotus, rejecting a similar view that human beings
would need Divine authority in order to exercise natural functions, cf. In Ha-IIae,
q. 62, a. 1, n. 52, in Comentarios... Ill, p. 109.
97 Here Vitoria is distinguishing the time before the Mosaic law, when human beings
had only the natural law to guide them, from the time of the Mosaic law and then
that of the Gospel; for this, cf. A. Molien, “Lois,” Dictionnaire de théologie
catholique, IX (1926), esp. 888-9·
98 That is, against Scotus’ position above.
99 The point being made, i.e. that the question of capital punishment does not differ
in kind from that of punishment in general, seems obvious, even though the
examples may offend modern sensibilities with regard to “cruel and unusual”
punishments.
100 Cf. In Sent. FV, d. 15, q. 3 (XVIII, 375a).
101 Cf. ibid. (pp. 365-6).
102 Spanish: “como dalle de cochilladas.”

ΐ

Translator’s

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m Cf. Aristotle distinguishing between what is naturally just (τά φυσικόν δίκαιον)

Notes to the Commentary on Summa theologiae

217

just and what is legally just (τό νομικόν δίκαιον), ENN, c. 7,1134bl8-20; and
also between what is unjust by nature and what is unjust by ordinance: “άδικον
μέν γάρ έστι τη φύσει ή τάξει” ibid., 1135a9-ll.
ΙΜ Here to better bring out the sense I have reversed the order within each ofVitoria’s
couplets: i.e. “guilty and innocent” and “public and private.”
IOÎ With this, cf.: “Indirectly (per accidens), however, it is sometimes permitted even
knowingly to kill innocent people. Take, for example, a justly besieged fortress or
city, in which, nevertheless, there are so many innocent people that siege ma­
chines and other projectiles cannot be used, nor can buildings be burned, without
hurting the innocent as well as the guilty.
“This is proven. For otherwise war could not be waged against those who are
guilty, and [the triumph] of those fighting justly would be frustrated. In the same
fashion, contrariwise, if a town is unjustly besieged and is justly defended, it is
lawful- to use war machines and projectiles against the besiegers and against the
enemy camp, even though there are among them some children and innocents.
Nevertheless, what was said a while before must be taken into account. That is,
care should be exercised lest from the war itselfthere result greater evils than those
averted by that war. For, if to obtain total victory in a war, it is not very important
to attack a fortress, or a town, where there is an enemy garrison and also many
tanocent people, it does not seem lawful in order to attack a few guilty persons to
kill many innocent ones, by subjecting them to fire or siege machines, or employ­
ing any other means which indifferently strikes the innocent together with the
guilty. And, finally, it never seems lawfid to kill innocent people, even indirecdy
(per accidens) and unintentionally, except when a just war cannot be otherwise
furthered and waged, in line with the saying from Matthew 13, v. 29: “Suffer the
cockle to grow, lest perhaps in gathering the cockle you at the same time root out
the wheat.” On the Law ofWar, n. 37; ed. Urdânoz, p. 842. ;
Obviously, neither Aquinas nor Vitoria is thinking about someone not posing a
threat because he is being held in maximum security.
107 On the role of public punishment, Domingo Soto makes a point with which
Vitoria would be in agreement: “Public punishment is not directed to the correc­
tion nor to the good of the one punished, but to the public good, that others be
deterred. And because the public good is more excellent than a private good, hy
the order of charity it should be preferred to that, ...” (“... punitio publica non
refertur in emendam neque in bonum ipsius quipunitur, sed in bonumpublicum, ut
alii terreantur: et quoniam bonum publicum praestantius est particulari, ordine
charitatisprae illo diligendum est: ...” De iure et iustitia, V, q. 1, art. 2 (p. 388a).
108 With this compose Vitoria on the confiscation of the property ofheretics: "Never­
theless, even though their crime be manifest, before their condemnation it is not lawful
for thefisc to seize thepossessions ofheretics. — This is again the opinion of all and
it is what has been determined in the aforesaid, Cum secundum (Sextus Decretalium,
N, 2, 19; cd- Richter and Friedberg, II, 1077). In fret, it would be contrary to
both Divine and natural law (jus), ifpunishment were to be exacted before some­
one was condemned.” On the Indians, I, n. 11; Urdinoz, p. 658.
I
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Francisco de Vitoria, On Homicide

109 This somewhat inconsistent use of personal pronouns would probably have been
revised out of Vitoria’s work, had he himself edited it.
110 On this, cf. “El marido que fallare algunt home vil en su casa ό en otro lugar
yaciendo con su muger, puédolo matar sin pena ninguna, maguer non le hobiese
fecho la afruenta que diximos en la ley ante desta. Pero non debe matar la muger,
mas debe facer afruenta de homes buenos de como la fallô, et desi meterla en
mano del judgador que faga della la justicia que la ley manda.” Las Siete Partidas
del Rey Don Alfonso el sabio, cotejadas con varios codices antiguos por La Real
Academia de la Historia, y glosadas por el lie. Gregorio Lôpez, nueva ediciôn
(Paris: Libreria de Rosa Bouret, 1854), VII, tit. xvii, ley xiii (IV, 623-4). This
passage from law 13 has been translated by Samuel Parsons Scott as follows: “A
husband who finds a vile man in his house or in any other place in the act of
intercourse with his wife, can kill him without being liable to any penalty, al­
though he may not have given him the warning we mentioned in the previous
law; he should not kill the woman, however, but should notify reliable men in
what situation he found her, and place her in the hands of the judge to pass upon
her the sentence which the law provides.” Las Siete Partidas, tr. and notes ..., p.
1417. In a Latin note [(1) in 1854 edition (p. 624)] Lopez makes the point that
present (i.e. mid-sixteenth century) Spanish law permits, but does not require,
the husband to kill both an adulterous wife and her paramour, without distinc­
tion of rank, if he find them in the act of adultery. In the 1807 edition (III, 6556), a note (6) on this passage from law 13 reads: “Alpie del cod. Acad, se halla la
auténtica siguente·. AUTENTICA. Puede hoy el marido et aun el esposo que fuere
desposado por palabras de presente, si fallare la muger ό la esposa con otros,
matarlos. Et non debe dexar el uno et matar el otro si ambos los podiere matar,
segund se contiene en la ley nueva que comienza: Contiénese, en el titulo de los
adulterios et de los fornicios.” For the law, Contiénese, referred to in note 6, as
cited, cf.: “Contiénese en el Fuero de las leyes, que si la muger que fuere desposada
hiciere adulterio con alguno, que ambos â dos sean metidos en poder del esposo,
asi que sean sus siervos, pero que no los pueda matar: y porque esto es exemplo y
manera para muchas délias hacer maldad, y meter en ocasion y vergüenza â los
que fuesen desposadas con ellas, porque no puedan casar en vida délias; por ende
tenemos por bien, por excusar este yerro, que pase de aquf en adelante en esta
manera: que toda muger, que fuere desposada por palabras de presente con hombre
que sea de catorce anos cumplidos, y ella de doce anos acabados, é hiciere adulterio,
si el esposo los hallare en uno, que los pueda matar, si quisiere, ambos â dos, asi
que no pueda matar al uno, y dexar al otro, pudiéndolos â dos matar; y si los
acusare ά ambos, ό ά qualquier dellos, que aquel contra quien fuere juzgado, que
lo metan en su poder, y haga de él y de sus bienes lo que quisiere; y que la muger
no se pueda excusar de responder ά la acusacion del marido ό del esposo, porque
diga, que quiere probar que el marido 6 el esposo cometiô adulterio.” Novisima
Recopilacion de las Leyes de Espafia, dividida en xii libros, en que se reforma la
Recopilacion publicada por el Sefior Don Felipe IL en el afio de 1567, reimpresa
ùltimamente en el de 1775: Y se incorporan las pragméticas, cédulas, decretos,
ôrdenes y resoluciones Reales, y otras providencias no recopiladas, y expedidas

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Translator’s Notes to the Commentary on Summa theologiae

219

hasta el de 1804. Mandada format por el Sefior Don Carlos IV. (Madrid, 1805),
Lib. VIII, Tit. XXVIII, Ley 2 (IV, p. 424).
"'C£ “There follows the case of the husband who kills his wife in the act ofadultery,
about whom there is no doubt among any of the theologians or canonists that he
is morally sinning against the prohibition ofhomicide for the reason already given:
■j
that no one should be condemned to death before he is judged. And one should
understand in this case the canon of Pope Nicholas, i.e. Interfectores, 33, q. 2,
where men of this sort are accounted murderers.... and expressly the next canon,
Inter haec, declares that although it may be lawful according to earthly law for a
husband to kill a wife, nevertheless, the holy church is not bound by those laws,
and the gloss there seems to indicate that it is always a sin.” (“Subsequitur et de
viro qui uxorem in flagranti adulterio enecat, de quo nemini aut Theologorum aut
lurisprudentum in dubium cadit, quin contraprohibitionem homicidii moraliterpeccet
ratione iam dicta: quia nemo antequam iudicetur adiudicandus est morti, et eo casu
intelligendus venit Canon Nicolai Papae, Interfectores, 33, q. 2 ubi eiusmodi homines
censentur homicidae.... et expresse canonproximus, Inter haec, explicat quodquanquam
liceat marito secundum mundanam legem uxorem interficere, tamen sancta ecclesia
non stringitur eisdem legibus: ubi glossa annuere videtur quod semper estpeccatum. ”
D. Soto, De justitia etjure, V, q. 1, a. 3 [p. 390bJ). For the law, Interfectores, cf.
Decreti secunda pars, causa 33, q. 2, c. 5, ed. Richter and Friedberg, I, coi. 1152;
and Inter haec vestra, ibid., c. 6.
1,2 With this compare the following proposition condemned by Pope Alexander VII
on September 24, 1665: “A husband does not sin who by his own authority kills
a wife taken in the act ofadultery.” (Nonpeccat maritus occidenspropria authoritate
uxorem in adulterio deprehensam.), cf Denzinger, p. 452, n. 2039.
!!3 This phrase is supplied here to bring out the sense of the objection.
1,4 Decretalium Greg. IX, Lib. II, Tit. XXVI, c. 20,- ed. Richter and Friedberg, II, 393.
"s This seems in line with “the nature ofthe Spaniards” to which Soto will refer in De
justitia etjureN, q. 1, a. 3; cf. note 86, above. Also cf. note 244, below.
116 For the same doctrine, see St. Thomas, In Sent. IV, d. 37, q. 2, a. 1, in Opera omnia
(New York: Musurgia Publishers, 1948), VII, pp. 1000, who asks “Whether it is
lawfol for a man to kill a wife taken in the act of adultery?” (Utrum liceat viro
uxorem interficere in actu adulterii deprehensam!), and answers as follows: “I reply
that a man can kill his wife in two ways. First, through a civil judgment, in which
way there is no doubt that a man moved by zeal for justice and not by revenge or
hatred, can accuse a wife criminally in a secular judgment and can seek the death
penalty prescribed by law, just as it is also lawfol to accuse someone of homicide
or some other crime. However, such an accusation cannot be made in an ecclesi­
astical judgment, because the Church does not have a material sword, as is said in
the text [i.e. of Peter the Lombard). In a second way he can on his own kill her
unconvicted in a judgment. And to kill her in this way apart from the act of
adultery, howevermuch he may know her to be an adultress, is not lawfol either
according to civil laws or according to the law of conscience. But civil law regards
it as licit that he kill her in the act itself, not as prescribing that, but as not exact­
ing the penalty for homicide, because of the extreme provocation that a man has

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Francisco de Vitoria, On Homicide

in such a case to kill his wife. But the Church is not restricted in this by human
laws, that it should judge him to be without liability of eternal punishment or of
punishment to be inflicted by ecclesiastical judgment, from the fact that he is
without liability of punishment to be inflicted by a secular judgment. And there­
fore, in no case is it lawfid for a man to kill his wife by his own authority.” (Respondeo
dicendum quod virum interficere uxorem contingit dupliciter. Uno modo per judi­
cium civile; et sic non est dubium quod sinepeccato potest vir zelojustitiae, non livore
vindictae aut odii motus, uxorem adulteram injudicio saeculari accusare criminaliter
de adulterio, etpoenam mortis a lege statutam petere; sicut etiam licet accusare aliquem
de homicidio, aut de alio crimine. Non tamen talis accusatio potest fieri in judicio
ecclesiastico; quia Ecclesia non habet gladium materiale, ut in Utera dicitur. Alio
modo potest eam per seipsum occidere non in judicio convictam; et sic extra actum
adulterii eam interficere, quantumcumque sciat eam adulteram, neque secundum
leges civiles, neque secundum legem conscientiae licet. Sed lex civilis quasi licitum
computat quod in ipso actif eam interficiat, non quasi praecipiens, sed quasi poenam
homicidii non inferens, propter maximum incitamentum quod habet vir in talifacto
ad occisionem uxoris. Sed Ecclesia in hoc non est astricta legibus humanis, utjudicet
eum sine reatu poenae aeternae, vel poenae ecclesiastico judicio infligendae, ex hoc
quod est sine reatu poenae infligendae per judicium saeculare. Et ideo in nullo casu
licet viro interficere uxorem propria auctoritatej
117 Literally: “And if you say that there are not now more things present than before”
(Et si dicas quod nunc non occurrunt plura quam ante). The “before” referred to
is in the preceding paragraph 3, where Vitoria has stated that it is against natural
law for the husband to act as judge, prosecutor, witness, and executioner.
118 Cf. Domingo Soto: “... [The question is] whether, when this same liberty is con­
ceded to a husband, is it in conscience right for him to avail himself of it? And
indeed about this there is little reason to doubt. For although he is not consti­
tuted as a necessary minister of justice, he is, however, constituted as a free [min­
ister], whereby a right is given to him to kill her. Wherefore, although it would be
an act of mercy to spare her, still it would violate justice neither before man nor
before God [to kill her]. And further it is a convincing argument that if only with
sin it would be lawful for the husband to kill her, it would be a sin for a prince or
a judge to give him permission. Nor is it a valid answer for someone to say that in
that case he would not be permitted to kill his wife, but that he could do so with
impunity: since he already enjoyed that privilege, even if apart from a [court]
judgment, he were to kill her in the act of adultery. When, therefore, condemned
with a solemn form of judgment she is handed over to him, it is plain evidence
that there is being given to him a right to kill her as a minister of justice.” (“...
utrum eadem concessa marito libertate secundum conscientiam liceat ei idpersequi: et
revera de hoc minor est dubitandi ratio. Nam etsi non instituatur ut necessarius min­
ister iustitiae, instituitur tamen liber: quare ius ei fit ut illam occidat. Quapropter
licet opus fuerit misericordiae illi parcere, tamen iustitiam neque coram hominibus
violat, neque coram Deo. Et estporro efficax argumentem, quodsi marito citrapeccatum
non liceret eam iugulare, peccatum esset principi et iudici illam facultatem facere.
Neque valet solutio si quis dicat, non illipermitti tunc uxoricidium, sed ut impune id

Translator’s Notes to the Commentary on Summa theologiae

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221

faciat: quoniam illo privilege iam fruebatur, etiam si absque iudicio in flagranti
delicto illam interficeret. Cum ergo solemni forma iudicii condemnata illi traditur,
testimonium apertum estfieri illi ius occidendi ceu ministro iustitiae.”) De iustitia et
iure, V, q. 1, a. 3 (p. 39la).
119 Cf. the Digest, I, I, 3; Mommsen and Krueger, I, p. 29; also Decretalium Greg. IX,
lib. V, tit. 12, c. 18, ed. Richter and Friedberg, 11,801; and Vitoria in the relection
On the Power ofthe Pope and a Council, n. 23, Urddnoz, 487; On the Indians, III,
6, Urdânoz, p. 712; On the Law ofWar, 1 and 3, Urddnoz, 817, 819.
120 Vitoria’s uncertainty here may be a sign that he was talking without notes; on this,
cf. Beltrdn de Heredia, Comentarios..., I, pp. xvi-xvii.
121 Cf. Joannes Petit (O. F. M.? d. 1411), Justification du due de Bourgogne, Antwerpiae,
1706; as cited by Beltrdn de Heredia, in Comentarios..., Ill, 286.
122 Cf. Joannes Gerson (d. 1429), Propositiofacta coram concilio generali Constantiensi;
Dialoguspro condemnationeproposit. J. Parvi. Cf. Gersonis Opera, Antwerpiae, 1706,
t. 2, cols. 319 ss., 386 ss.; as cited by Beltrdn de Heredia, III, 286.
'iV> Sessio XVI, 6 Jul. 1415: Deer. “Quilibet tyrannus;” cf. Denzinger, p. 326, n. 1235.
124 February 23, 1413; on this cf. A. Bride, “Tyrannicide,” Dictionnaire de théologe
catholique, XV (1950), 1993-4.
125 Spanish: “no es suya esta republica, y la toma.”
126 King of Castille, notorious for his cruelty and adulterous life-style, Pedro was
assassinated in 1369 by his bastard brother, Don Enrique de Trastamara, who
then succeeded him on the throne; cf. “Pedro I de Castilla,” Enciclopedia universal
ilustrada europeo-americana, XLII (Madrid: Espasa-Calpe, 1920), pp. 1328-35.
127 For the people, as represented by princes, lawfully making an alliance with the
king of France to war against Pedro in favor of his brother, cf. In Ila-IIae, q. 40, a.
1, n. 6, in Comentarios..., II, p. 281.
128 Here there seems to be an instance of what medieval canonists called “in conti­
nenti” cf. Vitoria: “Every republic has authority to declare and wage war. To prove
this, it must be noted that there is a difference in this between a private person
and a republic. For, as has been said, a private person certainly has the right to
defend himself and his possessions. But he does not have a right to avenge a
wrong, nor after a certain interval of time to reclaim [by force] things stolen. But
it is necessary that [his] defense be in face of present danger, which the lawyers
{jurisconsulti) call “in continent? [cf. e.g., Decretalia Greg. IX, V, tit. 39, c. 3; ed.
Richter and Friedberg, 11,890], Wherefore, when the need for defense has passed,
the legitimacy of the war ceases. I believe, however, that one wrongfully struck
might be able (possit) immediately to strike back, even if the attacker should not
proceed farther.” On the Law ofWar, n. 5, Urddnoz, 820-21.
129 Here I omit “him” (ipsum) for the sense of the argument.
130 Cf. Comentarios... II, 300-301; actually in this place Vitoria says he is commenting on
St Thomas’ second response, but in fact he is commenting on the third response of
Aquinas. Also in this place, he says (p. 301) he will treat “how, for whom, and when it
may be lawful to kill a tyrant” when later he comes to treat ofhomicide.
131 Chap. 15, v. 20. For Vitoria discussing this prohibition at length, cf. On Temper­
ance, 1, 2; ed. Urddnoz, pp. 1010-18.

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132 On the “power of jurisdiction” as distinct within the Church from the “power of
orders,” see First Relection on the Power ofthe Church, II, nn. 1-2, ed. Urdânoz, pp.
257-9.
133 In 1537, Paul III would issue the Bull, Veritas ipsa, in which he would affirm the
humanity of the American Indians and condemn their subjugation, even to ad­
vance the Faith of Christ.
134 Cf. I Timothy 3: 2-3, as cited by St. Thomas in Ila-IIae, 64, 4, Sed contra.
135 As Vitoria’s argument will continue, “striker” will be synonymous with a violent
person or, in the present context, a killer.
136 Cf. I Corinthians 7: 12.
137 I Corinthians 7: 10. For Domingo Soto making the same point about the differ­
ence between divine and apostolic commands, cf. De iustitia et ture, V, q. 1, art. 4
(pp. 391b-392a).
138 “An irregularity may be defined as a perpetual impediment established by ecclesi­
astical authority forbidding primarily the reception of orders and secondarily the
exercise of orders already received (c. 968).” T.L. Bouscaren, SJ. and A.C. Ellis,
S.J., Canon Law: A Text and Commentary (Milwaukee: Bruce Publishing, 1951),
p. 428. Cf. L. Godefroy, “Irrégularités,” Dictionnaire de théologie catholique, VII,
2to' pan. (1927), cols. 2537-66.
139 Note that what is being dispensed from here is the “irregularity” resulting from a
second marriage, not the second marriage itself, and certainly not bigamy in the
sense of a second marriage entered upon while a first is still in effect. On this
dispensation, cf. St. Thomas Aquinas, IV Sent. d. 27, q. 3, a. 3 and Quodl. IV, q.
8, a. 2; and Vitoria, On the Power ofthe Pope and a Council, η. 1, Urdanoz, 435
and 441. Also cf., E. Vairon, “Bigamie, Irrégularité,” Dictionnaire de théologie
catholique, II, lè"part. (1932), 883-8; andL. Godefroy, “Irrégularités,” ibid., VII,
2èm'part. (1927), esp. cols. 2545-6.
140 I have substituted this reference to Titus for that to I Timothy, 3: 2, given by
Beltrin de Heredia (III, 289) because in the latter place Paul’s concern is with the
qualification of bishops, whereas in Titus there is explicit mention ofpriests. On
this, cf. “... les termes episcopos et presbyteros ne sont pas encore bien distincts
dans l’Église apostolique. La terminologie ne sera précisée que plus tard.” Dom
Bernard Botte, O.S.B., Le nouveau testament, traduction nouvelle d'après le texte
grec (Turnhout: Brepols S.A., 1944), 496, b.
141 Spanish: “un deanazgo.”
142 Vitoria will repeat this principle in the course of an argument for the right of
Spaniards to travel unhindered among the Indians of the New World; cf. “Again,
twelfth, if it were not lawful for the Spaniards to travel among them, this would
be so either by natural, divine, or human law. But it is certainly lawful by natural
and divine law. And if there were a manmade law, which without reason would
keep someone from a natural or divine right, this would be inhumane and unrea­
sonable and, consequently, it would lack the force of law.” On the Indians, III, n.
2, Urddnoz, pp. 707-8. Cf. also: “Because in order that a law oblige, it must be
fair, that is just and reasonable; otherwise it would not oblige.” (Quia ad hoc

Translators Notes to the Commentary on Summa theologiae

223

quod lex obliget, oportet quod sit aequa, id est justa et rationabilis; alias non
obligaret.), In Ila-IIae, q. 125, a. 4, n. 9, Comentarios..., V, p. 365.
Today we might call him a “free rider.”
“On this, cf. “Such a dispensation would involve injury to others; therefore it is not
lawful. The antecedent is clear, because one condition of law is that it be equitable
(aequalis). But it would not be equitable if without a reasonable cause someone
. would be exempted from a law while others would be burdened by it, which
would happen in cases of imprudent and arbitrary dispensations. Therefore, this
is not lawful.” On the Power ofthe Pope and a Council, n. 6, ed. Urddnoz, p. 455.
145 This sentence seems awkwardly attempting to relate Vitoria’s concern for dispen­
sations and irregularity with St. Thomas’ concern for the reasons why clerics are
forbidden by law to kill felons.
146 This is ambiguous. In context it would seem that he is talking about married clergy,
such as in Paul’s time. But perhaps he is speaking of non-derics who are married.
147 Vitoria has in mind the authors of “Summae" or compendia of canon law. On
Summists, cf. L. Hodl, “Summa, Summenliteratur,” Lexikon fur Théologie und
Kirche, Band IX (Freiburg im Breisgau: Verlag Herder, 1964), cols. 1164-7; for
emphasis on canon law, see A.M. Stickler, “Kanonistik,” ibid., Band V (I960),
1289-1302, esp. 1291-6. For Summae, with emphasis on theology and philoso­
phy, cf. William Turner, “Summae (Summulae)," The Catholic Encyclopedia (New
York: The Encyclopedia Press, 1913), XIV, 333-4.
14! On the “Ordinary Glosses,” cf. J.M. Buckley, “ Glossa Ordinaria," The New Catho­
lic Encyclopedia (New York/St. Louis, 1967), VI, 515-16. On the glosses added to
medieval canon law, cf.: A.M. Stickler, “Kanonistik,” Lexicon fur Théologie und
Kirche, V (1960), esp. 1292-4; A. Boudinhon, “Glosses, Glossaries, Glossarists,”
The Catholic Encylopedia, 1913), VI, 588-9; P. Fourneret, “Droit canonique,”
Dictionnaire de théologie catholique, XIV, 2ème partie (1939), col. 1840; and K.W.
Norr, “Glosses, Canon Law,” The New Catholic Encyclopedia, VI, 516-17. On
Scriptural glosses, see Francis E. Gigot, “Glosses, Scriptural,” ibid., 586-8; C.
O’C. Sloane, “Glosses, Biblical,” The New Catholic Encyclopedia, VI, 516. For
glosses on civil law, cf. M.R.P. McGuire, “Glosses, Roman Law,” ibid., 517-18;
also, Gaines Post, “Law, Ancient Roman Ideas of,” Dictionary of the History of
Ideas (New York: Charles Scribner’s Sons, 1973), II, 685.
145 That is, he infringes upon God’s right (jus).
150 Note that in this article St. Thomas actually gives three arguments, which are the
three first conclusions indicated by Vitoria here. The fourth argument here is
contained in Aquinas’ first argument.
151 Cf. Romans 1: 32.
152 Vincent of Zaragoza, martyred at Valencia in 304; cf. The Roman Martyrology, ed.
Canon J.B. O’Connell (Westminster, MD: The Newman Press, 1962), p. 15 (Jan.
22); Bernardino Llorca, S.J., Historia de la iglesia catdlica, Tomo I: Edad antigua,
cuarta ediciôn (Madrid: BAC, 1964), 298-300; and Donald Atwater, The Avenel
Dictionary ofSaints (New York: Avenel Books, 1981), pp. 335-6.

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153 This is a form of improvised dialogue which Vitoria has used on occasion in
Question 64 and generally throughout his lectures to give them a certain dra­
matic flair; on this, see V. Beltran de Heredia, Comentarios..., I, pp. xvii-xviii.
154 Cf. The Roman Martyrology, p. 29 (Feb. 9th); Atwater, p. 52; cf. J.P. Kirsch,
“Apollonia, Saint,” The Catholic Encyclopedia, I, 617.
155 Cf. note 153, above.
156 See above, the relection, On Homicide, note 62.
157 Note that here, and in the immediately following sentence, Vitoria is speaking in
the person of the one arguing against his own position.
158 Cf.: S. Autore, “Chartreux,” Dictionnaire de théologie catholique, II, *2™' partie
(1932), cols. 2274-2318; Raymund Webster, “Carthusian Order,” The Catholic
Encyclopedia, III, 388-92; and: A Monk of the Grand Chartreuse, “Carthusians,”
The New Catholic Encylopedia, III, 162-7.
159 It should be remarked here that for Vitoria subjective rights possessed by indi­
viduals are derived from an objective order of law and morality — and not just
asserted without basis beyond simply wanting it so.
iso por Vitoria more at length on the Carthusians, cf. On Temperance, nn, 8-15, ed.
Urddnoz, pp. 1059-69. Also, cf. Inlla-IIae, q. 125, a. 4, nn. 16-17, in Comentarios
...,V,pp. 370-1.
161 Spanish: “solimdn.”
167 This is of interest in view of Vitoria’s doctrine about the “barbarians” of the New
World living in societies which were equal to that of Spain; cf. “... they have cities,
which display order, and they have well defined marriages, magistrates, rulers,
laws, crafts, and commercial exchanges, all of which require the use of reason.
Likewise, they have a kind of religion.... The result, therefore, from all that has
been said is that, without doubt, the barbarians were true lords, both publicly and
privately, just as much as the Christians.” On the Indians, I, n. 23; Urddnoz, 66465.
163 For a difference between Vitoria here and Cajetan, who has implied that such laws
were wicked and should not have been obeyed, cf. Vitoria, In Ha-IIae, q. 69, a. 4, n. 9,
in Comentarios..., IV, pp. 42-3 and Cajetan, In Ha-IIae, q. 69, a. 4, n. 5, in Sancti
Thomae Opera, Tomus IX (Romae: S.C. De Propaganda Fide, 1897), p. 115.
164 Spanish: “que le ahoguen.”
165 On a man giving his food to his father or to a friend, cf. also In Ila-IIae, q. 26, a.
4, n. 3, in Comentarios..., II, p. 108.
1661 see at least two possible ways to render Vitoria’s Latin here, (1) Ungrammatically,
ignoring the reflexive character of sui, it may be translated: “If they keep sttictly
to the law itself,” or (2) grammatically, taking the sui to refer to the subject (ulti­
mately, “some” {aliqu>\) of servent, it may be translated as I have done. For better
understanding of what is involved in my choice, consider the distinction drawn
in Vitoria’s comment in Article 6, n. 1, below.
167 On the obligation of a son toward his father rather than toward a stranger in this
situation, cf. In Ila-IIae, q. 26, n. 4, in Comentarios... II, p. 110.
168 Here Domingo Soto makes a distinction which puts him ar odds with Vitoria, cf.:
"... before the son grasps a plank he can leave it for his father, for this is not

Translator’s Notes to the Commentary on Summa theologiae

225

positively to kill himself but to allow himself to die. But after he has possession of
it, it does not seem licit to throw himself into the waves.” (“... antequam tabulam
filius capiat potest illam relinquere patri: quia non hoc est positive se occidere, sed
permittere se mori: postquam vero eidem insidet, re vera non apparet licitum esse ut se
in fluctus deiiecat”) Dejustitia etjure, V, q. 1, a. 6 (p. 399a).
,s’ Spanish: “en un algibe, y danle a comer por onzas.”
For a similar doctrine, cf. St. Thomas, Summa Theologiae, II’ II’e, q. 69, a. 4, ad 2.
Also see Vitoria, In ΙΕ-ΙΙ", q. 69, a. 4.
171 For this, see St. Thomas, Summa Theologiae, *
-II",
II
q. 69, a. 4, ad 2.
172 See below: In IT-II", 64, a. 7, n. 4; and ibid., q. 69, a. 4, nn. 3-8, in Comentarios
..., IV, pp. 39-42.
173 This differs from Cajetan {In IT-IT", q. 69, a. 4, n. 2, in Sancti Thomae Opera,
Tomus IX, pp. 113-4) who says that the sentence of death here could involve a
sentence to prison before death.
174 Cf. In IT-II", 64, q. 69, a. 4, n. 8, in Comentarios..., IV, p. 42.
1751 am tempted here to translate: “that a community be liberated” and apply it to
the enterprises of the Conquistadores.
176 Here there is an obvious application to Vitoria’s fellow Dominicans who voyaged
to the New World. For a contemporary account of the discomforts and dangers of
such a voyage undertaken by Bartolomé de las Casas and 47 other Dominicans, in­
cluding the author of the account, cf. R.P. Fray Tomds de la Torre, Desde Salamanca,
Espana, hasta Ciudad real, Chiapas. Diario de viaje, 1544-1545, Mexico City, 1945.
177 Translating “contractationes” by “trade and commerce,” I am reminded of the
Gzra de Contrataciôn {House ofTrade) established at Seville in 1503 for the regula­
tion of trade and commerce between Spain and the New World.
178 On this, cf. Decretalium Greg. IX, Lib. V, Tît. XIII, De Tomamentis, cc. 1 and 2;
ed. Richter and Friedberg, II, 804, prohibiting tournaments and denying Chris­
tian burial to those willing participants who may be killed in them. Then see:
Extravagantes tum viginti D. Joannis PapaeXXII, Tit. IX, De Tomamentis, cap. un;
Richter and Friedberg, II, I215,liftingthebanofexcommunicationforthosetaking
pan in tournaments and jousts. For Vitoria referring to ecclesiastical prohibition of
tournaments, cf. In Ila-IIae, q. 40, a. 1, n. 21, in Comentarios..., II, p. 287.
175 On this, cf. Vitoria’s reply to an argument that many killings {cedes) result from
such tournaments: “I say that many builders die, they fell in the course of build­
ing, and still no one says that building is forbidden. Therefore, this is not of itself
[decisive for the liceity of tournaments], and commonly [participants] do not die
in such exercises. When, however; the deaths of men would commonly follow
from one of these exercises, it would be prohibited; but otherwise not.” {Dico
quodplures aedificatores moriuntur, aedificando cadunt, et tamen hoc non dicit aliquis
quod sit prohibitum. Ergo hoc non est de se, sed communiter non moriuntur in exercitiis
istis. Quando autem communiter ex aliquo exercitio istorum sequerentur mortes hominum,
illud essetprohibitum; alias non.) In Ha-IIae, q. 40, n. 21, Comentarios..., II, p. 288.
180 Actually, Vitoria’s phrase is “periculum imminentis mortis”, i.e. “peril of immi­
nent death.”
181 Cf. above, the réfection, On Homicide, note 61.

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Francisco de Vitoria, On Homicide

182 Cf. In IF-II", q. 125, a. 4, n. 17, in Comentarios ..., V, p. 371.
185I have not found a text which exactly matches Vitoria’s citation. But cf. St. Tho­
mas: Summa Theologiae V-W, q. 6, a. 3; q. 71, a. 5, ad 2; DeMaio, q. 2, a. 1, ad
2; and In Sent. II, d. 35, a. 3, ad 5.
184 August. De civit. Dei, 1. 1, c. 19 (P. L. 41, 32-33); cf. La Ciudad de Dios, ediciôn
por el Padre José Moran, O.S A, in Obras de San Augustin, ediciôn bilingüe, XVI
(Madrid: Biblioteca de Autores Cristianos, 1964), 36-9. For the story of Lucretia,
cf. Livy I, LVII-LIX, in Livy in Fourteen Volumes, Books I and II, with English
translation by B.O. Foster (Cambridge: Harvard University Press, 1976), pp. 198209. Later in the century in which Vitoria wrote, Shakespeare used the account of
Lucretia as the basis of his 1594 poem, The Rape of Lucrece. For Vitoria’s own
harsh judgment in the case of Lucretia, cf. In Ila-IIae, q. 124, a. 4, n. 10, in
Comentarios..., V, p. 344.
185 Cf. Sacramentalia F. Thomae Waldensis theologiae et Carmelitani Sodalitiiprofessoris
celeberrimi: sextum videlicet volumen doctrinalis antiquitatumfidei ecclesiae catholicae
contra Witclevistas et eorum asseclas Lutheranos aliosque haereticos (Parisiis: Imp.
Francisco Reginaldo, 1523): Tit. IX, Cap. LXXVI, fol. 163vb, where reference is
made to Samson being shorn of his hair and strength; and T. XIII, C. XXVII, fol.
271rb, where the Aposde Paul is quoted to say that Samson acted by faith. These
are the only references to Samson which I have found in Netter.
186 This is the only mention of Abraham which Vitoria makes in this context. In
another place, he has briefly concluded that since God himself is the author and
owner of human life, in Abraham’s case He did not act against natural law or
justice, nor did He dispense from any commandment [which would have bound
Him]; cf. In Ila-IIae, qu. 104, a. 4; Comentarios..., V, 210-211; also cf. In la-IIae,
qu. 94, a. 5 (VI, 427). For a recent discussion of St. Thomas’ more detailed treat­
ment of Abraham and its comparison with Kierkegaard on the same issue, cf.
Francisco Torralba Rosellô, “Santo Tom ds y Kierkegaard ante el dilema
abrahamico,” Pensamiento, L (1994), 75-94.
187 Spanish: “metiose debajo.”
188 Beltrfn de Heredia {Comentarios ...III, p. 298) gives a reference here to De civit.
Dei, 1, c. 21 (P. L. 41, 35). But I have not been able to verify this, even though in
that place, mentioning Samson but not Eleazar, Augustine is speaking of those
whose death God has ordered; cf. ibid. I, c. 21; ed. J. Moran, O.S.A., Obras ...,
XVI (1964), p. 41-2.
,w The text here, (“Sicut Scaevolae licuit ire castra, quia non ex intentione,”) seems
obviously corrupt. The reference is to Gaius Mucius, whose story is related by
Livy (II, 12-13). In Livy’s account, Mucius volunteered to assassinate Lars Porsenna,
who was besieging Rome in 509 B.C. Penetrating the camp of Porsenna, he killed
a secretary, whom he mistook for Porsenna. Taken captive and condemned to
death by burning unless he revealed details of his plot against Porsenna, Mucius
put his right hand into the fire until it was burned off. Impressed by his courage,
Porsenna released him and afterwards the Romans gave him the name “Scaevola,”
which meant “left handed.” In the text we have, Vitoria is evidently referring to
his mistaken killing of the secretary.

Translators Notes to the Commentary on Summa theologiae

227

“Suleiman I (“the Magnificent”), Sultan of Turkey from 1520 to 1560, was'at the
time pressing his invasion beyond the Balkans into Hungary, where he had taken
Buda in 1526.
m CL Politics I,2; 1253al9-39.
1,2 For Vitoria in another place so citing Aristotle in support of a position that the
republic can force persons to marry against their will, a position with which Vitoria
himself does not agree, cf. On Matrimony, n. 7; Urddnoz, p. 891.
1,5 With this, cf. “ANOTHER TITLE [for Spanish conquest in the New World]
could be because of tyranny, either of the barbarian rulers themselves or simply
because of tyrannical laws working injury to innocent people. Think, for example,
that they are sacrificing innocent men or killing blameless persons in order to eat
their flesh. I say that even without papal authority the Spaniards can restrain the
barbarians from every such abominable custom and rite, because they can defend
innocent people from unjust death...Moreover, if the sacrilegious practice can­
not otherwise be rooted out, they can change their rulers and establish a new
government...... Furthermore, it is no obstacle that all the barbarians may agree
on laws and sacrifices of this kind, and that they have no wish on this score to be
delivered by the Spaniards. For in these matters they are not so much in charge of
themselves (suijuris) that they can hand themselves or their children over to death.”
On the Indians, III, n. 15, Urdanoz, pp. 720-721. Also cf. “It is never lawfid direcdy
and deliberately to kill innocent people.” On the Law ofWar, n. 35, Urddnoz, p. 840.
1,4 Vitoria’s point is that evil things cannot be the means for good ends, therefore
even less can they be necessary means.
155 This would be Vitoria’s answer to the question, so often raised in twentieth-cen­
tury cases, of soldiers and others “obeying orders” that are clearly immoral. Cf.
also, note 203, below.
156 Thinking of a similar situation, Domingo Soto writes: “There are those who,
although they deny that, ordered by a tyrant, the republic can kill him, say, how­
ever, that it can hand him over to the same tyrant in order to be killed. But, then,
both are exactly the same; and therefore neither is lawful. Nevertheless, the re­
public could in such a case not defend him, because the republic is not obliged to
defend a private citizen.” (“S«nr qui licet diffiteantur rempublicam tunc iussu tyranni
posse eum occidere, fatentur tamen posse ipsum eidem tradere ad occidendum. Porro
autem idem est utrumque prorsus: atque adeo neutrum licet. Posset nihilominus eum
illo casu non defendere: quia republica cum suipericulo non tenetur defendere priva­
tum civemP De iustitia et iure, V, q. 1, a. 7 (p. 400a).
297 With this, cf. “... from the opinion of better philosophers, a brave man should lay
down his life for the republic, even if there were no happiness after this life.” First
Relection ‘On the Power of the Church,’ (De potestate Ecclesiae prior), IV, n. 9,
Urdanoz, p. 302.
198 Note this, a part is for the whole; therefore, the good of the part is not its own but
that of the whole. Accordingly, the part as such cannot be injured in the sense of
being deprived of some good which belongs to it.
195 On this, cf. Domingo Soto: “But if you argue on the other side by an analogy —
if someone were to threaten me with death unless I would offer my hand or my

228

Francisco de Vitoria, On Homicide

tongue to him to be cut off, I could trade a member to save my life, even though
that member would be necessary [for that saving] only from the malice of an­
other; therefore, in a similar way the republic could hand over its citizen. — the
consequence is denied: because a member [of the body] does not have a being
distinct from the being of the whole [body]. Nor is a member in any way ‘for
itself,’ but ‘for the whole; nor is it by itself capable of [bearing] a right or [receiv­
ing] an injury. A man, however, even though he is part of the republic, is never­
theless also a supposit [i.e. a person] existing ‘for himself,’ and therefore he is by
himself capable of [receiving] an injury, which the republic may not inflict upon
him.” (“Qmoz/si contra similitudine arguas: Si quis mihi mortem comminaretur nisi
manum aut linguam abscindendam illi offerem, possem membrum tradere ut vitam
servarem: licet medium illud non sit necessarium nisi ex malitia alterius: ergo simi­
liter posset republica civem suum tradere. Negatur consequentia: quoniam membrum
non habet esse distinctum ab esse totius: neque ullo modo est propter se, sed propter
totum: nequeper se est capax iuris vel iniuriae. Homo autem quamvis sitpars republicae,
est nihilo minus et suppositum propter seipsum existens, atque adeoperse capax iniuriae,
quam republica non potest illi irrogare”) De iustitia et sure, V, q. 1, a. 7 (p. 400a);
also a little before: “ ... [the republic] is not like God, absolutely the master of the
life of citizens, and thus only God has power over the life of an innocent person.”
(“... non est absolute domina vitae civium, sicut Deus: et ideo in innocentis vitam
solus Deus potestatem habet”) ibid.
200 tjpfule this is not Vitoria’s own answer, he does appear to give it a certain probabil­
ity. But, on the other hand, he is clear about the limits of such conscription of his
subjects by a king; cf. “Again, free men differ from slaves in this, as Aristotle
teaches in Politics, Bk. I, cc. 3 and 4 [I, c. 4,1254a 11-13], that masters {domini)
use slaves for their own advantage and not for that of the slaves. But free men are
not [to be used] for others {propter alios) but for themselves {propter se). Where­
fore, if princes abuse citizens, forcing them into military service and making them
contribute money toward a war which is not for the common good but for private
advantage, they make slaves of those citizens.” On the Law of War, n. 12; ed.
Urdânoz, p. 825. Also cf. his opinion on subjects knowingly taking part in an
unjust war: “If the injustice of the war is evident to a subject, he may not rightly
serve as a soldier, even at the command of his sovereign. This is clear. For it is not,
by any authority whatsoever, right to kill an innocent person. But in this case, the
enemies are innocent. Therefore, it is not right to kill them.” ibid., n. 22; Urdânoz,
p. 831. In case of a war of doubtful justice, Vitoria’s opinion is as follows: “... it is
certain that in a defensive war it is lawful for subjects in a doubtful matter to
follow their sovereign in a war, indeed they are obliged to do so. But this is also
the case in an offensive war.
“This is proven. First, because the sovereign, as has been said, cannot always nor is
he obliged to give his subjects reasons for a war. And if the subjects cannot serve as
soldiers except after they are assured of the justice of a war, the republic would be
placed in grave danger and it would lie open to injury from enemies. Again, in
doubtful matters the safer position should be followed. But if in doubtful cases
subjects do not follow their sovereign to war, they expose themselves to the dan-

Translators Notes to the Commentary on Summa theologiae

229

j

ger of handing over the republic to its enemies, which is something much more
seriously wrong than to fight with doubt against [those] enemies. Therefore, they
ought rather to fight.” ibid., n. 31; Urdânoz, p. 836-7.
201 This would be for the reason that a war cannot be just on both sides; on this, cf.
“Can a war be just on both sides? I answer [as follows]. The First Proposition: Ig­
norance excluded; it is evident that this cannot happen. For if the right and justice of
each side is clear, it is not licit to fight against it, neither offensively nor defen­
sively. The Second Proposition: Assuming a plausible (probabili) ignorance, ei­
ther of fact or of law (facti autjuris}, there can be on that side on which there is
'
true justice a just war per se, but on the other side a just war in the sense of one
excused from sin by good faith. For invincible ignorance excuses everything. Again,
at least it can often happen on the part ofsubjects. For, granted that the sovereign
!
who is waging an unjust war knows the war’s injustice, still, as has been said, his
subjects can in good faith follow their sovereign. And thus subjects on both sides
may be fighting lawfully.” On the Law ofWar, n. 32, ed. Urdânoz, p. 838.
202 Cf. Vitoria in the course of discussing what is allowed in a just war, “The Second
Proposition: It is lawful to recover all things lost or their value. This also is so evi;
dent that it needs no proof. Indeed, it is for this that war is waged or undertaken.”
On the Law ofWar, n. 16, ed. Urdânoz, p. 826; ibid., n. 44, p. 847.
!
203 C£: “This is most known: it is lawful to recover ones own possessions” (Hoc est
!
i
notissimum; licet recuperare bona sua.), In IIa-IIae,q. 40, a. l,n. 16,in Comentarios
r
j
..., II, p. 286.
2M For instance, wars with the Saracens.
205 On this, c£: "Once victory has been achieved, and where there is no dangerfrom the
enemy, is it lawful to kill all those who have home arms on the enemy side! And it
seems clear that it is. For, as was said above, among the military commands which
the Lord gave in Deuteronomy 20, v. 10, one is that when an enemy city has been
taken by storm, all its inhabitants should be killed. The words of this passage are:
“Ifwhen you come to take a city by storm, you first offer it peace, ifit shall accept
|
and open its gates to you, all persons in it will be safe and will serve you for
j
tribute. But if, however, it declines to make peace and it begins war against you,
*
you will attack it. And when the Lord your God shall have delivered it into your
hand, you will strike with the edge of the sword all in it of masculine gender, but
not women and children.” On the Law ofWar, n. 45, Urdânoz, pp. 847-8. Also
!
cf; “Take a case where the Spaniards have won. They no longer fear danger and
the enemy is in flight. Is it lawfill to pursue and kill them? I am stipulating that
their death is not necessary now for victory. I answer that it is entirely lawful to
kill them. The reason is that the king has authority not only to recover possessions
J
but to punish the enemy, even after they [i.e. the Spaniards] have taken the city.
fl
For example, the king could kill some citizens who had torched the city and not
just confiscate their possessions. And this is dear, because if it were not lawful to
■
kill them, wars could not be avoided, but would immediately recur. Second, I say
1
that it would not be lawful to kill all the enemy, but moderation should be used.
I
Justas the king could not punish all the citizens of that city, granted that they had
rebelled against him, but he could punish some, in the same way he cannot in tfr.
S jk
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Francisco de Vitoria, On Homicide

wholesale fashion kill all the enemy. But it should be taken into account whether
this was the first war these had unjustly waged against us, or again whether they
were moved to do so without cause or with cause. Third, I say that it is not lawfid
to kill enemies when victory has been attained in a case where they were lawfully
fighting if there is now threat of danger from them. Take a case where the king of
Spain justly besieges the city of Bayonne; the inhabitants justly defend them­
selves, for if they would not defend themselves they would be traitors. I say that if
the king of Spain takes the city and there is no threat of danger to him from them,
he cannot kill them. The reason is because they are innocent. I say unless danger
threatens in war, because if they are actually at war, it is lawful to repel force with
force and granted that the enemies are innocent, it is lawful to kill them as in the
case stipulated.’ In IIa-IIae, q. 40, a. 1, n. 10, in Comentarios..., II, pp. 283-4.
206 In 1535 the imperial forces of Charles V had culminated an African campaign
with the capture of Tunis.
207 Spanish: “que un alemdn.”
208 With this, cf.: “Is it lawful to kill innocentpersonsfrom whom, however, there will be
in future a threat of*danger
.
For example, Saracen children are innocent. But one
ought rightly fear that when they become adults they will fight and wage danger­
ous war against Christians. Moreover, even among enemies adult civilians {togati
puberes) who are not soldiers are presumed to be innocent; but these may later
take up arms and bring danger. Is it lawful to kill such as these?
“It seems that it is, for the [same] reason that it is indirectly {per accidens) lawful to
kill other innocent persons. Again, in Deuteronomy 20: 13, the children of Israel
are ordered, when they have captured some city, to slay all adult males; but we
cannot presume that they all are guilty.
“In answer to this: although it could perhaps be argued that in such a case they
could be killed, nevertheless, I believe this is in no way lawful. For evil things
should not be done in order to avoid greater evils. Also, it is intolerable that
someone be killed for a future sin. Moreover, there are other remedies for warding
off future [evils] from such persons, for example, captivity, exile, etc.....Whence
it follows that whether victory has been achieved or whether a war is actually in
progress, if the innocence of someone is evident, and the soldiers can let him go,
they are obliged to do so.” On the Law ofWar, n. 38, Urddnoz, 843. Also cf. In IIaIIae, q. 40, a. 1, n. 14, in Comentarios..., II, p. 285.
209 See: On the Law ofWar, n. 37, Urddnoz, 842, as cited in note 105 above; cf. In IIaIIae, q. 40, a. 1, n. 11, in Comentarios..., II, p. 284. Also see, Domingo Soto, De
iustitia et iure, V, q. 1, a. 2 (p. 387b).
210 On this, cf. “Granted that it is not lawfid to kill children and other innocentpersons,
is it lawful at least to reduce them to bondage and slavery? For answer to this, let a
single proposition suffice: As it is lawfid to despoil the innocent, it is in the same way
lawful to lead them into bondage. For liberty and bondage are counted among the
goods of fortune. Hence, when a war is ofsuch kind that it is lawful to despoil all
enemies without distinction, and to seize all their goods, it is also lawful to reduce
all enemies, whether guilty or innocent, to bondage. And since a war against
pagans is of this kind, inasmuch as it is perpetual and they can never make satis-

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Translator’s Notes to the Commentary on Summa theologiae

231

faction for the wrongs and damages they have inflicted, it is therefore certainly
lawfill to reduce Saracen children and women to bondage and slavery. But since
by the Law of Nations (jure gentium) it seems accepted among Christians that
Christians may not become slaves by right of war, this is indeed not lawful in a
waramong Christians. But if it is necessary for ending the war to make captives of
even the innocent, such as children and women, not indeed for slavery, but for
ransom, it is lawful. This, however, should not be extended beyond what is de­
manded by the needs of the war and what the usual practice of those fighting a
just war has observed.” On the Law ofWar, n. 42, Urddnoz, pp. 846-7.
211 With this, compare: “Certainly it is lawful to despoil the innocent ofgoods and
possessions which the enemy would use against us, for example, arms, ships, and [war]
machines.
“This is clear, for otherwise we could not attain the victory which is the goal of
war. Indeed, it also is lawful to take the money of innocent people as well as to
burn and destroy their grain, and kill their horses, if such is necessary in order to
weaken the forces of the enemy. From this a corollary follows, that if a war is
perpetual [as, for instance, with the Saracens], it is lawful to despoil all without
distinction among the enemy, both guilty and innocent. For from their resources
{opibus) the enemy is sustaining an unjust war, and, contrariwise, the enemy’s
forces will be weakened if their citizens are despoiled.
“...Ifa war can be satisfactorily waged without despoilingfarmworkers or other inno­
centpeople, it does not seem lawful to despoil them.
“Sylvester holds this, at the word Bellum, I, n. 10 [ed. Lugduni, p. 89b], for a war
is based upon an injury. Therefore, if that injury can be compensated for in some
other way, it is not lawful to exercise the right of war against innocent people.
Indeed, Sylvester adds that even if there were a just reason to despoil the innocent, once the war was over, the victor would be obliged to restore to them whatever was left.
“But I do not think this is necessary. For, as is said below, if it has been done by
right ofwar, all things yield in favor of and to the right of those waging a just war.
Whence, if things were lawfolly taken, I think they are not subject to restitution.
What Sylvester, however, has said is righteous (pium) and plausible. But to de­
spoil travelers and foreigners who are in enemy territory is in no way allowable,
unless their guilt is evident. For they are not to be numbered among the enemy.”
On the Law ofWar, nn. 39-40, Urddnoz, 844-5.
212 Actually, it is (his reply to) the third argument; i.e. Summa theologiae II-II, 64, 6,
ad 3.
2,3 For this, cf. Utrum judici liceat judicare contra veritatem quam novit, propter ea
quae in contrarium proponuntur. (“Whether it is lawful for a judge to judge
against what he knows to be true, because of what is proposed contrary to this.’)
Summa theologiae Π
*-ΙΙ “, 67, 2. The parallel between this and the current Ameri­
can issue of “jury nullification” seems obvious.
214 Note that Vitoria does allude to this opinion in the introduction to his Relection
on the Indians, where he balances it with the thought that in forming ones own
conscience one should be guided by norms outside his own feeling; cf. For just as
f

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Francisco de Vitoria, On Homicide

in a lawcourt {in foro contentioso) a judge is bound to pass judgment according to
what has been alleged and proven, so in the court of conscience each one is obliged
to pass judgment not on the basis of his own feeling, but on account either of a
demonstrable reason or of the authority of wise men. Any other way, his judg­
ment is rash and he exposes himself to the danger of sinning, and by this he
already sins.” On the Indians I, Urddnoz, 645-6.
215 On Thomistic doctrine here, cf. “This involves what becomes known in later
Scholastic ethics as the principle of double effect: where a moral action results in
two consequences, one evil and the other good, the action may be done morally, if
the good is in some reasonable proportion to the evil, if the good cannot be at­
tained without the evil, if the two consequences are concomitant, and if the good
is directly intended and the evil only permitted.” Vernon J. Bourke, Ethics: A
Textbook in Moral Philosophy (New York: Macmillan, 1966), p. 353.
216 These would be nominalist followers of the “the modern way” {via moderna). For
Vitoria identifying Gabriel Biel (1410?-95), Jacob Almain (ca. 1480-1515), and
Pierre d’Ailly (1350-1420) as “moderns,” cf. In Ila-IIae, q. 26, a. 2, n. 5, in
Comentarios ... II (1932), p. 90. For the “moderns” as sources of Vitoria’s doc­
trine, cf. V. Beltrdn de Heredia, Comentarios... Ill, Introducciôn, xxvi-xxxi. On
“the modern way,” cf. E. Gilson, History ofChristian Philosophy in the MiddleAges
(New York: Random House, 1955), pp. 487-545.
217 Spanish: “amortecello.”
218 Spanish: “sino un arcabuz.”
219 With this, compare the two powers of the king which were distinguished above in
the commentary at Arride One, number 6.
220 That is, do nothing to defend himself and in so doing incur no guilt.
221 For both Greeks and Romans the virtue of filial devotion.
222 That is, the opposite of the opinion that one is obliged to defend himself by
killing his attacker; cf. In Summam Theologiae, IP-II“, q. 67, a. 7, nn. 1-2; in
Sancti Thomae Aquinatis, Opera omnia, cum commentariis Thomae de Vio Caietani
Ordinis Praedicatorum, S.R.E. Cardinalis, IX (Romae: S.C. de Propaganda Fide,
1897), pp. 74-5.
223 Note that the same example is used in the relection, On Homicide, n. 24.
224 This unusual word is the Latin equivalent of the Spanish “mayorazgo,” which
Vitoria uses in other contexts; cf. e.g. In Ila-IIae, q. 64, a. 6, nn. 9 and 14, in
Comentarios ... Ill, pp. 180 and 185.
225 At this point, Domingo Soto will add an artide: “Whether it is lawfill to expose
one’s life for the defense of a friend or of some virtue?” {Utrum liceat vitam, pro
defensione amici aut cuiuscunque virtutis, exponere!) and will remarie “We have
thought it fitting to add this sixth artide to the one immediately preceding, al­
though St. Thomas passed it by in silence.” (“Articulo proxime praecedenti operae
pretium duximus hunc sextum adhibere: licet D. Thom. silentio hic eum praeterierit.”)
De iustitia et iure, V, q. 1, a. 6 (p. 396a).
226 With this compare and contrast Domingo Soto, as cited in note 168, above.
227 C£ Quaestiones in epist. Pauli. Epist. ad Rom. q. 294 (P. L. 175, 504).
228 Cf. Romans 12: 19.

Translators Notes to the Commentary on Summa theologiae

233

229 On this, cf. Summa theologiae II’-II", qu. 26.
230 For this, see Summa Theologiae, II’-II", q. 26, aa. 4 and 5; and Vitoria, In IF-IF',
q. 26, aa. 4 and 5, in Comentarios ..., II, pp. 105-111.
231 Note Vitoria’s own inconsistency here in usingfur and latro as synonyms; cf. Art.
II, n. 5> above.
232In Summam
Ila-IIae, q. 64, a. 7, n. 3 (IX, 75).
233 Cf. note 61, above.
234 Ibid.
235 The “person robbed” or the “person robbing”? This is unclear to me.
236 It is not clear to me whether Vitoria would here regard a cloak as a small ora great
possession. Probably, this would depend upon such matters as the cost of the
cloak, the rank of the person from whom it is taken, and its necessity for the
sustenance of its owners life.
237 On the main point here, cf. the following propositions condemned under Inno­
cent XI, in a Decree of the Holy Office, dated March 2, 1679: “As a rule
{regulariter), I can kill a thief in order to keep one piece ofgold” and: “Not only is
it lawful to defend with a lethal defense those things which we actually possess,
but also those things to which we have an inchoate right and which we hope we
will possess.” cf. Denzinger, nn. 2131-2, p. 461.
238 Spanish: “como si fuese un Caballero.”
235 Possibly this refers to In ΙΡ-ΙΙ“, 64, a. 6, n. 4, above.
240 With this cf. the proposition condemned under Innocent XI, “It is right for a man
of honor to kill an attacker who tries to calumniate him, if such ignominy cannot
otherwise be avoided; and the same must also be said if someone gives him a slap
or strikes him with a stick and afterwards, having done that, flees.” {Fas est viro
honorato occidere invasorem, qui nititur calumniam inferre, si aliter haec ignominia
vitari nequit: idem quoque dicendum, si quis impingat alapam velfuste percutiat et
post impactam alapam vel ictum fustisfugati), Denzinger, p. 461, n. 2130.
241 For the same social distinction at work in the case of a blow received in a fist fight
H, cf. In Ila-IIae, q. 41, a. 1, n. 3, Comentarios..., II, p. 296. Also cf. "... he
who is attacked has the right to defend himself insofar as there is need for defense.
With respect to which it should be noted, and especially with respect to Span­
iards, that, as we said in the previous article, an injury is not just a matter of
bodily injury, but also a matter of honor, as when someone seriously dishonors
another. Hence one who is attacked in either of these ways, either bodily or with
regard to his honor, has the right to defend himself both from bodily injury and
from dishonor, i.e., the right to defend his honor, which the Spaniards especially
do.” (... qui invaditur, habet facultatem defendendi se quantum opus est ad sui
defensionem. Pro quo est notandum, et maxime pro Hispanis, quia ut dicebamus in
articulo praecedenti, laesio non solum est ex nocumento corporali, sed ex honore, sicut
quando aliquis multum dehonorat alium. Unde qui invaditur aliquo istorum
modorum, vel corporaliter, vel in honore, habet facultatem ad defendendum se a
nocumento corporali et dehonestatione, id est ad defendendum honorem suum, quem
maxime Hispani defendunt.) ibid., a. 2, n. 2, p. 297.
242 Cf. note 61, above.

234

Francisco de Vitoria, On Homicide

243 On the question of fleeing rather than defending oneself, cf. “...can someone who
is attacked by a thief or an enemy strike his attacker back when by fleeing he
could escape?
“The Archbishop [i.e. St. Antoninus] answers that indeed he could not. For such
would not be to protect oneself within the bounds of blameless defense. For ev­
eryone is obliged to defend himself, insofar as he can, with a minimum of damage
to his attacker. If, therefore, by resisting, it is necessary to kill or seriously wound
his attacker, but he can save himself by flight, it appears that he is obliged to do
the latter. But Panormitanus [i.e. Nicolo de’Tudeschi, O.S.B. (1386-1445), Arch­
bishop of Palermo] in the chapter, Olim. De restitutione spoliatorum (cf. Decretalia
Greg. IX, Lib. II, tit. 13, c. 12; ed. Richter and Friedberg, II, 285-6; Panormitanus:
Commentaria Primae Partis in Secundum Decretalium,!!, 13,12 [ed. Venice, 1605,
n. 17, f. 184 rb-va]) has distinguished: for if the one attacked would suffer great
dishonor by fleeing, he is not obliged to flee, but he can repulse the injury by
striking back. However, if the flight would not cause a loss of reputation or honor,
as in the case of a monk or a peasant attacked by a noble and powerful man, he is
obliged rather to flee.
“But Bartolus [de Sassoferato (1312-1357), professor of law at Pisa, and a de­
fender of the Emperors prerogatives], commenting on the Digest, the first law, De
poenis (cf. Dig. XLVIII, tit. 19, 1, ed. Mommsen and Krueger, I, 864; Bartolus: In
Secundum Digesti Novi Partem, ed. Augustae Taurinorum, 1589, ff. 237-238),
and the law Furem, De sicariis (Dig. XLVIII, 8, 9; ibid., I, 853; Bartolus: f. 213
va), holds without any distinction that it is lawfid for such a one to defend him­
self and that he is not obliged to flee, because flight is a wrong (injuria}, in the law
of the Digest, Item apud Labeonem, De injuriis (Dig. XLVII, 10, 15; ibid., I, 832).
But if it is lawful for the defense of possessions to resist by arms, as in the aforesaid
chapter, Olim, and in the chapter Dilecto, De sententia excommunicationis, book 6
[VI, 5, 11, 6], much more is it so in order to prevent bodily injury, which is
greater than the loss of things; cf. the Digest, the law, In servorum, Depoenis (XLVIII,
19, 10; I, 866).
“And this opinion [i.e. of Bartolus] can be held probably and safely enough, espe­
cially inasmuch as civil laws (jura} grant this, as e.g. in the mentioned law, Furem.
But with the authority of the law no one sins, for laws give a right in the forum of
conscience. Whence, even though by natural right (jure) it would not be licit to
kill in defense of possessions, it seems that by civil law (jure) it can be made licit.
And this would seem to be so, as long as scandal is avoided, not only for a layman
but also for a cleric and a religious man.” OntheLawofWar,!·, ed. Urdanoz, 81920.
244 Here I conjecture the text should read: “ad intercipiendum” instead of Beltran de
Heredias reading (III, 307) of “ad interficiendum.”
245 Spanish: “matalle antes que me mate.”
246 Here, Beltrdn de Heredia has reproduced a marginal gloss, which translates as
follows: “This is confirmed. For it is lawfid for the emperor for the defense of the
republic to get a start on a war, if he knows that another hostile king is conspiring
against his kingdom. Therefore, in the same way, it is lawfid for me to get a start

'

Translator’s Notes to the Commentary on Summa theologiae

235

on my enemy.” (Confirmatur. Quia imperatori licet praevenire bellum propter
defensionem reipublicae, si sciat quod alius rex contrariusfaciat comitia adversus regnum
suum. Ergo eodem modo licet mihi praevenire inimicum meum} If this gloss does
represent the thought of Vitoria, it has huge significance for his just war theory as
well as for its application here. In effect, it would, at least in some cases, justify a
preemptive attack. I know of only one other place in Vitoria’s work where such a
possibility is mentioned; cf. “...in moral matters a most cogent argument is from
authority and the example of holy and good men. But there have been many such
men who have protected their homeland and possession not only by defensive
war, but who have also by offensive war prosecuted wrongs received from or even
intended by their enemies.” On the Lau> ofWar, n. 1, Urdanoz, p. 818.
247 Cf. Summa theologiae
96,4, as cited by Vitoria in On the Indiansn. 9, ed.
Urdinoz, p. 657; also cf. On Civil Power, n. 15, Urdinoz, p. 181 and nn. 17-24,
pp. 185-95. On the exception from this of unjust laws, see On the Power ofthe
Pope and a Council, n. 18, pp. 478-480. For the other side of this, cf. Vitoria: "But
with the authority of the law no one sins, for laws give a right in the forum of
conscience." On the Law ofWar, n. 4; ed. Urdinoz, p. 820.
248 For the same teaching with distinctions drawn between public and private en­
emies as well as between enemies who are weaker and those who are stronger, cf.
In Ila-IIae, q. 25, a. 9, esp. nn. 4 and 6, in Comentarios..., II, pp. 78-9.
249 That is, Summa theologiae Ila-IIae, 64, 7, ad 3. Cf. ibid., Suppl., q. 39, a. 4, ad 2.
250 Cf. Decretum, pars I, d. 50, c. 6, De his clericis·, ed. Richter and Friedberg, I, 179.
251 Cf. Clementi Papae V Constitutiones, Lib. V, Tit. IV, Cap. un., Si furiosus·, ed.
Richter and Friedberg, II, 1184.
252 Cf. In Summa Theologiam ΙΓ-ΙΙ", 64, 8; in Sancti Thomae Aquinatis, Opera om­
nia, cum commentariis Thomae de Vio Caietani Ordinis Praedicatorum, S.R.E.
Cardinalis, IX (Romae, 1897), pp. 76-8.
253 For this, cf. St. Thomas, Summa Theologiae, I’-II“, q. 20, esp. a. 4; In Sent. II, d.
40, q. 1, a. 3, in Scriptum super libros Sententiarum Magistri Petri Lombardi Episcopi
Parisiensis, editio nova, cura R. P. Mandonnet, O.P., Tomus II (Parisiis: P.
Lethielleux, 1929), pp. 1015-19; and De Malo, q. 2, a. 2, ad 8, in Quaestiones
disputatae, Tomus II, cura et studio RR. PP P. Bazzi et P.M. Pession (Taurini:
Marietti, 1953), p. 470. Basically, theThomistic doctrine here is that, while the
external act which is intended specifies the choice of the will, from the viewpoint
of that choice the external act adds no goodness or malice except incidentally as
the act of the will may become better or worse insofar as it is repeated, extended,
or intensified when carried over to the external act. For a fuller treatment of the
Thomistic understanding of the relation between the internal and the external
act, see Vernon J. Bourke, Ethics, esp. pp. 142-7, 158 60.
254 Cf. ibid., n. 4 (p. 77). Literally, Vitoria’s sentence here reads: “Cajetan, however,
would not deny that if someone intends some act from which either a homicide
may follow or is apt to follow that he is not-guilty of homicide.”
Ibid., η. 1, p. 76.
256 Cf. this article, n. 2, above.
■ ff:

236

Francisco de Vitoria, On Homicide

257 Cf. Decreti prima pars, dist. L, c. 48, Quantum dicit (ed. Richter and Friedberg I,
col. 197); and ibid., c. 49, Hii, qui arborem.
258 Spanish: “que va en posta.”
259 Cf. In If-If, 64, 7, in S. Thomae Aquinatis, Opera omnia ..., IX, p. 76, η. 1.
260 Cf. ibid., η. 3 (p. 77).
261 Cf. Summa summarum ..., Homicidium (ed. 1528:1, fol. 290v).
262 Decretalium Greg. IX, Lib. V, Tit. XII, c. 10; ed. Richter and Friedberg, II, 797.
263 Ibid., c. 11.
264 Ibid., c. 19 (II, 801).
265 Ibid., c. 20 (802).
266 Cf. “Odia restringi, et favores convenit ampliari.” Liber sexti Decretalium, D.
Bonafacii papae VIII, V, cap. ult.: De regulisjuris, reg. 15, in Corpus iuris canonici,
ed. Richter and Friedberg, II, col. 1122. And from a text widely used in the middle
decades of this century: “A fundamental rule ofjurisprudence is to put as broad as
possible an interpretation on the words of a favorable law and to interpret unfa­
vorable laws stricdy.” J. Heribert Jone, O.F.M. Cap., Moral Theology, Englished
and adapted to the Code and Customs of the United State of America by Rev.
Urban Adelman, O.F.M. Cap (Westminster, MD: Newman Press, 1953), n. 55,
p. 23. Also cf. Canons 19 and 2219, in Codex juris canonici, Pii X Pontificis
Maximi jussu digestus, Benedicti Papae XV auctoritate promulgatus (Romae: Typis
Polyglottis Vaticanis, 1918), pp. 5 and 599; and Canon 18, in Code of Canon
Law, Latin-English edition (Washington, DC: Canon Law Society of American,
1983), p. 7.

The Summa theologica

of
St. Thomas Aquinas

Partii.

Question 64, Articles 1-8

Literally translated by Fathers of the English Dominican Province

London: Burns Oates & Washboune Ltd.
Publishers to the Holy See

1929
Pp· 195-212]

Francisco de Vitoria, On Homicide

238

Question LXIV.
Of Murder

(In Eight Articles.)
In due sequence we must consider the vices opposed to commutative justice.
We must consider (I) those sins that are committed in relation to involuntary
commutations: (2) those that are committed with regard to voluntary com­
mutations. Sins are committed in relation to involuntary commutations by
doing an injury to one’s neighbour against his will: and this can be done in
two ways, namely by deed or by word. By deed when one’s neighbour is in­
jured either in his own person, or in a person connected with him, or in his
possessions.
We must therefore consider these points in due order, and in the first place
we shall consider murder whereby a man inflicts the greatest injury on his
neighbour. Under this head there are eight points of inquiry: (I) Whether it is
a sin to kill dumb animals or even plants? (2) Whether it is lawful to kill a
sinner? (3) Whether this is lawful to a private individual, or to a public person
only? (4) Whether this is lawful to a cleric? (5) Whether it is lawful to kill
oneself? (6) Whether it is lawful to kill a just man? (7) Whether it is lawful to
kill a man in self-defence? (8) Whether accidental homicide is a mortal sin?

First Article
Whether It Is Unlawful to Kill Any Living Thing?
We proceed thus to the First Article·. —
Objection I. It would seem unlawful to kill any living thing. For the Apostle
says (Rom. xiii. 2): They that resist the ordinance ofGodpurchase to themselves
*
damnation.
Now Divine providence has ordained that all living things should
be preserved, according to Ps. cxlvi. 8, 9, Who maketh grass to grow on the
mountains ..., Who giveth to beasts their food. Therefore it seems unlawful to
take the life of any living thing.
Obj. 2. Further, Murder is a sin because it deprives a man oflife. Now life is
common to all animals and plants. Hence for the same reason it is apparently
a sin to slay dumb animals and plants.
Obj. 3. Further, In the Divine law a special punishment is not appointed
save for a sin. Now a special punishment had to be inflicted, according to the

* Vulg.,— He that resisted thepower, resisteth the ordinance ofGod: and they that resist,
purchase to themselves damnation.

Aquinas: Summa theologica II, question 64, articles 1-8
Divine law, on one who killed another man’s ox or sheep (Exod. xxii. I).
Therefore the slaying of dumb animals is a sin.
On the contrary, Augustine says {De Civ. Dei i. 20): When we hear it said,
'Thou shalt not kill, ’ we do not take it as referring to trees, for they have no sense,
nor to irrational animals, because they have no fellowship with us. Hence itfol­
lows that the words, ‘Thou shalt not kill' refer to the killing ofa man.
I answer that, There is no sin in using a thing for the purpose for which it is.
Now the order of things is such that the imperfect are for the perfect, even as
in the process of generation nature proceeds from imperfection to perfection.
Hence it is that just as in the generation of a man there is first a living thing,
then an animal, and lastly a man, so too things, like the plants, which merely
have life, are all alike for animals, and all animals are for man. Wherefore it is
not unlawful if man use plants for the good of animals and animals for the
good of man, as the Philosopher states {Polit, i. 3).
Now the most necessary use would seem to consist in the fact that animals
use plants, and men use animals, for food, and this cannot be done unless
these be deprived of life: wherefore it is lawful both to take life from plants for
the use of animals, and from animals for the use of men. In fact this is in
keeping with the commandment of God Himself: for it is written (Gen. i. 29,
30): Behold I have given you every herb... and all trees... to beyour meat, andto
all beasts ofthe earth·, and again {ibid. ix. 3): Everything that moveth and liveth
shall be meat to you.
Reply Obj. I. According to the Divine ordinance the life of animals and
plants is preserved not for themselves but for man. Hence, as Augustine says
(De Civ. Dei i. 20), by a mostjust ordinance ofthe Creator, both their life and
their death are subject to our use.
Reply Obj. 2. Dumb animals and plants are devoid of the life of reason
whereby to set themselves in motion; they are moved, as it were by another,
by a kind of natural impulse, a sign of which is that they are naturally en­
slaved and accommodated to the uses of others.
Reply Obj. 3. He that kills another’s ox, sins, not through killing the ox, but
through injuring another man in his property. Wherefore this is nota species
of the sin of murder but of the sin of theft or robbery.
/
Second Article
Whether It Is Lawful to Kill Sinners?
We proceed thus to the SecondArticle: —
Objection I. It would seem unlawful to kill men who have sinned. For Our
Lord in the parable (Matth. xiii.) forbade the uprooting of the cockle which
denotes wicked men according to a gloss. Now whatever is forbidden by God
is a sin. Therefore it is a sin to kill a sinner.

256

Francisco de Vitoria, On Homicide

1544 __ Pope Paul III calls a General Council for 1545 at Trent in northern
Italy.
1545 —Truce of Adrianople between Charles V, Ferdinand of Austria, and

Suleiman I.
----------- Council ofTrent convenes (-1564).
----------- Vitoria named by Charles V as a delegate to the Council but is too

sick to go.
1546 — Martin Luther (b. 1483) dies (February 18).
----------- Vitoria dies (August 12).
1551 — Junta de Valladolid made up of fourteen theologians, headed by
Domingo de Soto, selected to judge the Spanish conquest of the Indians of
the New World. The principal business before theJunta was a debate between
the humanist Gino de Sepulveda, the defender of the Spanish role, and its
severe critic, Bartolomé de las Casas, bishop of Chiapa in Mexico.
1557 — Boyer edition of Vitoria’s Relectiones appears at Lyons.

Appendix B

Vitoria’s Courses in Theology at Salamancd

1526-1529: Secunda secundae of the Summa Theologiae
1529-1531: Fourth Book of the Sententiae of P. Lombard
1531-1533: Prima Pars of the Summa Theologiae

1533- 1534: Prima secundae of the Summa Theologiae
1534- 1537: Secunda secundae of the Summa Theologiae
1537- 1538: Tertia Pars (q. 1-59) of the Summa Theologiae

1538- 1539: Fourth Book of the Sententiae
1539- 1540: Prima Pars (q. 1-48) of the Summa Theologiae.

1 Cf. Urdinoz, p. 77.