THE PRINCIPLES
OF

POLITICAL AND INTERNATIONAL
LAW IN THE WORK
OF

FRANCISCO DE VITORIA
EXTRACTS, WITH AN INTRODUCTION AND NOTES

BY

i

ANTONIO TRUYOL SERRA
. Professor of Philosophy of Law in the University of Murcia (Spain)

MADRID
EDICIONES CULTURA HISPANICA
1946

ΒΜΜΙβΗβΗΒΜΜΜΜΜΜΐ

The title of the Spanish original is as follows: Lot principiat
del derecho puhlico en Francisco de Vitoria (first published 1946)

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FIRST PUBLISHED 1946.

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ALL RIGHTS RESERVED.

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PRINTED IN SPAIN.

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TABLE OF CONTENTS
Page

Introduction: On

the fourth centennial celebration of
11
the death of Francisco de Vitoria.... J....

’Preliminary concepts : The philosophical

starting point

27

29
The teleological conception of the universe ... ....... ........
30
Natural law....................................................... .. ... ...
Natural law and positive law. Subordination of positive
32
law to natural law ..............................................
■

Ch. I: Political

power

The natural foundations of society. The State as a perfect
(sovereign) society.......................... .................. .
Moral necessity and divine origin of political power ...
Power in itself is not the fruit of sin ..; .......................
Definition of power. Power (potestas) and force (poten­
tia/...........................................................................
The purpose of political power: the common good ...
The power belongs to the community ... .......................
Transference and exercise of power. Forms of govern­
ment ...................................... ?...............................
The principle of majority in the transference and
exercise of power ..............
...
The monarchy............................................... . ..........
Civil laws are binding upon the legislators ..................

33
35
36
38

39
40
41
43

43
45
47
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âmwtt

Page

Wheter the laws of tyrants have a binding force.......
Responsibility of the State for the acts of his agents ...

i i
H

48
49

,

Ch. II : International

order................................................

Concept and foundations of the law of nations. The
natural and the positive law of nations.............
The principle of pacta sunt servanda .................... ■■■
The common good of the whole world ................... ....
Extension of the general principles of public law to non­
Christian nations. Universality of the law of nations.
Empire and Papacy in international law. The Pope as
an umpire in international matters .............. ...
The natural right of fellowship and communication, a
consequence of the universal community of mankind.
Freedom of international trade and navigation ... ...
Equality of treatment and reciprocity ... ... ... ... ...
Option to citizenship. Domicile...................... ... ... ...
The right to preach the Gospel............. ... ..................
Intervention based on incapacity. Colonization as a
.
trust............. ...............
...
Intervention as a humanitarian requisite ............ ...
Freely accepted protectorate............................................
Solidarity for upholding the law............................ .......

Ch. Ill: War

and its law..................

51

53
56
56
57

60
61
63
64
66
66

68
69
71
72
75

Lawfulness of defensive and offensive war. Need as the
only justification for war .... ........
77
Who has the right to resort to war? .......... ............
79
War aims ... ........................
79
Insufficient reasons for a resort to war ... ... ........ ... 80
A serious wrong is the only just cause of war ........ ... 80
The justice of war and private conscience ........
83
Doubtful reasons for war.......................................
84
Can a war be just for both sides? ... ........
...
86
Position of non-combatants in the course of war ........
88
Safety of neutral life and goods.....................
89
Reprisals...............................................................
90
A hostage’s right...............................................................
90
The fate of the guilty.......................................................
91

δ

Page

Reparations.....................................................................
The problem ofsecurity..................................................
Sanctions............ ...........................................................
The excuse of good faith, when war is just on both sides.
The three canons orthe rules of warfare ...................
Ch. IV : State

93
93
94
97
98
101

and church.....................................

The duality of powers in the Catholic conception........ 103
Priority of the spiritual power founded on superior
aims...................
... 104
Indirect subordination of temporal power to spiritual
power............
105
Organic unity of the Christian social order, temporal
and spiritual..................
107
Bibliography....................... .............................. ... .............

109

Index.......................................

117

; .......

9

ON THE FOURTH CENTENNIAL CELEBRATION OF THE
DEATH OF FRANCISCO DE VITORIA

I

1. Francisco de Vitoria was granted long ago a place of
honour among the classics of political philosophy. Many
writers—and some of them distinguished by great authority—
have exalted his memory and given him unsparing praise,
making his name familiar beyond the scope of the University
and among widely scattered cultural circles. The majority
of those who have written about Vitoria have shown him to
be the undoubted and authentic founder of the science of
international law in his two readings De Indis, which are of
permanent value and greatness. And this is truly his most ge­
nuine title of glory. But Vitoria’s fame as an internationalist^
must not lead us into overlooking other aspects of his work
which show the same vigour and greatness of genius. Some
commentators, for instance, have stressed the important role
played in political law by his relectio de potestate civili, a mas­
terpiece which in no way can be considered as less valuable
than those previously mentioned. Others remind us that Vitoria
was the restorer of the theological studies in Renaissance Spain;

13

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the commentator of the Summa theologica of St. Thomas Aqui-i f
nas, the respected and beloved master of a whole school of
famous theologians and jurists; that he awoke in youth voca-i
tions and enthusiasms. And it would even be possible to bring
out the unjustly diminished excellence .of his contribution to( j
ecclesiastical public law with his two readings De potestate\ j
Ecclesiae and De potestate Papae et concilii, which, when the
|
doctrinal storms provoked by the counciliary movement had
\
hardly subsided, had anticipated in general lines the decrees
| .
of the Council of Trent and the learned disquisitions of Suarez
*
and Bellarmine. Monographs and studies of uneven value and
|
quite different sources have spread the ideas of this illustrious
I
Spanish Dominican friar and revived his noble and captivating
|
personality, which came gradually to the fore amongst his
|
now clear and unmistakable characteristics (1). This general
|
recognition of his significance gave rise in Spain to’the foun- j
dation of the Asociaciôn Francisco de Vitoria (1926) and the
i
Francisco de’ Vitoria chair in the Law Faculty of the Salaΐ
manca University (1927), subsequently filled by distinguished
|
professors, both Spanish and foreign. The organ of expression
|
of this Vitorian movement was the Anuario of the above menf
tioned Association. Outside Spain, the Vitoria-Suarez InterJ
national Association was founded in 1932, animated by that
I
same spirit, which found in the eminent American internatio|
nalist James Brown Scott its most enthusiastic supporte*-,
|
whose work could never be overemphasized.
·
i
For this reason, and because in the following pages we
|
offer an outline of Vitoria’s philosophico-political thought by
I
means of a commented selection or his own texts, we shall;
|
devote this short introduction only to stressing the persistent!
I
modernity of Vitoria, the human and doctrinal value which!
!
his example and work have for us of the twentieth century, j
!
in one of the most serious cultural crises mankind has ever'
witnessed. But it will not be useless to say a few words pre­
viously about Vitoria’s life : The externally simple life of a Do­
ti) See the bibliographical note at the end.

14

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minican friar devoted to study and teaching, but always fruit­
ful, because of a great inner dynamism. In order to outline
it with proper accuracy, in spite of the gaps which historical
research still has to admit, Father Beltran de Heredia, the
author of a most authoritative biography, will serve us as a
sure guide.
2. There is no known and exact date for his birth, al­
though the year of 1486 appears to be quite likely (2). At
about 1504 he entered the Order of Friars Preachers. He went
to Paris some years later, undertaking studies there in the
famous house of St. Jacques. He counted among his teachers
with men like Crockaert and Fenarius. He was initiated there
into a life of theological teaching, which he was going to be
devoted to with unselfish enthusiasm to the day of his death.
In the seven years which he spent in Paris he covered a
wide field of educational ground, for the capital of France
was then a meeting place for all kinds of systems and ideas
and intellectual endeavours. Vitoria was able to secure for
himself such a wide cultural background that he was already
admired by his contemporaries; in fact, his great learning
was the indisputed ornament of his penetrating and saga­
cious mind. After his return to Spain,. Vitoria taught for three
years (from 1523 to 1526) in the College of Saint Gregory at
Valladolid. When the prima chair of the Faculty of Theology in
the Salamanca University was vacant, he passed the exam­
ination required to fill it, beating the Portuguese Pedro Margallo, on the 7th of September 1526, after a memorable con­
test. From then on, his whole life will be devoted entirely’
to the teaching of theology within the noble frame of the con-i
vent of San Esteban, in the most celebrated chair in any Spa-1
nish University.
Vitoria introduced several effective ideas of his own in
(2) The discussions to which the fixing of the date and place of
birth of Vitoria as well as his real family name have led, are well
known. It was only while this book was in print, that we have learnt
that Rev. Father Beltrân de Heredia will be publishing a new article
on one of these subjects in the Anuario de la Asociaciôn Francisco

de Vitoria.

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the field of teaching, aiming at giving renewed vigour to tra- ,
ditional methods; he gave priority to St. Thomas’ Summa ί
theologica, for instance, to Peter Lombard’s Sentences. On
the other hand, the pupils began to take notes from his lectures. Unfortunately, most of these notes, together with Vitoria’s own lectures, originally written by himself, have been
lost. These years of teaching were marked by the famous fif-j
teen . relectiones, thirteen of which have been saved. The
fixing of their respective dates has given rise to numerous!
difficulties.
Some of the well-known episodes of this period of acade­
mic maturity and fruitful splendour are Vitoria’s interven­
tionin the dispute between the followers and antagonists of
Erasmus, which then divided Spanish intellectual circles,
and in which Fray Francisco gave expression to a great
breadth of mind without overstepping to bounds of Catholic
orthodoxy; Charles V’s attendance to Vitoria’s class during!
a visit to the Salamanca University; the wide echo aroused,
in Spanish opinion by his two readings in the Indians, the
influence of which was largely to be felt in overseas coloni­
zation activities, above all in the field of legislation. But Vi-i
toria’s health, weakened by the strain of unflagging work,
deteriorated fastly from the academic year of 1538-1539 on,
and in spite of the tenacity with which he struggled against
the sickness, he was forced to appear in class with ever increas­
ing irregularity. Charles V’s invitation to attend the Council!
of Trent found him lying in a bed of pain and it is probable
that, save for a few and short intervals, he remained there
to the day of his death. After much and long suffering, Vi­
toria died on August 12, 1546.
3. If we turn now to the historical moment in which he
played such an outstanding role, we are sure to find many
an unquestionable resemblance with the one in which our
own collective existence is carried on: Vitoria’s time was,
like ours, an epoch of transition and spiritual crisis. The pro­
cess of disintegration of the medieval world in every phase
of cultural life then reached its climax. New forms of thought

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and life emerged gradually in the West, with a whole train
of new problems for the thinker conscious of his own res­
ponsibility. Scholastic philosophy, weakened by school ri­
valries and an empty fineness, languidly vegetated in class­
rooms deprived of human warmth, while natural sciences,
apart from, if not against it, started an overwhelming ascen­
dancy, offering undreamed-of possibilities to man at the pre­
cise moment in which he was extricating himself from tra­
ditional moral bounds. With the coming of the Reformation
an end was decisively in sight, as far as its dogmatic roots were
concerned, for that religious unity which was outwardly ,
already shaken by the agitations caused by the Western schism.
Wide sectors of the world of humanism pretended to restore
the force of the ideal of wisdom elaborated in the schools of
ancient Greece and therefore without the sense of the superna­
tural. The sense of solidarity, which had led the respublica
Christiana to the Crusades, was awakened by this loss of the
religious unity, and the rulers began then to seek in the me­
chanic principle of the balance of powers for a precarious
substitute for the former organic cohesion. The medieval poli­
tical universalism was substituted by a number of sovereign
States, in which the centralization of power put an end to feu­
dal pluralism. Similarly, natural economy had given way before
the unrush of an ever more flourishing money economy. This
evolution, on one side, insured for the urban bourgeoisie an
increasing personal influence. On the other, it opened the
doors,· with its individualistic principle of free competition,
to the examination and discussion of the very foundations of
the guild organization, in which the sense of community was
stronger. Finally, the discovery of the New World which sud­
denly widened the geographical horizon to undreamed-of
dimensions, opened to the enterprising initiative of the period
an apparently unlimited field of activity and urgently posed
the problem of the juridical treatment to be given the peo­
ples therein settled : a true spacial revolution which rendered
insufficient the medieval concept of Christendom and which
Vitoria knew how to grasp in wholesale manner with his'

17

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genial idea of the totus orbis, of the world as a whole, as a moral j ‘
unity of peoples politically organized under natural law (3).j
The whole social order—national and international—seemed
to be shaken'to its very foundations themselves. To build these
foundations anew was the inexorable imperative of the cen­
tury, an imperative that no thinker conscious of his respon­
sibility could sidetrack.
Vitoria’s attitude towards this imperative of the century
in which he lived is what we should like to suggest as a mat­
ter for serious consideration. We find in it, in fact, that deli­
cate sense of proportion, of historical continuity, of intellec­
tual and moral equilibrium which avoids alike the unattain­
able utopia and the surrender to the factitious. Against those
who, frightened, lazily clung to the mechanically repeated
and already decaying formulae, thinking that by so doing
they could spike the wheel of history, Vitoria went deeply
into the anxieties of his time. But, against those who, enebriated with change and novelty, pretended to do away with
the spiritual legacy of Christianity, which centuries before
had already assimilated the best elements of ancient culture,
Vitoria re-affirmed the validity of this legacy applied to new
situations. His work is, in this respect, a further demonstra­
tion of the permanent actuality palpitating in the fund of
Christian culture, with immutable principles which each
generation must bring back again to life for the satisfaction
of their own needs.
Our generation also finds itself facing a huge task of spi­
ritual reconstruction, taxing its intelligence and will-power
with extremely complex and arduous problems, many of
which are stated in terms hitherto unknown. Our times are
also times of transition and of crisis. To repeat this once
more might seem trivial, had it not been thrust upon us as
the unavoidable necessity of our own collective existence and
were we not reminded of it every day by the great number
of books which.seek to reveal its meaning. As in the age of
(3) See texts no. XXXV, XXXVI, XXXVIII (particularly this
one), LXVIII, and note 21 corresponding to tex no. XLIII.

Vitoria, public law strives to find new institutional bases on
which to stand after the break-down of the bourgeois liberal
State and the totalitarian State. In the international sphere,
two gigantic wars have shaken tremendously the very
foundations of the political reorganization of the whole world.
And, if the Western consciousness was then stirred by the
sudden appearance of men and peoples previously unknown,
but meriting the recognition of their juridical personality, our
times are now witnessing the uneasiness of others, awaken­
ing from the lethargy or servitude of centuries to enter vigor­
ously the vortex of world politics.
Certain it is that to-day the vital general attitude is very
different. If the world of that time could see its widening
frontiers vanishing practically before the prow of the Spanish
carabels, modem technique has again shrunk this world of
ours by shortening distances to an incredible degree, giving
rise to a spacial revolution of a kind wholly opposite to that
brought about in the age of discovery. And, on the other hand,j
man no more expects salvation from technique, as did the;
candid optimist of a former age. Man has recognized its merely;
instrumental nature, its moral neutrality- and its appall­
ing indifference. Technique has been unable to forestall the
present evils; on the contrary, it has aggravated them in
certain ways. A nihilistic and discouraging philosophical
attitude; the problem of a power politics which falls a victim;
of its own slavish cult of power; a total war leading natio-j
nal enmities to their maximum strength; a contempt for the
human person, whose imprescriptible rights seem to have
vanished altogether; whole populations condemned to death
by starvation in a world where, not many years ago wheat
was used as fuel; a shocking inequality in the distribution
of material goods among the different classes—these are, among
many others, tragic realities of our times which no technique
will of itself succeed in eliminating with thoroughness and
decision. Salvation can be expected only from a spiritual
rebirth, for to the spirit we shall always have to look, in the
last analysis, for an explanation of the mystery of light and

19

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shadow which illuminates or darkens the culture of a definite
historical period, the key in the end to splendour or decay,
as the case may be. And such a rebirth must come from an
effective and sincere, not merely verbal, return to Christian
principles for the arrangement of social life. Only thus will
human values be enhanced and served by technique, whose
progress in the century of atomic energy paradoxically
increases man’s tremendous responsibility for the future of civilization. We are at a veritable historical crossroads from
which our eye is yet unable to see the precise outline of the
horizon which is to be the very framework of mankind’s future
existence, and in which Vitoria’s message may be read with
that stress of calm persuasion and urgent encouragement that
even the most inattentive reader will not fail to notice.
4. We are referred above to thé intellectual and moral
equilibrium with which Vitoria faced the problems· of his
time. It is unquestionable that mental clearness has seldom
been matched to such an extent by a high moral inspiration.
Being a true mind of the Renaissance, Vitoria knows how to
get at the essential data of each phenomenon, the universal
significance of any event. But the brilliancy of his intellect is
welded to a manly humanitarism, deeply rooted in Christianity, *
which, in an iron age like ours, shines with a golden and_
unfading light. Vitora’s conceptual accuracy is not to be con­
fused with a cold logic which would only strive for the solid
union of impeccable reasonings; it is a something vitallyi
pulsating with a sense of justice and charity, and animated!
by striving for the highest ideals. In a century of general!
violence, Vitoria stood up as the champion of human right]
and dignity. And this defence of human rights and dignity!
was poured out from thence with· oecumenical generosity
upon all men, welded into an indissoluble unity of origin,!
nature and destiny, equal in essence before God, their Creator. When the nation of which he was a citizen reached the cli­
max of power, Vitoria contributed more than anybody else
to preventing it from letting itself be led astray by the tempt­
ations of power, always proclaiming its submission to moral
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law. He wanted to march ahead of power, not to follow in itsi
train, in order to be able to pave its way for the accomplish-t
ment of its natural ends, not to be dragged by it to justify1
any unlawful claims. This is an aspect of his greatness which
ought now to be brought’out, particularly at a time in which
intelligence is too often quite satisfied with the role of servant
to private ambitions and interests, forgetting thus that its duty
lies in striving for truth. The incorruptible firmness withi
which the illustrious Dominican friar searched for truth and/
proclaimed it when he sincerely thought he had found it, toge­
ther with the delicate respect he always had for good faith
wherever found, is one of the noblest features of his person­
ality. It always captivated those who approached him, and
accounts for so many immortal pages such as those reprinted
below about the equality in treatment and reciprocity which
must determine and guide relations among men and peoples.
Finally, a scholar cannot but devote a few words to Vito­
ria’s example as a teacher. It is highly significant that his gene­
rous ideas have passed on to us almost exclusively through
the notebooks written and lovingly preserved by his own pu­
pils. As to the excellence of his lectures, enough is found in his
marvellous Relectiones, which still palpitate, four centuries
• after, with scholarly life and warmth; but were this
insufficient, there is that galaxy of illustrious theologians and
jurists who were proud of having followed the way paved by
their master. «If the tree is known by the fruit it gives», writes
Cardinal Gonzalez, «the names of his pupils would be a
sufficient argument in favour of the beneficent restoring
influence exercised in the class-room by the illustrious
Dominican professor» (4).
II

Since the beginning of the century, reprints and transla­
tions of Vitoria’s most important writings have been nume(4) Historia de la filosofia, reprinted 1886, Madrid, volume III,
P. 120.

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rous. Some of those deserving special mention are Ernest
Nys’ publication of De indis and De jure belli, in the Latin
original accompanied by an English translation (the excellent
work of John Pawley Bate), in the fine collection «The Clas­
sics of International Law» of the Carnegie Institution, directed
by James Brown Scott (Washington, 1917). Scott has
reproduced the English text of this edition, as well as the
English translation (due to Miss Gwladys L. Williams), of
the reading upon the civil power and of a part of the reading
upon the power of the Church in his important work The
Spanish Origin of International Law, vol. I: Francisco de
Vitoria and his Law of Nations (Oxford, 1934). The two
readings De Indis and De jure belli were also translated into
French by Alfred Vanderpol in his book La doctrine
scolastique du droit de guerre (Paris, 1919). More recently,
Jean Baumel has published a critical edition, with a French
translation, of the Leçons de Francisco de Vitoria sur les
problèmes de la colonisation et de la guerre (Montpellier,
1936). In Spain the classical edition of Vitoria’s readings
is that of Father Alonso Getino, O. P., with the two texts,
published ip 3 volumes by the Asociaciôn Francisco de
Vitoria (Madrid, I, 1933; II arid III, 1934). Father BeltrAn
de Heredia’s edition of Vitoria’s lectures upon the secunda se­
cundae of the Summa theologica, in the «Biblioteca de teôlogos
espafioles» is also worthy of our special attention. The trea­
tise De justitia et fortitudine, belonging to these lectures, was
also published by the Asociaciôn Francisco de Vitoria (Ma­
drid, vol. I-IÏI, 1934-1935). The reading of these comments
is of great interest, for they complete the doctrines stated in
the relectiones, chiefly as far as other branches of law are
concerned. In his work mentioned above, James Brown Scott
has also reproduced some, important extracts of them from
the English translation made by Miss Gwladys L. Williams
and Francis Crane Macken.
To these re-editions and translations, we must add the
anthologies of the thought of Vitoria about certain matters.
Outside Spain, for instance, the anthology contained in the
22

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work Vitoria et Suarez, Contribution des théologiens au droit
international moderne, published under the auspices of the
Association Internationale Vitoria-Suarez in cooperation with
the Carnegie Endowment, in Latin and French, with a pro­
logue by James Brown Scott and an introduction by Rev.
Father Yves de la Briere (Paris), 1939). Many extracts of
Vitoria’s readings are also reproduced in the great work
by James Brown Scott, Law, the State, and the Interna­
tional Community, vol. II: Extracts Illustrating the Growth
of Theories and Principles of Jurisprudence, Government,
and the Law of Nations (New York, 1939). In Spain
we have the selections of his texts by Father Alonso Getino in the series «Breviarios del pensamiento espafiol», en­
titled Sentencias morales (Madrid, 1939) and Sentencias de
doctrina international (Madrid, 1940). The last one and the
texts included in Vitoria et Suarez deal only with theories
of international law of the great Dominican, as the titles
themselves reveal.
The selections which we give in this book include also
chapters on political power and the relations between Church
and State. We have been animated by the wish of presenting
the reader with a complete summary of Vitoria’s political
philosophy, as far as this was possible within the narrow li­
mits assigned to this book. We have already insisted upon
the fact that Vitoria was not only a great internationalist, but
also a great State theorist ; and perhaps he was a great inter­
nationalist just because he was a great expounder of the theory
of the State. As to public ecclesiastical law, we have omit­
ted its more special internal and canonical aspects (concept
of the Church, power of the Pope, theory of the council, etc.),
and we have limited our scope to the problem of the relations
between the spiritual and temporal power. We are aware of
the fact that for every choice we make there comes in neces­
sarily a larger or smaller measure of subjective factors, both
in regard to the value attributed to the respective texts and
to the order in which they are presented. Our intention has.
been, above all, to put before the reader a Vitoria who mayi

23

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appear at one and the same time both historical and modern. |
Therefore, we have followed, as far as possible, the order in
which Vitoria himself propounded his doctrines; and, in any
case, we have grouped the extracts under general titles, which
may be found in every handbook or treatise about the philo­
sophy of law and the State. On the other hand, we have omit­
ted those questions which were important at the time, but
which have lost much of that importance since then. In the
extracts themselves, our interest was centered chiefly in the
conclusions and propositions -in which Vitoria expressed his
personal points of view, reducing to a minimum the proofs and
examples which he marshalled in support of his arguments.
Any reader anxious for a fuller account may turn to the com­
plete editions already mentioned.
The extracts are preceded by Roman numbers. Save for
extracts II, III and IV, they belong to the rèlectiones De potestateEcclesiae prior, De potestate civili, De Indis recenter
inventis, and De Indis, sive de jure belli Hispanorum in Bar­
baros, better known under the title De jure belli, which we
here adopt. The extracts of the last part of the former
relectio (section V, or, according to our division, quaestio 3.*,
pars 3.‘) and those belonging to the three others, are repro­
duced according to the excellent English translation of John
Pawley Bate and Miss Gwladys L. Williams, already quo­
ted. The extracts of the other parts of De potestate Ecclesiae
prior (no. XIV, XV, CXV, CXVI, CXVII) and the extracts’
II, III and IV, belonging to the Commentary to the secunda
secundae, tract, de justitia, edited by Father Beltran de Hereda, have been translated directly into English. For certain
matters dealt with in the relectiones, which are also studied
in these commentaries, we refer in the notes to the res­
pective quaestiones. Let us point out here that the commentary
to the quaestio 40 rounds up and confirms in its main as­
pects the relectio De jure belli.
Finally, in our notes we have sought to offer the reade~,
as already said, a picture of Vitoria which may be at once his­
torical and modem. On the one hand, they fix the place in the

24

j-·, '"ί

history of political philosophy which belongs to his concep­
tions; on the other hand, they underline their significance
with regard to the later evolution of doctrines and institutions '
and also to the great problems of contemporary political and
international law. Vitoria’s texts are so suggestive and so plentiful in doctrinal content that any adequate comment would
have to be of itself a complete treatise of public law. We have
narrowed our notes down to the field of mere suggestions
about what seemed us more necessary. We should consider
ourselves fully satisfied, if they would contribute to a fuller
and better knowledge and appreciation of Vitoria’s work, cer­
tain as we are that through these, a greater admiration of the
man and his work will be an inevitable consequence.
We wish to express our acknowledgement to Mr. José
Maria Gimeno, who made the English translation of the
introduction and notes, together with the proof-reading. The
thanks of the Instituto de Cultura Hispanica, as well as those
of the author, are also due to Professor Walter Starkie, Direc­
tor of the British Institute in Madrid, for the kind help afforded
in the revision of the text.

X'

JM

4

Si

fc

;

Murcia, April, 1946.

Antonio Truyol Serra

■

r

25

'4

PRELIMINARY

CONCEPTS

THE PHILOSOPHICAL STARTING POINT

i‘ I

ί

I. First of all, we should take note of the admonition of
... Aristotle,in the Physics: not only in matters relating to na­
ture, but also in all man-made constructions, «necessity»
should be considered from the view-point of purpose, which is
first of all causes, and the principal one. This doctrine, whe­
ther invented by Aristotle ... or taken by him from Plato, was
a most important philosophical argument, and shed a great
deal of light on all subjects.

Let us believe that neither the sky nor the land nor the
remaining parts of the world, nor man himself, was the begin­
ning of the world; but rather that all that is contained in the
heavens was appointed for some useful purpose, and that all
things have been created, and necessarily created just as they
are, for a purpose, whence are derived the nature and the ne­
cessity of all things (1).
(De pot. civ., 2.)
1) Philosophically speaking, Vitoria gravitates within thei
orbit of the Aristotelian-Thomistic thought, which he So'
efficiently contributed to restore in Spain. This thought is.
a spiritual factor usually known as philosophia perennis;
an expression which Leibniz liked to use, although it was:
not conceiveii by him. We, however, do not think that such!

29

■

'

" ;
;
:
····..·.·.
an expression, full of implied meanings, may be applied
exclusively to a definite historical system, however great
its.content,of truth might be. Among the attempts to give
the philosophia perennis a precise concept, systematic rather
than historical, the one advanced by Hans Meyer, which we
consider most successful, deserves to be pointed out .As
Meyer notes, the idea of a perennial philosophy is based
upon a primary datum: «The rational character of reality,
the property of every given thing of having a sense or mean­
ing (Sinnhajtigkeit) of its own, and the capacity, for trans­
ferring the essential content of things to the form of spi­
ritual human knowledge.» From this, a number of conse­
quences which fix the limits within which speculation must
arise, crop up: «There is no thought without something
thinkable. The foundation of the logical is the ontological.
Every truth dwells in reality, for reality itself is the rea­
lization of a spiritual content, of an idea. Accordingly,
things have a sense and an aim. The logos, the idea in rea­
lity, is only intelligible from a supreme logos, from the
spirit of God. A realistic theory of knowledge in the sense
of the ideal-realism, a teleological consideration of the world,
the affirmation of the absolute character of the validity of
knowledge and of values and rules of behaviour, a theistic
metaphysics, are secondary elements of the concept of the

philosophia perennis (Das Wesen der Philosophie und die
philosophischen Problème, Bonn 1936, p. 178-179). Histo-rically, these are the essential contents of the philosophic
tradition which, starting from Plato and Aristotle, pro­
ceeds, enriched and assimilated by Christianity, with St;
Agustine, St. Thomas Aquinas and Suarez, and carries oh
to the present time with modern contributions along the
same line. The philosophia perennis, rather than a historical!
system (for none of them is wanting in obsolete elements),!
is a continued and huge work of spiritual integration and:
synthesis which it is mainly the business of Christian thought
to perform, since that thought is protected from basic errors
by Revelation.

Natural law (2).
2) Without modifying it, Vitoria adopts the medieval1
conception of the natural law elaborated by St. Agustine and ,

30

ir

T
i
j
;
j
i

later developed by St. Thomas. Its basic element is that of'
the lex aeterna, which expresses the idea of God's univer­
sal government over the whole universe, since it is, as
St. Thomas says, «The circumspect reason of God inasmuch
as it directs every action, every movement». (Sum. theol.
la-ijae, q, 93, a. 1). Man partakes eminently of the eternal!
law in his capacity as a rational being : In this way the con-(
cept of lex naturalis springs up: the natural law is nothing
else than «the rational creature's participation in the eter­
nal law» (ibid., ibid., q. 91, a. 2) ; that is to say, the eternal
law itself impressed in man. The lex naturalis embraces
both moral and natural law as it rules and governs human
acts either as regards the final aim and end of man or in
relation to other men; the jus naturale is, therefore, that
part or the lex naturalis which governs social life, and,
accordingly, it was studied by the schoolmen when deal­
ing with Justice. The lex ■'positiva humana is derived from;
natural law by way of conclusion or inmediate determina­
tion of its principles. Finally, positive divine law (lex divina^
positiva) was directly issued by God in the Holy Scriptures.
Its study was consequently a theological matter. This
Christian philosophy of law was to find its most perfect
expression in Suarez’s immortal treatise De legibus ac Deo
legislatore (1613).
·

II. Everything which in the light of natural reason ap­
pears to all men to be clearly just, being unjust that which is
opposed to it, such as, for instance, not to steal, kill an inno­
cent person or do to anyone that which we would not suffer
others to do to us, belongs to natural law.
(In IIam-Hae de just., q. 57, a. 2, 4.)

III. To [the realm] of natural law belongs also all of that
which by the way of manifest implication can be inferred of
self-evident principles.
(In IIam-IIae de just., q. 57, a. 2, 4.)

31

Natural

law and positive law.

Subordination of positive

LAW TO NATURAL LAW.

IV. Everything which by the nature of the thing itself is
right belongs to natural law.
That which is right by the force of law or because of pri­
vate conventions, but not through the nature of the thing it­
self, belongs to positive law.

Natural law and necessary law are one.and the same thing;
that is, natural law is that which is necessary and does not
consequently depend upon any will. And all that which de­
pends upon the will and approval of men, is called positive
law.
(In IIam-IIae de just., q. 57, a. 2, 1-2.)
V. If there were any human law which without any cause
took away rights conferred by natural and divine law, it
would be inhumane and unreasonable and consequently would
not have the force of law.
(De Ind., de tit. leg., 2.)
3) This doctrine is reasserted in the texts no. IX, XIII,
LI and LII.

32

The natural foundations of society. The state as a perfect
(sovereign) society.

VI. Since human societies have been established for this
purpose—namely, that we should bear one another’s burdens—
and since civil society is of all societies that which best pro­
vides for the needs of men, it follows that the community is,
so to speak, an exceedingly natural form of intercommunica­
tion: that is, a form thoroughly in accord with nature. For
even though the various members be of mutual assistance,
nevertheless a single family is not self-sufficing, least of all
for the resistance of violence and injury.
(De pot. civ., 4.)

VII. A State is properly called a perfect community. But
the essence of the difficulty is in saying what a perfect com­
munity is.
By way of solution be it noted that a thing is called per­
fect when it is a completed whole, for that is imperfect in
which there is something wanting, and, on the other hand,
that is perfect from which nothing is wanting. A perfect State
or community, therefore, is one which is complete in itself,
that is, which is not a part of another community, but has its
own laws and its own councils arid its own magistrates.
(De jure belli, Ί.)

'

'

35

VIII. The temporal State is perfect, and complete in it­
self; therefore, it is not subject to any outside force, since if
it were thus subject, it would not be complete ; therefore, it
can create for itself a prince who is in no way subject [to any
temporal authority].
(De pot. Eccl. pr., q. 3.·, p. 3?, 4.)

Moral necessity

and divine origin of political power.

. . < '

IX. All power—whether public or private—by which the
secular State is governed, is not only just and legitimate, but
is so surely ordained of God, tlîat not even by the consent of
the whole world can it be destroyed or annulled.

(De pot. civ., 1.)
■

X. States and commonwealths had not their fount and
origin in the invention of man, nor in any artificial manner,
but sprang, as it were, from nature, who produced this method
of protecting and preserving mortals... (4). The same purpose
and necessity underlie the existence of public powers. For if
councils and assemblies of men are necessary to the security
of mortals, it is also true that no society can continue to exist
without some force and power to govern and provide for it ;
the use and the utility of public power, and of the community,
and society are absolutely the same.
(De pot. civ., 5.)

•

36

4) The need of living in society does not appear in man
as a blind force which fatality impells, but as a need of his
rational nature which must be freely fulfilled. Man, unlike
the ant or the bee, chooses social life with full knowledge
and free will, because the attainment of his final end requires
it. That is why· Aristotle said, and the schoolmen after

I

him, that he who refuses to live in company with his fellow
creatures must be either more than man or less than man,
but not a man. But free will is not properly a constitutive
element of society, as Hobbes and Rousseau claimed later; it
is, we may say, merely declarative, inasmuch as it consciously
externalises man’s social tendency. In this sense it can be
spoken of as a «social pact», according to Vitoria and to
the schoolmen in general, as can be easily inferred from
this and the other texts collected here. (See mainly no. XI,
XIII, and XXI.

XI. If we prove that public power has been set up by
natural law. then—since God is the sole author of natural law—
it becomes evident that public power is of God and that it can­
not be contained within the limits of man’s nature or of any.
positive law (5).
·
{De pot. civ., 6.)
5) This conception, common to the schoolmen, gives the
correct interpretation of St. Paul’s principle non est potes­
tas nisi a Deo (Rom. XIII, 1): for God is not the immediate,
but the remote cause of power, inasmuch as He is the
creator of human nature. In the same sense is natural law
said to be divine law since it is based upon the rational
human nature created by God; instead, positive divine law
issues immediately from God by revelation. The Scholastic , ·
conception is opposed to the theory of the divine right of
kings (supported, for instance, by James I of England), ac­
cording to which the prince receives his power directly from
God. A less rigid form of this theory is that of the provi­
dential divine law (Joseph de Maistre, de Bonald) accord­
ing to which the all-ruling providence promotes to power
those who should occupy it (cf. J. Leclercq, Leçons de droit
naturel, vol. II, L’Etat ou la politique, 2nd. ed., Louvain, 1934,
IV chapter). While from the Scholastic point of view the com­
munity, acting as an immediate cause, has the right to
choose its own definite form of government (cf. no. XXI),
_ a thing which leads logically to a limitation of power, the
other conception encourages autocracy and absolutism, since
the ruler, receiving his power directly from God, is
responsible to Him alone.

37

pi

XII. God ... has so fashioned the nature and disposition
of man that he cannot prosper unless he dwell in a social
state...
And if States and societies are established in accordance
with divine of natural law, the same is true of power, without
which States could not exist.
•
{De pot. civ., 6.)

XIII. If all the citizens should agree to dispense with
these powers, in order that they might be bound by no law
and that there should be no one to command, the agreement
would be null and void, being contrary to natural law.
{De pot. civ., 10.)

Power in itself is not the fruit of sin.

XIV. ... I deny that there is no power in the state of
innocence. Were there, neither magistrates nor princes who
would control men through the fear of punishment, there
would certainly be still a directing and ruling power, as, for
instance,'the paternal power, to which children must submit.
(De pot. Eccl. pr., q. 1.», 13.)

XV. It must be borne in mind that, even if there were no
coercitive or coactive domination or power in the state of in­
nocence, ... when mankind would multiply itself, property
would be divided up and there would be princes; there would
be some directing and ruling power, as, for instance, teachers
to educate young people, and provosts for putting order in
practical affairs. If this were not the case, utter confusion and
disorder would ensue, even when everyone lived rigthly, w;th

38

each one living after his own fancy, observing customs and
habits contrary to those of the rest... There can be no doubt
that, if the state of innocence had subsisted, laws and rules
would have been given both for civil and spiritual life and
chiefly for the divine worship... (6).

6) As it will be seen, political power, for the schoolmen,
is not in itself the fruit of sin. Nor is it a mere remedy
against sin instituted by God in order to ameliorate its ef­
fects. What sin brought with it was the juridical coaction,
which becomes necessary whenever men do not sponta­
neously accept legitimate authority. Adopting Troeltsch’s
well-known distinction, both in Stoic and Christian natural
law, between an absolute natural law (of the «Golden Age»,
and of the «state of innocence», respectively) and a relative
natural law (subsequent to the corruption of mankind, and
the original fall), we might say that if power itself belongs
to the realm of absolute natural law, coercitive power belongs to that of relative natural law. While this idea appears clearly expressed in medieval scholasticism, the thought
of the Fathers of the Church, and particularly that of
Stl Agustine, shows a certain lack of precision, which
has given rise to utterly different interpretations. We believe, however, that on the whole, their standpoint is the
same as that of schoolmen, although tempered by the force
with which they stress the effects of sin on human nature.
Particularly as far as the Eagle of Hippone is especially concerned, see our work, El derecho v el Estadd en San Aguetin, Madrid, 1944.

Definition of power. Power (potestas) and force (potentia).

XVI. Power and force are [two) different things. We do
not call matter, nor sense, nor intellect, nor the will, «powers»,
but «forces».
Instead, we call powers, and not forces, the magistrates,
priests, and any other authority... [As St. Thomas wrote]

39

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j ί

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1;· 1
f
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h' t
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j
*,
j
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,
*

power, apart from the force to act, involves.a certain [amount
of] preeminence and authority.
•
*
(De pot. Eccl. pr.,q. 1.*, 1-2.)

XVII. Public power is the faculty, authority or right to
govern the civil State.
(De pot. civ., 10.)

The

purpose of political power: the common good.

XVIII. If all were equal, and subject to no power, each
individual would draw away from the others in accordance
with his own opinions and will; the commonwealth would
of necessity be torn apart; and the State would be dissolved
—unless there were some providential force to provide for the
common welfare and consider the common good...
Just as the human body could not be preserved in its inte­
grity, without some directing force to regulate the* various
members, making them of mutual use and—what is more im­
portant—of service to the whole man ; even so the State would
necessarily lose its integrity, if every individual were solici­
tous for his own welfare, and every citizen were heedless of
the public good (7).
(De pot. civ., 5.)
7) Vitoria maintains a superindividualistic—«universa­
lisée», as Spann would say—conception of the State, without
incurring in the exaggerations of the modern organistic
theories. The image of the organism, of classical growth, so
magnificently applied by St. Paul to the Church fl. Co­
rinth., XII) offers a handy and profound simile to show us
’that the State is something more than the sum of the in­
dividuals which form it.

40

T

XIX. A prince ought to subordinate both peace and war
to the common weal pf his State... Herein, indeed, is the dif­
ference between a lawful king and a tyrant, that the latter
directs his government towards his individual profit and ad­
vantage, but a king to the public welfare, as Aristotle says
(Politics, bk. IV, ch. 10).
(De jure belli, 12.)
XX. The will of the legislator does not suffice to render
human law just and binding, for the precepts of the latter
must also be advantageous to the State and in harmony with
the other laws (8).
(De pot. civ., 16.)
8) With this concise formula, Vitoria sums up as it were
his objective groundwork, the «institutional» (Delos) foun­
dation of law, inherited from St. Thomas Aquinas,'and which
he will later, and audaciously, apply to the international
sphere (cf. no. XXXVIII).

The power belongs

to the community.

XXI. The State, then, possesses this power by divine dis­
position; but the material cause in which, by natural and
divine law, power of this kind resides, is the State itself, which
by its very' nature is competent to govern and administer
itself, and to order all its powers for the common good. The
proof of this fact is as follows: since by natural and divine
law there must be a power for the government of the State,
and since—if common, positive, and human laws are laid
aside—there is no reason for depositing that power in one
person rather than in another; it necessarily follows that the
community is self-sufficing and that it has the power to go­
vern itself.

41

■ΜΜΜ

For if—before men gathered together into a State—no one
person was superior of the others, it is in no way reasonable
that in the assembly, or civil council, one individual should
assume power over the others; especially not, in view of the
fact that every man has by natural law the power and the
right to defend himself, there being nothing more natural than
to repel force by force. And certainly there is no reason to
prevent the State from exercising this power over its citizens
(as if they were the various members of one body), in order to
preserve the integrity of the whole, and in a spirit of devotion
to the public good (9).
(De pot. civ., 7.)
9) The doctrine which is set up here is the one gene­
rally adhered to by the schoolmen: power being necessary,
and men being equal by nature, power is a common good
of political society; the expressed or tacit appointment of
Its own government falls, therefore, on political society;
but, once this government is established, general obedience
is due to it. This is clearly a moderate democratic concep­
tion,. It opposes the autocratical thesis of the divine right
of kings (cf. note no. 5); but it is also different from the
radical democracy of Rousseau, based solely, on the free
will, for Rousseau makes of rulers mere mandatories of
unlimited popular will, rulers who can be deposed at any
moment, whenever this will has changed. It must be borne
in mind, on the other hand, that the solution given to the
problem of who is to wield power does not necessarily anti­
cipate that which may be given to the problems of the
exercise and limitations of power, which are different
things altogether. For schoolmen, the democratic conception
as applied to the immediate origin of power is bound, when
reference to the exercise of power is made, to a theoretical
preference for monarchy (cf. no. XXIX); and, when related
to the limitations of power, to the rejection of absolutism
(no. XXX). Instead, radical democracy may perfectly well
lead to the absolutism of one man or party, provided power
is granted to them by the majority. The democratic con­
ception is precisely one of those which are nowadays most
loosely applied, because the different problems referred to
are not clearly stated. In his Christmas Message, 1944, Pope

42
9

Pius XII gave expression to the postulates of a true demo­
cracy. He particularly emphasized at a most suitable moment
that «democracy, if understood in a wide sense, admits of a
variety of forms and may exist both in monarchies and in
republics»; that is to say, it is not restricted to a definite
form of government.

A Transference and exercise of power. Forms of government.

XXII. Since the State possesses power over its own parts,
and since this power cannot be exercised by the multitude
(which could not conveniently make laws and issue edicts,
settle disputes and punish transgressors), it has therefore been
necessary that the administration of the State should be en­
trusted to the care of some person or persons (and it matters
not whether this power is entrusted to one or to many)...

(De pot. civ., 8.)
XXIII. Aristotle (Politics, III) classifies the various sorts
of rule thus: monarchies, or the rule of one; aristocracies,
or the rule of a select number; and democracies, or popular
rule—that is, the rule of the multitude.
(De pot. civ., 11.)

The

principle of majority in the transference and exercise

OF POWER.

«

XXIV. If the State may entrust its power to some one
individual, acting thus for its own advantage, it is certain that
the dissent of one or of a few could not prevent the rest from
caring for the welfare of the State ; otherwise—that is, if the

43

. I

consent of all were required—insufficient provision would be
made for the good of the State, since unanimous consent is
rarely or never found among a multitude.,It suffices, then, in
order to do anything legitimately, that the majority should
agree on the course in question.
This point can be satisfactorily demonstrated. For if two
parties disagree, it must necessarily result that the sentiment
of one party should prevail; and inasmuch as their desires
conflict, the sentiment of the party which is in the minority
ought not to prevail; therefore it is the sentiment of the ma­
jority which should dominate. Moreover, if the consent of
all is required in order to create the king, why is it not also
required in order that he be not so created? Why is unanimous
consent more to be required in an affirmative than in a nega­
tive matter?
(De pot. civ., 14.)

XXV. A State can appoint any one it will to be its lord,
and herefor the consent of all is not necessary, but the con­
sent of majority suffices. For ... in matters touching the good
of the State the decisions of the majority bind even when the
rest are of a contrary mind; otherwise naught could be done
for the welfare of the State, it being difficult to get all of the
same way of thinking (10).
(De Ind., de tit. leg., 16.)
10) That the majority -principle is limited by the needs
of the common good is the natural conclusion from the
objective groundwork of law itself, as is brought .out in the
note no. 8. The acceptance by Vitoria of the majority prin­
ciple does not presuppose, therefore, any concession to juri­
dical free will; the majority principle is valid only within
the framework of the common good; moreover: it is, within
these limits, a postulate of the common good itself.

The

monarchy

(11).

11) Vitoria devotes his whole attention to monarchy,
dealing only occasionally with aristocracy and democracy.
This is explained by the historical moment in which he
wrote, for monarchy was then the most general form of
government and, at the same time, the target of the most
bitter attacks by its enemies.
.
‘

XXVI. Not only is monarchy, or royal· power, just and
legitimate; but, in addition to this, the power of kings is
derived from divine and natural law, not from the State it­
self, nor directly from men (12). The proof is as follows:
since the State possesses power over its own parts, and since
this power cannot be exercised by the multitude ... it has there­
fore been necessary that the administration of the State should
be entrusted to the care of some person or persons (and it
matters not whether this power is entrusted to one or to
many); it has not been impossible, then, to transfer a power
identical with the power of the State.
(De pot. civ., 8.)
12) There seems to be a contradiction between this text
and the following two In relation to those reprinted above,
regarding the immanency of power in the community itself
(no. XXI) and the transference of power by the latter to one
or more persons (no. XXII). A careful examination of the
context shows, however, that no such contradiction exists,
as Professor E. GalXn recently stressed in «La teorfa del poder politico segùn Francisco de Vitoria» (reprint from the
«Revista General de Legislacidn y Jurisprudencia», JulyAugust 1944). The controversy with those who attacked on
grounds of natural law the legitimacy of the monarchy
(writes GalXn) moved Vitoria «in his reaction, to go here
further in words than in thought». Vitoria himself explains

the precise scope of his thought when, on referring to the
transference of power to the prince, he points out that the
power of the prince is the same as that of the State, «and,
as this is justified both by natural and divine law, therefore,
consequently and in the last resort, the position of the former
is justified from the same point of view» (p. 18-24). In our
opinion, Vitoria also wishes to point out another question:
that the king is not a mere mandatory of the State (as every
ruler is, according to Rousseau) but an organ of the State,
which, once constituted as such, cannot have his power
rescinded while the prince is exercising it for the benefit of
the common, good. This comes out clearly from text
no. XXVIII (mainly in its closing sentence).

«
I

i

XXVII. It is apparent, then, that kingly power is not
derived from the State, but from God Himself... For even
though this power is established by the State (since the latter
creates the king), nevertheless the State, in this very act, trans­
fers not merely the power, but also its own authority ; so that
there are not two sorts of power—one, that of the king; the
other, that of the community. Therefore, just as we say that
the power of the State is established by God and by natural
law, so of a surety we must say the same of all kingly power...

(De pot. civ., 8.)
XXVIII. Such a king rules over the whole State: that
is, in a monarchical government, the king rules not only over
the individual citizens, but also over the State as a whole,
which is to say, over all the citizens at one time... For if the
State were over the king, the result would be a democracy
—that is, popular rule—and consequently not a monarchy,
which is the rule of one individual.
(De pot. civ., 14.)

XXIX. There is no less liberty in a monarchy than in
an aristocracy, or a democracy...
The proof is as follows: since power itself is the same...

"’—Z

whether it be invested in one or in many, and since it is
better to be subject to one than to many (for there are as
many masters as there are superior authorities), therefore,
there is not less liberty where all are subject to one, than
where all are subject to many; especially in view of the fact
that where there are many rulers there are many who are
ambitious for power, so that the State—because of their di­
verse purposes—will necessarily be afflicted with frequent
insurrections and dissensions... The best rule, therefore, is
the rule of one, just as the whole world is governed by one
all-wise King and Master (13).
{De pot. civ., 11.)
13) The theoretical preference for ïhe monarchical form
of government, tempered by state representation, was the
traditional attitude of the Sholastic world. In the government
of one person the schoolmen saw the image of God’s own
universal government over the whole of creation. But, from
the historical standpoint, it was admitted that any one of
the three forms might be the most advisable, according to
the circumstances, the character or the preference of the
people themselves, etc. In any case, the essential condition
was that the use of government should be for the common
good. This attitude of indifference towards concrete forms.of
government so long as they aim at the common good, is
also in line with the attitude of the Catholic Church proclai­
med, for example, by Leo XIII in his encyclical Libertas,
1888, and by Pius XII in his Christmas Message, 1942.

ClVIL· LAWS ARE BINDING UPON THE LEGISLATORS.

XXX. Finally, this question arises : Whether civil laws are
binding upon legislators, and in particular, upon kings. For
some persons are of the opinion that these legislators and kings
are not so bound, inasmuch as they are over all the State and
no one can have an obligation imposed upon him unless it be
by a superior; but it is more probable that kings and legisla47

tors are bound by the laws. The proof of this is, first: that a
legislator of this sort injures the State, and the other citizens
if, being himself a part of the State, he does not bear a part
of the burden — in a manner that accords, to be sure, with
the person, his quality, and his rank.
But since this obligation is indirect, we shall offer another
proof. The laws which are made by kings have the same force
... as if they were made by the whole State; but the laws
made by the State are binding upon all; therefore, even those
laws which are made by the king, are binding upon the king
himself.
This argument is confirmed as follows : Under an aristo­
cratic form of government, the decrees of the Senate are bind­
ing upon the very senators who issued them ; under a popular
government the plebiscite is binding upon the whole people;.
and therefore laws made by the king are in like manner bind­
ing upon the king himself. Moreover, although the act of
creating the law be voluntary on the part of the king; never­
theless, the fact that he is thereby bound or not bound, does
not depend upon his own will : just as in the case of pacts ; for
he who enters into a pact of his own free will, is nevertheless
bound thereby (14).
(De pot. civ., 21.)
14) This text, which faces courageously the problem of
what will later be called «State of Law» closes the door to
absolutism and arbitrariness in monarchical government,
opposing therefore theories such as that of the divine right
of kings and enlightened despotism, with their motto prin­
ceps legibus solutus est. The context shows that the thesis
stated here must be applied to every form of governmnt.

Whether the laws of tyrants have a binding force.
XXXI. Another question arises, namely: Whether the
laws of tyrants are binding. It might seem that they are not
binding, since tyrants have no power at all.

48

Nevertheless, the contrary is true : For if the State is op­
pressed by a tyrant and is not sui juris; and if the tyrant has
not the power to create laws, while at the same time it is im­
possible to put into execution the laws laid down before his
time : then, unless obedience is rendered to the tyrant, the
State must perish.
It seems indeed that those laws which are acceptable to the
State are binding, even when they have been created by a
tyrant —· not, to be sure, because he established them, but by
the agreement of the State; for it is better to obey the laws
created by a tyrant, than to obey no law at all. It is certain and
obvious that the State would suffer injury if, owing to the
fact that princes possessed of no just title have seized the coun­
try, there should be no provision for judicial trials, and no
way in which to punish or restrain malefactors; for if the
laws laid down by a tyrant are not binding, then he is not a
legitimate judge (15).
(De pot. civ., 23.)
15) Vitoria’s attitude towards the problem of tyranny,
the traditional object of passionate controversies and, at that
time, conspicuously in evidence, is characterised by its
cautious moderation. Apart from this, Vitoria does nothing
more here than suggest one aspect of the question.

Responsibility

of the state for the acts of his agents.

XXXII. The State as a whole may rightfully be punished
for the sin of the monarch. Wherefore, if any king make un­
just war upon another ruler, the injured party may plunder
and make lawful war upon and slay the subjects of the unjust
king, even if all these subjects be innocent; for when the king
has once been set up by the State, any immoderate act of his is
charged against the State; since the latter is bound to entrust

49

this power only to him who will be just in the exercise and use
of power, and since, in doing otherwise, the State lays itself
open to danger.
'
(De pot. civ., 12.)
I
:*
){ J
H. t

XXXIII. If great spiritual injury to Africa should result
from the civil administration of the Spanish State, the Spanish
prince would be bound to correct that form of administration.
(De Pot- Eccl- Pn, q. 3?, p. 3.‘, 10.)

J
ί

Conception

• ■

■

■

, ...

and foundations of the law of nations.

The

NATURAL AND THE POSITIVE LAW OF NATIONS.

XXXIV. What natural reason has established among all j
nations is called the jus gentium (16).

*

(De Ind., de tit. leg., 2.)
16) We see in this definition the difference between,-,
Vitoria’s jus gentium and the Roman jus gentium: the latter!
was above all a universal common law, founded upon the,
unity of rational human nature, and in· which there was
a mixture ■ of public and private elements. Its conception!
is not univocal in Roman sources. Gaius had given the
famous definition Quod naturalis ratio inter omnes homines
constituit, vocatur jus gentium, a definition which Vitoria]
uses as his starting point. But, on substituting his own
gentes for Gaius’ , homines (with which he seemed to
have committed a tautology) Vitoria gives the jus gentium
the character of a jus inter gentes, a juridical order binding
human groups which are independent as such; he creates,
in short, the modern concept of international law. The
transition from the Roman to this modem concept of the
law of nations can already be found in the definition of
the jus gentium given by St. Isidore of Seville: Jus

gentium est sedium occupatio, aedificatio, munitio, bella,
captivitates, servitutes, postliminia, foedera pacis, indutiae,
legatorum non violandorum religio, connubia inter
alienigenas prohibita. Et inde jus gentium, quia eo jures

53

omnes fere gentes utuntur. (Etym., V, 6). This definition,
although defective in form (since it arises from a mere
enumeration of headings) is remarkable with regard to its
contents (for the headings therein listed are in fact, and for
the most part, typical of modern international law); and
moreover it deserves attention for its final reference to
«usage in almost every nation (gente).» But the idea of
international law itself had gained ground apart from the
definitions of the schools: it was St. Augustine who,
somewhat earlier than St. Isidore, expressed it in a famous ,
passage where he said that it would be a blessing for the
world if there were, instead of a universal empire such as
the Roman, numerous kingdoms which could live together in
peace within their natural frontiers, just as there are in a
city many houses Inhabited by a large number of citizens
(De civitate Dei, IV, 15). St. Thomas, on the other hand,,
contributed nothing towards this question because he
confined himself to the fruitless and arduous undertaking
of trying to conciliate the discordant classifications and
definitions of the Roman jurists. Vitoria’s definition finally!
shows how inaccurate it is to ascribe to Zouch the paternity’
of . the term jus inter gentes, as some contemporary!
internationalists do. The substitution of gentes for homines1.
in the definition of Gaius was wholly conscious. As Nrs1
had already observed, the context is by itself a proof for this.
But we have another proof in the Lectures upon the secunda
secundae de justitia, q. 57, a. 3, 3, where we read that the
jus gentium as a positive law springs out of the «general
consent of the gentes and nations> («Ita de jure gentium
dicimus, quod quoddam factum est ex communi consensu
omnium gentium et nationum»).
XXXV. And, indeed, there are many things in this con­
nection which issue from the law of nations, which, because it
has a sufficient derivation from natural law, is clearly capable
of conferring rights and creating obligations. And even if we
grant that it is not always derived from natural law, yet there .
exists clearly enough a consensus of the greater part of the
whole world, especially in behalf of the common good of
all (17).
(De Ind., de tit. leg., 4.)

54

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17) This Vitorian distinction between a jus gentium
naturals and a jus gentium voluntarium, developed later by j

Suarez and Grotius above all, stands in contrast with thej
unilateralness in which the rationalistic school of the natural
law and the daw of nations (Pufendorf, Thomasius) and the!
nineteenth-century juridical positivism will later incur:1,
while the former only admits law founded on reason, thej
latter acknowledges nothing but positive law, a manifestation!
of the will of the legislator. Criticizing juridical positivism!
avant la lettre, Vitoria aptly defines also the role played
by the will, which is one and the same in international as
in municipal law. The will of the State, even when in accord
with that of other States, is not the foundation of
international law, as juridical positivism pretends, but an
instance of the determination of positive law, which
receives from natural law its compelling force. As in the
problem of the social pact (although there is here a far
wider margin of liberty), the will is declarative, not
constitutive: it is also limited in its determinations by an
objective principle, the common good of the whole world.
Needless to say, it is express in treaties and implied in
international customs.

XXXVI. International law has not only the force of a pact
and agreement among men, but also the force of a law; for
the world as a whole, being in a way one single State, has the
power to create laws that are just and fitting for all persons,
as are the rules of international law... It is not permissible for
one country to refuse to be bound by international law, the
latter having been established by the authority of the whole
world (18).
(De pot. civ., 21.)
18) Naturally, this applies only to common international <
law. Particular international law escapes, by definition, thej
principle stated here.

ί

1

The principle

of

«pacta

sunt servanda».

XXXVII. He who enters into a pact of his own free will,
is nevertheless bound thereby (19).
(De pot. civ., 21.)
19) The precept pacta sunt servanda is not in itself the
foundation of international law, as certain authors pretend;
it is nothing but a precept of natural law which is applied
both to' inter-individual and to 'inter-social relations, to
private and to municipal law (cf. text ho. XXX), as well
as to international law. Although not expressly pointed out
here, the legitimacy of the object, together with freely
given consent, is an indispensable requisite for the validity
of this precept.

.·

?

The COMMON
-

■ j; ' ■

;

'

■ -,

<

.

GOOD OF THE WHOLE WORLD.

,

(De pot. civ., 13.)
20) The idea so nobly and daringly expressed in this ·
text is nothing but the application to the world, conceived
as a moral unity, of the principle of common good which
is defended in municipal law. His energetic formula implies
the condemnation of policy based on national egoism.—
Vitoria’s general doctrine on this matter in re-affirmed in
the Lectures upon the secunda-secundae de just., q. 62, a. 1,

t

I

4

·

XXXVIII. Since one nation is a part of the whole world,
and since the Christian province is a part of the whole Christian State, if any war should be advantageous to one province
or nation but injurious to the world or to Christendom, it is
my belief that, for this very reason, that war is unjust (20).

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28.

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56
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Extension

of the general principles of public law to non-

CHRISTIAN NATIONS. UNIVERSALITY OF THE LAW OF NATIONS.

XXXIX. There is among the pagans complete temporal
and civil authority.
(De pot. Eccl. pr., q. 1,‘, 8.)
XL. The people in question (the Indian aborigines) were
in peaceable possession of their goods, both publicly and pri­
vately. Therefore, unless the contrary is shown, they must be
treated as owners and not be disturbed in their possession un­
less cause be shown.
(De Ind., sect. I, 4.)

XLI.
owner.

Unbelief does not prevent anyone from being a true

The proposition is also supported, by the reasoning of
St. Thomas, namely: Unbelief does not destroy either natural
law or human law; but ownership and dominion are based
either on natural law dr on human law; therefore they are
not destroyed by want of faith...
(De Ind., sect. I,' 7.)
XLII. The barbarians in question can not be barred from
being true owners, alike in public and in private law, by rea­
son of the sin of unbelief or any other mortal sin.

(De Ind., sect. I, 19.)
XLIII. The Indian aborigines are not barred on this
ground [want of reason] from the exercise of true dominion.

■

57

This is proved from the fact that the true state of the
case is that they are not of unsound mind, but have, according
to their kind, the use of reason. This is clear, because there is
a certain method in their affairs, for they have polities which
are orderly arranged and they have definite marriage and
magistrates, overlords, laws, and workshops, and a system of
exchange, all of which call for the use of reason : they also
have a kind of religion. Further, they make no error in mat­
ters which are self-evident to others; this is witness to their
use of reason... Accordingly I for the most part attribute their
seeming so unintelligent and stupid to a bad and barbarous
upbringing, for even among oürselves we find .many peasants
who differ little from brutes (21).
'
...The upshot of all the preceding is, then, that the aborigi-;
nes undoubtedly had true dominion in both public and private
matters, just like Christians, and that neither their princes
nor private persons could be despoiled of their property on the
ground of their not beeing true owners.
(De Ind., sect. I, 23-24.)
21) The application of the general principles of public
law to any given political community and, consequently
its recognition as a member of the international community
will be, according to this text, a mere question of fact: it
will depend on the fulfilment by the community of those
minimum organizational requisites demanded for the normal
development of a human existence worthy of the name. The
Stoic and Christian principle of the essential equality of
. men, based on their common nature and destiny, implies,
according to Vitoria, the need of supposing that even
barbarians are endowed with a like condition. Only when
the lack of this is clearly established, the negation to them
of a full juridical-international capacity would be justified,
and, consequently, their being kept in a colonial status. In
another place, (cf. no, LXXII) Vitoria gives expression to
most clearly stated reservations about this supposition due
to the dangers of abuse therein contained. It is well known
that Ginés de Sepûlveda held the opposite position on this
important issue, sticking to the view—and basing himself

53

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for this on Aristotle—of the natural inferiority of barbarians I
with respect to Europeans.
I
With this extension of a full juridical-international
personality to non-Christian peoples, especially to those in'
the recently discovered New World, Vitoria decisively
overturned the Medieval idea of Christendom, with a solidly
religious foundation, which he now substituted by the idea
of the world as a universal community of peoples organized
in States and founded on natural law. Within this universal
community, Christendom continued to exist as a narrower
community, distinguished by the profession of one and the
same religious faith, although bound later on and gradually
to lose that inner cohesion owing to the Reformation and
to the evergrowing prominence of political nationalism.
Upon the theoretical basis established here by Vitoria the i
principle of the juridical equality of States could be built.i
With the exception of the Three-Power Pact (in which a
hegemonical conception of international relations witmn
the «great areas» or «vital spaces» with one or several ruling
powers found expression), this principle informs the great
documents of contemporary international law (thus the
Chapultepec Act, point no. 1 of part I ; also the Charter
.of the United Nations Organization) and the Pope’s doctrine
of peace (Pius XII Christmas Message, 1939, point no. 1).
However, in face of the undeniable fact of the effective
inequality of States, intermediate formulae have been
sought with the end in view of harmonizing the principle
of juridical equality with the reality of a greater or lesser
participation in the responsibility for the maintenance of
peace and the eventual application of sanctions. Hence the
distinction between permanent and non-permanent members !
in the Council of the late League of Nations and the present
United Nations Security Council. What does not appear to
be justified, on the contrary, is the power of veto granted to
the «Big-Five», for in matters in which these are directly
concerned, they are at one and the same time judges and
integral parts, a principle which the very creation of
international organizations such as the U. N. O. tends precisely
to suppress.

59

Empire and Papacy in international
pire IN INTERNATIONAL MATTERS?

law.

The Pope as an um­

.

}

.
....
XLIV. The Emperor is not the lord of the whole earth (22). i.

i

(De Ind., de tit. non leg., 1.)
22) Vitoria takes sides against the medieval political;
universalism of a hierarchical and Unitarian type, which,1,
as it is known, reached its climax in Dante’s treatise De

>
j

■

monarchia.

XLV. The Pope is not civil or temporal lord of the whole
world in the proper sense of the words «lordship» and «civil
power» (23).
(De Ind., de tit. non leg., 3.)
23) The theory of the curialists (Aegidius Romanus, Al-|
Pelagius) and of the canonists who attributed to the,
Pope a direct jurisdiction in temporal affairs and a universal;
temporal power, is rejected in these words and in a most!
energetic fashion. Vitoria considered such a theory as so
utterly absurd that he described it as «a mere invention to
please and flatter the Popes». (De pot. Eccl. ret.· prior, q^
3.*, p. 3.a, 2.) Apart from this, the argument has no more
than a historical significance, since it was hardly defended;
after the Council of Trent.

varus

XLVI. ... When princes are at variance with one another
about some right of sovereignty and are rushing into war, he
can act as judge and inquire into the claims of the parties and
deliver judgment, a judgment which the princes are bound
to respect, lest those numerous spiritual evils should befall
60

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which are the inevitable results of a war between Christian
princes (24)
(De Ind., de tit. non leg., 5.)
24) Vitoria attributes to the Pope this judicial function
because in war spiritual values are at stake the safeguard
of which is entrusted to him by divine law. It is one of the
consequences of the principle of the Pope’s indirect power
in temporal affairs (no. CXVIII to CXXIII).

natural right of fellowship and communication, a con­
sequence OF THE UNIVERSAL COMMUNITY OF MANKIND.

The

XLVII. The first title to be named [whereby the Indians
might have come under the sway of the Spaniards] is that of
natural society and fellowship.
(De Ind., de tit. leg., I.)

XLVIII. The Spaniards have a right to travel into the
lands in question and to sojourn there, provided they do no
harm to the natives, and the natives may not prevent them.
It is reckoned among all nations inhumane to treat visitors
and foreigners badly without some special cause, while, on the
other hand, it is humane and correct to treat visitors well;
but the case would be different, if the foreigners were to
misbehave when visiting other nations.
... It appears that friendship among men exists by natural
law and it is against nature to shun the society of harmless
folk.
... If it were not lawful for the Spaniards to travel among
them, this would be either by natural law or by divine law,
or by human law. And if there were any human law which
without any cause took away rights conferred by natural and

61

divine law, it would be inhumane and unreasonable and
consequently would not have the force of law (25).

(De Ind., de tit. leg., 2.)
25) The natural right of communication finds its
corrective in the legitimate interests of the respective
peoples, although these cannot arbitrarily hinder it. Vitoria,
with his usual generosity and nobleness of mind, attacks
in these pages the problems—to-day more pressing than ever due to the ever increasing industrialization of the world—
originated by the just distribution of the natural wealth
and raw materials of - the world, immigration as a means
of regulating the demographical inequality among different
countries, etc. : problems which, if not considered sub specie
orbis, in relation to the actual needs of different peoples,
integrated in the common good of the whole world, will
continue to be a bone of dissension, friction and war, just as
the unequitative distribution of property and an excessive
social inequality within a given State are the bones of
internal dissension and revolution. Since both hypotheses
involve one and the same problem, the solution must be
sought under one and the same guiding spirit. In a like
manner, this was recognized also by the authors of the
Atlantic Charter: according to point no. 4 of this generous
document, the United. States and Great Britain will spare no
effort to help every State, large or small, victorious or
defeated, to have, on grounds of equity, access to the trade
and raw materials of the world; and, according to no. 5 of
the same declaration, they will seek to attain a cooperation
between all nations with a view to securing better conditions
of labour, economical progress and social security for all. It
seems useless to say that all the requirements demanded
by Vitoria support also the Pope’s peace doctrine. (Christmas
Message 1939, point 1st. and 1941, point 3rd.)

XLIX. As is said in Dig., 1, 1, 3, «Nature has established
a bond of relationship between all men», and so it is contrary
to natural law for one man to dissociate himself from another
without good reason. «Man», says Ovid, «is not a wolf to his
fellow man, but a man» (26).
(De Ind., de tit. leg., 3.)

26) This phrase from Ovid, adopted by Vitoria, is a reply
to Plautus’ sentence, used and circulated by Hobbes, accord­
ing to which man is a wolf for man (homo homini lupus).
If the former gives poetical expression to the Aristotelian
conception of man as a naturally social being, fitted there­
fore with inborn altruistic feelings (obviously compa­
tible with the wider or narrower play of egocentric
tendencies), the latter in turn reflects a pessimistic con­
ception, arising from Sophist and Epicurean roots, a
conception which does not admit of the existence in man
of any other stimulus for human acts than those springing
from egoism. The most celebrated antecedent for the idea
of an unsocial «state of nature», dominated by the idea of
all fighting against all, is undoubtedly, in Antiquity, in the
myth which Plato puts in the mouth of Protagoras, in the
dialogue which bears this name (322 a-c).

- L. If there are among the Indians any things which are
treated as common both to citizens and to strangers, the In­
dians may not prevent the Spaniards from a communication
and participation in them.
(De Ind., de tit. leg., 4.)·

Freedom

of international trade and navigation.

LI. «By natural law running water and the sea (27) are |
common to all, so are rivers and harbors, and by the law of
nations ships from all parts may be moored there» (Inst., 2,1);
and on the same principle they are public things. Therefore
it is not lawful to keep any one from them.
(De Ind., de tit. leg., 2.)
27) Here is in outline the principle of the freedom of the
seas which Vazquez de Menchaca and Hugo Grotius were to
develop at length later on. It is a well-known fact that the

principle in question did not gain general recognition until
the nineteenth century (and even then, it was confined to
peace time). Its interpretation has given rise to much dispu­
tation, for it affected interests which were considered vital
by the sea powers. The practice of the belligerents during
World War II implies a restrictive tendency with respect
to previous development, mainly in so far as neutral ship­
ping is concerned. Vitoria’s adherence to the principle of
the freedom of the seas is particularly significant since the
opposite thesis was at that very time far more useful for
Spain (as it was to be later on for England). The Atlantic
Charter, in point no. 7, proclaims the principle of freedom
of the seas in peace time.

LII. The Spaniards may lawfully carry on trade amopg
the native Indians, so' long as they do no harm to their coun­
try, as, for instance, by importing thither wares which the
natives lack and by exporting thence either gold or silver or,
other wares of which the natives have abundance.
i
It is an apparent rule of the jus gentium that foreigners ■
may carry on trade, provided they do not hurt to citizens.
It is clear that if the Spaniards kept off the French from
trade with the Spaniards, and this not for the good of Spain,
but in order to prevent the French from sharing in some
advantage, that practice would offend against righteousness
and charity.
(De Ind., de tit. leg., 3.)

Equality

of treatment and reciprocity

(28).

28) Equality of treatment and reciprocity are, like the
right of communication, a direct consequence of the Stoic
and Christian principle of unity in the nature of mankind.
Thus it is explained that any ideological deviation from
this principle and from the Christian conception of the
world in general has done nothing but build up more and

more impassable barriers among men, based on racial,
national, social, religious and political differences. Are these
not the reasons for the painful set-backs which are too
much in evidence in this world of ours? An interesting
side light of Vitoria’s consistent attitude on this point is
his non-acceptance of the rights of discovery as giving a
title for the seizure of lands already inhabited by the In­
dians, for this title «in and by itself gives no support to a
seizure of the aborigines any more than if it had been they
who had discovered us». (De Ind., de tit. non leg., 7.) See
also Leet, upon the secunda secundae, q. 62, a. 1, 28. But few
things are so difficult to man as equanimity in comparing
actions, when one of the terms of comparison are our own
actions or those of the society to which we belong. (See
an allusion to this in Pius XII Message to the Cardinal
College, Christmas 1945.)

LIII. It is manifest that it is not justifiable to take
anything that they possess from either Saracens or Jews or
other unbelievers as such, that is, because they are unbelie­
vers; but the act would be theft or robbery no less than if it
were done to Christians.
.
(De Ind., sect. I, 7.)

LIV. [Vitoria adopts the doctrine of St. Thomas and Cajetan] that unbelievers can not be deprived of their property,
save only that the subjects of temporal princes can be deprived
for reasons known to the law and rendering their subjects
in general liable to deprivation.
(De Ind., de tit. non leg., 7.)

LV. Neither may the native princes hinder their subjects
from carrying on trade with the Spanish; nor, on the other
hand, may the princes of Spain prevent commerce with the
natives.
And, in sum, it is certain that the aborigines can no more

65

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1
:

•

.

'

keep off the Spaniards from trade than Christians can keep
off other Christians.
(De Ind., de tit. leg., 3.)

LVI. If the natives allow the Spaniards to traffic peace­
ably among them, the Spaniards could not allege in this con­
nection any just cause for seizing their goods any more than
the goods of Christians.
(De Ind., de tit. leg., 8.)

Option to citizenship. Domicile.
LVII. If children of any Spaniard be born there and they
wish to acquire citizenship, it seems they can not be barred
either from citizenship or from the advantages enjoyed by other
citizens — I refer to the case where the parerits had their
domicile there.
Aye, and if there be any persons who wish to acquire a
domicile in some State of the Indians, as by marriage or in
virtue of any other fact whereby other foreigners are wont
to become citizens, they can not be impeded any more than
others, and consequently they enjoy the privileges of citizens
just as others do, provided they also submit to the burdens to
which others submit.
(De Ind., de tit. leg., 5.)

The

right to preach the

Gospel.

LVII I. Christians have a right to preach and declare the
Gospel in barbarian lands.
(De Ind., de tit. leg., 9.)

66

t

LIX. If the Indians allow the Spaniards freely and without
hindrance to preach the Gospel, then whether they do or do
not receive the faith, this furnishes no lawful ground for
making war on them and seizing in any other way their lands.
(De Ind., de tit. leg., 11.)

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LX. If the Indians—whether it be their lords or the po­
pulace—prevent the Spaniards from freely preaching the Gos­
pel, the Spaniards, after first reasoning with them in order
to remove scandal, may preach it despite their unwillingness,
and devote themselves to the conversion of the people in
question, and if need be they may then accept or even make
war, until they succeed in obtaining facilities and safety for
preaching the Gospel. And the same pronouncement must be
made in the case where they allow preaching, but hinder conversion either by killing or otherwise punishing those who
have been converted to Christ or by deterring others by
threats and fears.
[But this must occur always] with a regard for moderation
and proportion, so as to go no further than necessity demands,
preferring to abstain from what they lawfully might do rather
than transgress due limits, and with an intent directed more to
the welfare of the aborigines than to their own gain.
Careful attention must, however, be paid to what St. Paul
says (I Corinthians, ch. 6) : «All things are lawful unto me, but
not all things are expedient». So everything said above must
be taken as spoken absolutely. For it may be that these wars
and massacres and spoliations will hinder rather than procure
and further the conversion of the Indians (29).
,

(De Ind., de tit. leg., 12.)

29) Vitoria’s delicate sense of historical responsibility
should be noted here, conscious as he is that even the best;
of reasons are liable to be unduly detracted by those who, :
in bad faith, make them their own. Hence his concern for

67

giving precision to the theoretical and practical scope of,
the titles which he admits and which must in every case[
be sifted by prudence (cf. also no. LXI, LXII, LXV). His
constant generosity towards the innocent and the weak,
even though they be unbelievers, should also be noted.

LXI. War is no argument for the truth of the Christian
faith. Therefore the Indians can not be induced by war to be­
lieve, but rather to feign belief and reception of the Christian
faith, which is monstrous and a sacrilege.
(De Ind., de tit. non leg., 15.)

Intervention based on incapacity. Colonization as a trust.

ri

LXII. There is another title which can indeed not be
asserted, but brought up for discussion, and some think it a
lawful one. I dare not affirm it at all, nor do I entirely condemn
it. It is this: Although the aborigines in question are (as has
been said above) not wholly unintelligent, yet they are little
short of that condition, and so are unfit to found or administer
a lawful State up to the standard required by human and
civil claims...
It might, therefore, be maintained that in their own inter-!
ests the sovereigns of Spain might undertake the administra-!
tion of their country, providing them with prefects and
governors for their towns, and might even give them new lords,
so long as this was clearly for their benefit.
And surely this might be founded on the precept of cha­
rity, they being our neighbors and we being bound to look
after their welfare. Let this, however, as I have already said,
be put forward without dogmatism and subject also to the
limitation that any such interposition be for the welfare and in

68

the interests of the Indians and not merely for the profit of
the Spaniards. For this is the respect in which all the danger
to soul and salvation lies (30).
(De Ind., de tit. leg., 18.)
30) The problem of the legitimacy of colonization is
stated here, with Vitoria conditioning the only admissible
solution from the Christian standpoint, that which conceives
colonization as a trust for the welfare of the peoples which
have not yet reached cultural and political maturity. This;
clear condition formulated by Vitoria will not fail toj
surprise many readers. In order to understand it well, and,
to give it its proper value, it will be enough to remember |
his opinion about the juridical personality of the political
non-Christian communities (cf. no. XLIII and the accompany-1
ing note), and his sense of historical responsibility to which)
we have already referred. This sense is sharpened here'
because there will always be a very wide margin f©r pos­
sible abuses. This tutelary idea of colonization was, in aj
certain degree, present in the adoption of internationals
mandates after World War I, and it seems to be now behind
the idea of international trusteeship which the U. N. O.j
propounds.

Intervention as

À humanitarian requisite.

LXIII. Another possible title is founded either on thej
tyranny of those who bear rule among the aborigines of Ame-,
rica or on the tyrannical laws which work wrong to innocenti
folk there, such as that which allows the sacrifice of innocent!
people or the killing in other ways of uncondemned people,
for cannibalistic purposes (31). I assert also that without the
Pope’s authority the Spaniards can stop all such nefarious
usage and ritual among the aborigines, being entitled to rescue
innocent people from an unjust death.
(De Ind., de tit. leg., 15.)

69

31) It is known that the problem of the so-called inter­
vention for humanitarian reasons, as, in general, intervention
in the domestic affairs of other States, is one of the most
difficult problems posed by international law. Its theoretical
solution is ultimately conditioned by the concept of sove­
reignty in use as well as the accepted fundamental rights
of the human person and the State. Anyone who has an
absolute concept of the free will of sovereignty obviously does
not admit any legitimate intervention in the domestic policies
of other States, whatever their methods· might me (thus
Pradier-Fodéré, Lawrence) : in the most serious cases,,;
intervention will be imperative because of moral or political
reasons, never because of juridical reasons. On the other
hand, he who, like Vitoria, conceives sovereignty as limited!
by the objective principles of natural law, will be bound to
" admit a legitimate intervention in the case of a serious
violation of these principles by any State, even though it!
may result only in injuries inflicted upon its own subject^
(i. e. LÉ Fur). It is apparent, however, that such an
intervention (which is nothing but a special case of the
application of international sanctions) has been shown, by
its own nature, to be of an exceptional character. This is
perfectly clear from Vitoria’s own examples. Among the
unquestionable cases of a lawful application of the principle
of intervention for reasons of humanity were the slaughter
of Christians in Armenia and other provinces of the Turkish
Empire in the latter part of the nineteenth century and the
beginning of the twentieth century. But the abuses to
which the application of this principle has given rise, and
the victims of which have generally been the small nations,
give an air of particular modernity to the just solution of
the problem suggested by Vitoria:· intervention is only;
admissible when a serious violation of the essential rights
of humanity has been committed, a violation of rights not!
arbitrarily established on grounds of a mere personal οη
national preference, but based on the very nature of man '
and society. The fact that Vitoria fixes the limits of this
right of intervention is deduced with great clearness from
another text, which reads: «Christian princes cannot, even
by the authorization of the Pope, restrain the Indians from
sins against the law of nature or punish them because of
those sins.» (De Ind., de tit. non. leg. 16.) Apart from the
hypothesis here considered, intervention in the domestic
affairs bf other States cannot possibly be admitted. Though

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70

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accepted under the Holy Alliance in the name of the
monarchical legitimacy, it has later been repudiated in the
name of State sovereingty. This is, however, one of those
questions in which theory is far from practice. It is in
agreement with the general non-intervention principle in the
Atlantic Charter, in point no. 3 of which it is affirmed that
the United States and Great Britain respect the right of all
peoples to choose the form of government under which they
are to live. The Chapultepec Act was made even more
poignant on this matter by reaffirming the rejection of
intervention of one State in the internal and external affairs
of an other, as already proclaimed in 1933 by the Seventh
Pan-American Conference and by the Inter-American
Conference for the Consolidation of Peace, in 1936. As far as
the Three-Power Pact is concerned, it again introduced the
opposite principle, but it reserved to Germany and Italy the
monopoly of intervention in European affairs and to Japan
the monopoly of intervention in the Far-Eastern affairs; the
«powers foreign to those areas» were expressly excluded.

Freely accepted

protectorate.

LXIV. Another possible title is by true and voluntary
choice, as if the Indians, aware alike of the prudent adminis­
tration and the humanity of the Spaniards, were of their own
motion, both rulers and ruled, to accept the King of Spain as
their sovereign. This could be done and would be a lawful title,
by the law natural too, seeing that a State can appoint any one
it will to be its lord, and herefor the consent of all is not
neccessary, but the consent of the majority suffices (32).

(De Ind., de tit. leg., 16.)
32) Here we have the theory of the plebiscitary cession
of a territory or of a whole nation, which is nothing but!
the consequence of the theory of the immanence of power;
in the community Itself, brought out by Vitoria in texti
no. XXI and those Immediately following. In the interna-1

71

tional sphere this theory implies opposition to a policy of
conquest and has become one of the fundamental aspira­
tions of mankind’s longing for peace and justice. It was
included in point no. 2 of the Atlantic Charter: the United
States and Great Britain «do not approve of territorial
changes which are not in accordance with the wishes freely
expressed by the peoples concerned». In a like manner, the
Chapultepec Act. echoing the doctrine of the First PanAmerican Conference (1890), condemns «territorial conquest»
and establishes the non-recognition of «any acquisition
obtained by force».

LXV. [But in order that the election be valid] fear and
ignorance, which vitiate every choice, ought to be absent. But
they were markedly operative in the cases of choice and
acceptance under consideration... (33).

(De Ind., de tit. non leg., 16.)
33) Both colonial and contemporary European history
offer numerous examples attesting to the modern character
of the problem which Vitoria broaches here in such a
straightforward manner.

Solidarity for upholding the law.

LXVI. Another title may be found in the cause of allies
and friends. For as the Indians themselves sometimes wage
lawful wars with one another and the side which has suffered
a wrong has the right to make war, they might summon the
Spaniards to help and share the rewards of victory with them...
For there is no doubt, as Cajetan also asserts (Secunda Secun­
dae, qu. 4, art. 1), that the cause of allies and friends is a just
cause of war, a State being quite properly able, as against for­
eign wrongdoers, to summon foreigners to punish its ene­
mies (34).
(De Ind., de tit. leg., 17.)

72

34) Alliances must have a just aim such as, for instance,
the safeguard of justice, which would greatly be insured
when several States associate themselves against any even­
tual infringement of the same. Every alliance is, in turn, a
sensu contrario, unlawful when concerted for the purpose
of violating someone else’s right. We have already here
what later on will be called «collective security».

73

.

Ill

WAR AND ITS LAW

Lawfulness of

defensive and offensive war.

Need as the

ONLY JUSTIFICATION FOR WAR.

LXVII. Since there can be no doubt that in a defensive
war force may be employed to repel force (Dig., 1,1, 3), this is
also proved with regard to an offensive war, that is, a war
where we are not only defending ourselves or seeking to reposess ourselves of property, but also where we are trying to
avenge for some wrong done to us...
... As St. Augustine says (De verbo Domini and Ad Bonifacium), the end and aim of war is the peace and security of the
State. But there can be no security in the State unless enemies
are made to desist from wrong by the fear of war, for the
situation with regard to war would be glaringly unfair, if all
that a State could do when enemies attack it unjustly was to
ward off the attack and if they could not follow this up by
further steps.
A seventh proof comes from the end and aim and good of
the whole world. For there would be no condition of happiness
for the world, nay, its condition would be one of utter misery,
if oppressors and robbers and plunderers could with impu­
nity commit their crimes and oppress the good and innocent,
and these latter could not in turn retaliate on them.
(De jure belli, 1.)

77

LXVIII. Princes have authority not only over their own
subjects, but also over foreigners, so far as to prevent them
from committing wrongs, and this is by the law of nations and
by the authority of the whole world. Nay, it seems to be by
natural law also, seeing that otherwise society could not hold
together unless there was somewhere a power and authority
to deter wrongdoers and prevent them from injuring the good
and innocent. Now, everything needed for the government
and preservation of society exists by natural law, and in no
other way can we show that a State has by natural law autho­
rity to inflict pains and penalties on its citizens wo are dange­
rous to it. But if a State can do this to its own citizens, society
at large no doubt can do it to all wicked and dangerous folk,
and this can only be through the instrumentality of princes.
It is, therefore, certain that princes can punish enemies who
have done a wrong to their State and that after a war has been
duly and justly undertaken the enemy are just as much within
the jurisdiction of the prince who undertakes it as if he were
their proper judge (35).
(De jure belli, 19.)
35) The doctrine here maintained is a logical conse­
quence of the peculiar structure of the international com­
munity, since the States are at the same time subjects and*
members of this international community. While awaiting*
an eventual ulterior process of organization (if it is to be­
come reality), the world has to make use of States for the j
compulsory execution of international law: thus war is!
construed as act of vindictive justice in which the just!
belligerent acts in the capacity of a judge with powers;
delegated to it by the whole world. This is the reason why!
the jus ad bellum appears as a mere variety of the jus pu, niendi and rests ultimately on the same foundations.

LXIX. In war everything is lawful which the defence of
the common weal requires.
(De jure belli, 15.)
78

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Who has the right to resort to war?

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LXX. Every State has authority to declare and to make
war.
... A State is within its rights not only in defending itself,,
but also in avenging itself and its subjects and in redressing
wrongs. This is proved by what Aristotle says in the third
book of his Politics, namely, that a State ought to be sufficient
unto itself. But it can not adequately protect the public weal
and the position of the State if it can not avenge a wrong and
take measures against its enemies. ... It is, therefore, impera. tive for the due ordering of human affairs that this authority
be allowed to States (36).
(De jure belli, 5.)

.

36) To attribute the jus ad bellum exclusively to the
State as a perfect society gives to war the nature of a public
institution and suppresses so-called private war. The latter,
very common in the Middle Ages, was bound to disappear
witlT the formation of the modem State, with a unified
contrai jurisdiction to which its component parts could
always resort. In the ulterior development of international
. law nothing would hinder the transference of this right
to war to a superstate entity with armed forces of its own.
’Precisely the lack of such an institution is what, in the
present state of international life, justifies the resort to
war as an ultima ratio by the State under attack. One
of the great merits of Suarez is to have brought out that
war is, rather than an institution belonging to natural law,
an institution of the law of nations. (De legibus, II, 19, 4.)
See also, in the extract LXVIII, both first sentences.

War aims.

LXXI. War is waged : Firstly, in defence of ourselves and.
what belongs to us; secondly, to recover things taken from

us; thirdly, to avenge a wrong suffered by us; fourthly, to se­
cure peace and security.
(De jure belli, 44.)

Insufficient reasons for a resort to war.

LXXII.

Difference of religion is not a cause of just war.

(De jure belli, 10.)
LXXIII.

Extension of empire is not a just cause of war.

V
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This is too well known to need proof...

(De jure belli, 11.)
LXXIV. Neither the personal glory of the prince nor any
other advantage to him is a just cause of war.
This, too, is notorious. For a prince ought to subordinate
both peace and war to the common weal of his State and not
spend public revenues in quest of his own glory or gain, much
less expose his subjects to danger on that account.
... The rules relating to war ought to be for the common
good of all and not for the private good of the prince.

(De jure belli, 12.)

A

serious wrong is the only just cause of war.

LXXV. There is a single and only just cause for com­
mencing a war, namely, a wrong received (37).

(De jure "belli, 13.)

80

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37) In a certain sense, every just war is ultimately ai
defensive war inasmuch as it presupposes the existence i
of a wrong inflicted by another State, although technically (
it may be possible to distinguish between defensive war
(that which is waged to repel an actual attack) and offen­
sive war (that which is made to vindicate or punish a wrong
already committed). The difficulties arise when coming to
determine the concept of «injury», of «wrong», or of
«aggression» —to use the more common term in the language '
of to-day—as everybody knows. Verdross rightly points out
that, under the influence of positivism, there has been in
modern times a tendency to conceive injury as a violation
of positive international law, while the classics understood
by it an infringement of both natural law and positive

international law consistent, with natural law (Volkerrecht,
Berlin, 1937, p. 192). The question is that, from their stand­
point, there is no actual validity in a positive law which
is contrary to natural law, though it may have, for oppor­
tunist reasons, some historical force (Cf. no. V, IX, XLVIII,
LI, LII, and De Indis, de tit. leg., 6). There is in this matter
an evident analogy between the theory of just war and the
theory of just resistance to power.

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

(De jure belli, 14.)

LXXVII. No war is just the conduct of which is mani­
festly more harmful to the State than it is good and advan-

tageous; and this is-true regardless of any other claims or
reasons that may be advanced to make of it a just war.
The proof is : That if the State has no power to make war
except for the purpose of defending itself, and protecting it­
self and its property, it follows that any war will be unjust,
whether it be begun by the king or by the State, through which
the latter is not rendered greater, but rather is enfeebled
and impaired.
(De pot. civ., 13.)
LXXVIII. There is a doubtful point in connection with
the justice of a war, whether it be enough for a just war that
the prince believes himself to have a just cause. On this point
let my first proposition be: This belief is not always enough.
The result would otherwise be that very many wars would
be just on both sides, for although it is not a common
occurrence for princes to wage war . in bad faith, they nearly
always think theirs is a just cause.
(De jure belli, 20.)

LXXIX. It is essential for a just war that an exceedingly
careful examination be made of the justice and causes of the
war and that the reasons of those who on grounds of equity
oppose it be listened to.
... This is self-evident. For truth and justice in moral ques­
tions are hard of attainment and so any careless treatment of
them easily leads to error, an error which will be inexcusable,
especially in a concern of great moment, involving danger
and calamity to many, and they our neighbors, too, whom
we are bound to love as ourselves.
(De jure belli, 21.)

Ô2

The justice of war and private conscience.

LXXX. ... Subjects whose conscience is against the jus­
tice of a war may not engage in it whether they be right or
wrong.
(De jure belli, 23.)

LXXXI. Senators and petty rulers and in general all who
are admitted on summons or voluntarily to the public council
or the prince’s council ought, and are bound, to examine into
the cause of an unjust war.
(De jure belli, 24.)
LXXXII. Other lesser folk who have no place or audience
in the prince’s council or in the public council are under no
obligation to examine the causes of a war, but may serve in
it in reliance on their betters.
(De jure belli, .25.)

LXXXIII. Nevertheless the proofs and tokens of the in­
justice of the war may be such that ignorance would be no
excuse even to subjects of this sort who serve in it.

(De jure belli, 26.)

83

LXXXIV. There is no doubt that in a defensive war sub­
jects may, even though the matter be doubtful, follow their
prince to the war; nay, that they are bound to follow him,
and also in an offensive war. The first proof is in the fact that,
as has been said, a prince is not able, and ought not always
to render reasons for the war to his subjects, and if subjects
can not serve in war except they are first satisfied of its jus­
tice, the State would fall into grave peril and the door would
be opened to wrongdoing.
Also, in doubtful matters the safer course ought to be
adopted. Now, if subjects in a case of doubt do not follow
their prince to the war, they expose themselves to the risk of
betraying their State to the enemy, and this is a much more
serious thing than fighting against the enemy despite a
doubt (38).
• (De jure belli, 31.)

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38) The serious problem of the so-called, conscientious
objectors, which has originated quite frequently within cer­
tain sects which profess a radical pacifism, comes to be
resolved here ultimately with a fine sense of proportion
and a realistic recognition of the values at stake. The great
casuist Vitoria does not fail to see the practical difficulty
involved by the fact that the obligation to take part in war
depends on the intimate individual conviction of its justice,
as a result of insufficient information about the actual cau­
ses for it. A delicate intuitive sense of certain requisites
peculiar to modern diplomatic action comes clearly to the
fore in this text. In short, the subject will have to give his
government a wide margin of trust in such a delicate and
serious matter.

Doubtful reasons fob war.

LXXXV. What should be done when the justice of the
war is doubtful, that is, when there are apparent and pro­
bable reasons on both sides?
04

1

First proposition: As regards the princes themselves, it
seems that if one be in lawful possession, the other may not
try to turn him out by war and armed force, so long as the
doubt remains...
The proof is that doubtful matters the party in posse­
ssion has the better position. Therefore it is not lawful to dis­
possess the possessor in favor of a doubtful cause.
Further, if the matter were being heard by a lawful judge,
he would never in case of doubt dispossess the party in poss­
ession. Therefore, if we postulate that those princes who are
asserting a right are judges in their own cause, they may not
lawfully eject a possessor so long as there is any doubt about
the title.
'
(De jure belli, 27.)
LXXXVI. He who is in doubt about his own title is
bound, even though he be in peaceable possession, to examine
carefully into the cause and give a quiet hearing to the argu­
ments of the other side, if so be he may thus attain certitude
either in favor of himself or the other.
This is proved by the fact that a man who is in doubt and
neglects to ascertain the truth is not in possession in good
faith (39).
(De jure belli, 29.)
39) This obligation to analyze the doubts which might
arise about. one’s own right as the consequence of the
allegations of the opposite party is for the moralist a means
of withdrawing support from the historical status quo, stop­
ping it from becoming the means of an absolute immunity
for him who holds to it, since his privileged position rests
solely upon good faith. When good faith is lost'because of
neglect In the elucidation of doubt, this privileged position
comes, therefore, to an end. We are not unaware of the fact
that we are dealing with a simple moral factor whose
effectiveness will depend on the greater or lesser
righteousness of the ruler’s individual conscience. From the
standpoint of law, one of the greatest deficiencies—perhaps

85

the greatest—of international law is precisely the lack, or
the deffectiVe development, of institutions permitting a
peaceful change of the historical status quo according
to criteria of a greater justice. Hence, the territorial ·
readjustments and, in general, the «new arrangements» in
the international community have nearly always emerged
from wars or war cycles and, therefore, from the exercise
of force to a greater or lesser degree. It is enough to
think, for instance, of the congresses of Westfalia, Vienna,
Versailles. In this sense it would be possible to say,
paraphrasing Heraclitus, that war is the mother of positive
international law. Within the State, law offers in turn broader
legal channels for social and economical readjustments,
for social dynamics, although it does not always reach
complete success in blocking force as a means for the
solution of many of these questions.

LXXXVII. After examination of the case, the lawful pos­
sessor is not bound to quit possession so long as the doubt rea­
sonably persists, but may lawfully retain it.
(De jure belli, 30.)

Can a war be just for both sides?

LXXXVHI. The fourth doubt is : Whether a war can be
just on both sides.
The following is my answer: First proposition: Apart from
ignorance the case clearly can not occur, for if the right and
justice of each side be certain, it is unlawful to fight against
it, either in offence or in defence.
Second proposition: Assuming a demonstrable ignorance
either of fact or of law, it may be that on the side where true
justice is the war is just of itself, while on the other side the
war is just in the sense of being excused from sin by reason
of good faith, because invincible ignorance is a complete ex­
cuse.

86

Also, on the side of the subjects at any rate, this may often
occur; for even if we assume that a prince who is carrying
on an unjust war knows about its injustice, still (as has been
said) subjects may in good faith follow their prince, and in
this way the subjects on both sides may be doing what is
lawful when they fight (40).
(De jure belli, 32.)

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40) If, from an objetive point of view, war can only be
just on one of the sides taking part in it, subjectively
speaking it can be just on both sides when either side acts
in good faith. (Cf. also De Indis, de tit. leg., 6.) Such a pos­
sibility, already noted by Vitoria, was later emphasized by
Luis de Molina (De justitia et jure, II, disp. 102). Rev. Father
Yves de la Briere, the most cospicuous restorer of the
classical theory of a just war, devotes also minute attention
to this. Since Vitoria’s time, the possibility that war might
be subjectively just on both sides has considerably increased.
If the wars which the theologians and jurists of the
Middle Ages and the Renaissance had witnessed were merely
dynastic wars in which ' some province was frequently in
dispute, or the cause ■ of which was clear enough, thé wars
of our own times are far more complex and with much
deeper roots. In their origin they are a mixture of political,
economical, demographical, ideological, etc. factors, the bnpartial and unmistakable interpretation of which is difficult
even for the interested parties. These factors are not the
same when examined either from within or without a given
country. National traditions, patriotism and so many other
questions enter the picture and influence the outlook of the
observer. In fact, social psychology—De la Briere observes—
shows that each belligerent has widely different opinions about the role and responsibilities of their own State
and those of an adversary. As Vitoria very aptly stresses,
these reactions are much more frequent in the subjects than
in thdir leaders, due to the fact that the latter are in possession of much greater information.

87

Position of non-combatants in the course of war.

LXXXIX. - The deliberate slaughter of the innocent is ne­
ver lawful in itself.
(De jure belli, 35.)

XC. Sometimes it is right, in virtue of collateral circum­
stances, to slay the innocent even knowingly, as when a for­
tress or city is stormed in a just war, although it is known
that there are a number of innocent people in it and although
cannon and other engines of war can not be discharged or
fire applied to buildings without destroying innocent together
with guilty.
- ... Great attention, however, must be paid to the point al­
ready taken, namely, the obligation to see that greater evils
do not arise out of the war than the war would avert. For if
little effect upon the ultimate issue of the war is to be expec­
ted from the storming of a fortress or fortified town wherein
are many innocent folk, it would not be right, for the purpose
of assailing a few guilty, to slay the many innocent by use
of fire or engines of war or other means likely to overwhelm
indifferently both innocent and guilty (41).
(De jure belli, 37.)
41) Once more prudence as an intellectual force must
fuse the use to be made of abstract right with the requisites
of the common good, not only national, but world wide.
This problem has been widened in our own times with socalled total war and the consequent lesser differentiation
between combatants and non-combatants. World War II
has been marked precisely by the great suffering and enor­
mous casualties inflicted on civilians as a result of the aerial
bombardment of cities and industrial plants, mass deport-

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ations, political, social, racial and religious discriminations,
etc. Vitoria dealt also with the lot of non-combatants (and
among them, neutrals, see extracts XCIV and XCV) in his
Leet, upon the secunda secundae, q. 64, a. 6.

XCI. Here a doubt may arise whether the killing of guilt­
less persons is lawful when they may be expected to cause
danger m the fùture... [For instance, the children of the ene­
mies, or the adult male civilans who may be mobilized.]
My answer is that although this killing may possibly be
defended, yet I believe that it is in no wise right, seeing that
evil is not to be done even in order to avoid greater evil
still, and it is intolerable that any one should be killed for a
future fault. There are, moreover, other available measures
of precaution against their future conduct, namely, captivity,
exile, etc...
(De jure belli, 38.)
XCII. It is certainly lawful to despoil the innocent of
goods and things which the enemy would use against us, such
as arms, ships and engines of war.
(De jure belli, 39.)

XCIII. If a war can be carried on effectively enough with­
out the spoliation of the agricultural population and other
innocent folk, they ought not to be despoiled.

(De jure belli, 40.) '

Safety of neutral life and goods.
XCIV. ...It is not lawful to slay either foreigners or
guests who are sojourning among the enemy, for they are
presumed innocent, and in truth they are not enemies.

(De jure belli, 36.)

89

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XCV. The spoliation of foreigners and travellers on ene­
my soil, unless they are obviously at fault, is in no wise law­
ful, they not being enemies (42).
(De jure belli, 40.)
42) Vitoria gave us but the embryo of a theory of neu­
trality. He dealt with this problem only occasionally.

Reprisals.

XCVI. If the enemy refuse to restore things wrongfully
seized by them and the injured party can not otherwise pro­
perly recoup himself, he may do so wherever satisfaction is
obtainable, whether from guilty or from innocent.
For instance, if French brigands made a raid into Spanish
territory and the French King would not, though able, compel
them to restore their booty, the Spanish might, on the autho­
rization of their sovereign, despoil French merchants or far­
mers, however innocent these might be. This is because, al­
though the French State or Sovereign might initially be bla­
meless, yet it is a breach of duty, as St. Augustine says, for
them to neglect to vindicate the right against the wrongdoing
of their subjects, and the injured sovereign can take satisfac­
tion from every member and portion of their State.

(De jure belli, 41.)

> ,
A hostage's RIGHT.

XCVII. [It is doubtful] whether it is lawful at any rate to
kill hostages who have been taken from the enemy, either in

90

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time of truce or on the conclusion of a war, if the enemy break
faith and do not abide by their undertakings.
My answer is a single proposition: If the hostages are in
other respects among the guilty, as, for instance, because they
have borne arms, they may rightfully be killed in that case; if,
however, they are innocent, as, for instance, if they be chil­
dren or women or other innocent folk, it is obvious from what
has been said above that they can not be killed.

(De jure belli, 43.)

The fate of the guilty (43).
43) In the three texts quoted below, Vitoria seems to
refer .especially to guilt by violation of war laws and usages,
whilst in the texts grouped under the word «sanctions»
(no. CVII-CXI) he thinks undoubtedly rather of the responsibility of political leaders who had started an unjust war.
Thus at least the fact of Vitoria’s separating these two
groups of texts in such an orderly exposition as is gained
by reading De jure belli, can be interpreted.
Crimes derived from the violation of war regulations
and usages and, generally speaking, of human rights, are
no more than a variety of common delinquency. Punishment for them has come to be widely admitted and con.
sidered as lawful. It is to-day more than a requirement
of natural law, for it is also to be exacted according to
positive law (for instance, art 3 of the Fourth Hague Convention of 1907). It must go beyond the scope of crimes
committed in the course of carrying out military operations,
and include unlawful governmental and administrative acts'
in military occupied enemy territories. World War II has
given rise to a tragic proliferation of this aspect of crimlnality as a result of the length and bitterness of the armed
hostilities, the long military occupations of whole countries
and the general increase of racial, national and ideological
hatred in our times and to which we have already referred
(cf. note 28). From a theoretical point of view the main
questions are those which affect: a) as far as secondary

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agencies are concerned, the limits of due obedience io supe­
rior commands; b) as far as superior, military and political
agencies are concerned, the war methods which may law­
fully be adopted and imposed upon the troops under their
command. From a practical point of view the main difficulty
lies in securing an effective and just punishement, shun­
ning both the impunity and leniency of national courts and
the possible excessive rigorousness of enemy courts. There­
fore de la Briere propounds that trials should be carried
out by international courts and that every crime of which
any of the belligerent powers is suspected should be submit­
ted to them (op. cit., p. 170-171). The standpoint of the dis­
tinguished French internationalist appears to be based on
unquestionably solid arguments.

XCVIII. In the actual heat of battle, either in the storming
or in the defence of a city, all who resist may be killed indis­
criminately; and, briefly, this is so as long as affairs are in
peril.
(De jure belli, 45.)

XCIX. Even when victory has been won and no danger
remains, it is lawful to kill the guilty...
... This is permissible against our own wrongdoing citizens.
Therefore also against foreigners; for, as said above, a prince
when at war has by right of war the same authority over the'
enemy as if he were their lawful judge and prince...
(De jure belli, 46.)

C. Merely by way of avenging a wrong it is not always
lawful to kill all the guilty.
... We ought, then, to take into account the nature of the
wrong done by the enemy and of the damage they have cau­
sed and of their other offences, and from that standpoint to
move to our revenge and punishment, without any cruelty and
inhumanity.
(De jure belli, 47.)

92

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Reparations.

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CI. It is permissible to recapt everything that has been
lost and any part of the same.
(De jure belli, 16.)
;

.

CII. It is lawful to make good out of enemy property the
expenses of the war and all damages wrongfully caused by
the enemy.
(De jure belli, 17.)
'
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CIII. There is no doubt that everything captured in a just
war vests in the seizor up to the amount which provides satis­
faction for the things that have been wrongfully seized and
which covers expenses also.
This needs no proof, for that is the end and aim of war.
(De jure belli, 50.)

CIV. There is no doubt about the lawfulness of seizing
and holding the land and fortresses and towns of the enemy, so
' far as is necessary to obtain compensation for the damages he
has caused.
(De jure belli, 54.)

The problem of security.

CV. A prince may ... in a just war ... do whatever is neces­
sary in order to obtain peace and security from the enemy;

93

for example, destroy an enemy’s fortress and even build one
on enemy soil, if this be necessary in order to avert a dange­
rous attack of the enemy.
This shows that even when victory has been won and
redress obtained, the enemy may be made to give hostages,
ships, arms, and other things, when this is genuinely
necessary for keeping the enemy in his duty and preventing
him from becoming dangerous again.
(De jure belli, 18.)

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

(De jure belli, 55.)

Sanctions (44).
44) The responsibility of the political leaders who started
a war is the result of the very theory of a just war.
It is wholly meaningless, for Instance, for those who, like
Spinoza, Hegel or Treitschke, see in war something of the
nature of God’s own judgment, a judgment which inexo­
rably bestows victory on the party which deserves it, and
sanctions only in an a posteriori fashion those who had the
right to come out victorious. On the contrary, those
adhering to the Christian tradition conside? war to be an
evil which can only be justified on grounds of restoring
former violations of the law; it is pbvious, therefore, that,
at least in principle, those who have incurred violations of
the law and have given rise to armed conflict, incur also
the consequent responsibility. Adhering to this theoretical
standpoint, which, we repeat, is but the logical consequence
of the whole conception of just war, those who at present
fall back on this theory (De la Briere, Robert Regout) tend

94

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however, to restrict the adoption of a specific legal sanction
against the rulers of the defeated country to criminal terms
Of punishment in addition to due reparations for damages.
They argue about the difficulty of effectively determining
moral guilt as a result of the greater complexity of modern
wars (see note 40) and the fact that the ratione delicti
jurisdiction of the attacked against the attacking State is
derogatory as to general principles of public law. The Rev.
Father Regout moreover mentions the principle nullum
crimen sine lege as a reason not to be underrated, though
he acknowledges that it does not possess an absolute character.
The problem would be quite different were there internationl
organizations to determine, declare and apply questions
,of law, for in that case, personal coercitive action against
the leaders of the guilty State would no more be, as de la
Briere observes, derogatory to the general rules of law.
Similar to the responsibility for initiating war is the
responsibility for an abusive continuation of war by either
belligerent.. Although Vitoria does not examine this
expressly, it is implicit in his whole theory of a just war,
according to which war is only justified on grounds of
necessity.

CVII. ... Even after victory has been won and redress ob­
tained and peace and safety been secured, it is lawful to avenge
the wrong received from the enemy and to take measures
against him and exact punishment from him for the wrongs
he has done.
(De jure belli, 19.)

CVIIL It is also lawful, in return for a wrong received
and by way of punishment, that is, in revenge, to mulct the
enemy of a part of his territory in proportion to the character
of the wrong, or even on this ground to seize a fortress or
town.
This, however, must be done within due limits, as already
said, and not as utterly far as our strength and armed force
enable us to go in seizing and storming. And if necessity and
the principle of war require the seizure of the larger part of

95

the enemy’s land, and the capture of numerous cities, they
ought to be restored when the strife is adjusted and the war
is over, only so much being retained as is just, in way of com­
pensation for damages caüsed and expenses incurred and of
vengeance for wrongs done, and with due regard for equity
and humanity, seeing that punishment ought to be propor­
tionate to the fault...
''
(De jure belli, 56.)
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'
■ V CIX. [It is doubtful:] Whether it is lawful to impose a
tribute on conquered enemies.
My answer is that it is undoubtedly lawful, not only in
order to recoup damages, but also as a punishment and by
way of revenge.
(De jure belli, 57.)

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

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

The excuse

CXII. N
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cause of war
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for instance,
and in accor
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be punished,
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any expenses
killing after
or exactions
satisfaction.
(De jure belli, 59.)

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THREE CANONS OR THE RULES OF WARFARE.

*
·
CXIII. First canon : Assuming that a prince has authority
to make war, he should first of all not go seeking occasions and
causes of war, but should, if possible, live in peace with all
men, as St. Paul enjoins on us (Romans, ch. 12). Moreover, he
should reflect that others are his neighbours, whom we are
bound to love as ourselves, and that we all have one common
Lord, before whose tribunal we shall have to render our
account. For it is the extreme of savagery to seek for and
rejoice in grounds for killing and destroying men whom God
has created and for whom Christ died. But only under
compulsion and reluctantly should he come to the necessity
of war.
Second canon : When war for a just cause has broken out, it
must not be waged so as to ruin the people against whom it
is directed, but only so as to obtain one’s rights and the defence
of one’s country and in order that from that war peace and
security may in time result.
1
Third canon: When victory has been won and the war is
over, the victory should be utilized with moderation and
Christian humility, and the victor ought to deem that he is
sitting as judge between two States, the one which has been
wronged and the one which has done the wrong, so that it
will be as judge and not as accuser that he will deliver the
judgment whereby the injured State can obtain satisfaction,
and this, so far as possible should involve the offending State
in the least degree of calamity and misfortune, the offending
individuals being chastised within lawful limits; and a spe­
cial reason for this is that in general among Christians all the
fault is to be laid at the door of their princes,, for subjects
when fighting for their princes act in good faith and it is
thoroughly unjust, in the words of the poet, that Quidquid de-

98

lirant reges, plectantur Achivi (For every folly their kings
commit the punishment should fall upon the Greeks).
(De jure belli, 60.)

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45) Vitoria, like classical commentators in general,
examines the supposition that the just belligerent wins
in the end, a hypothesis which has been referred to in the
preceding notes. But there are two other cases possible,
which escape naturally the conclusions of this doctrine.
Firstly, war can become unjust for both sides if, for instance,
the belligerent starting fighting for a right cause loses the
initial good intention which should have guided him and
instead of aiming at the restoration of violated principles
of law, intends to use the hostilities (already begun) for,
nationally egoistic ends. There is nothing strange in such
a hypothesis; which has much of the plausible in it, bear­
ing in mind the exacerbated nationalism of the last few
centuries, which has become so prominent in international
relations. Who is, then, to be the judge and who the judged?
Secondly, he who does not believe in a pre-establisned
harmony between right and might will have to admit the

possibility that precisely the unjust belligerent ' wins in a
just war. This is a radical shortcoming of the classical theory
of a just war, which sets rigorous limits upon its effective
value. For war as a legal sanction will be ineffective against
a more powerful State than the injured one, unless a suf­
ficiently strong and coherent coalition can be formed against
it. This may be the reason why cardinal Cajetan urged the
prince, before starting a just war, to have a moral certainty
of his victory, for were it not so, he would’run the risk
of throwing his people into a greater evil by ending on the
losing side; he also maintained that the just aggressor
should be stronger than its guilty opponent, for only
in this manner would the hoped-for aim of such a war
be reached. (Comment, to the Sum. Theol., ad nam-Hne, 096, a. 4.) And Suarez himself, who rejected this condition,
holding that a certain probability of victory or at least a
balance of arguments for or against it, were enough, had
to admit, however, that when the hope of victory Is slight
an offensive war should not be carried out; defensive war
cannot, in fact, be renounced, as is not a matter of free
will, but of need (De bello, sect. IV, no. 10). This is the

99

tragical confession of the limited practical scope of the
theory of the just. war. This theory will attain true signifi­
cance only through the establishement of international
organizations for determining, declaring and executing ques­
tions of law, which would secure for all nations, large or
small, respect for their fundamental rights, in which a genuine
international spirit should prevail. More than the organ­
ization (however necessary it may be), the spirit is what
matters, as Pius XII reminded in his Christmas Message
1939 (5th point). Because in the ultimate analysis, institu­
tions are worth no more than the worth of the men
themselves. Only experience will show whether the United
Nations Organization is capable of attaining such an
objective. This is, in any case, the fervent desire of all men
of good will.

100

The

duality of powers in the catholic conception.

CXIV. The aim of the. State and of secular power is
merely temporal — let us say, peaceful conditions, and the
' community life of the citizens.
(De,pot. civ., 15.)

CXV. One power would certainly suffice if the benefits to
which man must be directed and the evils from which he must
be kept belonged exclusively to present-day social life; but as
the life of the faithful is aimed not only at the civil end and
state, but also, and more emphatically, at the eternal values,
following the advice of the Lord (Matth. VI): «Seek first the
kingdom of God» ...it follows that to encourage and direct
men towards a supernatural end, or to redirect them if they
faulted, by means of praise, reward or fear of punishment,
another power outside the orbit of the civil is required.
. Hugo expresses this argument most elegantly (De sa­
cram., pars 2) when he says : «There is an earthly life and a
spiritual life. So that both may preserve justice and bring
profit, it was first determined who should provide and distribute
profits to them both in an equitable manner. Consequently,
if human societies cannot survive without both these lives,
spiritual and earthly, two powers are necessary so that justice

103

be preserved ...one to direct material things and govern
life, and another to direct spiritual things and govern spiritual
life».

(De pot. Eccl. prior, q. l.a, 4-5.)

CXVI. Just as it is necessary, for the State, that human
works be directed towards a human end and that there shall be
some in command and some who obey, so it is that there shall
be someone who commands and assumes the leadership of men
towards a supernatural end, in order that their works be
directed toward this end.,
(De pot. Eccl. pr., q. 3?, p. 2.a, 2.)

CXVII. All spiritual and ecclesiastical power wich now
resides in the Church comes, directly or indirectly, from divine
positive law.
(De pot. Eccl. pr., q. 3?, p. 1?, 4.)

Priority of the spiritual power founded on superior

CXVIII. It is indubitable that the spiritual (power) is
the more excellent, the more eminent, and possessed of the
supreme dignity: since different faculties, like different arts
and forces, and like all things which serve a purpose, are to be
valued according to the purpose which they serve; and since
the purpose of spiritual power excels that of temporal power
to the same extent that perfect blessedness and ultimate feli­
city excel human or earthly felicity... Spiritual power, then,
is in every way greater and more august than temporal power,
and should be accorded a veneration and obedience in like

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manner greater than the veneration and obedience accorded to
temporal power.
(De pot. Eccl. pr., q. 3.*, p. 3.*, 1.)

Indirect subordination
power (46).

of temporal power to spiritual

46) The doctrine of «indirect power», which Vitoria
develops in the following texts, is the communis opinio of
Catholic writers and has been officially adopted by the
Catholic Church. This doctrine (with the exception of some
documents distinguished by excessive verbiage, the origin
of which must be sought in thé heat of political struggles)
was already upheld by the great medieval Popes—a fact that
has not always been acknowledged· This is the case, tor
instance, of St. Gregory VII (princes are subject to the
Pope non ratione dominii, sed ratione peccati);'Innocent III

(«Non intendimus judicare de feudo, cujus ad ipsum
[regem] spectat judicium... sed decernere de peccato, cujus

ad nos pertinet sine dubitatione censura, quam in quemli­
bet exercere possumus et debemus»; in another text he
recognizes that the king of France has none superior to
him in temporal matters); Innocent IV («Temporalia et

spiritualia diversa sunt et diversos judices habent, nec unus
judex habet se intromittere de pertinentibus ad alium, licet
se ad invicem, juvare debent»). We also find it In St. Thomas
Aquinas; but its systematic and definitite expression was
chiefly due to the jesuits Suarez and St. Robert Bellarmine.
In the nineteenth century, it was solemnly reasserted by
Leo XIII in his encyclical Immortale Dei. It .will be
noted that this doctrine is opposed, on one side, to medie­
val theocracy (see note 23), and on the other, to Caesarian
papism (which aims at subjecting spiritual to temporal
power) and to the absolute separation oi spiritual and tem­
poral power (which reduces religion to a «private matter»).
Moreover, let us point out that from the Christian point
of view, the question of the relations between Church and
State is not a philosophical problem, but a theological pro-

105

blem, for the Church is not an institution of natural law,
but of divine positive law (see text CXVII). For non­
believers, the determining factor will be the effective import­
ance of the Church as a cultural and social force (cf. J.
Leclercq, Leçons de droit naturel, t. II, L’Etat ou la -politique,
2e éd., Louvain 1934, p. 117 ff.).

CXIX. Temporal power is not' derived from the Pope, as
inferior spiritual powers'are —for example, bishoprics,, or
curateships, or other spiritual powers.
(De pot. Eccl, pr., q. 3.a, p. 3.*, 2.)

CXX. Civil power is not subject to the temporal power of
the Pope.
(De pot. Eccl. pr., q. 3.’, p. 3.a, 4.)

CXXI. The Pope possesses no strictly temporal power.

(De pot. Eccl. pr., q. 3?, p. 3.*, 8.)

CXXII. Notwithstanding the truth of thé foregoing state­
ments, civil power is, in a sense, subject to the power of the
Pope — not to his temporal, but to his spiritual, power.
The proposition may be proved thus: if the end of a given
faculty is subordinate to the end of another faculty, then the
first faculty is itself subordinate to the second. ([Aristotle]
Ethics, 1 [1]). Saint Thomas (IIa-IIae, qu. 40, art. 3 [art. 2,
reply to obj. 3]) makes this same comparison. But the end of
temporal power is, in a sense, subordinate to the end of spiri­
tual power; and therefore the former power is subordinate to
the latter. The proof of this assumption is as follows : human
felicity is imperfect, and is subordinate to the perfection of
supernatural blessedness; just as the art of manufacturing

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106

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weapons is subordinate to that of soldiers and generals, while
the art of ship-building is subordinate to that of the seaman,
and the art of making ploughshares to that of agriculture,
and so on. We should not suppose, then, that civil and spiritual
power are like, two distinct and separate States, such as the
French and English nations.

(De pot. Eccl. pr., q. 3.*, p. 3.·, 10.)
CXXIII. The Pope has temporal power only so far as it is
in subservience to matters spiritual, that is, as far as is neces­
sary for the administration of spiritual affairs... And the proof
of it lies in the fact that an art to which a higher end pertains
is imperative and preceptive as regards the arts to which
lower ends pertain (Ethics, bk. I). But the end of spiritual
power is ultimate felicity, while the end of civil power is
political felicity. Therefore, temporal power is subject to
spiritual power.
(De Ind., de tit. non leg., 5.)

Organic unity of the Christian social order, temporal and
spiritual.

CXXrV. The whole Church is one body; not two bodies
resulting from two States, civil and spiritual, but one only.
This fact is made evident in the statement of Saint Paul to
which we have already referred. For Christ is the Head of the
whole Church, and it would be monstrous if there should exist
a body with no head, or if one head were joined to two bodies;
on the contrary, that which exists is a single body in which
all the members are mutually connected and properly
subordinated, the ignoble parts serving those parts which are
more noble; so also in the Christian State, all offices, ends,
and powers are properly subordinated and connected. And since

107
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«ΗΜΜΜΜΜΚΗ

it can in no wise be said that the spiritual members serve those
which are temporal, one must say that, on the contrary, the
temporal members serve those which are spiritual, and are
dependent upon them.

(De pot. Eccl. pr., q. 3.a, p. 3.a, 10.)

108

We omit the general works on international law, and the treatises
of history of philosophy and Catholic theology; in almost all of them
a more or less developed reference to Vitoria’s doctrines will be
found.
Far from seeking to establish a complete bibliography—which
is an impossible thing here, due to the large number of monographs
and articles dealing with Vitoria—we prefer to offer a selection
arranged according to the point of view’of the respective works. Such
a selection is, on the other hand, more useful than any endless
cataloguing of a very extensive bibliography. We omit, naturally,
those püblica'tions the character of which is strictly theological.
No special mention is made either of the lectures and articles
which appeared in the Anuario de la Asociaciôn Francisco de Vito­
ria. Be it sufficient to indicate that there are among them interest­
ing contributions to our knowledge of Vitoria. The re-appearance
of this important publication has been announced.

I. GENERAL CRITICAL PROBLEMS.
To the critical editions which we have mentioned in the intro­
duction, add:
'Ehrle, Franz, S. J. : Los manuscrites vaticanos de los teôlogos salmantinos del siglo XVI. 'Spanish edition by J. M. March, S.J.
(Madrid, 1930). Contents a series of articles published in Der
Katholik, 1884, p. 405-502, 632-654; 1885, p. 85-108; with additions
by Father March.
BeltrXn de Heredia, Vicente, 0. P.: Los manuscrites del Maestro
Fray Francisco de Vitoria, Ο. P. (Madrid, 1928).

777

ί·

Villoslada, R. G., S. J. : La Vniversidad de Paris durante, las sstudias
de Francisco de Vitoria (Rome, 1928).’

II, GENERAL EXPOSITIONS OF THE WORK OF VITORIA,
ESPECIALLY OF HIS THEORIES OF BOTH POLITICAL ANO
INTERNATIONAL LAW

Hinojosa, Eduardo de: Discourse of reception into the Real Aca­
demia de la Historia (Madrid, 1889).
Menéndez y Pelayo, Marcelino: Answer to Hinojosa’s discourse of
reception into the Real Academia de la Historia (Madrid, 1889).
Nys, Ernest: Introduction to the edition of the relectiones De
Indis et de jure belli, in the «Classics of International Law»
(Washington, 1917). The introduction was written in 1913.
Alonso Getino, Luis G., Ο. P. : El Maestro Fray Francisco de Vitoria
y el renacimiento filoséfico-teolégico espanol del siglo XVI (Ma­
drid, 1914).
Allevi, Luigi: «Francesco de Vittoria e il rinnovamento della scolastica nel secolo XVI.» In Rivista di filosofia neoscolastica, Mi­
lano, 1927, p. 401 ff.
Beuve-Mery, Hubert: La théorie des pouvoirs publics d’après Fran­
çois de Vitoria et ses rapports aveo le droit contemporain (Pa­
ris, 1928).
Delos, J. T-, O. P.: La société internationale et les principes du
droit public (Paris, 1929).
Alonso Getino, Luis G., O. P.: El Maestro Fray Francisco de Vi­
toria. Su vida, su doctrina e influenda (Madrid, 1930). This is
a new edition, enlarged, of the work we have already mentioned.
Mc Kenna, O. P.: «Vitoria and his time». In Francisco de Vitoria,

Addresses in Commemoration of the Fourth Centenary of his Lec­
tures «De Indis» and «De jure belli», 1532-1932, Delivered at the
Catholic University of America (Washington, 1932).
Scott, James Brown: The Spanish Origin of International Law.
I : Francisco de Vitoria and his Law of Nations (Oxford, 1934).
Scott, James Brown : The Catholic Conception of International Law
(Washington, 1934).
Mesnard, Pierre: L'essor de la philosophie politique au XVIe siècle
(Paris, 1936) pp. 454472.
Dempf, Alois: Christliche Staatsphilosophie in Spamen (Salzburg,
1937). Ch. I and II.
Labrousse, Roger: Essai sur la philosophie politique de l’ancienne
Espagne (Paris, 1938) There is a Spanish translation of this
work: La doble herencia politica de Espana (Barcelona, 1942).

112

BeltrIn de Heredia, Vicente, 0. P. : Francisco de Vitoria (Barcelona, 1939). Chapter X, an excellent summary of Vitoria's doctrines
Upon law and politics, was written by Romdn Riaza.
Solana, Marcial: Historia de la filosofia espafiola. Época del Renacimiento (siglo XVI). 3 vols. (Madrid, 1941). Vol. Ill, pp. 43-89.
PerpinX Rodrîguez, Antonio : «La doctrina de los grupos humanos
en Vitoria y Suârez.» In Revista internaciondL de sociologia, Madrid, vol. IV no. 5 (1944), pp. 177-203; vol. V no. 6 (1944), pp, 175197; vol VI, no. 7 (1944), pp. 183-200; vol VIII, no. 9 (1945), pp. 175211. A sociological point of view.

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HI. BIBLIOGRAPHY CONCERNING THE THEORY OF THE
STATE
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To the expositions of Beuve-Mery, Delos, Scott, Mesnard, Dempf,
Labrouse and Riaza, already mentioned, add:
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Tischleder, Peter: Ursprung und TrSger der Staatsgewalt nach der
Lefire des hl. Thomas und seiner Schule (Miinchen-Gladbach,
1923) Part II, ch. I.
Wright, Herbert Francis: «Vitoria and the State.» In Francisco de

Vitoria, Addresses in Commemoration of the Fourth Centenary
of his Lectures «De Indis» and «De jure belli», 1532-1932, Deli­
vered at the Catholic University of America (Washington, 1932).
NaszAlyi, Aemilius, S. O. Cist.: Doctrina Francisai de Vitoria de
Statu (Rome, 1937).
Lissarrague, Salvador: «Un texto de Francisco de Vitoria sobre la
potestad politica.» In Revista de estudios politicos, Madrid, I,
no. 2 (April, 1941).
GalXn, Eustaquio: La teoria del poder politico segûn Francisco de
Vitoria. Reprint from the Revista General de Legislficidn y Jurisprudencia, Madrid, July-August 1944.

TV. BIBLIOGRAPHY CONCERNING INTERNATIONAL LAW

A. As a whole.

To the expositions of Nys, Beuve-Mery, Delos, Scott, Mesnard,
Dempf, Labrouse and Riaza, already mentioned, add:
Barthélémy, Joseph: «François de Vitoria.» In the collective work
Les fondateurs du droit international, with an Introduction by
A. 'Pillet (Paris, 1904) pp. 1-36.

113

Nys, Ernest: Le droit des gens et les anciens jurisconsultes espa­
gnols. (The Hague, 1914).
Pfeiffer, Nicolaus: Doctrina juris intemationalis juxta Franciscwm

de Victoria, Ο. P., celeberrimum, studiorum D. Thomae saecuio
XVI instauratorem. Reprint from Xenia thomistica (Zug, 1925).

;

Barcia Trelles, Camilo: «Francisco de Vitoria et l’école moderne
du droit international.» In Recueil des cours de l’Académie de
droit international de La Haye, 1927, II, pp. 113-337.
Barcia Trelles, Camilo : Francisco de Vitoria, fundador del derecho
international (Valladolid, 1928).
Scott, James Brown: El origen espaûol del derecho internacional
■ ■·
moderno. With a prologue by C. Barcia Trelles (Valladolid,
ί'ίί
’
1928).
ιί
De la Briere, Yves, S. J.: La conception du droit international chez
les théologiens catholiques. Lectures publ. by the Centre Euro;
péen de la Dotation Carnegie (Parts, 1929). Fourth and fifth
lessons.
i Λι
Menéndez-Reigada, Ignacio G., O. P.: «El sistema ético-juridico de
Vitoria sobre el derecho de gentes». In Cientia tomista, year 21
ji H
(1929) vol. 39, pp. 307-339.
r <!
Von der Heydte: «Franciscus de Vitoria und sein Vôlkerrecht.»
«In Zeitschrift für Vôlkerrecht, Vienna, XIII (1933) p. 239 ff.
ή;ί
.
Wright, Herbert: Catholic Founders of Modem International Law
p i}
(Washington, 1934). (Reprint from the Reports of the American
I ii
Catholic Historical Society, Philadelphia, PA., June 1934).
j-H
Hentschel, Rolf: «Franziskus de Vitoria und seine Stellung im
lid
.
Uebergang vom mittelalterlichen zum neuzeitlichen Vôlker;
recht.» In Zeitschrift für offentliches Recht, Vienna, XVII (1937)
• rt i
pp. 319-391.
U’ f
De la Pradelle, A.: Maîtres et doctrines du droit des gens (Paris,
:■!j.j
1939), pp. 2540.

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In its particular aspects.

Nys, Ernest: Le droit de la guerre et les précurseurs de Grotius
(Brussels, 1882).
Nys, Ernest : Les droits des Indiens et les publicistes espagnols
(Brussels, 1890).
Albertini, Quillcus: L’oeuvre de Francisco de Vitoria et la doctrine
canonique du droit de guerre (Paris, 1903).
Phillïpson, Coleman: «Franciscus a Victoria (1480-1546). International Law and War.» In Journal of the Society of Comparative
Legislation, new series, XV (1915).

114

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Vanderpol, Alfred: La doctrine scolastique du droit de guerre (Pa
ris, 1919).
Torres Lôpez, Manuel: La doctrinla de. Santo Tomds sobre la guerre»
justa y sus influendas en la de Francisco de Vitoria (Grenade,
1928).
Foignet: Le droit de colonisation. Etude de morale sociale et internationale. (Paris, s. a. [1930]) pp. 5072.
Baumel, Jean: Le droit international public, la découverte de l'Amé­
rique et les théories de Francisco de Vitoria (Montpellier, 1931).
Beaufort, D., O. F. M.: La guerre comme instrument de secours
et de punition (The Hague, 1933).
Catry, Joseph: «La liberté du commercé international d’après Vitoria, Suarez et les scolastiques.» In Revue générale de droit international public, Paris, XXXIX (1932) pp. 193 ff.
Puig IPena, Federico : «La influencia de Francisco de Vitoria en la
obra de Hugo Grocio.» In Revista de ciendas juridicas y socioles, Madrid, XVI (1933) pp. 543-606; XVII (1934) pp. 12-113;
213-314.
Regoüt, Robert, S. J.: La doctrine de la guerre juste de saint Au-

gustin à nos jours d’après les théologiens et les canonistes catholiques (Paris, 1935).
Zavala, Silvio A.: Las instituciones juridicas en la conquista de
América (Madrid, 1935). Part I.
Kipp, Heinz: Problème des Kriegsrechts in der Spatscholastik.Eine
rechtsphilosophische Studie übez die Voraussetzungen des Rechts
zum Kriege bei Vitoria und Suarez (Paderborn, 1935).
Baumel, Jean ; Les problèmes de la colonisation et de la guerre
dans l’oeuvre de Francisco de Vitona (Montpellier, 1936).
Andrés Marcos, Teodoro: Vitoria y Carlos V en la soberania his­
panoamericana (Salamanca, 1937).
Andrés Marcos, Teodoro: Mds sobre Vitoria y Carlos V en la sobe­
rania hispanoamericana (Salamanca, 1939).
Delos, J. T., Ο. P-: «L’expansion coloniale dans la doctrine de Vito­
ria et les principes du droit public moderne». In the work Vito­

ria et Suarez. Contribution des théologiens au droit international,
publ. by the Association Vitoria-Suarez (Paris, 1939), pp. 251 ff.
Gasa, F.: «Francisco de Vitoria y su doctrina sobre la ocupaciôn
y conquista coloniales». In Revista de Derecho internacional,
Havanna, XXXVI (1939), pp. 77-116; 145-169; XXXVII (1940),
pp. 34-53; 190-204.
ândrîs Marcos, Teodoro: Final de Vitoria y Carlos V en la sobera­
nia hispanoamericana (Salamanca, 1942).

."175

Garcîa Prieto, Lucas, O. S. A.: La paz y la guerra. Luis de Molina
y la escuela espanola dei siglo XVI en reiaeiôn con la cientia y

'■ >

el Derecho international moderno (Saragossa, 1944).

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Carro, Venancio D., O. P.: La teologia y los teôlogos-juristas espa-

fioles ante la conquista de América (2 vols. Madrid, 1944).

(Those naines which are included only in the bibliographical note
are not mentioned here. The numbers refer to the pages.)

Aegidius Romanus. 60.
Alonso Getino, Luis G., Ο. P.
22 f.
Alvarus Pelagius. 60.
.
Aristotle. 29 f„ 36, 41, 43, 59, 63,
79, 106, 107.
Atlantic Charter. 62, 64, 71, 72.
St. Augustine. 30, 39, 55, 77.

Bate, John Pawley. 22, 24.
Baumel, Jean. 22.
Bellarmine, St. Robert, S. J. 14,
105.
Beltrdn de Heredia, Vicente, O.
P. 15, 22 ff.
De Bonald. 37.
De la Brière, Yves, S. J. 23, 87,
92, 94 f.
Cajetan, Cardinal. 65, 72, 99.
Chapultepec Act 59, 71, 72.
Corpus juris civilis. 62, 63, 77.
Council of Trent, see Trent,
Crockaert, Peter. 15.
Dante. 60.
Delos, J. T.. Ο. P. 41.

Egidio Colonna, see Aegidius
' Romanus.
Epicurean philosophy. 63.
Erasmus of Rotterdam, 16.
Fathers of the Church. 39.
Fenarius. 15.

Gaius. 53 f.
Galân, Eustaquio. 45 f.
Gonzâlez, Zeferino, Ο. P. 21.
St. Gregory VII. 105.
De Groot, Hugo, see Grotius.
Grotius, Hugo. 55, 63.
» -

Hague Convention, Fourth, 1907.
91.
Hegel. 94.
Heraclitus. 86
Hobbes, Thomas. 37, 63.
Hugo of St. Victor. 103.

Innocent III 105.
Inter American Conferences. 71,
72.
Innocent IV 105.
St. Isidore of Seville. 53 f.

117