BY ERNEST NYS.
Translated from the original French by John Pawley Bate.
One of the masters of the philosophy of history, Robert Flint, makes the remark that it is at a comparatively late stage that any science definitely separates itself from contiguous fields of knowledge and assumes an independent form. In the early part of the seventeenth century the Law of Nations was established in this manner as an independent domain, if I may so express it. As Flint says, the man of genius who is called the founder of a science merely brings together its already existing elements; he confines himself to uniting its disjecta membra and breathing into them the breath of life. Such was the role of Hugo Grotius and such was the effect produced by his treatise, De jure belli ac pacis (Paris, 1625). That celebrated writer had had precursors, but it is correct to say that none of them had considered the subject in its entirety. Confining themselves to given portions of it, some had made a special study of the laws of war, others of the law of embassy, and some few in number, it is true had devoted themselves to the examination of certain maritime questions arising in time of war. Furthermore, theologians and canonists and civilians, in many passages of their voluminous writings, had expressed their opinions with regard to the justice of war, the capture of enemy property, the fate of prisoners of war, and other problems arising in the relations of political communities. It must be borne in mind, too, that from the eleventh or twelfth century of our era the genius of Europe displayed itself in the form of an association of republics and principalities and kingdoms, which was the beginning of the society of nations. Elements had, undoubtedly, been borrowed from Greek and Roman antiquity, from Byzantine institutions, from those Arabo-Berber sultanates which had established themselves along the north coasts of Africa, and from the Moorish kingdoms of Spain; but new sentiments were showing themselves and generating aspirations towards political liberty. The members of this association were united by religious bonds; they had the same faith; they were not widely separated by speech, and at any rate, Latin, the language of the Church, was available to them; they admitted a certain equality or at least none of them claimed the right to dominate and to rule over the others. A formula came into use which gave expression to these diverse conceptions, Respublica christiana, Res christiana. In theory the civilians undoubtedly attributed to the elected heads of the Holy Empire those rights and privileges which the classical jurists had recognized in the Roman Emperors; these were, however, merely pompous phrases which led in reality to no serious result and which, even as the grandiloquent expression of a theory, did not survive the first half of the fifteenth century. Following the closing years of the fourteenth century, the kings of France affirmed their complete independence. In England all subordination to the Empire was denied; Edward II, King of England, had declared, "Regnum Angliae ab omni subjectione imperiali esse liberrimum." Imperial pretensions had likewise been repulsed in Spain.
The respublica christiana comprised a considerable number of members. Allowing for different degrees of independence, these members were estimated at 2,000. This means that supremacy was difficult or even impossible; for at the first attempt to gain an exclusive domination, leagues would be formed among the oppressed with a view to destroy or weaken the oppressor. Moreover, the strength of this Empire and of these kingdoms, republics, and principalities, must not be exaggerated; exact figures we have none, but from calculations that have been made it appears that in 1480 the population of Europe barely exceeded 50,000,000, and it is an interesting detail to note the estimate that the population of France was 12,500,000, of Italy a little over 9,000,000, of Spain nearly 9,000,000, and of England 3,700,000.
In the thirteenth and fourteenth centuries the introduction of the epoch in question into the international world (as we may call it) was criticized as a great subversion by jurists imbued with the Roman tradition. In their system different peoples were only "sections of the Roman Empire," sectiones Romani Imperii. To the Romans the term jus gentium signified in the wide sense the law common to civilized peoples and included both public and private law; in the narrow sense it meant the principles governing the relations of the Roman people regarded as a whole with foreign peoples similarly regarded. Jurists had shown how the jus gentium in the narrow sense gave rise to the formation of distinct peoples and consequently to the foundation of kingdoms, to the intercourse of political communities and in the end to wars. In the thirteenth and fourteenth centuries the glossators and commentators, who upheld the claims of the Holy Roman Empire, taught that this idea of a jus gentium, which would give rise to the formation of distinct peoples, led to the destruction of unity. In their eyes the Law of Nations became a reproach. In the gloss of Accursius this law appears as the work of men. "They needed statutes, statuta, it is said, and therefore they drew up a great number of them, notably on war and captivity; collected, they were called the Law of Nations."
That which publicists have styled Law of Nations, law between nations, European public law, international law, does not yet appear as a distinct science in the middle ages. But, as we have seen, theologians, canonists, and publicists were already discussing a certain number of questions dealing especially with belligerent relations. Wars, it is well to point out, were frequent and they were not limited to wars between political communities or princes; the pest of those distant ages was private war, Faustrecht, Faida, as it was called; it was the right, broadly speaking, of every free man to seek his own justice by attacking whomsoever wrought him ill and by bringing his entire family into the quarrel. The Church strove energetically against this hateful state of things; the provisions inserted in the collections of canon law relating to resort to arms, and originating in canons issued by Councils or in decretals published by the Popes, are concerned with private rather than with public warfare, and that is why authors discussed so long the question whether the rules concerning the Treuga Dei, the truce of God, applied to public war. In most countries the central authority, however weak it might be, set itself the task of extirpating the mischief by requiring for private war the observance of certain conditions, by reducing the number of those who had the strict right to make it, and by imposing certain delays upon them. Here, too, writers accomplished their duty; theologians, canonists, and civilians were at one in reserving the right of making war to princes and to the heads of political communities.
Among the men who exercised a beneficent and lasting influence in these matters may be named Gratian and St. Thomas Aquinas. Gratian taught at Bologna, and between 1139 and 1150 drew up a collection meant to be used in teaching canon law; this was the Concordia canonum discordantium, or, as posterity called it, the Decretum. Gratian made himself the champion of the claims of the Holy See, and thus he gained, in the greater part of Christendom, partisans who disseminated his work, made use of it as a manual for teaching, and commented upon it. In order to give an idea of the importance of the Decretum, it is enough to recall that it was reproduced in numerous manuscript copies and that after the invention of printing it went through manifold editions. The first printed copy was made at Strassburg in 1471; and from that date only up to 1500 as many as thirty-nine editions can be counted. Gratian treated of war in Causa XXIII of the second part of the Decretum. He propounds eight questions. He admits that war may be lawful, but he stipulates as a condition that it be imposed by necessity, and he describes it as a situation in which action must not be based on cupidity nor attended with cruelty, but must be directed toward the securing of peace.
St. Thomas Aquinas also exercised extraordinary influence here. He had taught at Paris, at Cologne, at Rome, and in different cities of Italy. In 1274 he was appointed to take part in the labors of an Ecumenical Council, but he died March 7 of that year, in a convent of the diocese of Terracina, during his journey to Lyons, where the Council took place. He was 48 years of age.
The great work of St. Thomas Aquinas is the Summa totius theologiae, the composition of which began in 1265 and occupied the last nine years of the author's life. St. Thomas has devoted to the law of war the fortieth question of the Secunda secundae. In four articles he examines the following points: "Is it always a sin to make war? Is it lawful for clerics and bishops to make war? Is it lawful to lay ambushes in war? Is it lawful to fight on feast days?" Needless to say, in all the pages in which the author answers these questions he displays moderation and humanity and a spirit of conciliation; many of his phrases have become maxims which have been repeated and approved by the writers of the following centuries in their dissertations on the law of war.
A writer has pronounced the following just judgment upon St. Thomas Aquinas: "He does not make his appearance in history as an inventor, as the initiator of a new doctrine which aroused at one and the same moment enthusiastic adhesion and passionate hostility. His task and his mission seem to me to have been rather to sum up and coordinate, in a spirit of great moderation and with much perspicacity, logic, and good sense, the most widely spread, or at any rate the most powerful, doctrines of his time, in such a way as to form of them an harmonious whole fitted for the uses of instruction; for in his works one can always trace the teacher."
Without in any way lessening the personal worth of St. Thomas Aquinas, it may be asserted that his influence was largely due to the fact that he belonged to the Order of Dominicans founded by St. Dominic Guzman. In 1205 the latter had begun to preach in Languedoc against the Albigenses, but the labor of conversion the "holy preaching," as it was called produced hardly any results. Some years later he founded an institute for preaching at Toulouse; this was the modest beginning of an institution which was destined to extend throughout the centuries over the whole world. In 1215 he obtained the help of the bishop. As the general council, held in the same year, had forbidden the creation of new orders, he could not gain the support of Innocent III; but in 1216 he received the approbation of Honorius III. The Order of Friars Preachers then consisted of seventeen members; at the death of St. Dominic, which took place in 1221, the work was nourishing, there being sixty houses in different countries of Christendom and more than five hundred brothers. It was only under the pontificate of Gregory IX, who reigned from 1227 to 1241, that the Dominicans found themselves invested with judicial powers in questions of heresy, as the mandataries of the Holy See and assessors of bishops.
In 1219 Honorius III, when recommending the new Order spoke exclusively of the preaching to which its members were dedicated. The preaching of the faith required a doctrinal preparation, and study was therefore deemed obligatory. "The Dominicans," writes an author, "had to have a special training in everything that could help in the refutation of heretics and in the defense of the faith. They were to study metaphysics only within the limits set by their constitutions. They were forbidden to give themselves to subtle speculations and to cultivate alchemy. Morals, theology, and the study of the Liber sententiarum of Peter Lombard, a vast theological encyclopedia, had precedence over philosophy. It was then impossible to study theology without a thorough knowledge of logic."
In our own day a member of the Order has paid a well-deserved tribute to the Dominicans: "According to the institution of St. Dominic," says he, "study is an obligation of rule for the Friar Preacher, and a universal, necessary, and permanent function. And without going as far as the celebrated Cardinal Cajetan, who held that every Dominican failing to devote four hours a day to study is in a state of mortal sin, it is certain that a Dominican who does not ordinarily busy himself in intellectual work is not doing as he should and offends gravely against the Rule."
One of the favored books of the Dominicans was, of course, the Summa totius theologiae of the man who was the glory of their Order as he was the honor of the whole Church. The doctrines taught by St. Thomas were thus echoed far and wide.
In the last half of the fourteenth century books began to appear which their authors had devoted to special parts of what now forms the Law of Nations. We may mention, as the most ancient of the works of this kind which have been preserved, the treatise De bello of Joannes de Legnano, a professor at Bologna, where he died in 1383. This writer had on several occasions been charged with diplomatic missions. He busied himself at the same time with law, theology, philosophy, morals, and astrology. As regards astrology, the lucubrations which figure in his book are curious, but there was nothing in them to shock his time. Another work is l'Arbre des batailles of Honoré Bonet. He was born in Provence and belonged to the Order of St. Benedict. In 1368 he was then at least twenty-five years old he went to Rome. In 1382 he was presented with the benefice of Selonnet in the diocese of Embrury. We see him next at the University of Avignon, where he became doctor decretorum. His work was probably composed about 1384. One part is devoted to the law of war. In 132 chapters the author treats of the origin of war, of the lawfulness of war against infidels, of the rights of the Emperor, of the Pope, and of kings as regards war, of questions about things taken from the enemy, ransom of prisoners, and similar matters. These curious and interesting pages are full of noble sentiments.
Let us mention that Christian de Pison utilized the work of the Prior of Selonnet in his Traité des faits d'armes et de chevalerie. Honoré Bonet and Christian de Pison were not without a certain influence. L'Arbre des batailles was in fact reproduced in superb manuscripts which formed parts of the libraries of great princes, and after the discovery of printing it went through several editions. The work of Christian de Pison obtained its share of honor also.
Grotius has given us the names of some authors. He refers to special works, "composed, some by theologians, such as those of Franciscus de Victoria, Henricus de Gorcum, Wilhelmus Matthaei, and Joannes de Carthagena; others by jurists, such as those of Joannes Lopez, Franciscus Arias, Joannes de Legnano, and Martin of Lodi." He blames these authors for a want of order and exactitude and especially for ignorance of history. He recognizes that Peter du Faur de Saint Jovis has attempted to supply this lack in some chapters of his Semestria, and that two other writers, with the same end in view, have more comprehensively illustrated certain definitions and general maxims by the examples which they gathered. "I refer," says he, "to Balthazar Ayala and Alberico Gentili, especially the latter, from whose work I admit that I have derived some help, and I think that others will be able to profit by it." Beside these remarks Grotius furnishes some general information, pointing out, among the authors whom he has consulted for the law of nature and the law of nations, the writers of classical antiquity, the Fathers of the Church, the scholastics, "who often manifest great genius," and the jurists who had made a special study of Roman law. Among these jurists he mentions Irnerius and his successors, "such as Accursius, Bartolus, and a great number of others who for a long time have been recognized as authoritative at the bar," and those who have combined the pursuit of belles-lettres and the study of law. He also alludes to Alciati and his disciples and indicates by name Covarruvias, Vasquez, Bodin, and Hotman. Among all these writers there is one whose correct name was discovered only thirty years ago, Wilhelmus Matthaei. The real name is Wilhelmus Mathiae, author of the Libellus de bello justo et licito, which appeared at Antwerp in 1514.
Among these names we note that of Franciscus de Victoria, the subject of this essay. It was not only in the De jure belli ac pacis libri ires that Grotius referred to him; he had previously done so several times in the De jure praedae commentarius, which he had written in 1604 and which was published in 1868 under the care of Professor Hamaker.
Before Franciscus de Victoria the law of war had been the subject of studies by Spanish authors. At a time when the science of the Law of Nations had not yet taken form, we find St. Isidore, Bishop of Seville from 596 to 636, inserting in his work entitled Etymologiae a definition or rather a description of the jus gentium which approaches closely to the modern conception. According to Heinrich Dirksen he had borrowed his texts concerning jus naturale, jus civile, and jus publicum from the Institutes of Ulpian, wherein the jus militare was placed side by side with the jus gentium and made a subject of treatment. The jus gentium of St. Isidore corresponds almost exactly to our international law and classified by the side of it is the jus militare, a statement of the matters which compose the law of war. These passages about the jus gentium and the jus militare are to be found in the fifth book of the Etymologiae; in the eighteenth book the author treats of war and enumerates the various kinds. One circumstance, moreover, helped to give exceptional importance to the utterances of the learned bishop on the law of war: in the twelfth century Gratian inserted them in his collection together with other texts of the same author, and as the Decretum was the subject of discussion and comment for centuries, and as it is still an integral part of the Corpus Juris Canonici, they have acquired a considerable importance in education and in doctrine.
Mention must be made of St. Raymond of Peñafort. Born between 1175 and 1185, in the castle of Peñafort in Catalonia, he studied at the university of Bologna, where he became a doctor of law and where he taught from 1216 to 1219. Returning to Spain, he was made canon of Barcelona and in 1222 he entered the Order of St. Dominic. He was then called to Rome by Gregory IX, to form a new canonic collection from earlier compilations and the decretals of this Pope. In 1238 he was chosen to be general of the Dominican Order, but at the end of two years he resigned the position. He came home again and strove for the unity of the faith against heretics, Jews, and Mussulmans. He showed himself a great advocate of the study of oriental languages, having especially in view the training of friars able to preach the Christian faith. He died in 1275. In addition to the collection of the Decretals of Gregory IX, St. Raymond of Peñafort composed the Summa poenitentiae, wherein questions relating especially to the law of war are the subject of examination.
A monument of legal science, curious alike for the number of topics treated, and for what one might call the precocity of a great number of its provisions, which really are far in advance of the time at which they were put forth such is the collection known as Las siete partidas. This was the work of King Alfonso X of Castile, who had as collaborators Jacome Ruiz, Fernando Martinez, and Roldum. The Siete partidas deal with ecclesiastical law, politics, legislation, procedure, and penal law; the law of war is the subject of extremely detailed regulations. In the second Partida, some chapters are given to military organization and to war. As regards war, much is borrowed from the Etymologiae of St. Isidore of Seville, of whom we have just spoken, and in many respects the influence of Mussulman law is very apparent. Maritime law is also dealt with. Commenced in 1256, the compilation took seven years to complete.
It is proper to mention here one of the great theologians of Spain, whose works contain considerations concerning war and the canonic rules relative thereto. Alfonso Tostado was born in Castile about the year 1400; he studied in all probability at Salamanca and attained distinction as a theologian and a canonist. He became bishop of Avila and took part in the labors of the Council of Basel. He died in 1455. In the Venetian edition of 1596 the works of Tostado occupy twenty-three volumes folio; the title-page of the first volume sings the praises of the author: He was "philosopher, theologian, very learned in the law, both canon and imperial, skilled in Greek and Hebrew;" the preface adds that he was erudite in mathematics and geography. Some sentences of his writings deserve citation. He reminds us that "Bellum justum est justitiae executio," just war is a mode of legal execution. According to his teaching, "in a just war everything that a man can seize becomes the property of the captor, both by divine law and by the Law of Nations, and it is just to kill; but an unjust war does not differ from public brigandage." He adds that "in a just war there is nothing that may not be wrought upon the enemy, except a violation of truth." "Wars are just when they are undertaken in order to obtain redress for injuries, restitution of property, or recompense for wrongs done. Once commenced, a just war may be continued until the wrongs done, the property seized, and the expenses incurred have been made good." The author has before his eyes, we must point out, not only public war, but also private war, when it is conducted in accordance with the rules laid down by the law of the country. Let us add that Alfonso Tostado maintained in his writings the thesis that ecumenical councils were of higher authority than the popes.
Mention should be made of Gonsalvo of Villadiego. He was born at Villadiego in the diocese of Burgos. He studied at Salamanca, where, after taking the doctorate in law, he was appointed a teacher.
Canon of Toledo in 1476, he was nominated by Ferdinand and Isabella to hold the position of "auditor" for the affairs of Spain in the tribunal of the Roman Rota. He died at Rome shortly after his promotion to the episcopal see of Oviedo. He wrote a Tractatus de legato.
Joannes Lupus (Juan Lopez) was a native of Segovia. We possess certain information about him. We know that he went to Rome, where he was imprisoned in the Castello del Sant' Angelo, but we do not know the reason of his detention. In volume XIII of the Tractatus universi juris of Francesco Ziletti, first part, first folio, a letter is to be found dated the sixth day before the kalends of September, 1491; it was written in the town of Siena by Joannes Lupus, Sedis Apostolicae protonotarius et Segobiensis decanus. Lopez was vicar of the Archbishop of Siena, Cardinal Piccolomini, afterwards Pius III. He died at Rome in 1496. One of his writings, De matrimonio et legitimatione is dated from the Castello del Sant' Angelo, the sixth day before the kalends of November, 1478. Two other of his writings are entitled: De confoederatione principum and De bello et bellatoribus.
We may also mention Franciscus Arias de Valderas, a native of the ancient kingdom of Leon. About 1530 he was a member of the Spanish college at Bologna; in 1532 he upheld a thesis at Rome, which, after receiving a little amplification, was published in 1533 in the capital of the Christian world under the title De bello et ejus justitia. Arias is a lover of peace, but it must, with regret, be stated that he admits the persecution of heretics and that he cites in this connection the example of Jesus chasing the money-changers from the Temple.
In the history of humanity there has been no epoch comparable in importance to the glorious years which mark the end of the fifteenth and the beginning of the sixteenth century. Then took place that event, the greatness of which can not be exaggerated, the discovery of the New World in other words the addition of an immense field to the theatre of human activity and the inclusion of the whole globe within the scope of man's political activities. How the imagination must have been struck when there came to the countries of Europe, where the Christian commonwealth the respublica christiana was concentrated, first the news that the bold expedition of Christopher Columbus had resulted in the discovery of lands of which no one up to that time had known the existence, and then on numerous other occasions the further news of the struggles of the conquistadores the happy issue thereof, and the conquest by the Spaniards of countries endowed by nature and containing the greatest riches. The discovery by the Portuguese of the route to Asia by way of the Cape of Good Hope could not have seemed less marvellous and astonishing to the most vivid imaginations. And as a still further addition to these deeds, thirty or forty years previously the art of printing had been discovered, thus furnishing the precious means of communicating writings and of securing for them circulation and diffusion. Is it necessary to recall that in the same era there took place that glorious movement which is called the Renaissance, and thanks to which, cultivated intellects found themselves once more in the presence of classical beauty? In so far as Spain is concerned, fresh causes of rejoicing appeared for the writers of this epoch: Christians, they saw the triumph of the cross over the crescent; Spaniards, they saw, in their complete victory, the termination of the wars which their ancestors had for so many centuries waged against the Moors.
In this most important epoch lived Franciscus de Victoria, the man whose life and works are the subject of these pages.
Franciscus de Victoria receives his surname from Vitoria, the chief town of Alava, where he was born in 1480 according to some writers, but in the first years of the first decade of the fifteenth century according to others. His parents removed to Burgos when he was still a child and it was there that he received the first elements of learning. While yet young he took the Dominican habit in the convent of San Pablo at Burgos, one of the three great houses of the Order in Castile; in so doing he followed the example of his elder brother, who had already become a member of the Order. After the conclusion of his novitiate, Franciscus de Victoria was sent by his superiors to Paris, where the Order had a college. The Friars Preachers had been able to install themselves, August 6, 1218, in a guest-house for poor foreigners, founded by Jean de Barastre, dean of St. Quentin and chaplain to the king, and on the January 3, 1221, they had been solemnly confirmed in the ownership thereof. The house of St. Jacques had not been long in procuring admission into the University, and agreements had been concluded with regard to lectures and degrees agreements, let us note, which gave rise to frequent conflicts. It was there, we may remind the reader, that, at the time of the French Revolution, were held the meetings of those who, because of the place where they met, were called Jacobins.
At Paris one of the teachers of Franciscus de Victoria was Peter Crockaert, Petrus de Bruxellis. This man was born at Brussels about 1460; at first an ardent disciple of the Scot, John Mair, and like him a nominalist, he became a Dominican in 1503 and displayed the greatest zeal for St. Thomas Aquinas; in one of his books, where he treats of questions relating to the logic of Aristotle and touches on one point of the doctrine of the Angel of the School, he styles himself Divi Thomae doctrinae interpres et propugnator acerrimus. Very close bonds attached Franciscus de Victoria to the Belgian theologian; for in 1512 he supervised the printing of a work by him, a commentary on the Secunda Secundae of the Summa of St. Thomas. Crockaert, already reader of the Sententiae, took the degree of bachelor, and in 1510 he became a licentiate. He died in 1514.
Franciscus de Victoria found his own merit recognized. In 1513 he was designated by the general chapter of the Order held at Genoa for promotion to the degrees, and two years later he was confirmed by the general chapter held at Naples in the office of lecturer on the Libri sententiarum of Peter Lombard. In 1520 he was admitted to the Sorbonne and on March 24, 1521, he obtained the degree of licentiate in theology.
In his studies on Spanish law Eduardo de Hinojosa has said that, if Spain had notable theologians before Franciscus de Victoria, it is nevertheless to him that the revival of theology is due. It is incontestable that Franciscus de Victoria not only gave a vigorous impulse to the science of his choice, but that he also impressed a new character upon it; he embellished and enlarged it; thanks to him, the majority of Spanish theologians renounced the incorrect, rude, and barbarous form of their predecessors; thanks to him, ideas came to take the place in discussions formerly held by phrases; thanks to him also, other sciences were drawn upon in the study of theology. It is thus that in his lectures devoted to the rights of the Indians and to the law of war, problems are treated not as if they were without practical and actual interest, designed merely to exercise the reason and to furnish the opportunity for objections and refutations, but as questions raised by grave events, the solution of which is of interest to all men of heart, since in practice it often leads to serious consequences. Moreover the illustrious publicist does not content himself with a vain display of erudition; he is full of generosity and of kindness and his teaching breathes the noblest sentiments.
Writers have attributed to the University of Paris the merit of having taught Franciscus de Victoria the doctrine which he merely transported into Spain. To be content with such an explanation one must be ignorant of the state of education in the capital of France at the beginning of the sixteenth century and not know that neither the love of innovation nor even mere curiosity of mind had any influence on the great majority of the teachers, for whom all science consisted in endless disputes on words and about words. In saying this we have no thought of reproaching the University of Paris for having pronounced against the teaching of Luther and for having condemned it. Other universities had already rebuked him. The reformer was, moreover, a menace to the existence of ecclesiastical institutions and he had to expect violent attacks. But even within the bounds of orthodoxy it was very necessary to maintain a hostile attitude to all who were not thoroughly imbued with the idea that the doctrines of the past were the perfection of wisdom. In the closing years of the fifteenth century Erasmus lived in Paris and saw the masters at work; he assuredly had sound judgment, and here is the verdict which he pronounced upon them: "Are there any brains more imbecile than those of the theologasters? I know nothing more barbarous than their speech, more coarse than their understanding, more thorny than their teaching, more violent than their discussions." "In 1500," writes Louis Delaruelle, "the University of Paris in its organization and in its methods is almost the same as it was a century earlier. It is always the formidable machine constructed in the Middle Ages for the manufacture of theologians. Everything there continues to be subordinated to this end. The study of literature consists entirely in that of grammar and is relegated to the lowest grade of instruction. Logic is ever the science of sciences; disputation continues to be preferred to any deep study of authors."
In 1527 Pierre de la Ramée, Ramus, studied at the University of Paris. "When I came to Paris," he wrote at a later date, "I fell into the subtleties of the sophists, and I was taught the liberal arts by question and disputation without ever being shown a single other advantage or use in them." To demonstrate the vice of this kind of instruction, let us say that disputation was all in all in it. "There is disputation before dinner," wrote Juan Luis Vivès in 1531, "there is disputation after dinner; there is disputation in public and in private, in every place and at every time. The bursars of the colleges held disputations every Saturday; each in his turn was 'respondent' (respondens) and 'opponent' (opponens)." Ramus, whom we have quoted above, gives a more complete description still. "I believed then the scholar must believe (so says Aristotle) that there was no particular need to trouble myself about the nature or aim of logic, but that the only thing to do was to make it the object of our shouts and our disputes; I accordingly disputed and I shouted with all my might. If the business in hand was to defend in class some thesis on the categories, I believed it my duty never to yield to my adversary, were he a hundred times right, but to hunt for some fairly subtle distinction in order to embroil the whole discussion with it. If on the other hand, I were the assailant of the thesis, then all my care and effort were directed not to the enlightenment of my adversary, but to beat him by some argument, whether good or bad; so I had been taught and trained. The categories of Aristotle were like the ball with which we used to play our childhood's game and which we had to get back by our shouts when we had lost it, but which on the contrary we must not let any noise dispossess us of when once we had got it. I was then convinced that all logic reduced itself to a discussion about logic with vehement and furious words."
So it was obviously not among the masters of philosophy or theology in Paris that Franciscus de Victoria was enabled to acquire the precious possession wherein were united the spirit of research and of innovation, the tendency toward progress, the love of his neighbor, and the sentiment of solidarity. Nature had endowed him with great qualities; in himself there reposed a strength that nothing was to curb or to stifle. He had, then, the good fortune to find himself in surroundings favorable to the development of his innate gifts. In reality everything demonstrates that he was in constant communication with the humanists who, side by side with the representatives of official instruction and despite their hostility and anger, were at that time making the capital of France the center of a vast movement of reconstruction.
In 1520, during his stay in Paris, Franciscus de Victoria became intimate with one of the most deserving of the humanists, Josse van Assche, Jodocus Badius Ascensius, Josse Bade, as French writers called him. This latter was born at Ghent. After having gone through a course of study at the University of Louvain, he had betaken himself to Italy, where he had studied Latin and Greek; later he had taught at Valencia and Lyons and then he had established himself as a printer at Paris, and, without abandoning his literary labors, had published a number of works, among which were many that were written or at any rate annotated by the representatives of the reconstruction theories.
The name of Franciscus de Victoria figured on the title-page of two volumes of sermons by Pedro de Covarrubias, a Spanish Dominican: this shows that he had revised the work. Doubtless if this were an isolated fact, it would not justify any forcible conclusion; but other facts can be added to it which show that Franciscus de Victoria was no stranger in this "republic of letters," as it has been called, which dates its beginning from the year 1516 and of which Erasmus was the recognized head. When in 1527 a campaign of denunciation was started in Spain against this illustrious savant, he addressed a letter to Franciscus de Victoria; and their common friend, Juan Luis Vivès, testified to the eminent qualities of Victoria, and assented that he had affection and adoration for Erasmus.
Thanks to being brought into contact with men animated by noble sentiments, Franciscus de Victoria undoubtedly found his natural leanings strengthened and received help from this beneficent influence for taking in hand the defense of the just cause of the Indians. In treating of the cruel topic of the law of war, he asserted principles which bore the imprint of moderation and humanity. Almost the whole of the pacific movement at the beginning of the sixteenth century issued from humanism, and this had produced its effect on the thought of the Spanish publicist.
Shortly after 1521, Franciscus de Victoria returned to his own country, where he was appointed first regent of the Dominican College of Saint Gregory at Valladolid. In 1526 the primary chair of theology at the University of Salamanca became vacant by the death of Pedro, or rather Pablo, of Leon, who had held it since 1507. It was thrown open to competition and on September 7, 1526, the judges awarded it unanimously to Franciscus de Victoria, who was sworn in before a notary on September 21 and occupied the position until his death.
A member of the Order of St. Dominic has tried recently to show, by following the information supplied by contemporaries, the method of instruction and the professorial qualities of the great man.
"Franciscus de Victoria," he writes," came up to all hopes, he even surpassed them. Under his powerful direction the College of Salamanca attained a position unique in Spain. His manner of teaching distinguished him from most of the other professors. Instead of the aridity of scholastic formulas, which he employed only in order to lay the bases of his teaching, he knew how to bring out eloquently their beauty and their grandeur. He did not despise elegance of diction; he loved to support the conclusions of theology by happy citations from the Fathers and by the facts of ecclesiastical history. His courses, made attractive by the grace of his language, rapidly reached universal favor. Solidity of doctrine with elegance of instruction, this is what was afforded by the long professorate of Franciscus de Victoria. For twenty years he filled the chair of theology at Salamanca, from 1526 to 1546, that is, until his death. He had the shaping of most illustrious disciples: Melchior Cano, Domingo Soto, Bartholomew of Medina, and many others boasted of having had him for their master. It was he who, according to their own admission, as well as according to the admission of savants outside the Order, restored theological teaching in Spain; it was he who, uniting solidity of doctrine to a literary style, provided the method which it was necessary to follow in order to win back for theology the place of honor. He did not write, but his disciples, greedy to hear him, piously gathered together his learned discourses. At least some of them were subsequently published."
The contemporaries of the incomparable professor were unanimous in extolling his talent for exposition. They also praise him for having dictated to his pupils. This method was undoubtedly not new. It had been employed at Paris for more than a century; it was also employed in other French universities; doubtless it appeared useful because the Spanish teachers had carried improvisation to the point of abuse and had too often preferred grandiloquence and inflated phrases to clearness and simplicity and precision.
The pupils of Franciscus de Victoria felt bound to pay homage to their master. One of the most illustrious of them, Melchior Cano has done honor to him in magnificent terms. "Spain," writes he in De locis theologicis libri duodecim, " has received this eminent master of theology from the great goodness of God." He calls him sacrae theologiae restaurator cui debent Hispaniae quod veram theologiam docuerit. He adds that he has increased, enriched, and rendered more illustrious the doctrine of Saint Thomas: "What doctrine I have," he goes on to say, "worthy of the approval of the wise, what skill I have in the judgment of men and things, what literary culture I have above other scholastics and utilize in my works, doctrine, judgment and eloquence I owe all to this man, whom I have followed as my chief and to whom I have yielded obedience, giving careful heed to his precepts and his admonitions..... The principles which I teach belong as much to my master as to myself and more; I am bound to render him this justice. I desire that the wisdom of this illustrious man be proclaimed and known to posterity. Although I acknowledge myself to be much inferior to him, I wish to render him, as best I can, the thanks that I owe him. I also beg future readers of my works to believe that my master was infinitely greater than I can say."
Domingo Soto pays the same eulogistic tribute to Franciscus de Victoria. Born at Segovia in 1494, he had studied at Alcala and Paris. At the age of thirty he had entered the Order of St. Dominic. In 1532 he had become professor of theology at Salamanca for the evening course, whilst Franciscus de Victoria was the teacher in the morning.
One other testimony may be invoked among numerous others; it is that of Alfonso Garcia Matamoros, the author of the book, De academiis et doctis viris Hispaniae, sive pro asserenda Hispanorum eruditione narratio apologetica. He calls Franciscus de Victoria "the splendor of the Order of St. Dominic, the honor and the ornament of theology, the model of ancient religion. Franciscus calls theology down from heaven as Socrates in ancient times called down philosophy."
Instruction did not absorb all the activity of the great professor of Salamanca. On numerous occasions he was consulted by Charles V, who submitted cases of conscience to him and sought his advice on affairs of a delicate nature. It was in this way that he had to give his opinion on the validity of the arguments put forward by Henry VIII of England, with a view to procure the nullity of the marriage which he had contracted with Catherine of Aragon, the aunt of the Spanish monarch. The dissertation, De matrimonio, published in the Relectiones contains a passage relating to this historic suit.
In 1532 Franciscus de Victoria pronounced his famous dissertations, De Indis and De Jure belli Hispanorum in barbaros, in which he examined the titles which the Spaniards might allege to justify their domination in the New World. We shall have an opportunity to examine them in detail.
In 1539 Charles V submitted to the professor of Salamanca several questions about the affairs of the Indies. The letter is dated from Toledo, January 31. In the following year he addressed to him, on the same subject, another letter, dated from Madrid, March 31. On March 21, 1541, Charles V consulted yet again the man in whom he had such confidence. It was about a grave matter which had been brought before the Council of the Indies by Bartholomew de Las Casas: Was it lawful and fitting to baptize adult Indians according to the form employed in the New World, that is to say, without giving them a preliminary religious instruction? Charles V commissioned Franciscus de Victoria to examine the point, to consult such of the theologians of Salamanca as he should deem it expedient to question, and to transmit their opinions together with his own. The conclusion was in favor of the thesis submitted by Las Casas. Let us here note that the professor of Salamanca was probably better qualified than any other person to give a considered and well-informed opinion on the subject of the Indians. Several of his pupils with whom he remained in touch were devoted missionaries to the West Indies: for example, Alonso de Veracruz and Domingo de Salazar, both of them Dominicans, the latter of whom, after becoming professor of theology at Mexico, wrote a treatise on the titles possessed by the kings of Spain to domination over the Indians.
A great event was preparing for the Church; it was the assembly of an ecumenical council. It is difficult in our day to imagine the importance then attributed to the assembly of the bishops of the Christian world. The struggles between the Holy See and the ecclesiastical representatives of the nations of Christendom were not forgotten. Sovereigns as well as clergy and laity threw themselves with ardor into endless disputations. Both those Catholics who remained faithful and the partisans of Luther demanded with the same ardor the convocation of the ecclesiastical authorities to decide what was conformable to dogma and to discipline.
After his interview with Cardinal Cajetan, Luther had appealed from an ill-informed Pope to a better-informed Pope; but on November 28, 1518, he had appealed from the Pope himself to the future general council and he renewed this second appeal after the condemnation pronounced by the bull of Leo X of June 15, 1520, against him and against his adherents. Since 1523 the Diet of Nuremberg had demanded that Pope Adrian VI should summon a council in some town of Germany, and thereafter diets continued to insist on this summons. On June 2, 1536, Paul III issued a bull summoning a council for the following year; the town named was Mantua; but the Holy See met with constant difficulties; the Pope published as many as six bulls proroguing or convoking afresh the ecumenical assembly, and at last a bull of November 19, 1544, opened the council for March 15, 1545. "But," writes Frà Paolo Sarpi, "matters dragged and the council opened December 13, 1545; there were legates and bishops to the number of twenty-five." The place of meeting was Trent. The Roman Curia would have preferred some town of the Papal States as the seat of the assembly; attempts were made with this object in view; the legates obtained from the Fathers a transference to Bologna; twice the Council was suspended; twice it resumed its sessions. Convoked afresh December 3, 1560, it closed its labors December 4, 1563. The work itself of the Council does not concern. us here: we must confine ourselves to a summary of the situation created for the Holy See, the bishops, and governments. The Popes were reproached for having given predominance to the Italian element; in truth the majority was constantly formed of prelates who were dependent on the Curia, and in the closing period there were 150 Italian bishops against 66 bishops of other nationalities. The bishops of non-Italian countries were in opposition to the Holy See, in this sense at least that they constantly affirmed the independence of their spiritual functions. In this way it came about that the Archbishop of Grenada, Guerrero, complained that the bishops were transformed into vicars-general of the Pope, dependent on and removable by him, and that the Spanish prelates in general denounced the usurpations of the Holy See in episcopal authority and maintained that it would be impossible to remedy these abuses without restoring to the bishops all that had been usurped from them by Rome.
The legates represented at one and the same time the council over which they presided and the Pope whose agents they were. The Popes had at first desired the presence also of the sovereigns and their personal co-operation in the labors of the council; but, if this desire was not realized, the princes at least entered into relations with it by correspondence and were represented by ambassadors.
"These," says an author, "were accredited to the council itself, which was treated as a power. Also they could not be received unless their credentials were perfectly in order. When presenting them they usually addressed a harangue to the council. They expressed themselves orally with as little discretion as their masters did in writing. Every one knows what excitement was aroused by the discourses of Amyot in 1551, of Pibrac in 1562."
The Fathers of the council held two kinds of meetings. There were public and solemn sessions or assemblies, in which decrees were issued and which were only twenty-five in number. There were also congregations, or preparatory assemblies; these were either general or special.
Theologians collaborated in the special congregations and in those general congregations which were public, for according to the rule the Fathers alone were admitted to the secret general congregations. "Below the Fathers," says the author just cited, "were the inferior theologians, such as the simple doctors of the Sorbonne, sent by the Pope and by the kings or brought by the prelates. Not being prelates themselves, they had no vote; admission to the secret general congregations was closed to them; there was only a small number of them who succeeded in obtaining an entrance there at the end of the council; they were admitted to and probably rendered great services in the public general congregations and private congregations. They themselves held meetings in which they prepared for all the others and which the Fathers attended at their pleasure."
It is stated that among the theologians who collaborated in the labors of the Council of Trent, the Spaniards distinguished themselves above all others. They were able, in fact, to put forward in the discussions men of the highest worth, such as Domingo Soto and Melchior Cano, to cite two names only. On the eve of the meeting of the council, the prince-royal, who afterwards became Philip II, acting on behalf of Charles V, had invited Franciscus de Victoria to take part in the labors of the ecumenical council; but the latter excused himself on the plea of age and persistent ill-health. He died some months after the opening of the work. It has been stated that the influence of the illustrious thinker upon the Spanish prelates who sat at Trent was extraordinary, as is evidenced by quotations from his disciples among them and also from his old pupils among the theologians.
The Order of Dominicans had generally been faithful to the Holy See. Its traditional education proved this, and the names of eminent members, such as that of Juan de Torquemada, appeared in the first rank of the champions of the rights of the Pope against the pretensions of the Councils of Basel and of Florence. In 1511, under the pontificate of Julius II, nine cardinals, inspired by Louis XII, King of France, and by the Emperor Maximilian, had convoked at Pisa an ecumenical council which was to be opened on September 1; their contention was that, if the Pope neglects or refuses to convoke a council, this right belongs to the Sacred College. The master-general of the Order at that time was the famous theologian, Tommaso de Vio, born at Gaëta and thence called Cajetanus. He forbade the Friars Preachers to give any countenance to the assembly at Pisa and wrote his treatise, De authoritate Papae et Concilii utraque invicem comparata, wherein he contended that the Pope alone is the supreme head of the Church, that he is its lawgiver and its judge of ultimate appeal, that the council can neither impose a law upon him nor judge him, and that the papal approbation alone gives obligatory force to the decrees of the ecumenical assembly. From the lectures which his pupils published we know the opinions which Franciscus de Victoria, if the state of his health had allowed him to be present, would doubtless have expressed at the Council of Trent, on the subject of the relative positions of the Pope and the council and the relations between the spiritual and the temporal powers. These lectures are entitled, one, De potestate ecclesiae, another, De potestate civili, and the third, De potestate Papae et Concilii.
The learned theologian displays the profoundest respect for the Church and for its head. He places the respublica spiritualis and the respublica temporalis side by side and he teaches that both are perfect, that is to say, that they are self-sufficing; in other words, if either is unable to maintain itself unharmed and intact in its own sphere, it may do all that is needful to accomplish its object. The head of the Church has thus the right to act, not immediately and directly, as if usurping civil power, but by giving orders through the medium of his spiritual power. Franciscus de Victoria applies his reasoning to the case in which an unjust law has been established by a prince and to the case in which princes make war on one another about some country to the manifest detriment of religion; in this last hypothesis he admits that the sovereign pontiff may forbid the princes to make war and may, at need, constitute himself the judge of their quarrel. In reality, he claims not to encroach on civil authority; his wish is to safeguard spiritual authority and to protect it from encroachments. He cites by way of analogy the case which might present itself in international affairs. "If," says he, "the Spaniards can not otherwise defend themselves against the wrongs done them by the French, they are entitled to occupy the cities of the latter, to impose new princes upon them, to punish the guilty, and to act as if they were the real masters: all the doctors are of this opinion."
As regards the relative positions of the Pope and the Council, Franciscus de Victoria would have the Council treat the Pope with deference; he exacts the avoidance of scandal, but he in no wise goes so far as to proclaim the superiority of the Pope. Juan de Torquemada, as we have seen, had defended the prerogatives of the sovereign pontiff against the Council of Basel; but the same Torquemada had cooperated in the labors of the Council of Constance which had deposed Pope John XXIII; and he had given his approbation to this measure. This approbation, the professor of Salamanca considers of great importance, and he recognizes the right to call the council against the will of the Pope, if the latter's character is destructive to the Church. Franciscus de Victoria does not even admit that the sovereign pontiff, of his own will and without reasonable ground, may dispense with the observance of decrees issued by the councils.
In the preceding centuries the rights of the Emperor had not only caused violent struggles in the domain of fact, but also keen and animated discussions among publicists. We have already seen how the kings of France and of England had affirmed their independence. In Spain, King Alfonso X of Castile, who had intrigued for the imperial crown, had, in the Siete partidas, attributed the highest position to the Emperor. "The imperial dignity," he has written "is the loftiest and excels all other dignities."
The utterances of jurists, seduced by the notions current in Roman law, were significant. To go no further back, we may cite Bartolus of Sassoferrato, who, in the middle of the fourteenth century, wrote these lines:
"If anyone asserted that the Emperor is not the monarch of the entire world, he would be a heretic; for he would make a pronouncement contrary to the decision of the Church and contrary to the text of the Gospel which says: 'A decree went forth from Caesar Augustus that a census should be taken of all the world,' as St. Luke has it and so Christ, too, recognized him as emperor and master."
With regard to a papal bull denying the imperial supremacy, Bartolus did not hesitate to reproduce and to approve the contemptuous words of his teacher, Cino da Pistoia: "Let it go by with the other errors of the canonists." A contemporary of Bartolus, Alberico da Rosciate, had raised rational objections against the universal monarchy of the Emperor, and had come to the conclusion that the two powers were distinct and that the Pope was dominant in spiritual affairs and the Emperor in temporal affairs.
According to Franciscus de Victoria, the Emperor is not the lord of the world, "Imperator non est dominus orbis." He proves his proposition by means of arguments of law and of fact; he recalls that the Roman Empire was divided into an empire of the East and an empire of the West, and that the emperors of Germany have never raised a pretension to be masters of Greece, whilst the Council of Florence recognized John Palaeologus as lawful sovereign. "The patrimony of the Church," writes he, "is not subject to the Emperor; the kingdom of Spain and the kingdom of France are no more under his domination, although the gloss says that this independence is matter of fact and not matter of law; doctors even concede that some cities formerly subject to the Empire have succeeded in withdrawing from its rule by force of custom, a thing which would not be possible, if their subjection were by divine right."
We must now go back a few years and relate the incident already alluded to, mentioned in the letters of Erasmus and Vivès, especially the part played by Franciscus de Victoria when the great humanist was violently assailed in Spain.
Erasmus had paid a tribute to the purity of Luther's morals in a letter addressed to Cardinal Wolsey in 1518; in a letter written to the rector of the University of Erfurt, he had admitted the usefulness and the beauty of the object pursued by the German monk. On March 28, 1519, Luther initiated a correspondence with the celebrated savant; he testifies to his respect for him and to his gratitude for the services rendered by him to literature and to the emancipation of thought. Erasmus's answer was a mixture of approbation and advice. But soon events assumed an aspect of violence, and Erasmus, something of a sceptic, but always pacific and the enemy of all excess, refused to follow the impetuous rebel or even to pass over in silence one of his doctrines in which he saw danger to the human mind. In the month of September, 1524, he wrote the book, De libero arbitrio; Luther replied in 1525 with the treatise, De servo arbitrio, and Erasmus wrote the Hyperaspistes diatribe ad servum arbitrium. "The rupture," says a writer, "was henceforth irreparable. Erasmus remained until his death the enemy of the Reformation and did not cease to write against it; thanks to his powerful influence, thanks to his numerous affiliations, all the humanists followed his example.... If Erasmus became the bitter enemy of Luther, the latter did not show him any consideration. He did not lay down his weapons, even in the presence of death."
The Catholics ranked Erasmus among the most valiant defenders of the faith and Pope Clement VII protected him. Nevertheless he had rancorous enemies, who, in many countries, tried to arouse the ecclesiastical authorities against him. In the month of April, 1524, Noël Beda, doctor of theology, formerly principal of the College of Montaigu, having become syndic of the faculty, denounced at the Sorbonne some propositions, which he had extracted from the works of the learned writer, and demanded their condemnation. The storm was long and very violent. In Spain also the tempest broke. Erasmus reckoned many friends there, more perhaps than in any other country of Christendom. But he had enemies also. In 1526 a campaign of denunciation was directed against him by the Spanish monks, who accused him of attacking the Holy Trinity, the divinity of Christ, and the divinity of the Holy Ghost. He was obliged to defend himself. The monks, the Franciscans especially, were animated by sentiments akin to hatred toward the great man.
The printed correspondence of Erasmus contains an important letter about these events. It is addressed "theologo cuidam Hispano Sorbonico," "to a Spanish theologian of the Sorbonne." The text completely solves the question concerning the identity of the addressee. The humanist mentions the fact that the whole movement was directed by one of his enemies, Edward Lee, with whom several years previously he had been engaged in violent polemics. In 1526 Lee was in Spain as ambassador of Henry VIII and he had aroused Erasmus's enemies, who had gone so far as to lay a plaint against him in the palace of the Emperor. Among the leaders was the prior of the Dominican convent of Burgos. Erasmus names him and adds, "tuus, ut audio, frater," "your brother, as I am informed." There is no room for doubt. It is to Franciscus de Victoria that Erasmus is writing. Moreover, the devoted friend of this latter, Juan Luis Vivès, had expressed himself in the most flattering terms with regard to Franciscus de Victoria, whom he had known at Paris when he himself was studying at the College of Beauvais under the direction of Jean Dullaert, a native of Ghent. Thanks to Juan de Vergara, secretary of the Archbishop of Toledo, Alfonso de Fonseca, Vivès was kept informed of the plot that was being hatched and helped in the preparation of defense. "Diego de Victoria," he wrote to Erasmus, "has a brother, Franciscus de Victoria, like him a Dominican, a theologian of Paris, a man of genuine reputation, in whom much confidence is placed; more than once he defended you at Paris before numerous theologians; from his childhood he has occupied himself with literature; he admires you, he adores you. He is a teacher at Salamanca, where he holds what is called the primary chair." The monks tried to arouse the mob and to drive them to sedition; they took an oath to hearken neither to Emperor nor to bishops, saying that they owed obedience to God rather than to man. Because of their clamors and raging sermons, it was necessary for the civil authority and the religious authority, almost all the representatives of which, including the Emperor and the archbishops of Toledo and Seville, were favorable to Erasmus, to agree to promise an inquiry and to nominate a commission of investigation.
In his letter to the "Spanish theologian of the Sorbonne," that is to say, to Franciscus de Victoria, Erasmus had asked the latter to intercede with his brother, Diego, and also with Noël Beda, who at the same time was raising almost insurmountable difficulties tor him in Paris.
In France, the Sorbonne condemned the propositions which Beda pretended to have extracted from the works of the great humanist; and, in December, 1527, it gave a doctrinal judgment in thirty-two articles. It is true that for four years the government refused to allow this censure to be printed.
In Spain, the commission of inquiry met at Valladolid; it comprised twenty-one theologians, among whom was Franciscus de Victoria. The partisans of Erasmus were greatly in the majority. But no judgment was pronounced. The plague which was then desolating the country caused a suspension of the proceedings and they were never resumed. It is true that another blow was dealt to the celebrated writer. "Erasmus," says Llorente, "thought he had come out of this affair well; not so at all; for the Council of the Supreme forbade the reading of his Colloquies, of his Praise of Folly, and of his Paraphrase of the New Testament."
We possess some interesting information about Franciscus de Victoria, thanks to two learned Belgians who knew him personally, Nicholas Cleynaerts and Joannes Vasaeus. Cleynaerts was born at Diest in 1493 or 1494; he studied at the University of Louvain, where, in 1519, he obtained the authorization to teach Greek and Hebrew, either publicly or privately. In 1531 Joannes Vasaeus, a native of Bruges, attended his lectures. In this year the natural son of Christopher Columbus, Fernand Columbus, "the greatest bibliophile of his time, perhaps of all time," as Henry Harrisse describes him, was looking for learned persons whose collaboration he wished to secure in organizing the library which he was creating at Seville and which was afterwards called, from his name, the Columbine. He was very rich; his annual income was reckoned at a sum equal in our money to 300,000 francs, and to this income must be added the profits accruing from commercial operations. He made offers to Cleynaerts and Vasaeus which they accepted. In the month of October, 1531, Fernand left the Low Countries and directed his steps towards Spain in company with the two Belgians. At Salamanca, Cleynaerts and Vasaeus made the acquaintance of Franciscus de Victoria, with whom they remained in relations of close friendship, as is proved by passages in their writings. It is known that Cleynaerts was called to Portugal to direct the education of the brother of King John III, Prince Henry, who was then Archbishop of Braga and who subsequently ascended the throne. Vasaeus became librarian to Fernand Columbus; at the end of three years he returned to Salamanca, where he tried to gain a livelihood by giving lessons. Later on he was called to Portugal. He is the author of Chronicon rerum memorabilium Hispaniae, only the first volume of which appeared. He died in 1552.
In his letters Cleynaerts makes several references to Franciscus de Victoria, with whom, moreover, he was in correspondence; he vaunts his extraordinary learning; he praises his admirable Latinity; he urges Vasaeus to pay the greatest heed to the advice which the professor of Salamanca gives him.
Shortly after the death of Franciscus de Victoria, Joannes Vasaeus paid an impassioned tribute to him in his Chronicon. "If he had lived," writes he, "what help he would have given me! His erudition was incredible, his reading almost unlimited, his memory ready; he was like a miracle of nature." In a book on the Adagia of Erasmus the same author dedicates the following lines to the memory of the master of Salamanca: "In the whole of Spain there was no one so wise, so simple, and, I make bold to add, so saintly."
Franciscus de Victoria died August 12, 1546. For two years he had suffered much from rheumatic pains, and the disease made such progress that he had to procure a substitute for his theological lectures, Juan Gil Fernandez de Nava. The University, the Dominican Order, and the whole town gave him a touching funeral amidst general grief.
The lectures of Franciscus de Victoria have come down to us in part. After his death some former pupils collected his formal lectures, the relectiones which the professor had delivered, and had them printed. The first edition was not very correct; succeeding editions also left much to be desired in this respect; but the mistakes, after all, were mistakes of printing, which the reader can correct. One consideration, which is of more importance, forces itself on the mind of the reader; it goes to the root of the matter and raises the question whether the lectures, as they have come down to us, are quite complete. Even if no decisive answer can be given, it is certain that the dissertations, such as we now see them, are enough to give us an idea of the opinions of the master and, even as regards their form, they enable us to appreciate the elegance, the clearness, the charm of the Latin diction employed by the professor of Salamanca.
Their very title, Relectiones theologicae, shows that theology was in the fore-front; nevertheless some topics are treated which belong to politics and to the Law of Nations. The author has been at pains to explain the way in which he views his task when occupied with legal problems. He maintains that the office and function of the theologian extend to such a point that no argument, no controversy, appears foreign to the profession and institution of theology. And especially as regards questions about the rights of barbarian populations, he affirms that they are still open to discussion, inasmuch as they have in no way been settled. To the objection that wise and prudent men have been entrusted with the administration, he replies that doubt is permissible, because there is a rumor abroad about massacres and spoliations and so it is lawful to ask oneself whether all that has happened is free from injustice. "Now," he writes, "the settlement of these matters does not belong to jurists, or at any rate it does not belong to them alone. As the barbarians are not subjects in virtue of any human law, matters concerning them ought to be examined from the point of view, not of human, but of divine law, in which jurists are not sufficiently versed to be able to solve the difficulties. It is a question for the forum of conscience, the department of the priests, that is to say, of the Church." "Et cum agatur de foro conscientiae, hoc spectat ad sacerdotes, id est, ad Ecclesiam, diffinire."
The first edition of the Relectiones theologicae appeared at Lyons in 1557, from the house of Jacques Boyer; in 1565 a second edition was printed at Salamanca, by Juan de Canova; it bears the title Relectiones undecim; other editions are entitled Relectiones theologicae tredecim partibus divisae; the difference arises from the fact that two of the lectures are sometimes divided into prior and posterior. The edition of 1565 was supervised by Father Alonso Muñoz, of the Order of St. Dominic. It is dedicated to Don Carlos. The title-page states that the edition "has been purged of the prodigious and countless mistakes with which the first edition, that of Jacques Boyer, was filled." The prefatory announcement contains the complaint, made by Alonso Muñoz, with regard to the mistakes of this same edition; he writes that he had made a list of these mistakes when helping Domingo Soto in the correction of his book of Sententiae. We might add that to the copies of the edition of Muñoz the licentiate Mercado, censor of books at the court of the king, has annexed four pages of Errata with their corrections. In 1580 a correct edition was printed at Ingolstadt. In 1587 a fourth edition appeared at Lyons; it was the work of an unknown theologian. It is preceded by a eulogy of Franciscus de Victoria, in which the facts are recalled that Melchior Cano and Domingo Soto were pupils of this teacher and that the kings of Spain submitted to him cases of conscience concerning the New World and the repudiation of Catherine of Aragon by Henry VIII. The edition was published at the expense of Pierre Landry; and some Latin verses written in praise of the last-named find a place at the end of other verses written to honor the author of the work and to give some idea of the work itself.
Still other editions may be cited that of Antwerp of 1604 and that of Venice of 1626, a copy of which was used by Henry Hallam in connection with the interesting pages about Franciscus de Victoria which he wrote in his Introduction to the literature of Europe in the fifteenth, sixteenth and seventeenth centuries. Mention may also be made of an edition of Salamanca of 1680 and of an edition of Cologne in 1696, the latter being published under the supervision of Johann Georg Simon, professor of law at Jena and later at Halle. Reference may further be made to an edition of Madrid of 1765. Finally, it is proper to add that the Marquis de Olivart, who has rendered so many services to the science of international law, has published the two lectures on the Indians and on the law of war.
Other works of the author appeared after his death. These are the Summa sacramentorum Ecclesiae, printed at Valladolid in 1561, and a manual in Spanish for confessors, Confesionario, which appeared at Salamanca in 1562. Nicholas Antonio mentions the manuscripts, Commentaria in universam Summam Theologiae Sancti Thomae and Commentaria in IV libros Sententiarum.
The lectures with which we are now to be particularly occupied are entitled in the edition of 1565: De Indis recenter inventis relectio prior and De Indis, sive de jure belli Hispanorum in barbaros, relectio posterior. They are devoted to an examination of the titles which the Spanish might put forward in order to justify their domination in the New World. They were delivered in 1532 and are the first complete exposition of the question. It had undoubtedly already been brought before scientific opinion; thus we may mention Juan Lopez de Palacios Rubios, who undertook the defense of the oppressed Indians in a formal opinion given at the request of King Ferdinand. "The king," wrote he, "has added to his power the isles of the ocean commonly called the Indies and he has summoned into the truth of the Gospel the men and the uncultured peoples there resident. The question thus arises, what rights does the sovereign possess? The author has learned from a reliable source that the aborigines of the countries just discovered by Christopher Columbus are men endowed with reason mild, pacific, and capable of rising to the level of our religion. They have no private property, but cultivate certain land in common. They are addicted to polygamy, which results in the disorganization of their families. Are they free? Yes, for God has given liberty to all men; nevertheless they ought to hearken to the teachings of Christian priests."
Already in 1494 the question of the aborigines of the New World had been submitted by the government to a commission composed of theologians and canonists who pronounced in favor of the generous doctrine, and a letter of Queen Isabella, dated February 10, 1495, showed that the arguments invoked had convinced the sovereign. Unfortunately the authorities of the mother country yielded to the claims and demands of the colonists who were animated by the spirit of lucre. Slavery existed in Spain. It was recruited not only from prisoners made in wars waged in the country itself against the Moors, but from the closing years of the fourteenth century there had been markets at Seville and Cadiz in which natives of the Canaries (Guanches, as they were called) were exposed for sale; at the commencement of the fifteenth century negro slaves had been introduced into Castille in the wake of the expeditions made by the Portuguese. The Spaniards were familiarized with slavery; it is not surprising that the abominable thought of reducing into slavery the aborigines of the New World should have been conceived, nor is it any more to be wondered at that negroes should have been transported to the West Indies. " Before the organization of the slave-trade was thought of," writes Georges Scelle, "and from the first days of the conquest, negroes were certainly brought from Spain into America. It is notorious that at the end of the fifteenth century slaves were numerous in Portugal, in Spain, and especially in Andalusia: white slaves, Moors, Jews, and especially black slaves. Is it not reasonable to suppose that Spaniards took some with them? They transported them not only from Portugal and Spain, but from the islands of the Mediterranean, the Balearic Isles, Sardinia (where they were numerous), Madeira, and the Canaries, which had been conquered a little time before and at which the vessels touched when sailing for the West." Repartimientos and encomiendas were established, on which the Indians were reduced to servitude, whilst certain populations were condemned to slavery. "The usage," writes Alexander von Humboldt, "of distributing the natives among the Spaniards, in order to facilitate the work of the mines, began in 1496 .... By the Provision of December 20, 1503, the central government authorized compulsory labor, arbitrary taxation of wages, the right of transporting the natives to the most distant parts of the island and of separating them for six and then for eight months from their family. This was the demora. There was also the mita, the exploitation of the mines." On December 20, 1503, a horrible decree was signed. "It allowed," says the illustrious savant just cited, "the reduction into captivity and the sale of the Caribs of the isles and of the mainland.... There were lengthy discussions about the shades of difference which distinguish the varieties of the human race; which populations were Caribs or cannibals, condemned to extermination or to slavery, and which were guatiaos, or Indians of peace, old friends of the Spaniards? In 1511 it was decreed that the Caribs should be branded with a hot iron, a barbarous custom which at the beginning of this century I found much in vogue among the black peoples of the Antilles." The Hieronymites and the Franciscans were the first missionaries to visit the New World. Cajetan became master-general of the Order of Dominicans in 1508; he was full of zeal for evangelization, but the government would not allow the departure of missionaries belonging to this Order until September, 1510: then three brothers started, all belonging to the convent of San Esteban at Salamanca. Among them was Antony of Montesino, who returned to Europe in 1511 and took up the defense of the unhappy populations before a commission which Ferdinand assembled at Burgos in 1511.
In 1519 another solemn discussion took place before the young king, Charles, in which Diego Columbus, viceroy of the Indies took part. Bartholomew de las Casas made himself there the devoted advocate of the oppressed and thus inaugurated the long series of devoted services which won for him the glorious name of defender of the liberty of the natives of America.
In his Relectiones Franciscus de Victoria repudiates all theories, whether based on the alleged superiority of the Christians, or on their right to punish idolatry, or on the mission which might have been given them to propagate the true religion.
The question whether unbelievers had dominium had been discussed by others. In order to refute it, Franciscus de Victoria, in the Relectio de potestate civili, cites the opinion of Richard Fitzralph, Archbishop of Armagh (whence his name Armachanus), who died in 1360. He tells us how the latter, in his book, De paupertate Christi, teaches that unbelief and even mortal sin prevent the existence of power, of the right of domination, and of jurisdiction, and that grace is the title to and basis of all power. In the Relectio de Indis, he cites again the opinion of the Archbishop of Armagh; he mentions the similar doctrine of Wycliffe; he recalls that before these two writers the Poor Men of Lyons (the Waldenses) had fallen into the same mistake; he adds that the Council of Constance condemned the proposition which Wycliffe had formulated as follows: "Nullus est dominus civilis, dum est in peccato mortali."
Franciscus de Victoria raises the question of title by discovery, inventio, the only title, says he, which was invoked at the beginning of the enterprises in the New World, and the only title in virtue of which Columbus, the Genoese, sailed. But he points out that this title is a sufficient one only in connection with uninhabited regions, and that in the case in question the barbarians were, both alike from the public and the private point of view, the real masters of the country. "According to the Law of Nations," says he, "that which has no owner becomes the property of the seizor; but the possessions we are speaking of were under a master, and therefore they do not come under the head of discovery." It is not irrelevant to note that title by discovery was admitted by a number of Spanish and Portuguese authors, and that it was with the purpose of contesting its validity when applied to newly discovered lands that Grotius required occupation in addition to discovery. "Invenire enim," wrote he in the Mare liberum, chapter 2 and chapter 5, "non est oculis usurpare, sed apprehendere, ut Gordiani epistola ostenditur: unde grammatici invenire et occupare pro verbis ponunt idem significantibus." Adopting the view of Franciscus de Victoria, he writes, "Invenire nihil juris tribuit, nisi in ea quae ante inventionem nullius fuerunt." He adds, "Occupatio in mobilibus est apprehensio, in immobilibus instructio aut limitatio."
The professor of Salamanca repudiates the argument according to which the barbarians are under obligation to accept the Christian faith. He maintains that they are in no wise bound to believe merely because they have been told of the truth of the religion of Christ; according to him, if they refuse to become Christians after the proposition has merely been put before them, that does not entitle the Spaniards to declare and make war on them. In order that there may be a just cause of war, those who are attacked must have committed some fault justifying the attack of which they are the object. That is the teaching of St. Augustine; it is the common opinion, sententia communis, not only of theologians, but also of jurists. But if the barbarians are asked to give a hearing to those who would speak to them about religion, they can not refuse without committing a mortal sin, nor can they neglect to examine the probable and reasonable arguments which are put before them. The question then is, whether the Christian faith has been so propounded and announced to the aborigines of the New World that they are bound to recognize it; this question Franciscus de Victoria refuses to answer in the affirmative: "There have been no miracles or manifestations," says he, "which ought to have convinced them; there have not even been examples of religious life; on the contrary, the Spanish have been guilty of numerous scandals, crimes, and impieties."
The great theologian then inquires into a delicate question which was also discussed by all the theologians and jurists who concerned themselves with the domination of the Spanish in the New World: can infamous vices and morals, and bloody practices, justify the making of war on those who are guilty of them? His teaching is that these do not afford the Spanish a just cause for establishing their domination by force of arms.
We may observe that the charges brought against the Indians were well founded. A passage from Bernal Diaz del Castillo, one of the companions of Fernand Cortez in his Mexican expedition, throws some light on this matter. Diaz quotes the language used by his leader to some caciques who implored his protection. Cortès, he writes, told them that they ought to give up idols and sacrifices to idols. "He added that they ought to purge themselves of the shameful vices which their young men indulged in so scandalously; and that, furthermore, there was every day a sacrifice before our eyes of four or five Indians whose hearts were offered to the idols, while their blood was scattered on the walls and their legs and thighs and arms were cut up for food, just like meat coming out of our slaughterhouses (I believe, too, that they sold them retail in their markets)." He ended by promising that "if they would abandon their evil customs and practices, we would not only become their allies; but we would also make them lords of other provinces."
A historian confirms what has been said about the degree of civilization attained by the peoples of the New World. "The Mexicans and Peruvians," he writes, "were barbarians: that is, while possessing a material basis sufficient to support a low degree of civilisation, their habits of thought and life remained essentially savage. The Mexican warriors, the most advanced class found in America, were cannibals; in both Mexico and Peru regular human sacrifices formed an essential part of the scheme of life. Cannibalism was unknown in Peru, though it existed among the Indians of the forest districts to the eastward of the Andes (the montaña) and to the northward of Los Pastos, the northern limit of the Inca dominion: this may reasonably be ascribed to the fact that the Peruvians possessed large domesticated food-animals, which were wanting in Mexico. In most other respects the Peruvians were at a lower level than the Mexicans." "In Mexico," continues the same author, "there existed a rudimentary commerce.
... Slavery, an important element in the earliest advancement, had come into existence.... In Peru, so far as appears, commerce was unknown ... nor was there any division of labor, except that between the warrior and the cultivator."
The author just cited gives some instructive details. "The 'weak males,'" says he," are a noticeable class in ancient society, and abounded in the New World. Incapable of getting their living by the chase, the weak males would in the earliest savagery probably be killed and eaten, or, in the alternative, left to perish. In more advanced savagery they are allowed to survive, on the terms of systematically sharing the tasks of the women, which include the quest of wild vegetable food. From this the transition is easy to their becoming assistants, when the stage of partial agriculture has been reached, in the cultivation of the soil. Males of this class, wearing female attire, and performing the lowest functions imposed on the female sex, were commonly found, in the latest times, in the most advanced communities of America: those of the Mexican pueblos shocked the moral sense of the conquistadores scarcely less than did the hideous idols, the human sacrifices, and the cannibal feasts. Originally the weak males are of necessity celibates. As agriculture advances and labour is more and more in request, some of them, it would seem, are allowed to become the parents of others; their progeny, weak in physique, are well adapted to form the nucleus of the lowest group in the industrial class, the slaves. Tribes which have been largely depleted of their women, in the manner above indicated, must necessarily rely more and more on their weak males for purposes of labour; their vigour will consequently diminish, and they will be ready for subjugation by stronger ones."
The illustrious theologian admits, however, that lawful titles may exist for the Spanish domination over the Indians. "The first title," says he, "may be called the title of natural society and of natural communication." "Primus titulus potest vocari naturalis societatis et communicationis." In virtue of this title the Spaniards may travel and sojourn in those parts, but on condition always of doing no hurt to the inhabitants, and it is not permissible to hinder them from such travel and sojourn. The learned author invokes the Law of Nations, the jus gentium. In this connection we have the words, "Quod naturalis ratio inter omnes gentes constituit, vocatur jus gentium." The passage is found at the beginning of the third section of the dissertation upon the aborigines of the New World. It has been asserted that the illustrious professor confined himself to a quotation of the well-known passage borrowed from Gaius by the Institutes of Justinian and that, quoting from memory, he had substituted the word gentes for the word homines, which in vulgar Latinity often meant "persons," "men," "nations." It is enough to read the development of his thought that Franciscus de Victoria gives in order to be convinced that he is dealing with gentes in the sense of "nations"; it is people whom he places side by side with one another in his argument; it is the word nationes that he uses after gentes; finally, it is the word gentes that he contrasts with the word homines. The examples which he gives in explanation of his thought are concerned with the relations of nations and with their intercourse. "Among all nations," he writes, " it is deemed inhuman to refuse a welcome to foreigners and strangers, unless there is some special reason to the contrary; it is regarded as humane and in conformity with duty to treat strangers kindly; now this would not be the case if strangers were doing a wrong in visiting a foreign nation." He adds that it would not be permissible for the French to forbid the Spanish to travel in France or even to dwell there, and that neither could the Spanish refuse to admit the French. May an observation be made? It is that it is puerile to challenge the use by a man of genius, such as Franciscus de Victoria was, of a terminology which expressed so perfectly his notion of a juridic order extending over the whole globe and composed exclusively of political communities. In the third book of Pantagruel, which appeared in 1545, Rabelais translates the expression jus gentium by "droit des peuples."
The author of the Relectiones theologicae asserts the right of the Spanish to carry on trade in the New World, to carry thither, for example, the wares which the natives lacked, and to bring thence gold or silver or other things which abound there. "The barbarian princes," says he, "can not prevent their subjects from trading with the Spanish, and the Kings of Spain on their side can not forbid the Spanish to trade with the Indians." He invokes the maxim that we ought not to do to another what we do not want done to ourselves. He asserts that the Spanish could not hinder the French from trading with Spain. He shows that nature herself has established a relationship between all men, "inter omnes homines cognatio." "Man," he writes, "is not a wolf to man, as Ovid writes; he is a man." "Non enim homini homo lupus est, ut ait Ovidius, sect homo." He adds that when things are common property, the barbarians can not prevent the Spanish from profiting thereby; he gives as illustrations the gold of the mines or of the streams and pearls of the sea or of the rivers. He admits that an effective sanction should guarantee the exercise of trade. Moreover, if the barbarians oppose the Spanish in their exercise of this right, the latter should first have recourse to reason and should show that they do not come with intent to hurt. If such a method is insufficient, and if the Indians employ force, it is lawful for the Spaniards to defend themselves, to repel violence, to build forts, to make war, showing moderation, however, and inflicting the least injury possible. If the barbarians persist, nevertheless, in their hostility, and if they try to destroy the Spaniards, the latter may make use of all the rights of war, may despoil their enemies of their goods, may reduce them to captivity and may depose their chiefs. Here, too, moderation and measure are requisite; as the doctors say in treating of war, the prince who wages a just war is in virtue of that very fact the judge of his enemies, may punish them in accordance with law, and may condemn them in proportion to their wrong-doing.
Franciscus de Victoria mentions some cases in which intervention with armed force is justifiable. Thus, the Indian chiefs may not persecute those of their subjects who have been converted to Christianity, nor purpose to bring them back to irreligion, and the same chiefs may not exercise tyranny nor enact tyrannical laws without giving the Spaniards the right to put an end to these abuses. He foresees the possibility of the aborigines voluntarily submitting to the king of Spain and proclaiming him their prince; for such action unanimity would not, according to him, be necessary; a majority would suffice. Another lawful title would be the rendering of help to allies; it is thus that the Romans conquered the world, that is, by making war especially to aid peoples who had formed bonds of friendship with them.
The learned author treats more especially of the laws of war in the De Indis, sive de jure belli Hispanorum in barbaros, relectio posterior. He examines the four following questions: May Christians make war? What authority may declare and make War? What are the causes of a just war? What may be done to an enemy in a just war?
He cites texts of the New Testament which seem to condemn resort to force; but he teaches that these are counsels and not orders, and it is in this way that he refutes the doctrine of Luther according to which Christians may not take arms even against the Turks, because, if the latter should invade Christendom, it would be in accordance with the divine will. With Saint Augustine he teaches that Christians may engage in military service and may make war. He enumerates several grounds which render war lawful. For instance, defense against an enemy; recourse to arms against evil-doers and the seditious; the pursuit of enemies after repulsing their attack; the necessity of defending public safety; the preservation of general tranquillity against tyrants and oppressors.
As to the authority to whom is reserved the right to declare and make war, the author of the Relectiones theologicae observes that in a defensive war every man, even a private person, may repel force by force in order to protect his person and property, and he mentions in passing the opinion of authors who teach that a private person may not kill his adversary if by flight he could escape from the threatening peril. He gives definiteness to his thought by showing that there is a difference between the political community, Respublica, and the mere private individual: the latter may defend his person and his property, but he may not avenge the wrong nor retake his goods after they have been out of his hands for a considerable time, "intervalle temporis"; the Respublica possesses authority to defend itself and its members, and in addition to avenge wrongs. In this connection he recognizes that a prince's authority is like that of the State: "The prince," says he, "is the issue of the election made by the Respublica." He examines a little more closely the ideas of Respublica and prince.
"The State, properly so called," he writes, "is a perfect community, that is to say, a community which forms a whole in itself, which, in other words, is not a part of another community, but which possesses its own laws, its own council, and its own magistrates." As examples, he names Castille and Aragon and Venice. He adds that the fact that several principalities and perfect States are under the same prince is immaterial; in such a case, furthermore, each of these principalities and perfect States has the right to make war, a right without which they would be incomplete and consequently imperfect. However, as the Law of Nations and human law have a great influence here, custom may give the power and authority to make war, even when the Respublica is not perfect. Necessity itself may confer the right to make war; such would be the case if, within a kingdom, one city were to attack another, or one noble were to attack another, without intervention on the part of the king in the interests of order.
Franciscus de Victoria enumerates some grounds which would not justify recourse to arms. He states that diversity of religion is not a sufficient reason for making war; he teaches that neither the desire to aggrandize a realm, nor the glory or interest of the prince, can justify hostilities. "The lawful king," says he, "differs from a tyrant in that a tyrant organizes the government for his own profit, whilst the king has the public good alone in view."
The conclusion is that there is only one just cause of war that is, the injury suffered. Not every kind of injury suffices; serious and atrocious ills, such as death, burning, devastation, must have been inflicted; slight injuries will not justify recourse to arms.
"What may be done in a just war?" asks the author. "Everything that is necessary for the defense of the public weal," is his answer. He concludes that it is lawful particularly to recover lost property, and its value, and to seize the enemy's goods as indemnification; he cites the case of a private person appealing to a judge and obtaining from him not only the restitution of the objects which had been carried off, but also the expenses incurred and the damage sustained; the prince who makes a just war is really acting as a judge. It is lawful to go even further to bring about peace and security; we may destroy the enemy's fortresses and at the same time construct others within his territory. "The aim of war," he repeats, "is peace and security; he who is waging a just war may do everything that is needful to obtain peace and security, which rank among the assets of humanity. In the same way that self-defense against internal foes and bad citizens is allowed, so may measures be taken against external foes, and a conqueror may require the conquered to give hostages and to surrender his arms and ships." The author goes still further; he grants that after victory has been won the victor may exact vengeance for the wrong done to him and may punish his enemy. In order to show the truth of his proposition, he asserts that a prince possesses, not only over his subjects, but also over foreigners, the authority necessary to compel them to refrain from injurious acts; he invokes the Law of Nations and natural law which require the existence of an authority able to prevent the good and innocent from being harmed with impunity. He returns on several occasions to an idea which was frequently developed in the Middle Ages and which Grotius repeats, in his De jure praedae commentarius, citing these very Relectiones theological, and that is that when a political community commits a wrong it becomes the subject of the other political community; the conqueror becomes the judge of the conquered and thus the subsequent measures are justified; for otherwise it is impossible to find a justification for war, political communities having otherwise no authority one over the other."
The infliction of useless injuries in war must be guarded against. Innocent folk must not be attacked if the object of the war can be attained without harming them; laborers should not be despoiled if victory can be obtained without inflicting losses on them.
Children and innocent folk may not lawfully be killed; but may they conformably with law be led off into captivity? The author admits that the children and women of the Saracens are led into captivity and into slavery; as regards Christians, he observes that it has been conceded that prisoners of war do not become slaves and he concludes that even if the captivity of the children and women is indispensable to the attainment of the object of the war, they may not, however, be reduced to slavery, but must be offered for ransom: on this point also he recommends moderation.
"In the midst of a battle during both an attack and a defense." says Franciscus de Victoria, "it is lawful to kill all combatants, but when victory has been obtained and the danger is over, may all those who have carried arms be put to death?" His answer is that the nature of the wrong suffered and of the hurt sustained must be taken into account; all atrocity and inhumanity should be abstained from; he adds that if, strictly speaking, prisoners of war who have borne arms may be put to death, nevertheless the custom and usage of war, consuetudo et usus belli, are such that after victory has been won prisoners of war are spared, unless they be deserters.
The author develops several propositions on the subject of booty. He supports the opinion of Silvester de Prierio, according to which one should content oneself with what is a sufficient and just reparation for the injury sustained. "If," says Franciscus de Victoria, "the French have sacked some unimportant town or place, the Spanish would have no right, even if they could, to ravage the whole of France." He declares himself against the pillaging and burning of towns; he admits that necessity may excuse cruel measures, but he lays emphasis on the barbarous acts committed on like occasions by the bloodthirsty.
A question arises in connection with what in our days is called military occupation. Is it lawful to occupy and to hold as long as may be necessary a field, citadels, or a town belonging to the enemy? Franciscus de Victoria answers affirmatively, but requires that the object be to obtain an indemnity, to guarantee security, to avenge a wrong, or to inflict punishment. He holds that necessity and the reason of war, necessitas et ratio belli, may justify the measures taken. He requires moderation and insists that at the end of the war the conqueror should retain only what will compensate for damage sustained and expenses incurred; he repeats the idea already enunciated:
"Superior judex potest commode mulctare authorem injuriae, tollendo scilicet ab eo civitatem, aut arcem. Ergo et princeps, qui laesus est, hoc poterit, quia jure belli factus est tanquam judex."
There is another question, namely, whether tribute may be exacted from the vanquished. The author answers this question in the affirmative. It is lawful because it is a question both of recovering damages for an injury and of inflicting punishment.
Still another question: May we depose the princes of the enemy and set up others in their stead; may we arrogate the sovereignty to ourselves? According to Franciscus de Victoria the following maxim ought to prevail here, namely, that the punishment should never exceed the measure of the wrong which it purports to avenge.
Franciscus de Victoria ends by formulating three rules which may be stated as follows: In the first place, the prince may not seek occasions for war, he ought to try to keep at peace with all men; if he makes war, it should be in spite of himself. In the second place, when war has broken out for just causes, the belligerent may not aim at the destruction of the enemy people; he may only have in view the defense of his own country in such a way as to attain peace and security. In the third place, when victory has been attained it must be used with Christian moderation; the conqueror should consider himself a judge pronouncing judgment concerning two States, one of which has sustained a wrong and the other has done a wrong; he should endeavor to see how satisfaction may be given while inflicting the least harm possible on the guilty political community, since among Christians the fault is generally imputable to the princes themselves and since it would be unjust to punish the subjects who are fighting for their princes and to admit the maxim which the poet formulates, that the Greeks ought to bear the consequences of the follies of their kings:
Quidquid delirant reges, plectuntur Achivi.
In a study such as we have undertaken we must of necessity limit ourselves to the most important questions and must consequently neglect a series of special points which would nevertheless have been of interest. We have referred to the exquisiteness of form that Franciscus de Victoria was able to give to a work which he himself did not destine for publicity and which in his lifetime was not printed. We have noted the limpid clearness of his Latinity. We have attempted to give an idea of the substance of his doctrine and of the force of his reasoning. We will not emphasize the sentiment of humanity and charity which predominates in all his pages. A great deal of labor might be expended upon the authors quoted by the illustrious professor and thus it might be ascertained how vast were his studies and how profound a knowledge of the literature of his subject he had accumulated.
It is superfluous to say that the Old and the New Testament, and the Fathers of the Church especially St. Augustine are cited and that frequent quotations are made from Aristotle. Among the theologians and canonists whose opinions are mentioned figure almost all the known authors of the middle ages: Gratian and his Decretum; Saint Thomas Aquinas and his Summa totius theologiae; the commentators on the canon law; the commentators on Roman law, Bartolus at their head; then come writers less generally known, such as Altissiodorensis (who is William of Auxerre) and that other doctor of the thirteenth century, William of Paris. Furthermore, Richard Fitzralph, Archbishop of Armagh; John Wycliffe, William Ockham, and Jean de Jandun. Mention must also be made of Juan de Torquemada. A single detail shows the care and exactitude employed by the professor of Salamanca: he is referring to Juan de Torquemada and recalling that he wrote in favor of the Papacy when the bishops of the Council of Basel in 1431 affirmed the supremacy of the ecumenical council over the Pope. "Contra quos," says he, "Cardinal de Turrecremata fecit opusculum, quod vocavit 'De decreto irritante,' in quo contrariam sententiam contendebat ostendere. Sed illum librum ego invenire non potui." Also among the authors cited are Cajetan, whom we have already mentioned, and Silvester Mazzolini. Franciscus de Victoria quotes principally their Summa poenitentia. Both belonged to the Older of Dominicans. Cajetan, as we have said, was born at Gaëta, whence his name. From 1508 to 1518 he was master-general of the Order of Dominicans. In 1517 Leo X included him in his famous creation of thirty-one cardinals. He died in 1534 and was accorded the reputation of the greatest theologian of his century. Silvester Mazzolini, born at Prierio in Piedmont, also a Dominican, was named by Leo X Master of the Sacred Palace. He died in 1523. It has been said of him that "he was a scholastic by race and a rigid disciple of St. Thomas." Franciscus de Victoria quoted also as an authority St. Antoninus, Archbishop of Florence from 1446 to 1459. who is especially known by his Confessionale.
It would also be interesting to refer to the citations of the Relectiones theologicae made by the great writers on the Law of Nations. To pass them all in review would be an arduous task; but some details are interesting.
High homage was paid to Franciscus de Victoria when numerous pages of his Relectiones were reproduced in the editions of the Siete partidas, as commented on by Gregory Lopez de Tavar.
Another tribute, equally great, was paid by Alberico Gentili. The illustrious Oxford professor did not measure his praises. In his De jure belli libri ires he is pleased to quote the opinions of the Spanish theologian and on one occasion, he writes, "testatur doctissimus a Victoria."
We have mentioned that Grotius cites Franciscus de Victoria in the Prolegomena to his great work, De jure belli ac pacis libri tres, which appeared in 1625; as we have elsewhere seen, he also cited him in the Mare liberum, which appeared in 1609 and which is in reality a chapter extracted from a work composed in 1604, De jure praedae commentarius. This remained in manuscript until 1868 and was then printed for the first time. In this last work the author often mentions the learned professor of Salamanca, especially on the subject of the characteristics of a political community, which must have its own council and authority.
In 1633 appeared the Monarchia Messiae of Thomas Campanella; this latter mentions the opinion of Franciscus de Victoria concerning the rights of the King of Spain over the New World; but, haughty ultramontane that he was, he attributes the legality of that title to the division made by the Pope between the sovereigns of Spain and of Portugal, a division emanating, according to him, from one who was both lord and judge. For Campanella the Pope is "the vicar of the Judge of the quick and the dead and of earthly princes and kings, the vicar of the King of kings, and of the Lord of lords."
In 1635 John Selden's Mare clausum was printed. Franciscus de Victoria is cited; but Selden combats his opinion.
We have mentioned the influence exercised in Spain itself by Franciscus de Victoria, who in a way revivified the teaching of theology. He was in reality the founder of that celebrated school of Salamanca, which may be said to have taken its inspiration from the Order of Friars Preachers and which included the greatest of their names. "It is a truly extraordinary thing," writes a historian, "this assemblage of Doctors, of whom we do not know which to admire most. Spain had never before given so many incomparable Masters to the Order of St. Dominic, and never has since."
The influence of the author of the Relectiones theologicae continued, thanks to his disciples. A man of great worth, Hermann Conring, has done justice to him. He was born at Norden in Frisia in 1606 and was called to teach in the University of Helmstaedt; he died in 1681. Alphonse Rivier passes the following judgment upon him: "A universally learned man, theologian, physician, jurisconsult, Germanist and Romanist, publicist, diplomat, philosopher, a great wit, a small character." In his Examen rerum publicarum potiorum totius orbis, Hermann Conring devotes an important chapter to Spain. He speaks there especially of the development of scholastic theology brought about by the writers of this country and he observes that no country of Europe has produced more subtle writers. He invokes the testimony of Domingo Bannès, a member of the Order of Friars Preachers, and professor of theology at Alcala, at Valladolid, and at Salamanca, who attributes to Franciscus de Victoria the merit of having started this powerful movement. "He acquired his learning in Paris," said Bannès, "but he far surpassed his masters." Conring tells us that Bannès traces the cause of the progress effected by the Spanish in scholastic theology to the sad gravity which, according to him, distinguishes them, and he supports his opinion. He pays a magnificent tribute to Franciscus de Victoria. "There is," he writes, "a work of his entitled Relectiones, which may be extraordinarily useful, not only for theologians, but also for jurisconsults, because it discusses moral topics with the greatest care and subtlety, wherefore I always read it with admiration."
The professor of Helmstaedt insists on the fact that Franciscus de Victoria was the very first to raise moral problems in juridic questions; he adds that the Spanish have continued to study theology and philosophy in this way and that similar works are vainly sought amongst the French or Dutch or Germans, whose genius is not suited to this study. "Often," he adds, "I am surprised that Hugo Grotius was able to make progress in this kind of work so much greater than that ordinarily made by the other authors. But his genius was curious. However, if he excelled in philosophy and produced the incomparable book, De jure belli ac pacis, he owed it to his reading of the Spanish jurisconsults, Ferdinand Vasquez and Diego Covarruvias, who had in their turn made use of the work of their master, Franciscus de Victoria. He cites them frequently. Spanish legal science differed much from French legal science. In France we can praise only Cujas, Hotman, Bauduin, and others who have given their works a literary finish, but in Spain natural law is much better cultivated; there is indeed no other place where it is so happily taught. And all this Spain owes to Franciscus de Victoria. The same consideration applies to philosophy; it is moral philosophy that is most studied in that country. Let him who aspires to the most exact knowledge of moral philosophy procure Spanish authors. Compared with the Spanish, the Germans and the French are naught. It is for the reason pointed out by us that the Spanish have been so successful in the cultivation of metaphysics; here, too, a predisposition to sadness and seriousness is requisite. In physics they are veritable children, because the study of physics is a gay affair; accordingly they cultivate only the saddest side of it, that is to say, medicine, and they neglect the agreeable side. For the same reason the study of the humanities languishes in Spain. Among its numerous writers scarcely one can be praised for the cultivation of belles-lettres. Mariana and Barclay have both noted this fact. Among theologians may be mentioned the Ciceronian, Melchior Cano. When, on the initiative of the Jesuits, Philip IV founded a royal academy at Madrid, there was not found in Spain not even among the Jesuits a single writer who was skilled in belles-lettres. In this country there is only one modern historian, Mariana."
The authors on international law of the nineteenth century have not failed to pay homage to Franciscus de Victoria. In his History of the Law of Nations in Europe and America, Henry Wheaton mentions him in an exceedingly laudatory manner and devotes seven pages to an analysis of the two Relectiones that relate to the Law of Nations. Another great author, James Lorimer, a legal philosopher and a jurist, has praised the Spanish writers of the sixteenth century in general, and Franciscus de Victoria in particular. "From these few observations," he writes, "you will have no difficulty in perceiving the extreme injustice of the manner in which, down to our own time, it has been customary to speak of the scholastic jurists. Learned as Barbeyrac was, the few perfunctory sentences which he devotes to them in his celebrated preface to Pufendorf which he adopts in his preface to Grotius, as serving for both works are no exception. The fact is, that ever since the Reformation the prejudices of Protestants against Roman Catholics have been so vehement as to deprive them of the power of forming a dispassionate opinion of their works, even if they had been acquainted with them, which they rarely were."
The eminent Oxford professor, Thomas Erskine Holland, has also paid homage to the celebrated Spanish writer in one of the introductory lectures of his course, a lecture which is reprinted in the remarkable Studies in International Law, published in 1898. Another English author, Thomas Alfred Walker, in his History of the Law of Nations, which appeared in 1899, has given several pages of analysis to the Relectiones theologicae. Finally, in a collection edited by the learned Antoine Pillet, a French professor, Joseph Barthélemy has contributed an elaborate study of the life and work of Franciscus de Victoria.
Here our work may end. We have tried to relate the life and activity of one of the great precursors of Hugo Grotius. Because of the vigor of his reasoning, the nobility of his sentiments, and his profound love of mankind, Franciscus de Victoria is still in our day an imposing personality. He was modest, simple, good; a sturdy defender of truth and of justice. Whoever reads his writings esteems their author, and that is why I venture to bring to his illustrious name my tribute of admiration.
British Museum, August 20, 1913.
1. ALPHONSE RIVIER, Principes du droit des gens (Paris, 1896), vol. I, p. 5.
2. H. R. FEUGUERAY, Essai sur les doctrines politiques de St. Thomas d' Aquin, précédé d'une notice sur la vie et les ecrits de l'auteur par M. BUCHEZ (Paris, 1857), p. 8.
3. TH. DE CAUZONS, Histoire de l'Inquisition en France, vol. I (Paris, 1909), p. 429.
4. CHARLES THUROT, De l'organisation de l'enseignement dans l'Université de Paris au moyen âge (Paris, 1850), p. 115.
5. D. A. MORTIER, of the Friars Preachers, Histoire des maîtres généraux de l'Ordre des Frères Prêcheurs, vol. I (Paris, 1903), p. 63.
6. THOMAS ERSKINE HOLLAND, Studies in international law (Oxford, 1898), p. 44.
7. VICTOR LE CLERC, Discours sur l'état des lettres au quatorzième siècle. Dans Histoire littéraire de la France au quatorzième siècle (Paris, 1865), vol. I, p. 101.
8. EDUARDO DE HINOJOSA, Estudios sobre la historia del derecho español (Madrid, 1903), p. 235
9. LOUIS DELARUELLE, Guillaume Budé: Les origines, les débuts, les tace, maîtresses (Paris, 1907), p. 54.
10. CHARLES WADDINGTON, Ramus (Pierre de la Ramée): Savie, ses écrits et ses opinions (Paris, 1855), p. 23.
11. CHARLES WADDINGTON, op. cit., p. 24.
12. D. A. MORTIER, of the Friars Preachers, Histoire des maîtres généraux de l'Ordre des Frères Prêcheurs, vol. V (Paris, 1911), p. 379-380.
13. D. A. MORTIER, op. cit., vol. V (Paris, 1911), p. 380.
14. EDUARDO DE HINOJOSA, op. cit., p 245.
15. Ibidem, p. 195.
17. ALBERT DESJARDINS, Le pouvoir civil au Concile de Trente. In Revue critique de législation et de jurisprudence, vol. xxxiv (Paris, 1869), p. 3.
18. Histoire du Concile de Trente, written in Italian by PAOLO SARPI, of the Order of Servites, translated by PIERRE FRANÇOIS LE COURAYER, doctor in theology of Oxford (London, 1736), vol. I, p. 167.
19. lbid., vol. II, p. 313.
20. ALBERT DESJARDINS, article cited, p. 221.
21. EDUARDO DE HINOJOSA, op. cit., p. 201.
22. E. S. MARSEILLE, Erasme et Luther: Leur discussion sur le libre arbitre et la grâce (Montauban, 1897), p. 14 et seq.
23. Ibid., p. 35.
24. MARCELINO MENENDEZ PELAYO, Historia de los heterodoxos españoles (Madrid, 1880), vol. II, p. 61.
25. lbid., p. 65 et seq.
26. H. DURAND DE LAUR, Erasme, précurseur et initiateur de l'esprit moderne (Paris, 1872), vol. I, p. 492.
27. Ibid., vol. I, p. 507.
28. Histoire critique de l'inquisition d'Espagne despuis l'époque de son établissement par Ferdinand V jusqu' au règne de Ferdinand VII, tirée des pièces originales des archives du Conseil de la Suprême et de celles del tribunaux subalternes du Saint Office, by D. JEAN-ANTOINE LLORENTE, sometime secretary of the Inquisition, translated by ALFRED PELLIER (Paris, 1817), vol I, p. 461.
29. H. HARRISSE, Excerpta Colombiniana (Paris, 1887), p. 25 et seq.
30. NICOLAUS CLENARDUS, Epistolarum libri duo (Antwerp, 1556).
31. JOANNES VASAEUS, Rerum Hispanicarum chronicon, Chap. VI: Rerum Hispanicarum scriptores aliquot (Frankfort, 1579), vol. I, p. 437 et seq.
32. VICENTE DE LA FUENTE, Palacios Rubios: Su importancia jurídica, política y literaria. In Revista general de legislación y jurisprudencia, vol. XXXVI (Madrid, 1870), p. 242.
33. GEORGES SCELLE, La traite négrière aux Indes de Castille; contrats et traités d'assiento (Preface by Mr. A. PILLET) (Paris, 1906), vol. I, p. 121.
34. ALEXANDER VON HUMBOLDT, Examen critique de l'histoire de la géographie du nouveau continent et des progrès de l'astronomie nautique aux XVème et XVIème siècles, vol. III (Paris, 1837), p. 281.
35. Ibid., vol. III (Paris, 1837), p. 293-294.
36. Histoire véridique de la conquête de la Novelle-Espagne, written by the captain, BERNAL DIAZ DEL CASTILLO, one of the conquistadores; translation by D. JOURDANET (Paris, 1877), p. 121.
37. EDWARD JOHN PAYNE, History of the New World called America, vol. I (Oxford, 1892), preface, p. vii.
38. EDWARD JOHN PAYNE, op. cit., vol. II (Oxford, 1899), p. 17.
39. H. GROTIUS, De jure praedae commentarius, ex auctoris codice descripsit et vulgavit H. G. HAMAKER (The Hague, 1868), p. 29.
40. D. A. MORTIER, op. cit., vol. V (Paris, 1911). p. 385.
41. HERMANN CONRING, Opera (Brunswick, 1730), vol. IV: Examen rerum publicarum potiorum totius orbis, chap. 1 (De republica Hispanica), p. 77.
42. JAMES LORIMER, The institutes of the law of nations, vol. I (1883), p. 71.
43. Les fondateurs du droit international, leurs oeuvres, leurs doctrines, with an introduction by A. PILLET (Paris, 1904), p. 1 et seq.
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