Political Thought in Sixteenth-Century Spain: A study of the political ideas of Vitoria, De Soto, Suárez, and Molina

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Political Thought in Sixteenth-Century Spain: A study of the political ideas of Vitoria, De Soto, Suárez, and Molina

Table of contents :
Contents
Acknowledgements
Introduction (1)
1. Their natural-law theory and its implications (11)
2. The political community and its laws (30)
3. The position of the ruler (59)
4. Church and State (69)
5. The jus gentium or law of nations (98)
6. Colonization and the New World (110)
7. War and the law of war (135)
Conclusion (158)
Short biographies (171)
1. Francisco de Vitoria (171)
2. Domingo de Soto (176)
3. Luis de Molina (180)
4. Francisco Suárez (184)
Bibliography (189)
Index (195)

Citation preview

POLITICAL THOUGHT IN SIXTEENTH.-CENTURY SPAIN

POLITICAL THOUGHT IN SIXTEENTH-CENTURY SPAIN A study of the political ideas of Vitoria, De Soto, Suarez, and Molina BY

BERNICE HAMILTON

OXFORD AT THE CLARENDON PRESS 1963

Oxford University Press, Amen House, London E.C.4 GLASGOW NEW YORK TORONTO MELBOURNE WELLINGTON BOMBAY CALCUTTA MADRAS KARACHI LAHORE DACCA CAPE TOWN SALISBURY NAIROBI IBADAN ACCRA KUALA LUMPUR HONG KONG

© Oxford University Press 1963 PRINTED IN GREAT BRITAIN

CONTENTS Introduction I.

Their naturaL,law theory and its implications

II. The political community and its laws

I 11

30

r r r. The position of the ruler

59

rv. Church and State

69

v. The jus gentium or law of nations v I. Colonization and the New World VII. War and the law of war Conclusion

98 11o

135 158

Short biographies I. Francisco de Vitoria 2. Domingo de Soto 3. Luis de Molina 4. Francisco Suarez Bibliography

189

Index

195

ACKNOWLEDGEMENTS

I

MU S T first acknowledge a debt of gratitude to the University of Manchester for the Simon Fellowship which allowed me two years of peaceful reading. I must also thank the University of Edinburgh for a grant which enabled me to spend some weeks in the National Library in Madrid. For scholarly help with translation and related matters I owe most grateful thanks to Gerard Meath, O.P., and Gervase Leyden, 0.F.M., as also to Peter Taylerson of Hexham. I am indebted to many Spanish writers in this field, whose names appear in the bibliography, not least to D. Manuel Fraga Iribarne of the Instituto de £studios Poltticos. Finally, I should thank patient booksellers in Madrid who drew my attention to secondary sources and tracked down out,.of,.print books for me.

B.H.

INTRODUCTION

F

EW political philosophers are great enough to be con,.. sidered apart from their background and from their contemporaries-and even they lose something in the process. The problems they discuss may be perennial: the reasons for political obedience, the origin and purpose of society and government, the limitations of political authority, &c., but the solutions they offer will be rooted in past theory, in their own political experience, and in the ethical assumptions of their particular society. Thus for an historian interest will mainly lie in the answers given to these perennial problems, and the use made of the answers, in a given place and time. 'Pure political theory' does not, of course, exist; place and time will also govern what will influence it most strongly­ whether law, economics, or administration, or some theological or dialectical system for bringing order into history. Before 1600 theology was the main influence, though with a strong admixture oflaw, and the modern tendency to separate religion and politics has created a reluctance to grant the Middle Ages any 'true' political theory. But since the period has long been allowed some sort of economic theory, and even its work in the natural sciences is now becoming respectable, the position grows less tenable. In any case, it is impossible to separate the political ideas of the four Spanish theologians with whom we are here dealing from the Christian assumptions and the legalistic framework which sustain their whole thought. Their political ideas are, in fact, almost as likely to appear in books such as The Theological Virtues of Faith, Hope and Charity, or The Seven Days of Creation 1 as in works whose titles suggest a politico,..legal content. Yet they certainly seem to fulfil the role for which J. S. Rees once cast the political philosopher: 2 He may survey the contemporary scene,.�nd point to the gulf between 1 2

827145

Both by Francisco Suarez. Political Studies, vol. ii, no. 3, Oct. 1954, p. 254. B

INTRODUCTION

2

practice and precept, to arrangements that seem to lack all moral justification in terms of those values formally subscribed to by the very community which is seemingly so indifferent to their infringement. He may attempt to identify and then classify the needs which men every,,, where seem to share ...thus suggesting a scheme of ends to which rulers are expected to move.

This book is, then, a part of the history of ideas. Its subject is the political, social, legal thought of four outstanding Spanish theologians who lectured in the universities of Spain and Por,. tugal during the sixteenth century. It is not absolutely certain that this 'official' church and university political theory­ written in medieval Latin and reasoned in the scholastic manner-represents the main current of the time. There exists a wealth of pamphlets and treatises, written mostly in Spanish, but not necessarily for a more popular audience, an intensive study of which might alter our impression of the period. 1 But the influence of the 'university philosophers' must certainly have been great: e.g. several thousand students, lay and clerical, passed through the classrooms of Francisco de Vitoria, and many of his pupils later occupied prominent positions in church, university or administration in Old and New Spain. Since writing this sentence I have spent some weeks in the Biblioteca Nacional in Madrid reading a quantity ofpolitical works-books, printed and manuscript pamphlets-of the period 1500-1640. They appear to fall roughly into three groups, with some overlapping: (a) more dogmatic and less practical statements ofsome part ofthe theories described in this book; (b) 'purely practical' writings, describing or recommending certain courses of conduct in peace and war to rulers and ministers, or how princes should be educated. These represent a steady but different trend in political writing.(c) Works influenced by Machiavelli's Prince or similar Italianate writings.Of these, some are direct refutations (over, lapping with group (a)); others are purely imitative (overlapping with (b)); while yet others are either attempting unsuccessfully to combine a traditional Christian approach with some practical considerations from The Prince, or are unaware of being influenced.Croups (b) and (c) seem to increase in the seven, teenth century.Nothing that I read was of the same stature as the four writers considered here. I hope to pursue the matter further. 1

INTRODUCTION

3

Ideally, a book of this kind should first sketch in the historical background and give some account of the writers' lives; it should then describe and analyse their main ideas-with liberal extracts, since their works are not readily accessible; finally, it should ask if any relationship can be found between their theory and the current practice of politics. This last g uestion, difficult at the best of times, becomes almost unanswerable in sixteenth century Spain, where detailed and reliable secondary sources are often not available. (This difficulty is general in Spanish history, the bulk of which remains unworked in the archives.) We know the outlines of Spain's political history, but it is often very hard to interpret. We possess detailed studies of some short periods in her economic, administrative, or colonial history, but the gaps in our knowledge are much greater, and, to add to our difficulty, Spanish development (or lack of it) is alien to our experience. Spain was almost un... touched by the Protestant Reformation or by the Renaissance in its Italian form; 1 she had no scientific revolution to speak of, no equivalent to Hobbes or Locke, no rise of political individualism, no social...contract theory,2 no industrial revolu... tion. Even today many of her ideas and values remain essen.., tially medieval, if we use the word not in any pejorative sense, but as describing a way of life which both publicly and privately rejects most of what, whether we like it or not, we have come to regard in Britain as 'normal'. It is natural to take the history of one's own country as a norm, but if carried to excess this leads to an impoverishment of the understanding 1

In the beginning the Spanish Renaissance took the same course as elsewhere, of reviving interest in language and literature and raising the standards of scholarship. But the profoundly moral tone of the Spanish universities led, as it did in the North, to a greater concentration on the restoration of biblical and patristic texts than upon 'pagan classics'. The famous Polyglot Bible of Alcala is a memorial to this scholarship. 2 Where these writers seem to refer to a contract, it is to the medieval contract of government, entered into by moral and social beings; it does not create moral order out of chaos. Society (the community) is not created by the wills of men, although their will selects the form of government, at least initially. 1

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INTRODUCTION

and errors of judgement. English political development, as a result of geographical isolation and the early growth of strong kingship, has been very much a thing apart. One has only to compare the English Parliament with the French Estates General or the Cortes of the Spanish kingdoms, to remember the unusual strength of the English common law, or, in a later period, to consider the Established Church; to these things no continental country offers a parallel. And on the other hand we may recall how late and slight was the influence of canon and Roman law in England. England's economic develop..­ ment shows a similar divergence, and so, to return to the point, does her political theory. Hooker, despite his Englishness, is still part of the European tradition; but from Hobbes to Mill we are in a separate world-200 years of 'purely English' political theory, interrupted only by the ambiguous voice of Rousseau. Yet, with the exception of the United States, where the influence of Locke was even more lasting, the western world did not entirely follow us. Individualism (fostered by late..-medieval nominalism and the Reformation) and the pleasure..-pain psychology of Hobbes, Locke, and Bentham were not always accepted as the basis of a theory of politics. Even in relation to English development we are now beginning to recognize the strength of other traditions (Burke, Coleridge, the Romantics). Sixteenth..-century Spain then remained essentially medieval, and saw a great Thomist revival; its scholasticism was humanized by the literary bent of the Renaissance and directed by nominalist influences to apply morality to political problems. The theory taught in the universities of Spain and Portugal was that of a Christian state: no longer the old imperial..-papal dualism, but an adaptation to fit the realities of the nation..-state. The influence of Roman law was felt more in a christianized version of the sovereignty of the people than in any idea of the ruler being above the law; this is one of the points where the Spanish Thomists show a marked advance on St. Thomas's own ideas. Although Machiavelli's Prince was widely read

INTRODUCTION

5

and di:,cussed in Spain, political thought continued to be ex.., pounded within a framework of morality and law. The writers considered here all assume an ordered universe; all adopt the Thomist hierarchy of laws: the eternal law, governing all things; the natural law, written in men's minds, through which they participate in the eternal law and distinguish good from evil; the positive divine or revealed law (Scripture) supplementing the natural; and positive human (civil and canon) law. Thus, even if they do not, as Suarez does in De Legibus, begin by discussing the eternal law and work syste.., matically downwards, they naturally refer all their statements on political matters to supra..,political laws and hence to morality in general. The lives of these four writers roughly cover the sixteenth century: in Spanish history the reigns of the Emperor Charles V and of Philip II. In Europe the main political factors were the struggle between France and the Habsburgs, which scandalized Christendom and aroused a new interest in the ethics of war.., fare; the tension (inherited by Charles V with his crown) between the empire and the papacy; the rise of Lutheranism and questions of internal church reform; the Turkish danger in eastern Europe. In Spain the colonization and administra.., tion of the New World was of paramount concern. These events were reflected in the teaching and writing of the uni.., versities, which were at that time still recognized centres of intellectual leadership. It seems natural to us today that a dis.., tinguished university economist or scientist should be called in to advise the government; it may require an effort of imagina.., tion to visualize a sixteenth..,century theologian in the same role. Yet it will be recalled that when Henry VIII was denied an annulment by the papacy, he found it natural to turn for a second opinion to the universities of Europe. Francisco de Vitoria was, in fact, consulted on'this very same subject by the empress on 7 September 1530, and summed up his views

6

INTRODUCTION

on the purpose and status of matrimony in a relectio of January I 53 1, published as De Matrimonio. In Spain the universities were consulted on a wide range of questions-legal, moral, political, and economic: the professors reflected on the questions and often used them as material for lecture courses, practising the scholastic method with varying degrees of flexibility. Some time after the end of a session they gave a public lecture or summary of the course (called a relectio). They also lectured on current problems about which they had not been consulted -usually in the course of commenting on some statement of Peter Lombard or of St. Thomas Aquinas. (Vitoria's strictures on the Spanish conquest of the Indies are a well,. known example.) They were not unduly subservient either to church or state, speaking their minds freely about the be.­ haviour and pretensions of recent popes and their supporters, while those who lived under Charles V were equally out.­ spoken about the unreality of imperial power. The four writers were all members of religious orders: Vitoria and Domingo de Soto belonged to the Order of Preachers (Dominicans) and Suarez and Luis de Molina to the Society of Jesus (Jesuits). The Spanish Dominicans had reformed themselves morally and intellectually before the end of the fifteenth century, following the decadence of the Claustro, 1 while the Jesuits, only recently founded, were still in their first zeal. The two orders contended for the intellectual leadership of the church in Spain. Vitoria studied and lectured in Paris for nearly eighteen years, Soto for a shorter period. The two Jesuits, possibly be,. cause of the ban placed on foreign study by Philip II in 1558, worked exclusively in the peninsula,2 although Suarez lec.The period of decline after the Black Death. It is interesting that the two who were creative theologians (Suarez and Molina) were the most Spanish and the least subject to outside influences. It is also, of course, possible that, despite the Jesuit devotion to St. Thomas, they were less intellectually bound by his system. 1

2

INTRODUCTION

7

tured for a time in Rome. Indeed, there seems to have been no difficulty about lecturing abroad, for the historian Mariana went to Rome in I 561 and was away for thirteen years, teaching in Rome, Sicily, and Paris. Vitoria and Soto were, however, more influenced both by Renaissance humanism and by the nominalist teaching of Paris, which continued to flourish in the Spanish university of Alcala after its decline had begun in France. Though all four writers, following the Thomist tradition, were strongly critical of the implications of nomi..­ nalism, there is little doubt that it had a healthy influence, especially on the two Dominicans, in directing their minds towards more practical matters (e.g. individual instances rather than generalities) and a greater interest in politics. Suarez, who was the least exposed to nominalist teaching-for Molina studied briefly at Alcala-is the most scholastic of the four; Vitoria is the most practical. Molina, in his long and fascinating discussion on the ethics of slavery, based on de..­ tailed information gathered from many countries, followed the new factual and historical approach to politico..-moral matters inaugurated by the Dominican reports from the New World. Whatever theological differences there may have been, we can find in the field of political ideas no great difference between Jesuit and Dominican ways of thinking. Vitoria and Suarez are extremely close to one another in thought; the differences are those of personality. Vitoria is brilliant, lively, humane, and has a pungent style (or so it comes down to us, through the medium ofhis students' notes). Suarez has a slow, thorough mind. He was twice rejected by the examiners of the Society of Jesus, and even when accepted-thanks to the vision of the Provincial-it seemed for some time that he might have to be content with a low rank. When he became Professor at Coim..­ bra, after years of teaching in Rome and Alcala, he had still not taken his doctorate in theology, and was cornpelled to do so during his first year's course, 'to silence critics'. A disarming foreword to his volume on Hope and Charity indicates that his

INTRODUCTION

8

lectures were not exciting either, and that he was humbly aware of it: The shorter form in which the following treatises on Hope and Charity see the light is due, gentle reader, firstly to the fact that the very students over whom Suarez presided at Rome, when he was lecturing on these topics, grew tired of diffuse and elaborate commentaries, and, such was the simplicity (candour) of the noble Doctor that he readily agreed to their advice and desires....

Yet by patience, and an essential clarity of mind, he achieved a great reputation and completed the long row of volumes which stand in his name. And it is curious that, despite his diffuseness, when one comes to search for the best passage to illustrate a particular point, it is often on the more pedestrian Suarez that one lights, rather than upon Vitoria, for whom all must feel an initial preference. Soto was a follower of Vitoria, who worked in close associa,, tion with him at Salamanca. His De ]ustitia et Jure is more scholastic than Vitoria's work, and thus closer to Suarez; yet he is less logical than either, partly because (like St. Thomas himself) he wavered in his analysis of the natural law and the law of nations, following the tradition of the jurists rather than that of the theologians (c£ Ch. I). Molina was more of a theologian and a philosopher, and perhaps less generally interested in political matters than any of the others. He is significant for his more cautious and sceptical approach to the natural law-both in trying to tease out what exactly it was, and in his grave doubts as to whether in fact it was so obvious and easy to understand. He, alone, has a touch of casuistry, in the popular sense, in some of his arguments, and he is harsher than the rest in his attitude to infidels and apostates. This cannot be a matter of date, since Suarez, who is very liberal, outlived him, nor of an essentially sterner personality, since his attitude to slaves is, for the period, warm and humane. 1 For the benefit of anyone who wishes to know more about the lives of these writers, I have added short biographies at the end of the book. 1

INTRODUCTION

9

The ban on study abroad in the second half of the sixteenth century did not at once create an illiberal atmosphere, although in the long run its effects were to be serious. In fact, religious bigotry and censorship do not seem to have been as active in sixteenth.- and early seventeenth.-century Spain as has often been assumed. In evidence of this we have, inter alia, the early protection of Erasmus and of the nominalist and Erasmian university of Alcala by the bishops of Seville and Toledo, by the Inguisitor.-General, and even by the emperor himself, 1 and also the support of the humanist Sepulveda by the Inquisitor.­ General in 1550. Even as late as 1609 it proved impossible to convict the historian Mariana, who had been accused of irreligion, lack of patriotism, and criticism of governmental corruption. Despite a year's imprisonment-with a secretary and writing materials-he refused to recant any of his opinions, declaring many to be topics of general conversation. He was finally set free, to survive and flourish, while his works con.­ tinued to circulate, with only his criticism of specific ministers excised. Similarly, the Spanish Index Expurgatorius, first issued in 1558, allowed to appear with small erasions books which were totally banned elsewhere. In the seventeenth century Hobbes's Leviathan, publicly burned in England, and still (in 1963) on the papal Index, circulated freely in Spain, as did Up to 1 526, when his Enquiridion appeared in Spanish, Erasmus's influence had been confined to university intellectuals. Many of the clergy disliked the book because of its mockery of some forms of piety and of monasticism, but it was protected by Alfonso de Fonseca, the Inguisitor,General, to whom the translation was dedicated. In the spring of 1 527 the juntas of Valladolid met to discuss the expurgation of his works. The accusers were Franciscans and Vitoria's (Dominican) brother from Burgos. Most of the difficulties raised by the twenty,two articles collected from Louvain and France (where similar meetings were held), as well as from Spain, arose from his looseness oflanguage, by scholastic standards, and from his irreverent manner. Vitoria contested that Erasmus did not mean what he said, though agreeing that his words could be taken in that sense. Erasmus himself, in a letter to Vitoria of 29 Nov. 1 527, complained of'examining in a scholastic an� Sorbonnic way what has a purely rhetorical value'. Probably as a result of official protection, there was no general condemnation of Erasmus and his works. 1

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Mariana's De Rege, which justified tyrannicide and resistance in pseudo.-Renaissance Latin and also in Spanish-media far more inflammatory than scholastic argument. The only well.­ known work in our field which seems to have been totally suppressed in the period was Sepulveda's Democrates Alter [ Secundus], which argued that the Indians of the New World were natural slaves, and was suppressed on grounds of a moral disapprobation which we might well share today.

I THEIR NATU R AL,,LAW THEOR Y AND ITS IMP LI CA TI ONS

T

HE Thomist version of naturaL,law theory, which was strongly attacked in all northern universities during the fourteenth and fifteenth centuries and largely jettisoned in Protestant countries, continued unbroken in Spain, and had, indeed, a new flowering during the sixteenth or 'golden' century. More politically minded than Aquinas, the four university theologians with whom we have to deal, although still in the scholastic tradition, often display a practical wisdom and reasonableness which give their writings considerable charm. Vitoria and Suarez provide lucid statements of natural,, law theory and draw from it some distinctly liberal political conclusions. Domingo de Soto and Molina, each in a dif,, ferent way, contrive to modify these clear statements: Soto by his Augustinian language and his tendency to adopt the jurists', rather than the theologians', definition of natural law; Molina, by his many doubts about the clarity and universal know,, ability of the natural law, and by his harsher attitude to the old (Moslem) if not to the new (Indian) infidels. In all cases, however, the Thomist hierarchy of laws, and in particular the natural law, forms the framework for their discussion of politics and the political community. It may be useful to begin with a brief discussion of the words 'natural' and 'rational' in the vocabulary of the four writers. 'Natural' has the twofold sense of something which is reason,, able and at the same time is generally accepted. (This dual implication may partly account for the frequent medieval association of natural law and custom.) The natural was for them the normal; widespread existence was part of the evidence

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12

that something belonged to the natural law. When Francisco de Vitoria, for example, was asked what made him think it was part of the law of nature for parents to bring up their children, he answered: Although this objection is raised it does not mean anything; it is j ust for the sake of argument and is not meant seriously, for no one could really hold the idea that a father is not bound to bring up his children. The fact that everyone agrees is evidence in itself. So, whoever raises this objection and says that the evidences of nature are not the same as the law of nature, though he may utter the words, he cannot refuse to agree with our view. We hold and know this because everyone agrees. 1

But he also came to the same conclusion by an inference from the basic self.,evident principle of natural law: Do unto others as you would they should do unto you-although by a remote inference, requiring reflection. Another common method of approach was to say that everything which was right 'according to the nature of things' was part of the natural law, or that natural law was necessary law, since as Aristotle says in I Posteriorum, what is natural springs from the things themselves, and what springs from things themselves is necessary. That is natural which in itself belongs to anything, as, for instance, the eapacity to laugh and to think is natural to man . . . . Similarly with the natural law: it is that which is properly and of itself right. 2

An example which was often used was that a deposit should be returned, or that the harmless and innocent should be left unharmed. But Vitoria, not quite satisfied by the use of the word 'necessary', defines more exactly what he means: There are degrees of necessity. . . . Some things are more necessary than others; there is one kind of necessity in mathematics and another in other things. In mathematics the necessity is such that without it there would be nonsense: thus God cannot make a triangle which has not got three angles. But such stringent necessity is not found in natural things. For instance, it is necessary for a man to breathe and have two eyes and two 1 2

Commentaries on St. Thomas, vol. iii, De justitia, g u. lvii, art. 2, p . 7. Ibid.

AND I T S I M P L ICAT IONS

13

feet and for the sun to rise tomorrow; but God could arrange things differently so that man should not breathe and not have eyes and feet and the sun should not rise tomorrow. For this kind of thing to be called necessary it is enough if nature herself is unable to alter it. Natural law, therefore, is said to be necessary in this second way, by natural necessity, because nature cannot reverse the state of things without a divine mandate. So, therefore, we conclude that without a divine mandate reversing the whole order of nature the Ten Commandments cannot be other than they are, that is, we ought to worship God, honour our parents, and so on. 1

(The Ten Commandments were always considered to be a part of the natural law, although they were, historically speak..­ ing, the revealed law of the Israelites.) Luis de Molina defines the natural law as something which commands or prohibits a thing which is either good or evil in itself, the goodness or evil of which comes from its own nature and not from the will of the legislator. 'Thus it is rightly said of such an object that it is forbidden because it is wrong and not wrong because it is forbidden.'2 This two..- or even three.,.fold view of the natural is also paralleled by a very broad use of the word 'rational'. 3 A rational thing was not merely something which could be grasped intellectually and followed logically by the mind; it was something which appealed to the intelligence and was also corroborated by experience. A recurring expression is that something is 'repugnant to reason': it doesn't make sense: the mind boggles at it. Natural law was thought to be very general, and there seems to have been no attempt to make its fundamental principles any less so; perhaps it was felt to be unwise. Do good and avoid evil-a question..-begging precept to a modern mind-and, Vitoria is more fortunate with his geometry than, for instance, Molina, who argues similarly that 'God could not make the angles ofa triangle not add up to two right angles'. (De Justitia et Jure, vol. vi, treatise v, disputation 57.) 2 Vol. vi, treatise v, disputation 47, par. 2. 3 This wider use is more common here than in Aquinas who often uses ratio (ratiocination) in opposition to intellectus (intuitive understanding). 1

14

THEIR NATURA L , L A W TH EORY

more reasonably, Do unto others as you would they should do unto you were the two self.-evident principles, and from these fol.­

lowed, both logically and reasonably, prohibitions of murder, theft, and adultery. ' You do not wish to be killed by other men, therefore you ought not to kill other men. This is the second degree of natural law, and on this everyone agrees. ' 1 The application of these principles was worked out in relation to circumstances, and this was the third (some thought the fourth) degree of remoteness. The first two principles were im,, mutable; the second degree, consisting of necessary inferences, was already sometimes capable of modification (killing was legitimate i n self.-defence or in a just war) ; further deductions were far from changeless, and could develop according to time and circumstances. Francisco Suarez asserts that the natural law includes only those things to which our nature gives im,, mediate assent. But precepts such as Justice must be done, God must be worshipped, Man must live temperately he takes to be necessary inferences from first principles, and these, too, he believes no one doubts. In the third group, however, he says that some precepts are more easily recognized than others, for instance, the prohibition of adultery and theft, and indeed the Ten Commandments as a whole, require reflection and do not command immediate assent. 2 It will be seen that there was no general agreement about the degree of self.-evidence of the various precepts or their re,, moteness from the fundamental principles of the law, though Suarez would have agreed that the ' reflection' required to accept the Ten Commandments was possible for any man. Domingo de Soto goes even farther in the same direction, seeming to imply that reasoning (ratiocination) does not enter in until the making of detailed positive human law, so that the natural law is more akin to instinct. In De Justitia et Jure (bk. i, q u. ii, art. 3 ) he writes : Those virtues are said to be of the law of nature to which men are 1 Vitoria, Commentaries, vol. iii, qu. lvii, art. 2, par. 4, second proposition. 2 Suarez, De Legibus, bk. ii, eh. vii, pars. 5 and 6.

A ND ITS IMP L ICATI ONS

15

immediately inclined by nature, not only as to first principles but also as to conclusions proceeding from the same principles without the need to exercise discursive human reasoning.. • .

And again: 1 Because God is the author of nature He gave particular things their own instincts and stimuli through which they act for their own ends. But for man in particular, He placed in his mind a natural norm by which he might govern himself according to reason, which is natural to him. This is the natural law : a knowledge of those principles which are self...evident without the action of discursive human reason• . . . Then He gave men the power to set up by reason, according to time, place and duties, laws which they might judge expedient. These laws are called human laws.. . .

And he goes on,2 confusingly, • • • The natural law is an imprint made at the creation of nature itself; human law is a rule laid down by man by means of a power divinely bestowed upon him, while divine light is the light infused into men, which Jeremiah called the law written in men's hearts.... But all truth (as St. Augustine says) is an illumination and partial participation in the eternal law.

Then again: 3 'The law of nature . • . is promulgated by the light of natural reason and instinct ... so that, as far as the first principles of natural reason are concerned, no human being can plead ignorance as excuse. • . •

Finally, when he is discussing the origin of private property, he attributes it to the law of nations and not to the natural law, since, he says, the latter does not demand ratiocination, but is imprinted on our hearts-as, for example, the union of man and woman. From this group of quotations a number of things emerge. Firstly, Soto is using the word 'reason' in at least two different ways: 'a natural norm by which he might govern himself according to reason' (here natural _reason or instinct), and 'the Ibid., bk. i, qu. iii, art. I. 3 Ibid., bk. iv, qu. iii, art. I. 1

2

Ibid., qu. i, art. 4.

THE IR NA TURA L,LA W THEORY

16

power to set up by reason . . . laws' (here meaning ratiocination or reflection). One must ask whether this confusion lurks be..­ hind the use of the word among all these writers. I do not think it does. The use of the Augustinian words illumination and infused (more subtle but more passive words) suggests that he was strongly influenced by other than Thomist sources. Although a pupil and later a colleague of Vitoria's, he is also partly in another tradition when he asserts in some places (though not in others) that natural law is common to men and to animals. 1 He is, in any case, far from being as consistent as Vitoria and Suarez. He is reluctant to recognize the necessary quality of what Vitoria and Suarez would call precepts of the second degree. The natural law (he says) 2 if we confine it to the above principles, is identically the same for all humanity-not only the truth of right rule but also the knowledge of it. . . . For there can never be any men, however incoherent and barbarous, so long as they are in their right minds, to whom this kind of truth is not obvious, e.g. that we must do good and avoid evil. The same applies to the truth ' Do unto others, &c.' . . .

By the time it is a question of what the others would call principles of third..-degree remoteness, he seems almost to feel that they are matters of opinion, and classifies them as human law. This fits in with his view that ratiocination begins with human law. Yet, oddly, unlike Suarez, he seems to think that the Ten Commandments are almost as necessary as mathe..­ matics. 3 He himself distinguishes between speculative and See below, p. 2 3 , for Molina's elucidation of the two traditions. Op. cit., bk. i, qu. iv, art. 4. 3 Ibid., qu. v, art. I . 'Some conclusions we show to be necessary, as in mathematics, but others, because the consequence is not perfectly obvious, go by the name of opinion, according to the quality of each science. Thus in practical matters we draw the Ten Commandments as necessary conclusions from first principles, and so they belong to the natural law. But because our actions are associated with particular things, we have to descend from these principles to particular things, taking into account the different conditions of time and place. So these laws come about which do not emerge by a necessary 1

2

AND ITS IM P LICATIONS

17

practical reason, in a way which seems to relegate natural law to the realm of pure theory, saying that the speculative reason, which mainly and especially deals with necessary things-that is, with things which cannot be other than they are, finds the perfect truth in conclusions which it intuitively sees in the principles. But with practical reason, inference proceeds from necessary principles to contingent things of which human actions are composed, and thus sometimes makes mistakes. This tendency increases as one descends among particular, individual things.

However, when Soto does come down to precise cases he is very much more in agreement with Suarez and Vitoria than one would expect, as for instance in bk. i (qu. iv, art. 4), where he comes to the same conclusion as they do that 'Thou shah not commit adultery' follows necessarily from the first principle, but that the prohibition of 'simple fornication' is not so generally obvious because less harm is done to third parties. 1 Vitoria indeed inquires anxiously whether prohibitions and commands which are remote inferences from first principles, and which 'are not entirely clear and obvious, although they may seem probable' are certain enough. 'Is their likelihood sufficient to justify our saying that they are forbidden by the natural law l' He concludes that they are certain enough. 2 Those things which are arguable by moral likelihood on good moral principles (i.e. more fundamental principles of the natural law), if there is no probable argument to the contrary, must be reckoned a third degree of the natural law. process from natural principles alone, but are built up with the help ofreasoning and are therefore called human laws.' 1 Ibid., bk. i, qu. iv, art. 4. Vitoria's explanation of why it is part of the natural law is typical of his way of reasoning: 'It may be concluded that it is very p robably against the natural law and unlawful because it is part ofthe natural law for a father to bring up his children, and if simple fornication were lawful it would scarcely be possible to bring up children because there would be no certainty about offspring and no father to bring them up.' 2 Commentaries, vol. iii, qu. lvii, par. 4, third proposition. 827145

C

18

THEIR NA TURA L , L A W THEOR Y

And in answer to the question whether nature cannot make a mistake and our minds be deceived, he says with simple confidence: Natural objects have their origin in God, and if my mind dictates something which cannot be disputed, that is, judges a particular thing to be imperative, for instance that parents should beget children, then this is true by natural law. For if God made nature and our minds come from God, then any proneness to mental error or deceit must be attributed to God. If after God has given us our minds we judge falsely, then God has deceived us by allowing our natural judgment to fall into error. This leads to the awkward conclusion that eternal truth would deceive us by informing and ordering us wrongly. Therefore.

It is not merely our post,-Freudian minds which boggle at this tremendous claim; it is not shared by his near,-contemporary Luis de Molina, at least not in relation to the natural law. In a number of places he expatiates on the difficulties which may be involved, for instance: 1 In drawing conclusions from these principles it is easy not merely to reach hasty conclusions but even to go wrong, especially because of the many and various applications and subdivisions and the detailed applica..­ tion and study which are necessary if we are to know and round up [he uses a hunting verb] moral truths. Then, too, many are ignorant and easily blinded by passion so that they cannot see what is true, but believe what is false through superficial resemblance to the truth . . . . And in a later disputation he adds: 2 Many things which belong to the natural law may remain unknown to many people, and even be held only as opinions by the learned and devout; so that even the learned and devout may be mistaken about them, and that for a number of reasons. Firstly because, as I said in Disputation 47, many people are ignorant of many matters belonging to the natural law, either because they are uncultured, or, in the case of others, because they are too busy and distracted, or because they apply themselves to the in..­ vestigation either very little or not at all. . . . Secondly, many things re..­ main unknown, or mistakes are made about them, because people are 1 Op. cit., vol. vi, disputation 47, par. 6. 2 Ibid., treatise v, disputation 49, par. 2.

AND ITS I M P L ICA TIONS

19

addicted to vices which affect and blind them and by passions which dominate them and cloud them. Thirdly, mistakes arise about many things which are known, because we find their truth abstruse and hard to penetrate . . . . Not only do the inexperienced easily remain in ignorance of them, but they often go wrong about them-the more so in barbarian countries where there are less learned and pious people living. And it can happen that even learned and pious people are ignorant about some of them or may even err invincibly. . . .

This is very far from Vitoria's confident trust in the human intellect; yet we find that Molina, in common with most men of his time, has still great difficulty in believing that to be mistaken in an opinion is not a sin. He uses the words 'sin' and 'err' interchangeably in discussing the opinions of Scotus on the Decalogue, 1 and in a later passage he also uses the phrase 'infected with the same error',2 as if to err (or hold what he believes to be a mistaken opinion), to sin and to be infected (as though with the plague) were all much the same. Natural law was assumed to exist among all peoples, not merely among Christians; it was a natural system of ethics which neither depended on nor contradicted Christian re,, velation but could stand by itsel£ This was a belief to which all these writers clung tenaciously, and was a powerful reason for their disapproval of the various opinions which held that the Ten Commandments, or some of them, were not binding without 'the addition of divine positive law by which God orders them to be obeyed'. For it would follow that the Gentiles, who understand the natural wickedness of actions which are contrary to these precepts by the light of nature, through the fact that they might be invincibly ignorant that such a positive law had been made by God, might be excused from the sins of murder, adultery, theft, false witness, &c . . . .3 1

2

3

Ibid., disputation 57, par. 4. Ibid., disputation 73, par. 3 . Molina, op. cit., vol. vi, treatise v, disputation 57, par. 4.

20

THEIR NATURA L.-LA W THE ORY

The substance of the natural law was the same among all men, though not everyone had complete knowledge of it. No man could be ignorant of its first principles, but it was possible to be ignorant of some of the rest. Suarez 1 notes that 'keeping vows and promises, giving alms when we have more than we need, and honouring parents are not only natural precepts according to the faith, but also according to the philosophers (i.e. Plato and Aristotle) and all right,-thinking men'. But Soto, using the well,-worn example of 'simple fornication', says that 'it is not so generally accepted that we cannot imagine some backward tribes being ignorant of it, and not even par,­ ticularly wicked tribes at that', and he continues: 2 I am not in fact sure whether ignorance of our faith might not be en.., tirely excusable among some barbaric peoples. In exactly the same way, the commandment 'Thou shalt not bear false witness' is obvious to all men because it forbids harm to another. But if you infer more strictly, 'nor may you even tell a lie', this is not so obvious. There are young people who firmly believe that a lie told as a joke or for official reasons is blame.., less.

Suarez quotes St. Thomas 3 as saying that 'the natural law is absolutely immutable in its fundamental principles, and so are most of its conclusions, but in a minority of cases it does change, as a result of particular causes . . . ', and goes on to explain what he himself means by the elasticity of application of unchanging general principles: 4 We must also consider, further, that because the natural law is not written upon tablets or parchments but in the mind, it is not always mentally reduced to a rather general or vague formula, as when we speak or write. For example, we do not think, under the natural law, that 'A deposit must be returned' in such a simple and unqualified way, but with limitations and circumspection . . . yet the law is generally quoted simply as 'A deposit must be returned' because the rest is implicit. It is impossible 1 De Legibu.r, vol. ii, eh. vii, par. 8; eh. viii, par. 7. 2 Bk. i, qu. iv, art. 4. 3 la Ilae, qu. xeiv, art. 5. 4 D e Legibu.r, bk. ii, eh. xiii, par. 6, and cf. inter alia, Molina, op. eit., bk. vi, treatise v, disputation 39, par. 4.

AND ITS IMP LI CA TIONS

21

for a human law to be drawn up covering all possible points.... Thus it is easy to explain the example of the deposit; for even if in one particular case it ought not to be returned, the natural precept is not changed, be..­ cause from the beginning it was laid down not for that situation but for others which right reason indicates. So, if a man breaks a promise, because of a major change in circumstances, he does not himself change, nor does the law which requires the keeping of promises, but the subject..­ matter has changed; however, from the outset virtual exception was made in the case of such a change, through a condition implicit in the promise itself. . . .

If it was so vague and general, what value had this concept of natural law ? In the first place it could form the basis of a theory of the dignity of man and the gulf between him and the rest of the animal and created world. Suarez, for example, carefully distinguishes between the term 'natural law' as applied to men and as applied to creatures other than men: 1 ... It seems a mistake to say that the natural law, as having the nature of true law, is based on sensory nature as it is common to men and animals, since it ought always to be considered as being raised to a higher plane through the difference of reason. For the natural law is regulated through its harmony with rational and not with sensory nature, and has to do with sensory nature only when it is curbed and in a special way perfected by that difference of reason....

and2 Law implies a moral relation to what is to be done, and only intelli..­ gence is capable of such government. Then, properly speaking, only those who have the use of intellect and reason are, or can be, governed by law.... Law, then, belongs to the mind; and if we say, by stretching the word, that God has laid down a certain 'law' for natural or irrational things, it is only because things without intellect need a superior governing mind, so that the work of nature may be the work of intelligence. Thus, in every way, law must be referred to mind. . .. 1 2

De Legibus, bk. ii, eh. xvii, pars. 3 and 6. Ibid., bk. i, eh. iv, par. 2.

THEIR NATURA L, L A W THEORY

22

But Soto is far from clear about this, and in fact dissents from Suarez's opinion. It has been argued, he says, 1 that no law can be promulgated for irrational things which cannot know and cannot even obey the law. For, as Aristotle says, those who obey a law participate in reason. . . .

But he replies: To brute animals and insensible things, in their natural working, the eternal law is promulgated by means of instincts and powers to act, just as the natural law is promulgated to us by the impression of light in our minds.

Again, while rebutting the suggestion that 'man is not directed by the natural law, which only impels brute creation',2 he replies that 'God, who sweetly disposes all things, as the author of nature has imprinted on our minds a light by means of which, participating in his eternal law, we might direct our actions towards the proper end for which they are destined by nature.' He grants that 'we human beings are moved freely, whereas brute beasts are moved naturally' (i.e. passively) . Then in another place3 he quotes Aristotle as saying that the law of nations is peculiar to men, while the natural law is common to men and animals. He quotes Gaius4 in support of this: reason, rather than the light of nature, guides men to the jus gentium or law of nations and he goes on to say: First of all, the jus gentium and the civil law differ from the natural law in that natural law, absolutely speaking, is necessary according to the absolute consideration of things, as has been said: thus it is common to all living things, but the jus gentium and the civil law are laid down by human reason.

His position weakens when he writes about the Ten Com,, mandments, 5 however, where he also confesses that 'there are 2 Ibid., gu. iv, art. r. Op. cit., bk. i, gu. iii, art. 4. Ibid., bk. iii, gu. i, art. 3 . 4 Cf. A . P . D'Entreves, The Medie11al Contribution to Political Thought, pp. 24-26. s Cf. above, p. 16. 1

3

AND ITS IMP LICATI ONS

23

many natural laws which are peculiarly suited to human nature and not to animals, for example, the Ten Command.... ments' . This would seem to give his case away; but obviously he is not quite clear in his own mind, when he can speak in one breath of the natural law being a light (an illumination) im.,. printed in our minds, in another of its being 'the light of nature' or natural reasoning-a kind of instinct-and in a third as concerned with things which are absolutely necessary. The frequent use of the word light or illumination adds to the confusion. We turn with gratitude to Molina, who lucidly explains that there have been all along two traditions on this subject. 1 The theologians communiter held that the law of nations was positive law which was common to all or most peoples, and Molina says that according to their tradition it is clearly not part of the natural law. However the jurists sum up the jus gentium in another way, much more loosely. .. . For the jurists define natural law as that which, inspired (instigante), by nature is common to men and animals, as for instance the coming together of males and females and the procreation of children. Then by the jus gentium, they mean everything which is peculiar to man, and common to all or almost all peoples, whether it belongs to the natural law (like the Ten Commandments) or to positive human law, like private property, immunity of ambassadors, the enslaving of prisoners taken in a just war, and so on. If, however, we define the jus gentium this second way we see that it includes many things which belong to the natural law, and many which belong to positive human law. St. Thomas often speaks of the law of nations in the first sense, like the theologians, but in Ila Ilae cv, art. 4, 2 he introduces the second sense of the term as used by the JUnsts....

Soto does not press this theory to any logical conclusion; he continues on the same lines as the others, as though this divergence had no importance. It is clear, however, that such Bk. vi, disputation 69, par. 3 . C[ also St. Thomas la Hae, qu. xciv, art. 2 . It seems doubtful whether St. Thomas held one of these opinions more than the other. 1

2

THEIR NA TURA L , LA W THEORY

24

a theory could be used to rob humanity of some of the dignity awarded to it under the opposite theory, as we can see from the writing of Juan Gines de Sepulveda. 1 He believed that there were two kinds of natural law: the one common to men and animals (including such things as self..-defence, procreation, &c.) and that peculiar to rational and civilized nations, among whom Spain was the most excellent. The gentes humani� tiores had therefore not only the task of interpreting the natural law, but of imposing it, if necessary by force, on reluctant barbarians: a natural aristocracy implied natural servitude. But the view of natural law as common to all men, and to men alone, led, among our writers, to a firm belief that the Indians of the New World, as well as all other pagans, had natural rights of their own, the infringement of which no superior civilization or even superior religion could justify. Soto, by not carrying his definition any further, was able to come to this conclusion in spite of it. Next, since it is through the natural law that we participate in eternal order, it is a standard of good and evil. 'True natural law', says Suarez, quoting St. Thomas, ' . . . is that which exists in the human mind, by which good and evil can be distinguished from one another.'2 But what kind of a law was in In fact, could it properly be called a law at all : Hobbes, with many others, was to deny it the reality of a law. 3 On this point Suarez found himself in disagreement with two extreme schools of thought, the one holding that the natural law con..­ sisted of the commandments of God (who it seems could have commanded the opposite if He had chosen), and the other that natural precepts have a necessary character and are not Democrates Alter, 1 542. De Legibus, bk. i, eh. iii, par. 9, quoting Aquinas, la Hae, qu. xci, art. 2. 3 Leviathan, pt. i, chs. xiv and xv, esp. final paragraph, and xvi. Although Hobbes appears to belong to the school which insists on 'natural' laws being commands of God, he has already stated that good and evil are identical with the objects of appetites and aversions. 1

2

AND ITS IMP L ICATIONS

25

dependent on God for their rational basis. 1 The first opinion, that the 'natural law is entirely based on the divine commands or prohibitions issuing from the will of God as author and ruler of nature', was imputed to William of Occam, 2 together with the belief that no action was wicked unless forbidden by God, who could make anything whatsoever wicked by for.1 bidding it or good by commanding it. For Occam, then, natural law would consist of divine commands which God could change or cancel as He willed; it was thus really divine positive law and only called ' natural' because it was 'in harmony with nature'. Although Suarez did not follow up all the im.1 plications of this theory of law as pure command, he did reject it wholeheartedly, firstly because, in common with all these writers, he was convinced that certain things (lying, murder, adultery, theft) were evil in themselves, and secondly because, as we have seen, the equating ofnatural law with divine positive law (revelation) would have cut off the non.1Christian (and non.1Jewish) world from participation in eternal order through their reason. Suirez deals first with the opposite school, represented by Gregory of Rimini, who held that even if God did not exist or did not use His reason, or did not judge matters rightly, if the same dictates of right reason in men's hearts went on telling them, for example, that lying was evil, those dictates would be as much true bw as they are now, because they would be a [demon, strative but not preceptive] law indicating the evil inherent in something. He does not dislike this opinion as much as that of Occam, but it fails to satisfy him, partly for the technical reason that if it were true one could argue that natural law was not true 'law' at all, partly because he distrusted the idea that it was possible to separate the wickedness of an action from its being forbidden. He therefore takes a middle course and says that the natural law not only points out what is good and evil, but also con, tains in itself its own command to do good and prohibition of evil. r De Legibus, bk. ii, eh. vi, pars. 3 ff. On the Sentences, bk. ii, qu. xix, pars.

2

2

and 4.

26

THEIR NA TURA L,LA W THEORY

In support of this he quotes Gerson as saying that 1 the natural law as a moral command is a sign imprinted upon every man who has full use of his reason, which declares it to be the will of God that rational beings must perform certain actions and refrain from others to reach their natural end.

That is to say, in Suarez's own words, the natural law 'does not merely point out the natural disharmony between a par,. ticular act or object and rational nature, but it is also a mani,. festation of the divine will prohibiting that action or object'. He supports this with various arguments, for instance, that providence could not fail to prohibit evil and command good in addition to teaching us to distinguish between them; in the Scriptures, too, offences against the natural law are said to be contrary to the will of God. Returning to the argument which he attributes to Occam, he says that the divine command or prohibition is 'not the only reason why it is right to obey and wrong to disobey the natural law; goodness or badness are assumed to exist in these actions, though a particular obligation springing from divine law is here attached to them'. All theologians believe that some actions are evil in themselves and are therefore prohibited; the evil is not created by the prohibition. However (he says), if we adopt Occam's view it follows that an action may be evil and yet not be forbidden, 'but we cannot infer from this that we can really separate the two conditions, which is the only rele,. vant point . . . '. Something may be wrong because it is not in harmony with right reason2 even if it is not forbidden by any De Vita Spirituali, lect. ii, esp. corollary 5. 'Full use of reason• excludes, apparently, only children ofvery tender age and madmen, though in 'barbarians• the use may be clouded. It may perhaps be compared with Locke's developing reason, though in the one case the faculty is 'inherent', in the other its origin is more obscure. z In a later passage (De Legibus, bk. ii, eh. xv, par. 23), Suarez instances lying: 'the ugliness of which does not depend on any dominion, or divine corn; mand, but springs directly from the disharmony between the words and the mind•. 1

A ND I T S I M P L I CA T I O N S

27

positive law, although a divine prohibition gives the action an added stigma. He believes, with Vitoria and the rest, that it is impossible for God not to prohibit what is essentially evil and intemperate in rational nature and to command the opposite. 'Is it admissible', he asks, 'that God by an act of His own will has abstained from imposing, in addition, His own law which prescribes or forbids those things which in any case fall under the dictates of natural reason ?' He goes on to argue that, although God is of course free, if He has performed one action (such as creating rational nature with a knowledge of good and evil) He is bound to do certain other things. 1 So even if the divine will is absolutely free externally, yet, if we suppose one free action, it may necessarily lead to another, as, for instance, willing to promise absolutely would necessitate fulfilling that promise. So, if we assume a will to create rational nature with sufficient knowledge to act well or ill, and with sufficient cooperation on the part of God for both of these, it would be impossible for God not to forbid intrinsically evil actions to such a creature, and not to command the necessary good actions. For just as God cannot lie, so He cannot govern foolishly or unjustly. . . .

Finally, he meets the objection that a law is not a law unless it is promulgated, by saying that 2 'the very power of judgment which is given to men by nature and has its seat in the reason is by itself sign enough of the divine will, and no other evidence . 1s necessary. ' Soto, too, says finely, 3 The law of nature . . . was promulgated by the light of natural reason and instinct: that is, it was written in the minds of men. In the state of innocence, when the light of nature shone brightly, no other promulgation was necessary, and even afterwards, until the minds of men became 1

De Legibus, bk. ii, eh. vi, par. 23. Cf. Molina, op. cit., bk. vi, treatise v,

disputation 57, pars. 3 and 4, where he denies that any power (even that of God) can make hating God lawful, and goes on to say that 'nor is God in all His omnipotence able to know a thing as other than what it is itself'. Nor can He make an unjust law, which is against His nature, &c. 2 Ibid., eh. vii, par. 24. 3 Op. cit., bk. i, qu. i, art. 4.

28

THEIR NA T U R A L, L A W THE O R Y

cloudy and dark, there was no need for the commandments to be explained to man by the written law. . . .

A further answer to the case that law is merely command lies in its analysis into two elements, the guiding force (vis directiva), i.e. the element of justice, and the coercive force (vis coactiva). The first, the element of justice, was the more important: an unjust law need not be obeyed, and, indeed, was not a law at all. 1 This theory of the twofold nature of law2 avoided many difficulties. Inter alia it was one way out of the ancient inquiry as to whether the ruler was legibus solutus: clearly he could not be coerced, save in grave emergencies, but he was always under the guiding force of the law. It also permitted law to be used as a basis for judging the extent of political obligation, and in the last resort as a theory ofresistance. Then, too, it enabled that distinction to be made (which evidently exists) between the real value of an action and mere conformity with the law. A virtuous man, like the king, was not coerced by the law, but followed it freely, and in that sense he was not under the law but legibus solutus. Finally, the association of both the natural law and human law with justice implied that human law was not different in kind, but only in degree: all law aimed not merely at making good citizens, but at making virtuous men, for good citizens were not different in kind from good men, they were only less advanced along the path of virtue. The purpose of the civil laws, was in fact, not merely to keep order or to foster pros; This goes back at least to St. Augustine, I. On Free Will, eh. 5 , if not to Aristotle's Ethics (8, eh. rn). The usual reference is, however, to St. Thomas, Ia Hae, qu. xcvi, art. 4, where the conditions for a just law are laid down. An unjust law was one commanding a bad action or prohibiting a good one, or made by a person without proper authority, or imposing unjust or unequal burdens. Only laws falling within the first two categories might be disobeyed without hesitation. 2 C( St. Thomas Ia Hae, qu. xc, for an excellent example of the increased lucidity reached on this point with the passage of time. 1

AND ITS I M P L I CA TIONS

29

perity, but to adhere to justice in detail in the same way as the natural law adhered to justice in broad outlines. There is also the small but interesting point that, although these writers continue to explain the naturalness of the political community in the usual Aristotelian way, it could also be inferred from one of the self...•evident principles of the natural law-'Do unto others, &c.' That is to say, mutual obligation was the normal thing among human beings and did not need to be laid down by any contract of society.

II TH E POLITICA L C O M MUNITY AND ITS L AW S

W

I

E have seen some of the implications of natural,.. law theory for politics in general. The theory of the political community, to which we turn next, may be loosely called 'organic', since the good ofthe community has, by and large, priority over that of the individual. 'Organic' theories not based on natural law tend to subordinate the in,. dividual to the state; in this theory, however, the laws of the community are constantly referred to and judged by the laws of nature and of God. Although that preoccupation with the maintenance of order, so characteristic of the times, is very evident, the superiority or priority of the community is riddled with personal, family, 1 and local rights of resistance to spiritual and temporal rulers, to unjust laws, &c. Yet it cannot be denied that the vocabulary of the organic state is freely used: 'morally a unit', 'a mystical community'-even 'a mystical body'. Often, however, these phrases are used merely to emphasize the naturalness and necessity of community life. Soto, for in,. stance, while stressing the common good, always returns to the ultimate good of the individual, as any Christian political theory is perhaps bound to do.

Every part in the natural order (he writes) 2 is directed towards its own whole as the imperfect is directed to what is perfect. But each citizen is part of the community; therefore the law laid down for them must direct them towards the common good of the whole society, just as the parts of a body are in the service of the whole body. Aristotle said the 1 Cf. (e.g.) Vitoria, Commentaries on St. Thomas (vol. i, qu. x, art. 12, p. 20): Whether infidel children may be baptized without their parents' consent. 2 Soto, bk. i, qu. i, art. 2 .

POLITICA L COMMUNITY AND ITS LAWS

31

same thing when he wrote that legal justice in the community-that is, civil laws-was the means to establish and preserve the happiness of the individual parts . . . .

This quotation from Aristotle, following immediately on Soto's passage about the common good, indicates that, what,, ever we may think, he regards the two statements as identical. Again, though he later 1 uses the 'organic' analogy of the king as head and the community as body, declaring that the king is 'not merely superior to the individual members of the state but he is head of the whole Body taken together, and is so eminent [vis,,J,,vis] the whole that he can punish the whole [Body] even together . . . ', yet almost at once, 2 when discussing the law of war, he points out the dangers of this analogy, saying that a member [that is, a part of a human body] has no existence distinct from the existence of the whole: nor in any way does it exist for itself, but for the whole; nor is it capable in itself of right or injustice. But a man, although he is part of the community, is nonetheless a person existing for himself, and so capable of suffering injustice, which the state may not impose on him. . . .

The ruler cannot in fact even claim dominion over his subjects' property, 3 for by natural law, even though the community has handed over to the prince its own power, its dominion and jurisdiction, it has not however [handed over] its own possessions; and so the prince cannot make use of them, unless it be necessary in the interests of the same community that they be taken care of and administered . . . .

The origin of the community is described in the traditional Aristotelian way: man is naturally sociable and needs society. To this is added the idea of God as having designed man to need community life, which may be best illustrated by Mariana's florid description of man's weakness as compared with other animals: 4 1

4

2 Ibid. Bk. iv, qu. iv, art. 1 . 3 Ibid. Juan de Mariana, De Rege, eh. i, Man is by nature a social animal. Similar,

32

THE POLITICA L COMMUNITY

For God, the parent and creator of the human race, saw that nothing would be more valuable to man than mutual charity and friendship, and that it would not be possible for mutual affection to be cherished and fostered among men unless they were gathered into a body in one place and subject to the same laws.... He created men to desire this and move towards it with true necessity, lacking many things and subject to many dangers and evils.. .. Thus He, who gave food and covering to the other animals and armed them against external force by giving some of them horns or teeth or claws, and others swift feet to fly from danger, cast man out among the difficulties of this life, alone, naked and defenceless, as if he had lost his all in a shipwreck... . The rest of life is like its be, ginning, and proves to lack many things which neither an individual nor a small group could obtain for themselves. How much work and industry is involved in combing, spinning and weaving linen, wool and silk... . The life of no single man is long enough to obtain all these things, however long he lives, unless the wonder and observation of many men, and collective experience, should come to the rescue. . ..

Soto, more soberly, refers 1 to the second book of Aristotle's Politics, where he 'says that a society comes into being for the sake of life and its needs. A village grows from the families and the city,-state from a collection of villages, so that by uniting different arts and crafts the citizens may satisfy their needs.' Although the Philosophers were (he thinks) only consider,­ ing the secular side of life, he goes on to say that As Aristotle wisely said (loc. cit.), a community is founded for the sake of living and it exists for the sake of living well. The grouping of citizens together produces what is necessary for and useful to material life, but it is even more of a help to spiritual life. Men who are scat,. tered and solitary can neither teach the ignorant nor control criminals, nor can they help each other to happiness by salutary advice or warn,­ ings, as can those in a community. Because man is born for happiness, he is also a social animal; thus a solitary individual, unless he leads an angelic life, must be a beast... .' ifless literary passages can be found scattered in our four writers. The common source seems to be St. Thomas, De Regimine Principum, eh. i, pars. 5-8. 1 Op. cit., bk. i, qu. ii, art. r.

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'Human societies', writes Vitoria tersely, 'have been founded to the end that we should bear one another's burdens . . . and must be a most natural type of association.' 1 The community is thus not an artificial thing invented by men or created by men's wills, but a natural, historical growth. Another essential theory lifted straight from Aristotle is that a thing contains what is necessary for fulfilling its purpose; thus since a community evidently needs some sort of govern,. ment to prevent anarchy, God has bestowed upon it that power to govern itself. Nature is never lacking in essentials (writes Suarez2) ; therefore, just as a perfect community (societas perfecta) is in harmony with reason and natural law, so, too, is the power to govern it, without which there would be in such a community the greatest possible confusion. For each individual member looks after his own interests, which are often opposed to the common good; also there are many things necessary for the common good but not relevant to individual needs, or which, even if they are relevant, are to be supplied not as common but as private needs. Hence, in a perfect society, there must be some public power whose official duty is to consider and provide for the common good . . . .

He continues3 in a strain which, if much delving into the past had not made the phrase almost meaningless, might place him among the 'social contract thinkers'. Men as a whole ought then rather to be considered from the angle of that special will, or common consent, through which they came together into a body politic in the bond of society for mutual aid towards a single political end. In this way they form a single mystical body, which, morally speaking, may be called a necessary whole, which therefore needs one single head. In such a community, then, as such, this kind of power naturally exists; so men 1 2

On Secular Power, par. 4. De Legibus, bk. iii, eh. i, pars. 4 and 5.

Ibid., eh. ii, par. 4. This interesting passage also illustrates the use of 'organic terminology' referred to at the beginning of this chapter. 3

827145

D

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34

cannot come together and then set up obstacles to that power. So, if we imagine men wanting both alternatives-a community, but on condition that they should not be subject to its power-the situation would be paradoxical, and nothing would be achieved. It is impossible to imagine a unified political body without either political government or a disposition towards it, because their very unity comes, to a considerable extent.from subjection to the same rule and a common superior power; and again, without it, the body could not be directed towards one end and the common good. It is repugnant to reason to think of a human community in one body politic which has no common power that individual members of the community must obey. . . .

The end of this passage is not far from Hobbes. Soto, in a passage 1 following on that in which he speaks of the God..­ given instinct for living together, continues more simply: But the body politic could not in any way govern itself, or drive off its eneinies, or check the boldness of evildoers, unless it chose magistrates, to whom it should give its own power; for otherwise, the whole congrega..­ tion, being without order or head, would not exhibit itself as one body, nor could it make provision for what was required. Accordingly, for this reason, communities, divinely taught and instructed (in the sense explained) set up, some annually....elected consuls, others other forms of government for themselves.. . . Behold how public civil power is an ordinance of God!-not that the community did not set up princes, but that it did so by divine instruction. . . . And not merely the powers which belong to Christian princes come from the Lord God, but also those found among infidels, for faith does not destroy nature, it perfects it. Through those powers, then, they may govern their peoples in those matters which belong to the natural law.

Vitoria also comments2 that the power of self,,.government exists in a community and would go on existing even if none of the citizens willed it. This kind of power could not be abolished even with the consent of men. For just as a man may not give up the right to defend himself and the means of doing it, or the use ofhis limbs for his own benefit, nor may 1

De Legibus, bk. iv, qu. iv, art. 1.

2

On Secular Power, pars. 10, 1 1.

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35

he give up power, for all these are functions of power by natural and divine law. Similarly with the community: it must in no way be robbed of the power to protect itself and to prevent harm being done either by its own citizens or by aliens, a task in which it could not succeed if no public power existed. So, if the citizens agreed unanimously to do without those powers, so that they might be bound by no law and have no ruler, the agreement would be null and void, since it would be opposed to natural law.

Because it is ordained of God it 'cannot be destroyed or nullified even with the consent of the whole world'. It has first to be established that this power to govern resides in the people and not in certain individuals or groups. Here, though all are agreed, Soto 1 goes into the matter most fully, arguing against those who declare that man is born free, that it is slavery for one man to rule over another; that Christ came to make men sons of God by adoption and thus to make them free, and, finally that man was given rule over all living crea,. tures but not over other men. But, he answers, this is not true. A man can be lord of another man by the law of nature or by the jus Aristotle, in Politics I, expertly distinguishes between two forms of servitude, the one natural, the other legal. Natural servitude is that by which men of more refined ability dominate the rest of men who are dull and uncouth. For as in the same man the soul is superior to the body, so in the whole human race one man far surpasses another. Wherefore wise nature herself has endowed some men with the ability to command, and has strengthened others with limbs and sinews to serve. . . . An entirely different view must be held concerning the first kind of servitude. For he who by nature is master cannot make use of those who are by nature slaves as though they were things possessed for his own advantage, but as free and responsible men for their own prosperity and good, namely, teaching them and instructing them in right behaviour.

gentium.

But this was a natural difference in endowments, which, fol,. lowing Aquinas, he believed to exist in the state of nature; it was not 1n any sense a title to political domination. In fact, in Op. cit., bk. iv, qu. ii, art. 2. Can one man rule over another? And cf. also qu. iv, art. 2. 1

THE POLITICA L COMMUNITY

the state of nature one man had no more power over another than the father over his family. All men are by nature born free (Suarez concludes 1 ) and no one has political authority over anyone else, just as no one has dominion over anyone else . . . • If, therefore, this power does not reside in a specffic individual, it must necessarily reside in the whole community. • . .

This is the Roman doctrine of the sovereignty of the people, to which the Spanish scholastics adhered throughout the cen,, tury, though the hands of rulers were being strengthened in Spain as elsewhere. Discussion about the actual exercise of power, which had been going on for centuries, was continued: How much power did the community hand over to the rulers ? Could they reserve any of in Was the grant of power, once made, irrevocable ? Then again: What part did God, and what the community, play in the royal authority ? And, finally, were all forms of government other than (direct) democracy in some sense usurpations ? On the question of the respective parts played by God and the community Suarez believed2 that there was a difference of opinion between Vitoria and himsel( He understood Vitoria to say that royal power must be said to be absolutely derived from divine law and given by God, but that the actual choice is human. However (he says) Bertriandi, Driedo and Castro . . . teach the opposite, which is indubitably true, if we are speaking formally of royal power, such as it is, vested in one man. For considered in itself, and politically, this governing power certainly comes from God, as I said, but its residence in a particular man comes, as we have shown, by a grant from the com..­ munity, so in this sense it does belong to human law. Then, too, the fact that a state or province has monarchical government is due to human agency, as we have already shown: thus monarchy itself is human. Another sign ofthis is that the power ofthe king is more or less according to the pact or agreement made between him and his people; therefore his power comes essentially from men. 1 2

De Legibus, bk. iii, eh. ii, pars. 3 and 4.

Ibid., bk. iii, eh. iv, par. 5 .

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What in fact Vitoria1 did say was that, since monarchy was such a common form of government, it was necessary to discuss it, for some people thought that all forms of government other than (direct) democracy were bad, and that therefore royal power did not come from God, and all kings were tyrants and usurpers. His answer was that the power of the king originated in divine and natural law and not in men and the community. The proof of this was that the whole people could not do the actual governing, and therefore its power had to be entrusted to one or more men (indifferently). Now that power which was transferred was identical with the power of the whole corn,. munity; and since it would be nonsense to imagine that any,. thing so necessary for human government as monarchy should be contrary to natural or divine law, royal power did not come from the community but from God himsel£ For although the community appointed the king, in doing so it transferred its own authority, which came from God. Thus those who thought that the people's power, but not the king's, came from God, were wrong: this would only be true if the community, by a contract and for the common good, set up a power over them,. selves which did not exist before. But this was not so; the power of self,.government existed in the community and would go on existing in any case-only the executive needed to be appointed. When we examine this 'divergence' it is, as Vitoria and Suarez so often say, mainly one of words and not of the thing itsel( Suarez is concerned to emphasize the fact that, although the community's power to govern itself comes originally from God, it arrives mediately to the king from the community, and so he calls it (i.e. the institution of monarchy and the selection of the ruler) a matter of human law. Vitoria, in the passage summarized, is preoccupied with the fact that the power which the king wields is the same God,.given power which originally resided in the community, and that monarchy (which he clearly prefers, despite his mention of 'one or more') is a natural form of government. This interesting idea-that it is 1

On Secular Power, pars. 7 ff. C( also Soto, op. cit., bk. iv, gu. iv, art. I.

38

THE POLITICA L COMMUNITY

the identical power-has contradictory implications. It is, and is not at the same time, a theory of divine right. On the one hand, the power is not created by a pact of men; then again if the authority of the king is no different from that of the community it might be inferred that he should be under the same law (as Vitoria points out 1 that democrats are in a democracy and aristocrats are in an aristocracy). On the other hand, the fact that he stands for the whole community, and that his power to govern it is, though indirectly, a God✓given one, sets him apart from all other elements in the state. Practically, this was the turn things took; but in their theories all these four men are constitutional thinkers in the sense of advocating monarchy under various restraints. A further curious inference is drawn by Vitoria himself, 2 and is worth quoting to illustrate some of the difficulties in/ volved: There is no less freedom under a monarchy than under an aristocracy or a democracy. . . . Proof of this is that, as it is the same power, as we have shown, whether it is conferred on one man or on several, and as a man has as many masters as there are rulers, it is better to be ruled by one than by many; hence, when everyone is subject to a single person, there is as much freedom as where they are subject to many. This is especially true because, where many rule, there are always many eager for power, so that, because of their different ambitions, the state will necessarily suffer from many revolts and factions. . . .

Some of the problems here arise on our side and some on Vitoria's. The argument, while thoroughly unconvincing, is as neat in its logical way as that of Rousseau's freedom of the individual through the social contract. We are handicapped by having no clear idea of what he means by democracy, since he sometimes implies direct democracy and sometimes a kind of limited monarchy; we are also unsure if he is not being merely academic-following to its logical conclusion the thesis that it is the same power, whether residing in the community 1

On Secular Power, par.

21.

2

Ibid., par.

II.

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or in the king. On his side there is confusion about the idea of monarchy and the use of the term. He says himself elsewhere that very few kings ruled independently; they were supposed to rule with the advice of their magnates, and all four writers agree that they can be held in check at need by church or community. Hence a king who was greater than the whole community put together, and from whom there was no appeal to the community was rather an unreal proposition 1 -while on the other hand it sometimes appears that what we should call a constitutional monarchy was classed by Vitoria as popular government or democracy, as we shall see below. In this particular discussion Suarez is on the whole the clearer of the two; but in spite of the stress on 'human law' by Suarez and on 'natural and divine law' by Vitoria, their ideas are approximately the same. How close they are is apparent when they discuss what happens after the transfer of power. Vitoria believes that the king is not only above all individual citizens, but also above the community as a whole: that is to say (he adds) in a true monarchy-anything else would be a democracy or popular rule. In a (true) monarchy there is no appeal from the king to the community, which proves that the community is not superior to the ruler. Suarez2 is in com,, plete agreement, even though the appointment of the king is a mere matter of human law: Once power has been transferred to the king, he is at once the vicar of God and by natural law must be obeyed . . . he is by that very power

made superior even to the kingdom which granted it; for in giving it the kingdom subjected itself and deprived itself of its former liberty. . . . And for the same reason the king cannot be deprived of his power-for he has acquired a true dominion-unless he falls into tyranny, when the king,, dom may wage a just war against him: but more of this elsewhere. . . . However, when this power has been transferred to a particular person, even if it passes several times by succession or various elections to different people, the community must still be understood to retain immediate 1

2

On Secular Power, par. 14. De Legibus, bk. ii, eh. iv, pars. 6, 8,

11. Cf.

also Soto, bk. iv, qu. iv, art. I.

THE POL ITICA L COMMUNITY possession of it, because by force of its first action the community trans, ferred it to the rest . . . this transference of power from the community to the prince is not a delegatic:m but almost an abrogation, i.e. a total grant of all that power which was formerly in the community.

The theory of kingship in Vitoria, Suarez, Molina, and De Soto is practically · identical; nor would Hobbes have found it unfamiliar as expressed in the above extract. But although, since the sixteenth century was the great age of kingship, the Spanish scholastics were really only interested in monarchy, each in his own way distrusted princes who ruled independently. Suarez, whom we have just seen dis.­ cussing the total abrogation of power by the people, and the total superiority of the ruler, can also say: 1 Monarchy is found in many places, but rarely in a pure form, because­ since men are frail, ignorant and wicked-it is generally expedient to add something of common government (executed by several people) which may be more or less according to different customs and the judg.­ ment of men.

Moreover: the power of the king is more or less according to the pact or agreement between him and his people.

Molina, too, falling into the same terminological confusion about kings and other rulers, speaks of 'kings and other supreme rulers in aristocratic and democratic governments of states . . . set up by the will and pleasure of the various com.­ munities, some with more and some with less power and jurisdiction. . . . ' But he seems to distinguish between this type of government and one in which 'a legitimate title has been transferred to the kings or other supreme rulers of the community', though he still speaks of the power as 'delegated'. 2 The confusion here may be partly because he is discussing the source of obligation of civil law and is not concentrating on the powers of the king. 1

2

De Legibus, bk. ii, eh. iv, pars. I and 5. Molina, vol. vi, disputation 73, section iv.

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The 'agreement between the king and his people' is the medieval contract of government. As it stands it leaves little or no room for ' divine right' in the strict seventeenth,.century sense of the phrase, since, though the king's power came ultimately from God, it was derived mediately from the people, who determined, or had at one time determined, the form of government and who should exercise it. It is here that the four thinkers whom we are considering differ strongly from the Jesuit Mariana. 1 They all agree, as we have seen, that once power has been transferred to the ruler, he is greater than the whole community put together. 'Wherefore', as Soto says, 'the king cannot be deprived of his right of ruling even by the community, unless through corruption he become a tyrant.' Mariana refuses to admit this. 2 For him the community always remains greater than the king, who therefore cannot (or should not) make laws without their consent. Mariana alone attached his political theory to a political institution, the Cortes, while the university theologians pinned their faith rather on traditions of natural law and the sanctions of the church. For Mariana the king was Maior singulis, universis minor. It is certainly true that much evidence can be produced to show the control of ( e.g.) the Cortes of Castile over extra,. ordinary taxation, the necessity of their consent to law, the registration of their petitions as law, &c., while the almost anarchic powers of the Cortes of Aragon are well known. Mariana thought that the king's authority was only superior to that of the Cortes in matters reserved to him, which roughly corresponded to the sphere of Tudor prerogative-war, foreign affairs, possibly justice. Yet the Indies, the proprietary domain of the Kings of Castile, were beyond the control of the Cortes, and, as time went on, so was much finance as, in addition to the servicios (subsidies) the crown had recourse to the sale of offices, monopolies and titles, the seizure of treasure, &c. Thus, while Mariana was more in line with contemporary constitutional 1 2

Mariana, De Rege, pt. i, chs. 3 , 6, and 9 passim. C(, especially, eh. 8. De Rege, eh. 9.

42

THE POLITICA L COMMUNITY

thinkers such as Althusius and the author of the Vindiciae contra Tyrannos, the Cortes had in fact little real power at the time when he was writing, .and in Spain the 'ideal' constitu,. tional position-if it had ever existed-was never to be re; established. Suarez, as we have seen, denied that consent was necessary unless specified, but he was writing generally, and Mariana particularly for and about Spain, where he would have said that it had been so specified. The first basis, (Suarez writes 1 ) may be that a secular king or prince has no power to bind the people by law without their consent . . . and this may be because the civil governor has his power from the people (as we saw above) and the people could refuse to grant it except on the condition that it would not be bound by the prince's laws without its own consent.

Or, again, if the whole community or a majority resisted a law this might be proof that it was not for the common good. Now the king cannot make laws contrary to the common good, therefore such a law would lose its binding power and the king could not confirm it even ifhe wished to do so. Thirdly, some,. times there was an appearance of consent, but that was only

because in fact the king and kingdom together form the legislature. 2

These modifications, of course, bring him much closer to Mariana. Otherwise, when a just law had been promulgated, and sufficient time had elapsed, it must be obeyed; there was no question of further consent, and subjects who did not obey committed a sin. If there was no recorded agreement, then the relationship between the king and the people might be seen from custom: 3 What that mode was, if it is not in writing, must be worked out in detail from custom, for custom is generally thought sufficient for the grant,. ing of jurisdiction, and so it must be more than sufficient to decide the 1 3

De Legibus, bk. iii, eh. xix, par. Ibid., eh. ix, par. 4.

2.

2

Ibid., par.

6.

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manner of its bestowal. In the same way it must be decided whether the consent of the people is necessary for laws of this kind, that is, when the community is ruled by kings. But 1 where there has been no such agreement between the king and the people, and where we cannot prove custom or written law to that effect, we must assume that power was not transferred with that limitation, but that the prince is absolute head of the realm.

II Law is necessary for this human community because the natural law is not sufficiently detailed. It is necessary because natural and divine law are very general and in,. elude only certain sel£-evident principles, which can at most only be extended to things which follow necessarily from them by obvious in.... ference. But in a human commonwealth so many other matters are in,. valved, for its preservation and good government, that human reason must settle more definitely some points which cannot be defined by natural reason alone; this is done by human law, which is therefore most neces,. sary,2

or, as Soto puts it: As Aristotle says in his Ethics, the seeds of morality are sown in us, which if cultivated by discipline and habits might become white for the harvest. But the most effective moral discipline is the making of human laws; so in addition to the natural law which sows the seeds, we need human laws to make the produce more fruitful. . . . Thirdly ... although the natural law is the universal norm of morality, it cannot compel by punishment; but such penalties are necessary for man in the state of fallen nature, so that the work of the prince is to use penal laws.3

Human positive law must be laid down in conformity with justice, or it is no law. 4 Ibid., eh. xix, par. 6. Ibid., bk. i, eh. iii, pars. 1 8, 19. 3 Soto, De ]ustitia, bk. i, gu. v, art. I . 4 De Legibus, bk. i, eh. vi, par. 21.

1

2

44

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The rules and precepts for living laid down by such a community, ir they fulfil the other conditions necessary for law, may constitute legal justice and serve as a measure of virtue in what is suitable for that corn,. munity; thus these rules or precepts will have the true nature of law. ...

The other conditions, apart from the basic necessity of justice, must include legitimate and sufficient authority by the law,. maker, that laws should be for the common good and that they should not be unjustly distributed. Of these conditions the most important was that they should be for the common good. Apart from working out the natural law in detail, what is the relationship to it of positive human law ? Does it, for example, add anything ? Soto, we have seen, thinks that this is the point at which true reasoning (ratiocination) ! comes in. Suirez2 divides human law into two kinds, the first kind comprising those laws which are inferred by a direct conclusion from the natural law, because they are really them,. selves contained within the scope of the natural laws (as we saw in the second book) and their primary obligation comes from the force of natural reason. The human legislator inculcates or proposes this obliga,. tion to a greater degree, and for his part increases that obligation, at least by way of extension. But the other laws, which are human in a stricter sense, derive from the natural law merely in the second way, that is, by means of determination, and, according to that determination, bind im,. mediately through the force of human legislative power which can add an obligation in conscience over and above that arising from natural or divine law. . . .

Under the second kind of law he would seem to include laws dealing with subject matter originally neutral, which becomes praise,- or blameworthy as a result of the law, for he says elsewhere: 3 When an act prescribed by a superior is not bad in itself it may honour,. ably be performed because from the force of the command it receives 1 2

3

Cf. eh. i, pp. 14, 15. Soto, bk. iv, qu. iii, art. I and many other places. De Legibus, bk. iii, eh. xxi, par. 10. Ibid., bk. i, eh. ix, par. 5 .

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a certain virtue even if it does not always have that quality. For, just as an act not bad in itself becomes bad through the just ban of a superior, so an indifferent (or neutral) act becomes good through a law which justly commands it; hence law is always concerned with a good act because it either presupposes the good or creates it. . . .

Soto, commenting 1 on another use of the word 'indifferent', answers the objection that 'human laws not only permit in,. different things, such as having a holiday, playing games or hunting, but also evil things such as fornication, jesting [sic] , lies, &c.' He replies that 'in human law what is not very harm,. fol, i.e. anything which does not result in an inj ury or serious anomaly, is called indifferent; so that things for which there are good excuses may be done with impunity. However, the law does not approve and call them lawful; it cannot do so, because the divine and natural laws do not permit them . . . .' Molina is less interested in such a division than in elucidating the exact relationship of human to natural law, from which he thinks it is not derived by a necessary conseq uence. 2 Many human laws (he writes) are derived from natural law by human decision and arrangement, and are in harmony in some way with the natural law from which they are thus derived-not necessarily, however, as though without such an arrangement the natural law could not safely be preserved. Hence such arrangements and laws are not part ofthe natural law, but belong to positive human law. For example, it is part of the natural law that malefactors should be punished by the public authority, so that peace, justice, and the common good of the community may be preserved; on the other hand, that thieves should be hanged or whipped is not natural law, because the natural law is sufficiently preserved if they are punished by other penalties. Hence the laws which prescribe suitable penalties for certain crimes, according to right reason, are derived from that natural law that malefactors should be punished by the public authorities, not by a necessary consequence but by human disposition and arrangement in accordance with right reason, deviating as little as possible from it, but leaving it free; yet, since the law of nature might be 1 Op. cit., bk. i, qu. ii, art. 2. 2 Op. cit., bk. vi, treatise v, disputation 68, par. I. Cf. also Soto, bk. i, qu. v, art. 2.

THE POLITICA L COMM UNITY preserved, either thus or in another way, such human laws may be described as purely positive . . . .

Here we have seen the place of law as pure command: it applies to laws concerning indifferent actions, so long as they are 'justly commanded'. What does this involve ? Apart from badness of subjecv·matter, which would not be relevant here, a law could still be unjust in three ways: 1 Because (as Suarez says) it is directed towards some private profit instead of the public good, because the maker is deficient in power, or because of a defect in the form (that is, an unjust distribution) . . . . This is clearly essential to the justice oflaws, for if a law is imposed on some and not on others to whom the subject..-matter applies equally, then it is unjust, unless there is some good reason for the exception . . . . Imposing equal burdens on everyone, regardless of their strength and capacity, is also obviously against reason and justice, and St. Thomas distinctly says (la Hae, qu. xcvi, art. 4) that this kind of injustice is enough to make a law null and void . . . .

Soto adds2 that the same difference which exists between a king and a tyrant can also be found between laws: a law set up for a particular good is also tyrannical. (He has already rejected the rather longer list of qualifications for a just law cited by Isidore of Seville.)3 A law which commands an evil action, as we have seen, must never be obeyed under any circumstances, but in cases where the authority is not legitimate, or the distribution is unjust, it is for subjects to decide whether they will obey or not. 'Those laws which are only in opposition to human good', writes Soto,4 'although they are not of themselves binding in De Legibus, bk. i, eh. ix, pars. 1 3 , 16. Op. cit., bk. i, qu. vi, art. 4. 3 Quoted in bk. i, qu. v, art. 3. 'Law, he says, must be honest, just, possible according to the nature and custom of the country, suitable to the place and time, necessary, useful, and also lucid, so that it does not contain anything obscure, and to be for no one's private advantage. . . .' 4 Op. cit., bk. i, qu. vi, art. 4. 1

2

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47

conscience, may sometimes bind for fear of scandal . . . for in things which are manifestly tyrannical it is impossible to resist those in power without causing scandal, and so one must put up with them until such time as they are brought by leniency to a more healthy frame of mind.' (Scandal in this connexion appears to mean a general habit of disobedience to the laws.) Vitoria also points out 1 that if a country is ruled by a usurper or conqueror who has no power to make laws, and the earlier laws cannot be enforced, unless the people do obey him the kingdom will be ruined. He discusses this further in a com..­ mentary on the Secunda Secundae of St. Thomas2 who has declared that 'administering the law is the business of the legis..­ lator . . . . But a man who cannot make laws, though he may utter legal forms, such a man's j urisdiction is void if it is usurped.' Vitoria has serious doubts, and asks the funda..­ mental question whether 'if a judge or tyrant seizes power and passes sentences, are such sentences passed on a subject, where the matter is doubtful, binding in conscience ?' St. Thomas seems here to think that such sentences are void because the ruler is no true judge, but Vitoria, referring to another place (la Ifae, q u. cxv) concludes that Sentences passed by a tyrant according to just laws are binding and valid: he receives his power from the community which establishes him, that is, puts him in control of the state, for without a ruler the community perishes. So, since they accept him in the kingdom, they must accept his just laws, for while the community suffers a tyrant it lacks a king. When the state is bearing all this, it is virtually the will of the people which keeps control, for without it there would be no peace in the state.

Soto agrees completely with this,3 saying that he who through tyranny invades and seizes a kingdom, can neither make any law, nor pronounce a judgment binding the citizens in any way in conscience, unless perchance they have become at length legitimate 1 2 3

De Potestate Civili, par. 23 . Commentaries on St. Thomas,

vol. iii, qu. lx, art. Op. cit., bk. iii, qu. i, art. 3.

6,

p. 5 3 .

TH E POLITICA L COMMUNITY rulers by prescription or by the consent ofthe res publica, as we read happened to the Franks among the Gauls and to the Goths among the Spaniards.

Those laws are binding, in fact, which are acceptable to the community, and they are binding not because the usurper has made them, but because of the community's (generally im,, plicit) consent, 'for 1 it is better to obey the law of a tyrant than no law at all'. If his laws were not binding he would have no legitimate jurisdiction either, and then criminals could not be punished. Here, then, the community has a choice between two evils. Suarez describes2 this gradual transference of the authority of the community to a usurper: It may happen, as time goes on, that the people agree to or acquiesce in his dominion; if this happens, we may derive his power from the act of transmission and donation by the people.

Soto seems to be the only one to draw the logical conclusion that prescription is tacit consent. Again, if a law imposed unjust burdens or was imposed unequally even if the law is not binding in itself, a subject may obey it ifhe wishes, so long as he does not take part in any actual injustice, because he has the power to give up his own right. It is therefore much more probable that in a doubtful case he can be compelled to obey. Indeed, even where the injustice is certain a subject may sometimes be obliged to obey in order to prevent scandal, which ought to be avoided even if the result is some material harm . . . . 3

In any case, before disobeying a law, the subject must be quite sure of its injustice. 4 De Potestate Civili, par. 23. Vitoria is not here contradicting what he said earlier about consent, since he is confining it to circumstances where no true ruler exists; hence the validity of any law made must depend on the acceptance 2 Op. cit., bk. iii, eh. iv, par. 4. of the community. 3 Suarez, De Legibus, bk. i, eh. ix, par. 20. Scandal means an action liable to cause the moral downfall of others (a stumbling,block). 4 Ibid., par. I I . 1

AND ITS L A W S

49

All the Doctors point out that it is necessary for the injustice of the law to be such as to constitute a moral certainty. If there is any doubt, a presumption must be made in the legislator's favour, partly because he has and possesses a superior right, partly, too, because he is moved by higher advice and may be prompted by general reasons unknown to his subjects ; and partly because otherwise his subjects would assume too great a license to disobey the laws ; for laws cannot be so utterly just as to make it impossible for some people to find plausible reasons for treating them as dubious . . . .

Soto 1 weakens the case that 'unjust laws, in so far as they deviate from reason, must not only be considered as laws but must not even be called laws' by adding that 'insofar as they retain some similarity to law, i.e. insofar as they are connected with the power of commanding, they are to some extent an inflow of divine power. For, as St. Paul says "All power is from the Lord God".' The same train of reasoning applies to laws which have lost their meaning. If by a change of circumstances a law loses its just character, or becomes useless for the common good, it ceases to exist, but should not automatically be disobeyed. z Everyone agrees that the law ceases ipso facto to exist because it becomes unjust and thereby ceases to be law, since, as we have often said, quoting St. Augustine (On Free Will, bk. i, eh. 5), an unjust law is not law. . . . And it is the same when the subject.-matter of a law becomes useless and empty from the point of view of the common good, for, by that very fact, it becomes incapable of imposing a legal obligation on the community, and therefore also upon individuals. But any such change . . . must be manifest and evident, because when in doubt . . . thejustice of the law must always be assumed. . . . Definite knowledge must absolutely be demanded, but it is enough if this is based on the public and constant opinion of the people . . . . Thirdly, when its reason or end ceases merely in a nega., tive sense, a law may still be obeyed without sin, and so, because of its binding power, it ought to be observed until repealed . . . . For it would not make for order if a law laid down by a superior could be disobeyed 1

2

827145

Op. cit., bk. i, qu. iii, art. 3 . De Legibus, bk. vi, eh. ix, pars. 3, 4, 7. E

50

THE POLITICA L COMMUNITY

without his consent (as long as it were lawful and easy to obey it) for this might well cause scandal, unrest and deceit in the community....

Nor may it even be simply allowed to fall into disuse without good cause: 1 Custom followed by subjects does not actively abolish a law, only in so far as it demands and obtains that abolition from a superior, who has the power to do it... . I must add, secondly, that nevertheless it is necessary for the custom (or, rather, abrogation of law by a custom) to be some,. how supported by reason. The explicit repeal of a just law cannot be done without good cause ... nor can a tacit repeal, such as that made by custom.

Having decided that human laws, to be valid, must correspond to normal notions of natural justice, the writers go on to de,. dare that these laws are not merely binding because they are commands of the legislator. 2 It is not a general rule, that whatever the will decides is at once just. For if it should decide anything against the law of nature, it will never attain the force oflaw. But when the decision is not merely not opposed to nature, but also opportune with regard to time and place, then the human will, if it possesses public authority, can make such a decision; and that decision, because it is taken, is just.

In one place, however, Molina3-discriminating between the force of obligation of the natural and of human laws-declares that while the obligation of the former 'flows from the nature of the thing itself . . . '. On the other hand, the true obligation of a positive law Hows from the command and will of the one commanding, and thence the object derives it.

However, obedience to the just laws of legitimate rulers is it,. self an obligation of the natural law. This also implies that such 1 2

3

De Legibus, bk. vii, eh. xviii, pars. 4 and Soto, op cit., bk. iii, qu. i, art. 2, par. 3 . Bk. i, vol. i, disputation 4, par. 2.

10.

AND ITS LAWS

5r

laws are binding in conscience. In the time of the primitive church there was a group which believed that Christians were no longer bound to obey civil laws, and this idea was also attributed by the Spaniards to the Reformation thinkers, in,. ferring it logically, if remotely, from some of their tenets, They say that faith is sufficient for salvation, regardless of what works a man may do. It follows logically from this fundamental argument that a just man, as they imagine him, cannot be bound by any law, so long as he remains firm in the faith.

Molina,1 who deals exhaustively with the whole question of the binding power ofhuman laws, both civil and ecclesiastical, ends by concluding-in relation to civil law-that as the authority delegated by the people comes from God, clearly it would be foreign to all right reason, impious and even stupid, and subversive of the whole secular and ecclesiastical regime, to affirm that no subject is bound to obey any human law or precept, as the heretics with whom we are arguing say, so that it would be possible, if no scandal was given, totally without sin to transgress all human laws and every single human command . . . . From which we gather that secular powers are from God and that the servants of God derive from God. Further,. more, when we obey them, we obey God, and obey His commands and will. . . . From these . . . easily can be shown that there is absolutely nothing to prevent there being true kings among the men of infidel nations . . . . For rule, jurisdiction and ownership are things common to the entire human race, being based not on faith and charity but arising directly or indirectly from the very nature of things and their first founda,. uon.

Suarez, 2 returning to the obligation of obeying civil laws, sums up by saying that the true Catholic belief is that on earth all men are subject to law, and obliged to obey it, so that, if they do not voluntarily observe the law, they are guilty before God. Bk. vi, treatise v, disputation 73. He refers sweepingly to 'Calvin and other Lutherans'. 2 Op. cit., bk. i, eh. xviii, pars. 1-3 . 1

52

THE POLITICA L COMMUNITY

Or, in other words, the only freedom from the law which a Christian can have is to obey it voluntarily so as not to be coerced by it. Vitoria, too, 1 follows St. Thomas in saying that everyone is guided by law, but not everyone is compelled by law. Thus in the first sense no one escapes the guidance of the law; in the second sense a man may escape the law's compulsion ifhe is directly responsible to a higher law. . . . Truly upright men are not, strictly speaking, corn,. pelled, for they observe the law not so much for fear of punishment as for love ofjustice.

Human positive law is binding in conscience, firstly because its precepts are in harmony with natural or divine law, and secondly, because its very binding power comes largely from the natural law. To this view one may object that the will of the prince plays a large part; but this is no obstacle, for where an obligation arises from a vow, the will of the one making the vow also plays a part, but still the obliga,. tion is an effect of the natural law. For, as the natural law ordains that one must carry out a promise made of one's own free will, it also corn,. mands obedience to the will of a superior. . . . 2

Again, human law comes from God just as natural and divine laws do, although it comes indirectly through 'law made by men as agents of the divine power.' 3 For, as Vitoria goes on to explain, 'God4 is no less the author of things He produces through secondary causes than of those things He does directly and immediately himsel(' Suarez too says that5 'Even the civil Commentaries on . • . St. Thomas, vol. vi, qu. xcvi, art. 5, p. 435 : Whether everyone is subject to law. Soto (bk. i, qu. vi, art. 7, on the same subject) agrees: 'The just who have habits of virtue are not subject to the law, since they do nothing because of the compulsion which belongs to power, but do everything of their own free will. ' 2 Suarez, op. cit., bk. ii, eh. ix, par. 9. 3 Vitoria, De Potestate Civili, par. 17. 4 Commentaries on . . • St. Thomas, vol. vi, qu. xcvi, art. 4, p. 430: Does human law bind a man in conscience? 5 De Legibus, bk. iii, eh. xxi, par. 6. 1

A ND ITS LAWS

53

legislator makes laws as the minister of God and b y means of power received from him; therefore there is an obligation in conscience to obey.' And from the point of view of the corn,. munity 1 Because a civil community is also a family of God, just as a man who contrary to his own laws gives offence to his neighbour is held guilty before its own court ofjustice, and one who, according to the same laws, has been a benefactor to his neighbour is thought to have deserved a reward: so, too, with a man who has either destroyed or preserved, through the power bestowed on him, the established human laws. And this is to bind in conscience before God . . . .

This was contrary to the opinion of Gerson2 (' otherwise an outstanding man') who believed that the divine law alone produced obligation and that human laws were only binding as an interpretation of divine law (i.e. revealed truth). Then, again, the aim of the civil laws is such-moral goodness -that they ought to be obeyed. 'Although the immediate end of the prince is the tranquillity of the community, his supreme end is that eternal happiness to which that temporal end leads; thus through his own laws, and by means of power given him from heaven, he can bind in that supreme court (i.e. the court of conscience3) • • • • ' Here we must digress to discuss the aim of the civil law. Did it attempt to make good (virtuous) men or merely good citizens ? Referring to St. Thomas's state,. ment that the intention of the lawmaker is to make men good, and that the goodness of subjects is in proportion to the good,. ness of the law, Vitoria asks4 whether this is true of all law ? We know, he says, that it is true of natural law, divine positive law, and church laws; but does not a secular ruler, in making law, aim rather at the security and prosperity of his citizens ? 1

2 3

4

Soto, op. cit., bk. i, qu. vi, art. 4. Gerson, De Vita Speciosa, lesson iv. Quoted by Soto, in bk. i, qu. vi, art. 4. Soto, ibid. Commentaries on St. Thomas, la llae, vol. vi, appendix i. De Lege.

54

THE P O LITIC A L C O M MUNITY

For, as St. Thomas says, only moral qualities make men vir.... tuous (good 'as such') so that the question whether a legislator intends to make men good is the same as asking whether he should lead them to virtue. Some writers think he should not, because moral influence does not lie within his sphere ('as is true of artists, whose sphere of work is not moral but artistic goodness'); then his aims must be the aims of his country, and the state does not seem to have been founded for a moral purpose, but because solitary men are not self....sufficient. The purpose of the legis,... lator, then, must be to supply these natural needs. If morality were the end of the state, it would mean that the ends of the civil and canon law would be exactly the same. Again, &. Thomas argues that if a man sins privately he can remain an asset to society, and observe all the civil laws-yet he is evidently not a good man. But Vitoria disagrees strongly: 1 a wicked man cannot be an asset to society because 'the common good is made up of particular good things, and a good house cannot be built of faulty bricks'. St. Thomas thinks that the common good can only be assured by rulers who are good, yet he seems to allow that it is one thing to be a good citizen and quite another to be a good man. Vitoria's reply to this is that the ruler does intend to make his people virtuous: law considers first the common good, but the most important part of this is virtue, and so, however prosperous citizens may be, it is of no use unless they pursue virtue. If the civil laws provided a purely human service, why should the scriptures say that a man who opposes authority is a rebel against the ordinance of God ? Rulers also make laws which are concerned with morality; indeed, all laws (he says) must be concerned with some virtue, or else they are not laws. Even taxation is concerned with the common good. St. Thomas answers the argument about the ends of canon and civil law not being the same by saying that This whole discussion comes from the Commentaries on the la Ilae of St. Thomas, vol.vi, qu.xcii, art.2, p. 2 40 : Whether law is intended to make men good. Cf. also appendix ii. Fragmenta Relectionum, 2, p.500. 1

A ND ITS L A W S

55

while civil rulers try to ensure men's human happiness the church is directly concerned with their eternal happiness. (Here, and commonly, Vitoria equates happiness and good... ness.) As for the man who sins privately but obeys all the civil laws, Vitoria says he is no proof that a ruler does not try to make men good-only that he does not try to make them per,. feet. In passing, he notes with interest that St. Thomas's reason for thinking that it is not the business of human law to repress all vices is not the usual one (that civil law is only concerned with vices which disturb the state): he says, rather, that 'since laws are imposed on imperfect creatures they must be such laws as those creatures can bear'. Soto, in a similar long dis,. cussion, 1 follows this view, saying that 'a very high standard of duty should not be set up by the laws (which should be common to all) so that it is only attainable by men of integrity who have already made progress in virtue. A standard should be set up which even imperfect men can endure and approach so that they may improve with practice and not find themselves too discouraged first.' But he also agrees with Molina that anti,. social vices are the most important ones to prohibit (in addition, of course, to those offensive to God, such as blasphemy, heresy, perjury, and apostasy). But Molina2 also goes on to say that Above all, because of the activities of men, owing to their frailty and numbers, if all these things were punished by external courts, the human race would be too much oppressed, and the courts and the prisons would not be able to punish or hold all the misdeeds and crimes.

Prescribing all the virtues would also be too much for frail mankind, for 'neither the natural law, nor indeed God himself, commands that all the virtues should be practised, since many ofthem are works ofsupererogation, belonging rather to counsel than to precept'. Suarez3 is in complete agreement with Vitoria about the aim of civil society: 1

2

3

Op. cit., bk. i, qu. vi, art. 2. Op. cit., vol. vi, treatise v, disputation 72. De Legibus, bk. i, eh. xxiii, par. 7.

THE POLITICA L COMMUNITY ... The aim ofa human society is true political happiness and this cannot exist without good morality. It is directed towards that happiness by means of civil laws, and therefor� these laws must themselves conduce to what is morally good, which as I have said is true virtue. When Aristotle distinguishes the good citizen from the good man, he does so because more is needed for the virtue of a good man than for the virtue of a good citizen; for although the virtue of a good citizen is moral and honourable as far as it goes, viewed absolutely it is only good up to a point ... and it is not enough in itself to make a completely virtuous man. 1

That is to say, it is the same kind of goodness, only more of it, not goodness of a different kind, a point to which Vitoria leads up in a long, and-for him-obscure passage in the same commentary quoted above. 2 This leads necessarily to the conclusion that civil laws are binding in conscience, although many people say that such is not the business of a secular power. But once it is agreed that civil laws aim at moral goodness, they must be so binding: 3 . . . Civil laws also aim at moral goodness, in their own subject,.. matter and in relation to their end, and are therefore able to create an obligation in conscience. This is necessary, so that the civil power may effectively achieve its own end through its laws, because unless citizens are bound in conscience to do those things which civil law effectively commands, and to refrain from what it forbids, it will be impossible to preserve peace and justice in society, because men's actions are most nearly directed by conscience; hence it is necessary for some obligation in conscience to emanate from the civil laws.

That is, of course, assuming, as Suarez and his contemporaries do, that a law means a just law, for an unjust law is no law and cannot therefore bind in conscience. Vitoria, 4 in common with the rest, discusses whether this C( also bk. i, qu. ii, art. r, and Aristotle's Politics, iii. 3. C( footnote 2, on p. 28 above. 3 Suarez, op. cit., bk. iii, eh. xxi, par. r 2 . 4 Commentaries on the Ja !Jae of St. Thomas, vol. vii, qu. xcvi, art. 4, p. 430. Whether human latv is binding in conscience. Cf. Soto, op. cit., bk. i, qu. vi, art. 4, and Molina, op. cit., bk. vi, treatise v, disputation 73. 1

2

AND ITS L A W S

57

obligation to obey the laws is a light or a grave obligation, since many canonists, including John Gerson, believed that human law could not impose a serious obligation except where contempt was involved. (That is to say, it was contempt for the law which made the sin grave.) However, the theologians, including St. Thomas, did not generally agree with this, and Vitoria (discarding the idea that the gravity of the offence might depend on the lawgiver's intention) firmly declares that the gravity of the offence, as in all sin, depends on the subject..­ matter of the law. A law concerned with unimportant matters cannot bind one's conscience seriously, but grave matter binds equally gravely. Suarez agrees. In urgent and serious cases the binding power of the civil law may even override the natural..­ law right of a man to defend and preserve his own life, that is, the civil law may bind in conscience even in the face of death. 1 . . . The common good must take precedence over the private good, and a man is bound to lose his life for the sake of the common good; but human law is laid down for the sake of the common good; therefore it must be obeyed in spite of danger to life.

But such an obligation does not always exist for the community or its ruler does not have dominion over the lives of the citizens, but only appropriate use of them; therefore it cannot compel citizens to die for ordinary unimportant reasons-and this is also evident from what we said about human law above: that it must be morally possible and easy.

Moreover, we must add that the natural obligation is not always certain; it is often very doubtful and depends on prudent judgment, to know whether it is expedient to use one means or another for the common good when the danger is so great. However, as soon as the judgment of the prince or prelate has been given and a ruling made, a definite obligation arises, which cannot be called of the natural law but of human law. 1

De Legibus, bk. iii, eh. xxx, pars. 6 ff.

THE POLITICA L COMMUNITY

The examples which Suarez gives in this section of times when civil law may be binding even in the face of death are when it is necessary to embark on a dangerous war to defend the country, to remain somewhere during a time of plague for the sake of the common safety, or to risk one's life to do something good for the sake of religion.I

But we shall see later that the obligation in case of war exists only when the war is clearly a just one. It is interesting that among the laws specifically mentioned by Vitoria as strongly binding in conscience are those referring to payment of taxes and export of money from the country: to evade the former or to do the latter when it is forbidden are gravely wrong. It may seem all right for one man to do it, he says, but we must consider what would happen if it became general. 1

De Potestate Civili, par. 1 8.

III THE P O S I TI O N O F THE RU LER

W

E have seen that the ruler has been chosen, or his predecessors have been chosen, by the community. What is then his position : Firstly, his laws are binding in conscience if they fulfil the conditions for just laws, since he has been entrusted with the power which resided originally in the community. Once a ruler has been chosen, the whole community, because they chose him, is responsible if he does wrong, and may justly be punished for his sin­ at least in the case of aggression.

Thus, if a king makes war unjustly upon another, the one who is injured may lawfully plunder, attack and kill the subjects of the unjust king, even if they are all innocent; for once the king has been chosen by the community any rash act of his is a black mark against the community, since they ought only to confide this power in one who will use and exer.­ cise it justly, and in doing the opposite the country is asking for trouble.I

In view of Molina's remarks on hereditary monarchy,2 with which the rest are in agreement, this seems a hard saying, though it is obviously factually correct. If the justice of his laws is doubtful, a presumption must be made in his favour. It is not necessary for him to be a good man in order to rule legitimately and to make just laws, although Vitoria, De Potestate Civili, par. 12. Molina, op. cit., bk. vi, disputation 3, par. 2 (referring to Spain), writes: 'Therefore today the community cannot take away from the king and from those who have the right to reign, that right of transmitting the kingdom and succes.., sion in that same blood and by hereditary right, even ifthey (i.e. the royal family) are themselves unwilling . . . .' He makes, however, the proviso that 'jurisdiction remains with the community to this degree, that if the king turns into a tyrant, or wishes to do something which will not be at all for the good of the corn., munity, they can resist him and advise him, as is obvious . . .'. 1

2

THE P O SITIO N O F THE R U LER

60

of course he ought to be a good man. Mariana, who devotes much of his book De Rege to the education and character of kings, 1 and De Soto both .feel very strongly on this point, although they make no attempt to reconcile their demands with the hazards of hereditary monarchy. . . . You may argue (writes Soto) that there seems to be no need for greater virtue in the prince who acts than in the citizen who obeys. . . . We answer that the two cases are not on a par; as the prince has to make laws concerning every virtue . . . how, if he himself is not temperate and just and strong, can he properly command such virtues ? . . . It is sufficient for the strength of the community if the prince possesses every virtue [sic] and the citizens obey him well.2

But none of them approves of the doctrine that dominion is founded on grace, which they attribute to Hus and Wyclif-­ i.e. in the final analysis, that a king who is not a good man has no proper authority. Suarez3 does see the reason for this opinion, which is based on the fact that 'royal power is ordained for the common good, but it would be quite contrary to the common good if such power were to reside and remain in such wicked men'. But this is merely a pious hope, for although from the principle of faith we may rightly conclude that we must not obey the temporal magistracy in matters opposed to the faith or to supernatural precepts, we cannot infer from it that an infidel cannot be a true prince, or that we must not obey him in matters of sound political government which are not opposed to the faith. . . . A king who is otherwise wicked may maintain honesty and justice when making laws, then formally, and as king, he is just ; his wickedness is, so to speak, concomitant, and has therefore no connexion with his power. Or we could say that in law,,making, if he practises injustice and evil by ordering some wicked action, then he does not produce any binding effect by it. For an iniquitous law is not a law, nor is royal power conferred for the making of such laws, as we said above when we were discussing the nature of law. So, if an order is really wicked, subjects can and ought to disobey the king, but they cannot absolutely 1 3

2 Soto, op. cit., bk. i, qu. ii, art. r. De Rege, bk. ii. De Legibus, bk. iii, eh. x, pars. 3 and 7.

THE P O S ITIO N O F THE RULER

61

deny obedience to him in matters which are just. Finally, a king may be unjust even in his usurpation of power, because he has acquired it tyrannically, and then indeed the offence excludes true power, not be,.. cause it deprives him ofit, but because it assumes the lack ofit, and cannot bestow it; then it is right that such a man should be disobeyed because he is not a king but a tyrant.

Yet we must remember that, even in the case of a usurper, if the people 'tacitly consent and will that justice should be administered through him . . . then it will not be sinful to obey . . . because the consent of the people supplies the defect in the power of the tyrant'. 1 Vitoria and Soto also agree 2 that pagan princes rule legiti,.. mately. This fact might be doubted, since Christian rulers who apostatize may lose their thrones; but Vitoria points out, with the liberal use of texts customary in the period, that scriptural injunctions to obey the secular powers all refer to pagan princes, and says that no ruler, lay or clerical, has a right to deprive a pagan king ofhis power simply because he is a pagan, if he has committed no other crime. This was to be a key point in the attack on Spanish colonial policy. Resistance, deposition, and even assassination are, however, sometimes justified. Suarez examines one aspect of this problem exhaustively in his Defence of the Catholic and Apostolic Faith. 3 In the first place, a man may by natural l"w defend his life against anyone who wishes to take it away by violence, even 1 Ibid., par. 9. 2 Vitoria, On Secular Power, par. 9; cf. De Soto, bk. iv, qu. iv, art. I ; Molina, op. cit., bk. vi, treatise v, disputation 73. Soto bases his argument on Aquinas's axiom that 'faith does not destroy nature, but perfects it'. Thus 'not merely those powers which belong to Christian princes come from the Lord God, but also those found among infidels. . . . Through those powers, then, they can govern their peoples in those matters which belong to the natural law. . . .' 3 Written in reply to James I of England's Act for the better discovering and repressing Popish recusants, to be administered to any recusant underpenalty of Praemunire, 1 606, 3 & 4 Jae. I, cap. iv, section ix. For the text of this interesting and remarkably comprehensive oath see the end of this chapter.

THE P O S I T I O N OF T H E R U LER

62

if it is the king and it may involve the king's death. However, if that death would leave the country in a parlous state, the man would be bound-but in charity alone and not by natural law-to refrain. The customary medieval distinction 1 is made between a legitimate prince ruling tyrannically and a usurper. No private person ought to kill a legitimate king, except in self.-defence or for a great crime, and in the latter case only if a public assembly has pronounced sentence. Tacit consent is not enough, and assassination on private authority would be usurped jurisdiction. Defence of the community by arms against the king is not lawful unless the king makes an unjust attack upon it, when by natural law the state, like a private person, is permitted to defend itsel( Even in a usurping tyrant, tyranny and injustice must be public, manifest, and continu, ous, and for his assassination to be lawful it must be essential for the liberty of the realm, because if there is any less drastic means of removing him it is not lawful to kill him forthwith without the approval of a superior and an investigation. This includes the proviso that no treaty, truce or pact ratified under oath has been made between the tyrant and the people . . . . For pacts and oaths, even those made with enemies, must be kept unless they are clearly unjust and ex.­ tarted by force. We must add still another restriction; always provided that there is no danger of the same or worse evils falling on the com.­ munity as a result of the tyrant's death as it already suffers under his rule. And, finally, the community must not openly oppose it. 2

Soto is a little more cautious about legitimate rulers ruling tyrannically, advising recourse to a superior, if one exists, then (reluctantly) if there is no superior, to arms, but finally advising, if the community has no power to rebel, that 'supplication should be made to God, in whose hand is the heart of the king; and God sometimes because of the sins of the people suffers a hypocrite to reign'. Even when a usurper behaves tyrannically Cf. St. Thomas, Commentary on the Sentences of Peter Lombard, distinction 44, qu. 2, art. 2, and De Regimine Principum, eh. 20, and for a similar discussion, Soto, op. cit., bk. v, qu. i, art. 3 . 2 Suarez, A Defence, &c., bk. vi, eh. iv, pars. 8 , 9. 1

THE POSITION OF THE RULER

and is agreed to be waging war on the community, he is dubious about the advantages ofkilling him, saying shrewdly: 1 But truly, although perhaps in strict justice this is permissible, it is not always advisable, except when there is no other way and the country is in extreme need, or especially when it is clear that freedom is at hand for the community after the tyrant's death. For otherwise such killings do not usually have a happy end. Indeed the killers, when they have done their work by private authority, usually rage against the state in a worse and more pestilential manner than did the previous tyrant... •

In answer to the common objection that no private person should kill without public authorization, Suarez says that a man who kills a manifest tyrant (i.e. a usurper) does not do so without authorization: 2 'He acts with the authority ofthe tacitly/ consenting community, and with the authority of God, who has given everyone by natural law the right to defend himself, and his country, from the violence done by such a tyrant . . . . ' While tacit consent is not sufficient in the case of a (tyrannical) legitimate king, however criminal, a usurper or genuine tyrant is virtually doing violence to the state all the time: there/ fore the community wages a continual war of defence against him and tacit consent is enough. The distinction between a legitimate king and a usurper disappears when the former is deposed, for then, if he continues to wield power, he wields it illegitimately and becomes a usurper. This may happen if the king falls into heresy, when he becomes ipso facto unfit to rule, but does not actually lose his power until he is formally con/ demned. Now the power to depose a king lies in the people or in the pope. It resides in the people only as a necessary means of defence, for self,. preservation, as I have already pointed out (bk. iii, eh. iii); so that, if a legitimate prince governs tyrannically and no other means of self,. defence can be found than the expulsion and deposition of the king, the people, acting as a whole, in conformity with the public and general councils of its communities and magnates, may depose him. This is 1 Op. cit., bk. v, qu. i, art. 3. 2 Suarez, A Defence, &c., bk. vi, eh. iv, pars. 8, 9, ro, 1 3 , 14, 1 5.

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THE POS ITION OF THE RUL ER

allowed by natural law, which says that force may be met with force, and also because such circumstances where the preservation of the state is at stake are always understoo? to be exempt from that original contract by which the people transferred their authority to the king. . . .

This last sentence covers the proviso mentioned above-that pacts and oaths, even those made with enemies, must be kept unless they are clearly unjust or extorted by force. Suarez goes on to say that 'this power also resides in the pope, since he is a superior with authority to correct princes'; but this aspect will be dealt with in a later chapter. This entire discussion of resistance, deposition, and tyran,. nicide, which has a long history, is of particular interest as addressed to James I of England, in view of the recent ex,­ communication of Elizabeth I, and of the future execution of Charles I and deposition of James II. From the above discussion it is clear that these four writers are in no doubt about the king's being in some way bound by the laws. Some say (writes Vitoria) 1 that he cannot be, since he is above the whole community and only a superior can im,­ pose obligations. This argument does not satisfy him, but he only says mildly that it is more probable that kings are so bound, and goes on to give his reasons for thinking that they are. Firstly, a ruler ought to share the burdens of the community -in a way befitting his rank and dignity, of course-since he is one of them. Secondly, laws made by the king have the same force as laws made by the whole community; but such laws are binding on everyone, including those who make them; therefore so are the king's and his laws should bind himself. In an aristocracy the senate's decrees are binding on everyone, including those who make them; in a democracy, too, the plebiscite binds the whole people. Thirdly, although the king makes law of his own free will, it does not depend on his will whether it shall bind him or not. A man may enter into a 1

De Potestate Civili, par. 2r.

THE POSITION O F THE RULER

65

pact of his own free will, but he is still bound by it. The recogni..­ tion of the twofold nature of law (directive and coercive) is also used as an argument that the king is under the directive but not under the coercive power of the law-that is, he must obey it because it is just. This does not, of course, face all the issues involved. In one of his commentaries on St. Thomas 1 Vitoria makes a rather unsatisfactory inquiry into what is meant by the ruler's being bound by the directive but not by the coercive force of law, suggesting many of the possible objections to this solution. Who binds the king ? He cannot be bound by himself (for no man can), nor is he bound directly by God, nor by the corn,. munity: hence no one can bind him. Nor does he lose his freedom through the law. It is all very well for St. Thomas to say that he is subject to the law of his own free will, but what if he refuses to be ? Vitoria does not answer these questions, merely repeating that the king, though supreme, is also a part of his kingdom; by natural law the burdens of his community should be distributed proportionately among its members ; if the king is to take his share of the privileges he must also, other things being equal, take his share of the burdens. ('If, however, the king makes a law that people should not wear silk or cloth of gold, he himself could wear them, for in this case other things are not equal.') 2 A king or pope who breaks the law does not sin in exactly the same way as his subjects do, but in a different way, perhaps even more gravely. But he may even things out by bearing other, heavier, burdens for the good of the community. Soto, in an article with the same title, 3 does not get much farther. He begins by bracketing the just man and the king as free from the coercive power of the law, and goes on to say that princes should not count this exception among their privileges: in fact, it is a very bad thing for them. For subjects, who are not only illuminated Commentaries, la Hae, bk. vii, qu. 96, art. 5 , p. 436. Cf. Soto, op. cit., bk. i, qu. vi, art. 7. 3 Ibid. 1

2

827146

F

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THE P O S I T I O N OF THE R U LER

by the law but also urged on by its penalties make use of two helps towards virtue, while the prince is deprived of the second help, as no one can compel him and no one dares admonish him. . . . So the king, by the very fact that God hw made him more free and exempted him from the compulsion of the law, ought to be himself more vigilant and more attentive to the divine will, and so he should himself heed the laws which he has laid down for others . . . . But we have not yet ex,. hausted all the difficulties.. . . For he is not bound by God because the law is not divine, nor is he bound by himself because the law is not the result of a private vow (which is how men usually take obligations upon themselves). To strengthen this argument, let us suppose he is not willing to be bound by his own law. However all this, though it impugns our conclusion, does not entirely wipe it out. For we must first consider that the prince is not outside the community but is a member of it; in fact, its head. Secondly we must remember . . . that human law is binding in conscience because it is derived from the eternal law through the natural law. From all this its binding force may at once be inferred: that is, from that natural principle which says you ought not to lay down for others a law you do not wish for yoursel£ . . . Therefore by the very fact that a prince makes a law, he becomes subject to it himself by the law of nature. Perhaps this can be proved more clearly as follows: the legislator (as we said) in making a law places an action in a certain definite category of virtue . . . . Once the act of virtue has been decided upon, the whole community, and therefore also the head of it, is bound to act in accordance with it.

However, it is repugnant to reason, he says, that the executor of the penalty, the prince, should execute it on himself, so from the practical point of view we are back where we started. These discussions illustrate many of the difficulties of the time: the general agreement about the means to be taken against 'con,. tinuous and manifest' tyranny, but the equally general distaste for attacking legitimate monarchs; the fact that the remedies urged are only remedies of the last resort-no constitutional means exist, either in theory or in practice, for curbing a would.... be tyrant in mid....career, rather than waiting till his iniquities become unbearable. That God 'sometimes suffered a hypocrite to reign' was a brute fact, rather than a pious reflection. The

T H E P O S I TIO N O F THE RU LER

medieval tradition that the prince might not act without the advice of his magnates (or at least must seek that advice) was no longer in full vigour, though it was often still referred to. Soto, who, in common with most people of his time, believed that the prince should not enact laws without the advice of prudent men, pointed out 1 that this advice had not of itself the weight of law. The counsellors 'draw out laws from the bowels of natural philosophy by reason and good judgment; but no one can give them the stability and strength of coercion but the one who rules.' Mariana2 clung to a belief in this tradi..­ tion; others adapted themselves in a greater or lesser degree to the facts of the time. The complexity of these problems also serves to explain the spate of books which appeared in the sixteenth century dealing with the character and education of Christian princes, of which Mariana's De Rege is an excellent Spanish example.

APPENDIX I, --, do truly and sincerely acknowledge, profess, testify and declare in my conscience before God and the world, that our sovereign lord King James is lawful and rightful King of this realm and of all other his Majesty's dominions and countries; and that the Pope, neither of himself nor by any authority of the church or See of Rome or by any other means with any other hath any power or authority to depose the King, or to dispose any of his Majesty's kingdoms or dominions, or to authorize any foreign prince to invade or annoy him or his countries, or to discharge any of his subjects of their allegiance and obedience to his Majesty, or to give license or leave to any of them to bear arms, raise tumult or to offer any violence or hurt to his Majesty's royal person, state or govern,. ment, or to any of his Majesty's subjects within his Majesty's dominions. Also I do swear from my heart that, notwithstanding any declaration of sentence of excommunication or deprivation made or granted or to be made or granted by the Pope or his successors or by any authority de... rived or pretended to be derived from him or his See against the said King, his heirs or successors, or any absolution of the said subjects from r

Op. cit., bk. i, qu. i, art.

3.

2

De Rege, i, chs.

3 , 8, 9.

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TH E POSITION OF THE RULER

their obedience, I will bear faith and true allegiance to his Majesty, his heirs and successors, and him or them will defend to the uttermost of my power against all conspiracies and attempts whatsoever, which shall be made against his or their persons, their crown and dignity, by reason or colour of any such sentence or declaration or otherwise, and will do my best endeavour to disclose and make known unto his Majesty, his heirs and successors, all treasons and traitorous conspiracies, which I shall know or hear of to be against him or any of them : and I do further swear that I do from my heart abhor, detest and abjure, as impious and heretical, this damnable doctrine and position, that princes which be excommuni., cated or deprived by the Pope may be deposed or murdered by their subjects or any other whatsoever: and I do believe and in my conscience am resolved that neither the Pope nor any person whatsoever hath power to absolve me of this oath or any part thereof, which I acknowledge by good and full authority to be lawfully ministered unto me, and do re., nounce all pardons and dispensations to the contrary: and all these things I do plainly and sincerely acknowledge and swear, according to these express words by me spoken and according to the plain and common sense and understanding of the same words, without any equivocation or mental evasion or secret reservation whatsoever: and I do make this acknowledgement and recognition heartily, willingly and truly, upon the true faith of a Christian: so help me God. (Unto which oath so taken the said person shall subscribe his or her name or mark). Ist Parliament, Second Session: January 2 rst-May 27th, r6o6. 3 & 4 Jae. I, cap. iv., section ix. An ACT for the better discovering and repressing Popish Recusants. To be administered to any recusant under penalty of praemunire.

J.

W. Prothero, Statutes and Constitutional Documents, 1558-1625, 4th edition (Oxford, 1913), p. 259.

IV CH U R CH AND STATE 1

A

T H O U G H all these writers take what might be called a moderate traditional view of the relationship between the spiritual and temporal powers, the effects of period and nationality are clearly visible in Vitoria and even more in Suarez. They found their case, of course, on the classical proposition that the temporal power is in some way inferior to the spiritual because the end of the latter is more excellent: civil power is material and confined to the order of nature, while spiritual power is supernatural and deals with eternal matters. Then, too, the wielder of spiritual power is superior, for while civil power resides in the community, spiritual power resides in Christ, and, from Him, in His vicars. But does the greater excellence of one imply the actual subordination of the other : Suarez, who is more of a papalist than Vitoria, says plainly that 'ecclesiastical power is not only more noble in itself but is also superior, and the civil power is subordinate and subject to it'. He uses the body...and...soul analogy and argues from the spiritual power of the pope in temporal matters that the latter must be inferior. He seems to approve of Bernard's saying that the pope holds the spiritual and temporal swords simultaneously, because he has the one directly and the other indirectly, or the one in and for itself and the other as subordinate to himself; by this he means that the spiritual sword must be exercised by the Church, while the material sword should be exercised by the militia for the benefit The arguments in this chapter have been mainly derived from Vitoria and Suarez, since Molina, in the works consulted, hardly touches on the matter, while Soto only covers part of the ground, though that with great thorough, ness. The moderate position here adopted seems to have been part of the Dominican tradition. 1

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of the Church, at the desire of the priest and the command of the emperor. Soto, discussing what power Christ could have left to the pope, His vicar, confines it to the 'power which He himself exercised, i.e., that as often as necessary for that end (i.e. the spiritual) he should give commands to all kings, correct their laws and, in the final resort, take over all temporals'. 1 This is dangerously v·ague. Vitoria, with his customary lucidity, discusses the whole subject much more carefully. The civil and spiritual powers are not two separate states, like France and England for example, and he illustrates this by saying that 'If some kind of civil government should cause harm to the spiritual government, the king or princes would be compelled to change it, even if that type of government were appropriate to the ends of the civil power itsel£' 2 Now this cannot be due to the superior end of spiritual power alone. Vitoria thinks this would be insufficient to involve an obliga/ tion to preserve the spiritual power at the expense of the secular; the ruler of one state is not obliged to promote the welfare of another, although the latter may be much the greater of the two. If the temporal and spiritual spheres were entirely separate the temporal prince would not be bound to serve spiritual interests at the expense of the temporal state. Nor is it relevant to say that the king must serve spiritual interests for the sake of his subjects' souls, because 'the king's obligation is not only towards his own subjects-quite the contrary: if something done by the secular government of Spain should cause grave spiritual harm to Africa, the Spanish king would be under an obligation to amend his method of government'. The obliga/ tion, he thinks, springs from dependence and subjection. In fact, the whole Church (i.e., here, Christendom) is one body, Op. cit., bk. iv, qu. iv, art. I . Concerning the Power of the Church, par. 10. Note: Vitoria has two relectiones called De Potestate Ecclesiae. I have called the one which deals with the nature ofecclesiastical power 'Concerning the Power of the Church'; the other, which discusses where power resides in the Church, I have called 'On Ecclesiastical Power'. 1

2

C HURC H AND S TA TE

7r

not two, a union of two states, civil and spiritual, and all the parts are 'related mutually in due subordination'. These two closely interwoven communities, however, are radically different in structure. Vitoria discusses this in his other treatise On Ecclesiastical Power, where he asks the question which inspired the conciliar movement and many of the attempts to democratize the Church: Does ecclesiastical power reside in the whole Church in the way that civil power resides in the community : In each case the power exists for the good of the community-in one case for the Church, in the other for the State-therefore it seems that in both cases it ought to reside in the community, and this appears to be borne out by the fact that when a council meets, power resides in it because it represents the whole Church, as it does in the College of Cardinals when they elect the pope. Vitoria answers the question, first, by distinguishing between the kind of ecclesias..­ tical power held by pagans, for appointing priests and regulating worship, and that particular power bestowed by Christ upon Peter and the apostles-the power to forgive sins, &c. This power was given to them as individuals, and came directly from Christ, not from the body of the Church, and the successors of the apostles had it directly from the apostles. 1 Again, when something is entrusted directly to a community, all the members of that community have an equal relationship to it, as is evident of the civil power, absolutely speaking, in a secular society; but in the church not everyone is equally related to the Keys, as is agreed and as I shall discuss later; therefore . • . . Now every natural thing is common and pertains originally either to the species (as 'mortality' does to man) or to the community; but ecclesiastical power is supernatural and given by God for higher things, and society is not mistress of this power but its servant, as we have said. Christ's kingship and lordship is not from the Or, as Suarez says, this power 'although new in each person designated, originates in the first grant made to Peter and is morally identical with it; for at that time Christ, with a single steadfast will, determined to grant it to Peter and all his lawful successors . . .'. Faith, Hope and Charity, disputation x, section iv, par. 3 . 1

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(Christian) community but from God, so it is irrelevant to inquire what is the relationship of particular persons to the community. For although in natural matters society is superior, and each man as it were subject and inferior, in relation to ecclesiastical power each depends wholly on the will and institution of Christ, the source of this power. Moreover, the spiritual community has Christ for king, and power in the church is delegated. . . . For one man is capable of grace and another of spiritual virtues which cannot belong directly to the whole community. And whereas in the body one part exists entirely for the whole, in the church individual men exist for God and for Him alone, and private good is not entirely and principally designed for the good of the whole ; then just as grace or faith or hope or any other spiritual virtue does not reside im,.. mediately in the whole community, so neither does spiritual power, which is equally supernatural, or even more so. 1

Spiritual power does not (he says) reside in a council because it represents the universal church, that is to say, not because any power was bestowed immediately by Christ upon the whole church or council, but because the council is a union and assembly of ecclesiastical powers, and the bishops have willed to set up an authority and to abide by it. Nor do car,, dinals elect alone in the name of the universal church, but by canon law, and by a method laid down by the popes them,, selves, which could be altered as easily as it was laid down. 2 And even if the right of election did reside in the universal Church, it would not mean that the electors possessed the authority to which they elected: Vitoria instances the election of abbots and the imperial elections. Again, power in priests does not come from the people but from the bishop, nor does the bishop's power come from his diocese. The church cannot decide to put the papacy into commission or retain the govern,, On Ecclesiastical Power, pars. 4 and 5. z Suarez says much the same, adding that if there is no pope and no form of election laid down, it is the task of the bishops. The form of election, then, is human positive law. It is noteworthy that he explains why the election does not devolve upon the universal church because 'the election of any head of state belongs of itself to the magnates of that country when the succession fails'. (Faith, Hope and Charity, disputation x, section iv.) 1

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ment for itsel( The government of spiritual matters is not the business of the laity, or even, for that matter, of the whole of the clergy. 1 Throughout this whole discourse Vitoria skilfully avoids the issue (which was still alive in his time) as to whether the pope was above or below the council. 2 A single paragraph will be enough to illustrate this dexterity: You may object that we are already taking the side that a council is not above the pope-contrary to the decided view of the Paris school­ for if there is no power in a council except what is derived from the bishops it clearly follows that no power is greater than the papal power. My answer is, first, for the present I have decided not to become involved in any arguments about that odious cornparison of pope and council. Secondly, the things I have said do not conflict with anyone's opinion about this comparison; for from whatever source a council derives its power, even if it is from the prelates, it can be maintained that it is greater in the whole council than it is in the pope, just as it is greater in a pro, vincial council than in any prelate of that council. If this is unpalatable, it can be maintained that power in the council is derived immediately from God, not because it represents the universal church, but because it is the union of all the princes of the church, even if all other Christians disagree. Even on the basis of this opinion, both ideas about the corn, parison of pope and council remain intact.3

He does not commit himselfeven when he deals with the whole question in a separate treatise ( On the Power of the Pope and the Vitoria, On Ecclesiastical Power, qu. ii, par. 19, 20. By the time Suarez was writing De Legibus the whole question had died down. In his Faith, Hope and Charity, disputation xi, on General Councils, after saying that the Church is a hierarchy and that laymen attending may neither judge nor vote, Suarez goes on to say that true councils-i.e. those concerned with faith and morals-must be called by the pope, and only emergency councils (for instance, when the Holy See is vacant) may be called by secular princes. Laws made by a council must also be confirmed by the pope, and this is defide. But Suarez is writing after the Council of Trent. 3 On Ecclesiastical Power, qu. i, par. 6. 1

2

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74

Council). He begins by saying that if we assume the council

to be above the pope, the latter cannot change any of its de..­ crees, either by dispensation or abrogation. Here Vitoria notes that all the Doctors, and especially St. Thomas, distinguish between two kinds of decree. The first are those which clearly belong to divine law (articles of faith or the sacraments) or are bound up with natural or divine law and necessary for morality. These cannot be changed, since natural and divine law are immutable. 1 It is nonsense to claim that the pope, as vicar of Christ, can do whatever Christ could do, for a 'vicar does not have what is not prohibited, but only what is conceded. And Christ did not bestow any power to loosen or relax his com..­ mandments, only to administer and apply them.' Nor can the pope declare the opposite of a conciliar decree, by saying that it is merely a question of interpretation, for in matters of faith and morals a council cannot err, and Vitoria declares hardily: 2 'If a council could err in these matters, so could the pope, and if both can err we must rather stand by the council.' He seems, however, to believe that in fact both the pope and the council are infallible in questions of faith and morals. Where, however, the councils go beyond natural and divine law, in making decrees which are merely useful or necessary for the Church, the pope may dispense from them: firstly, because a ruler sometimes needs to make use of equity in order to loosen or interpret a law-and this is the business of the pope, because councils are not always in session. Even those who believe that the pope is inferior to the council hold that he is the executive of the Church and the vicar of Christ, and it would be absurd to think that a council (or its delegate) could dispense from conciliar laws when the pope could not: In this passage Vitoria seems to contradict what Suarez says about the origin of the obligation of natural law: 'Natural law (he writes) is obligatory only because it is supported by divine authority; otherwise it would not be binding . . . for obligation can only come from a superior; therefore human dispensation cannot touch what is indeed divine law.' But divine authority is not, of course, equivalent to divine command. 2 On the Power of the Pope and the Council, par. 3 . 1

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it would destroy the whole concept of the papal office. The pope may also abrogate a conciliar law, since even a reasonable custom can do that. Might a council, then, try to prevent this by adding a clause invalidating dispensation : At first sight, if we believe that the pope is inferior to the council this should suffice to make his action void. But Vitoria thinks this is not true. The pope's dispensing power does not come from the council but from his office, by divine law, and no decree of the council can take it away from him. If a council could take away his dispensing power it could take away any other part of his jurisdiction, 1 which would again make nonsense ofthe office of pope. Again, one may argue that either the conciliar de,, crees are exempt from papal power, in which case there is no point in an invalidatory clause, or they are not, in which case it would be useless. Having settled this, Vitoria suddenly becomes more human: 2 Now, from the opinion and conclusions stated above, everything seems to be left to the will of one man, who is not confirmed in grace, but who can both err and sin; therefore we must find some means ofobviating this very grave danger. Therefore, let our sixth proposition be: The pope, in dispensing from the laws and decrees of councils and of other popes, can err and gravely sin. If only it might be lawful to doubt this conclusion ! But we see such extensive, indeed lax, dispensations granted daily by the Roman curia, that the mind revolts from it and it has become a scandal to the strong as well as to the weak.

He concludes, then, that a pope may not dispense without reasonable cause even from the second kind of conciliar decree. These decrees are necessary for church government, and reckless dispensations from them are bound to harm the church. The essence oflaw is uniformity, and it is a bad state of affairs when dispensations are more regular than the law. All laws are made for the common good, so that for a dispensation to be justified There is some parallel here with discussions about the dispensing power in late seventeenth,,century England. 2 On the Power of the Pope and Council, pars. 5 and 6. 1

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it must also be for the common good. A pope may not even dis,. pense from his own laws without a reasonable cause, because he is bound by the directive, ifnot the coercive, force of the laws that he has made, and so cannot even dispense himsel( Even Cajetan, a great supporter of papal power, said that conciliar decrees were binding upon the pope's conscience. There may be parts of the positive law of the Church from which it is expedient that no dispensation should ever be given, and it may be better 'for the law to be maintained inviolably than that a door should be opened to dispensations'. Next, if from use and experience 'or from providence' it were known that a dispensation from some decree would be ruinous to the Church, a council (or the pope himself) could decide that no such dispensation should be given, and as this would be a matter of morals the council could not err. Once such a statute had been made the pope might not dispense from it and would commit mortal sin if he did, for it would be a dispensation without reasonable cause. Moreover we must remember that in morals we ought not to think too much about what may happen, but rather about what we find and what happens among things as they are, and we must stand by the experience of the years rather than by arguments. Judges might be so strong and just that they could not be corrupted or prevented from doing justice by any bribes, but because it has been found by use and experience that judges who receive presents do not generally give just judgments, accepting gifts is entirely forbidden. Similarly, in this proposition we may philo..­ sophise as we please and imagine popes who would be so wise and holy that they would never give a dispensation without a legitimate cause. But experience gives us the lie, and we see dispensations granted to all who seek, so that if it were left to the human will to decide what was a legitimate cause for dispensation we might well despair. Again, there are many wise and holy popes ; but one is enough to ruin everything, and, in..­ deed, a pope cannot investigate every case, overwhelmed as he is with such grave spiritual and temporal cares, but must needs delegate them to others, who would often deceive him, even if he were St. Gregory himself. . . . It may be objected that a decree of this kind would be an innovation­ that nothing similar was ever done in any oecumenical council where all the wisest of the Fathers were assembled, and that therefore it should not

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be introduced by a new council, which, while it may be renowned, will never exceed the majesty and authority of those ancient Fathers. We answer by distinguishing between one period and another. . . . At the time of the ancient councils there were bishops like the Fathers of the Councils, who did not need such a decree to moderate and restrain them from a reckless and general practice of giving dispensations; also, we can see if we read carefully in the laws and history of the ancient Fathers that the popes did not presume to dispense decrees of councils so easily and at will, but rather observed the1u like divine oracles. As for the statutes of councils, and especially the more serious laws, they not only did not dis, pense rashly, but hardly did so at all. But gradually dispensations came to be granted loosely, until we are now in a state where neither our ills nor our re:nedies can be borne, so that we must think of another way to preserve our laws. Give me Clement, Junius and Silvester and I will leave everything to discretion. Not to speak too harshly against recent popes, they are in many ways inferior to the more ancient ones. 1

But such a decree should only be attached to the most serious laws, for the pope is universal pastor and should not be too greatly handicapped in the administration of the church. Then, once the decree has been made, would a papal dispensation, though unlawful, be valid ? Vitoria says it would, unless there were some other reason for its invalidity. Here the reader may complain that if the pope, although in mortal sin, can still dis..­ pense validly , he cannot be inferior to the council. Vitoria, however, replies that it is enough if the pope is bound in con..­ science. 'Finally, it is not the business of a subject to judge the pope, and it is better that he should be obeyed in everything than that, through one person's being allowed to disobey him for a reasonable cause, opportunity might be given to others to disobey him even in just and honest cases.' 2 However, not every papal command or dispensation is bind..­ ing upon his subjects: they need not obey unjust laws, and the same is true of an unjust dispensation 'for he cannot impose greater burdens on his subjects by dispensations than by laws'. 3 So, if the council makes an invalidatory decree and the pope 1 On the Power of the Pope and Council, par. 12. The last sentence is a classic of understatement.

2

Ibid., par. 17.

3

Ibid., par. 18.

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dispenses from it his subjects are not bound to obey him, for it is unjust. But what if the pope tries to force them to obey � Vitoria does not agree with Gerson and Occam that it is lawful to appeal from the pope to the council. If one may appeal in one case, why not in every case � Even if the council is superior to the pope this ought not to be done, for the pope ought not to have less authority in_ spritual matters than the king has in temporal. Even supposing that appeal is lawful in itself, I say that it is not ex.­ pedient. Experience and example, which in moral matters have great weight, are the first witness to this: for all appeals so far made to a council have ended badly, and the final result has been some schism or heresy. Secondly, this would be a great occasion of disturbance in the church, in the first place because if a pope were afraid of his actions being annulled he would never wish to summon a council, which might result in great harm in church affairs, while for a council to meet without him would be unlawful and difficult. For there will always be some, in fact the majority, who wish to side with the pope, and one prince would favour the council, another the pontiff, so that nothing could be done peacefully nor for the good of the church; in fact, there would be much greater confusion, as experience has shown. From the time when, because of the new ideas of the Doctors, pontiffs b egan to fear councils, the church has been and will be without a council, a great misfortune and distress to religion. 1

Individual resistance to the pope is, of course, unlawful, but the bishops or a provincial council might offer resistance or seek the aid of secular princes to prevent the execution of his commands. Vitoria again quotes2 Cajetan, that great supporter of the papacy, who yet writes: Therefore we must resist openly any pope who publicly ruins the church: for example, by refusing to bestow benefices without money at the change of office. Though with all obedience and reverence, posses.­ sion of such benefices must be refused to those who bought them.

If the pope is acting in such a way as to ruin the Church, a general council may be called against his will to take action; even the most pro.,.papal writers agree to this. However, 1

On the Power of the Pope and Council,

par. 2 1 .

.2

Ibid., par. 23.

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in all that has been said above we must especially beware of two things: firstly, as far as possible, let authority always be preserved untouched, observing the reverence that is due to the pope, for contempt or con,. tumely or any irreverence towards him bring shame upon the church, and so he ought to be held in the highest honour even by heads of states. For if his authority ever begins to be neglected, the whole church will suffer schisms and factions . . . . Secondly, we must also be very careful to guard against scandal, first in making the decree itself, in case the pope is angry with the council and, resisting the decree, throws the whole assembly into disorder and prevents it from doing other useful things, so that the council is divided by schisms and factions. Further, we must guard against scandal if the pope happens to ignore this decree of the Fathers, and it becomes necessary to resist him. We must reflect very seriously, for fear that scandal (and hence greater disorder) may follow, or that princes who have in one matter been permitted to resist and dis,­ obey the pope may take the law into their own hands in other cases, where it would be most undesirable. 1

An unjust excommunication is simply invalid, and the ruler involved need not obey. 2 Indeed, he is not in fact excommuni,. cate, and, while taking care to avoid scandal, he should bring pressure to bear on the pope to reverse the sentence; but he should not do evil to prevent another evil-he should not, for instance, appeal to the council. Suarez, who is post,.Tridentine, is not nearly so forthright about evil popes. After discussing the uses ofthe spiritual sword to keep kings and princes in order, he writes: You may say that this argument proves the need for another power to keep spiritual pastors to their duty, for they also may go astray and do even greater harm to their sheep. The answer is that there is such a power over all spiritual princes or pastors except the supreme Vicar of Christ, whose duty it is to correct and even punish all the others; he himself as supreme head cannot be morally subject to another man, because either we should go on ad if!ftnitum or due subordination and unity wol' ld be destroyed. Christ therefore provided for his church in this matter in a nobler way, 1

Ibid., par. 25.

Commentaries, vol. i, art. 4, p. 275, Whether Excommunication is the appro,. priate Punishment for Schismatics, par. 4. 2

CHURCH A N D S TA TE by promising assistance to his vicar to prevent him from erring in matters of faith and morality, where an abuse of his power might have seriously harmed the church. 1 Vitoria, too, of course, believed that the head of the church, guided by the Holy Spirit, could not err in matters of faith and morals, but he was also concerned with how to prevent his damaging the church in other matters. By Suarez's time the problem had been partially solved, and he contents himself with saying that 'God can, if he wishes, provide for the church equally well through an evil and unlettered pope as he can through another man equipped with all the right qualities.'2 However, he does concern himself with certain major emergencies which may justify abdication or deposition. He is certain that a pope may abdicate if he is ruining the church, but although he may be bound in conscience to do so he cannot be compelled. Vitoria says that he may also submit himself to another man, not as to a superior, but as to an arbitrating judge. 3 80

If you insist that the pope cannot be judged by an inferior, I would distinguish: against his will, I agree; willingly, I deny, for he does wish to submit. In a certain sense I would say that the pope is an inferior when he submits to another man by giving him power to judge him in some particular matter; but absolutely he remains superior. In this way :my cleric may submit to a layman . . . . And later on he adds: 'I certainly believe that he can submit himself to the judgment of another and if this other considers that he deserves to be deposed then he is deposed.' Soto takes a rather different line when he discusses the argu..­ ment4 that the pope can submit himself to others not merely in minor matters but also under circumstances where he may be summoned by threat of excommunication and even deposed: Let us suppose (he says) that he can be summoned by a council and 1 De Legibus, bk. iv, eh. ix, section 6. 2 Faith, Hope and Charity, Disputation x, section 4. 3 Commentaries, De ]ustitia, bk. iv, qu. lxvii, art. r, pp. r ff. 4 Op. cit., bk. v, qu. iv, art. r.

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deposed if he is soiled with the stain of heresy; then, since he cannot be deposed without being heard, he can be compelled, under pain of ex,.. communication, to appear [i.e. before the council]. Suppose, then, that he is already in serious ill....repute for heresy, so that a council has already been summoned to deal with the matter. . . . The argument runs as follows ... to avoid having that crowd ofjudges he can entrust the judg,.. ment to those who would make an end of the business more promptly. Secondly, it is argued, when the case has been stated in the council, the members of the council can themselves appoint judges to complete the business; why, then, could he not himself on his own entrust it to them � We reply that the pope can certainly not do this. For the power of coero ing the pontiff does not belong to him, since he cannot exercise such coercive power against himsel( That power belongs to the council, and so such a commission is not within the competence of the pope, because he cannot give to anyone a power which he has not got, nor would a deposition effected by his commissioners be of any validity. But the council can either try the case or delegate it to someone else.

Nothing justifies deposition except heresy or madness. In no case may he be deposed without a formal judgement; then, if he is a heretic, once sentence has been pronounced he ceases to be pope. The sentence of deposition should be pronounced by a general council, which must in such a case be summoned by the College of Cardinals or by some agreement of the bishops. However, in answer to the question whether this does not make the council superior to the pope, Suarez who, unlike Vitoria, is sure it is not so, says: If the church were ever to depose an heretical pope it would not do so because it is superior, but would, with the consent of Christ, declare him to be legally a heretic and so utterly unworthy of the papal office; then he would be ipso facto immediately deposed by Christ, and once deposed he would be inferior and could be punished. 1

The other ground for deposition is madness-and then even if a pope deposed for insanity becomes sane again, provided that his deposition was careful and valid, he stays deposed. If it were possible to depose for other causes, there would be 1

82714G

Faith, Hope and Charity, disputation x, section 6, par. G

10.

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nothing but arguments and schisms. However, a 'doubtful' pope may be deposed, i.e. if he cannot be shown to have been properly elected. 'Now this does not make the church superior to the pope, because it is all involved in the power to elect him.' 1 It must be noted that clerics were still under separate jurisdio tion, and, as can be seen in the comments of Vitoria, Suarez, and Soto2 on the position of the clergy in relation to the secular ruler, this was taken for granted. Suarez does say that clerics are bound in conscience to obey 'just and necessary laws laid down for the whole community of people and the country, the content of which is common to clerics along with all other citizens and can be observed equally well by all with no lack of decorum or unjust hardship to clerics'. 3 But the italicized clauses are open to wide interpretation, and he is sure that the coercive power of the civil laws does not touch clerics. Vitoria seems to concede more, when he says4 that clerical immunity from the king's laws does not spring from divine right but from the will of the king, and that in defence of the realm the king may punish clerics who are doing wrong, for instance killing people and not being restrained by their own judges. 'I have no more doubt about this', he says, 'than about the fact that robbery Faith, Hope and Charity, disputation x, section 6, par. 19. In a chapter significantly called Alien Subjects (op.cit., bk. v, qu.iv, art.1). Ecclesiastical rights and dignities were still strongly safeguarded in the Spanish Concordat with the Holy See of 27 Aug. 1953. Of special interest are the articles relating to spheres ofjurisdiction (e.g.xvi), but the phrasing as a whole is revealing. In Article ii the following sentence might well have been written in the sixteenth century or, indeed, much earlier: 'The Spanish state recognises the Catholic Church as a perfect society and guarantees it the free and full exercise of its spiritual power and jurisdiction.' 3 De Legibus, bk.iii, eh. xxiv, par. 4.C£ also Vitoria, Commentaries, Ia Hae, bk. vi, qu. xcvi, art.5, par. 3, p.435. 4 Commentaries, De]ustitia, bk. iv, qu.lxvii, art. 1, p.1, par.6, Whether a man can judge anyone who is not subject to him, from which the two quotations are also drawn. 1

2

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is sin.' But this punishment may only be imposed by the king, not by his underlings, and he adds at once that it is clear that neither clerics nor students are subject to them (i.e. other civil administrators) but are exempt both by civil and canon law. Therefore civil judges may not try them; their sentences are void; clerics are not obliged to obey them, for they are no more subject to them than to the Judge of Paris [who had no jurisdiction over the student or clerical population] . Therefore it is tyranny to imprison or punish them, especially if it is done without the order of the head of the state.

It is a concession, then, to say that in emergency the king him,. self may wield such power. Yet Suarez,1 in common with the rest, makes it clear that canon laws, though concerned with spiritual matters, are human positive law; there is nothing sacrosanct about them: Some people, (he says), call these divine and not human laws because they are laid down by a special power from God and deal mainly with supernatural ends, the worship of God and the salvation of souls. But in fact they are human laws. . . . The reason is that they are immediately established by the will of man, even though they differ from the civil laws in the power from which they immediately flow and in their end and subject..-matter . . . . But the reason and necessity for such laws is, on the whole, the same [i.e. as for making civil laws] .

What, then, in sum, is their view of the relationship between the spiritual and temporal rulers , Vitoria devotes an entire 're,.lecture' to the question of whether, and if so in what way, secular power is subject to spiritual. Some people indeed (he writes) 2 are such partisans of the papacy that they believe kings and other temporal princes are only its vicars and deputies-mere ministers, that is, of the papal power-and that all tem..­ poral power comes from the pope. On the other hand, some writers exempt princes so completely from ecclesiastical control as to leave hardly any part of that power intact; for they insist that all disputes, even spiritual ones, should go before, and be decided in, the civil courts. We, however, shall not go to either of these extremes. . . . 1 De Legibus, bk. i, eh. iii, par. 20. 2 Concerning the Power of the Church, par. 1 .

C H U R C H A N D S TA T E

He examines first the extent and limitations of papal power. The pope is not, as some say, 'lord of the world', for he is the successor of the apostles to whom worldly dominion was for,, bidden; he himself admits that certain territories were given to him by the emperor; he has no dominion over infidel coun,, tries since his power does not extend beyond the confines of Christendom. Infidel kings are bona fide rulers : 1 their power comes from God and their laws must be obeyed ; but it is clear that this power of theirs does not come in any way from the pope, who indeed does not wish them to possess it and is working all the time to overthrow their kingdoms. Next, temporal power is not derived from the pope as are lesser spiritual powers, such as those of bishops and priests. No one can confer what he has not got himself, and since the pope is not a secular prince-as shown above-he cannot set up temporal kings and princes-at least not through any temporal power. Indeed, there were genuine temporal rulers long before the papacy was founded. Thirdly, secular power is not subject to the temporal power of the papacy: that is, the pope is not anyone's temporal superior in the way that the emperor is the overlord of certain kings, nor even in the way that a king is superior to each individual in his kingdom. The temporal state is complete in itself (perfecta) , and has power to set up a ruler who in his own sphere is subject to none. From this follows the corollary that in the ordinary way the pope should not act as j udge in the disputes of princes, about laws, sovereignty or claims to thrones,2 nor be an ordinary court of appeal for civil cases. He cannot (by any temporal authority) depose a secular ruler; civil laws do not need his confirmation, nor can he annul them. The conclusion is, then, Cf. Molina, op. cit., bk. i, vol. ii, disputation ro5. Soto, op. cit., bk. i, eh. iii, art. 3 ; and also bk. iv, qu. iv, art. r. 2 But Molina does say that where a throne is left vacant and there is no legitimate superior, if trouble arises among subjects as to who shall succeed, the Church must decide (bk. i, vol. ii, disputation roo, par. r 3). 1

CHURCH AND STATE

firstly, that the pope possesses no purely temporal power,1 i.e. power directed towards a purely temporal end; secondly, temporal power is not entirely dependent upon spiritual power, for even if there were no spiritual power and no heavenly life, there would still be a certain order and authority in the secular sphere. Secular power does not, then, stem from spiritual power, nor exist for its sake, nor as its instrument; it is complete and perfect in itself and directed towards its own immediate end. Nevertheless, secular power is subject to the spiritual power of the pope when such subordination is essential or even ex,, tremely useful for spiritual purposes. So, in a sense, the Church does possess temporal power and authority over the whole world, but only to achieve spiritual ends. Soto says that the spiritual and secular powers are so distinct that the secular is not derived from the spiritual but is dependent on it precisely in this way: that if it deviates from it [i.e. the spiritual] by rebellion, it can be coerced, lest it contradict divine and ecclesiastical laws. . . .

and the civil power does not depend on the spiritual power to this extent, that it is instituted by it or receives its power from it, or that the king can be either removed, coerced or corrected by the spiritual power ex,. cept when he rebels against divine laws and the spiritual aim. For although both come from God, nevertheless the one does not come through the other, but in different ways, i.e. the first immediately from God, the second by the mediation of the natural law acting through the body politic . . . . These arguments are not referred to by those who say that the civil power goes a...begging, as it were, to the spiritual, that is, to the . power. . . . 2 pope, fcor its Save over the pau-imony of St. Peter, of course, for which Molina (op. cit., bk. i, treatise ii, disputation 1 00) says he may wage war. He diverges from the rest in saying that in certain (just) circumstances he may also wage war himself, instead of merely delegating that power to others, in virtue of the temporal power which he has for spiritual ends. 2 Op. cit., bk. iv, qu. iv, art. I. 1

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Vitoria supports his conclusions by the customary Aristote.1 lian argument that Christ would not have left insufficient provision for the kind of emergency where it was necessary to control ternporal matters for spiritual purposes. No secular prince would be able to ac� in such an emergency, for he would not be sufficiently instructed in spiritual matters: therefore authority to use the temporal power in the spiritual interest belongs to the pope. But this power Vitoria thinks to be merely an indirect one: if, for example, the Spaniards 'ought' to make war on the Saracens, should the pope merely urge their king to fight, or call the Spaniards to arms as if he were their king ? His answer is that if the pope could always wield secular authority whenever it was useful for spiritual ends, secular princes would be superfluous; so he must only act directly when the civil power has broken down and his intervention is absolutely necessary. He should always have recourse first to his spiritual power, but if this has no effect and the situation is dangerous he may act directly. He may also arbitrate if war between Christian princes is harming the faith. Molina, while agreeing that this is one of the pope's functions, thinks that it is a power which should only be used sparingly and with caution: This can cause great trouble, as the loser may begin to cherish hatred for the supreme pontiff, feeling that he has been given an unfavourable verdict through bias or insufficient consideration. A refusal to obey the supreme pontiff in other matters as well as in the matter under dispute might follow. The person may think his own rights in the matter so clear that he may start a war against the supreme pontiff. For this reason the latter rarely if ever intervenes in the quarrels of Christian princes using his full powers, but rather advises them as a father to settle their differences and avoid war. 1

The entire theory is founded on the assumption that both the temporal and spiritual 'states' must be perfect and sel£-sufficient. 1

Op. cit., bk. i, vol. ii, disputation 100, par. 12.

CHURCH AND STATE Now a temporal state has the right (when it is the only way to preserve itself from harm) to exercise authority and jurisdiction over a foreign country; for if there were no other way for the Spaniards to defend them,­ selves from the injuries of the French, they might lawfully seize the latter's cities and give them new princes and rulers, punish criminals, and so on, on their own authority, as if they were themselves the legitimate rulers of France-a right which all the Doctors admit. In the same way, then, if this were the only way in which to preserve the spiritual state from harm, the spiritual power could, on its own authority, perform all the acts necessary for its security. If it were not so, spiritual power would be crippled and inadequately fitted to achieve its natural end. 1

If, however, the pope interferes in the civil government of any state, he should not be obeyed unless it is on a question of spiritual welfare (e.g. a law is passed which cannot be obeyed without mortal sin). The pope must be obeyed as long as he is not obviously in the wrong or acting dishonestly; for he must remember the needs of the civil administration, and should not take hasty decisions simply because at first sight they might seem to further the interests of religion, without having any consideration at all for temporal interests. For kings and peoples are not bound to conform to the best possible pattern of Christian life, nor can they be compelled to do so; they can only be obliged to obey the law of Christianity within certain bounds and limits. ...2

In the same treatise Vitoria deals in passing, as does Soto3 in a discussion as to whether one man can be lord of the whole world, with the hoary question as to whether Christ was tern,. poral lord of the world and handed down that lordship to his vicar. Soto remarks that people who consider the subject superficially think it undeniable that Christ was (temporal) ruler of the world. 'And from this principle very many doctors of Canon Law attribute the same overlordship in tern.,. porals to the pope, and the fullest power (plenitudo potestatis).' 1

2

Concerning the Power of the Church, par. 1 3 . 3 Op. cit., bk. iv, qu. iv, art. 1. Ibid., par. 14.

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But Soto disagrees, instancing proofs which he gave in another place, 1 and saying that Christ 'did not come into the world . . • except as the Redeemer for us men . . . He did not assume any of this world's power, except what would serve that purpose. . . . For, He says, "My kingdom is not of this world" . . . . ' Vitoria, always a realist, wnile arriving at the same conclusion, adds that even if Christ did have such temporal lordship 'it would not be advisable _for Him to pass on that power to the church, whose officers might use it badly to the detriment of the church.'2 Those who cite various historical occasions when popes deposed or elected emperors only prove his (Vitoria's) earlier point-that the pope has such power in very excep., tional cases. Many people are also in favour of more papal intervention in civil suits, but Vitoria answers that 'the pope must not and cannot use such judicial power to cheat and obstruct civil jurisdiction'.3 Suarez covers much the same ground in a chapter on the pope's power to make laws: 4 he has no power over infidels, who are true and supreme kings in temporal affairs; he has no direct temporal power except over those kingdoms and pro., vinces of which he is temporal lord. More than this would be neither necessary nor convenient. In fact, he goes on to say, It is now known that the unity of the church can be maintained per.... fectly well without that temporal power; and for all related matters, spiritual power, through which it has indirect force in temporal affairs, is enough . . . .

This is a plain, though not necessarily quite satisfactory, state., ment of the indirect power of the papacy. Nevertheless, when all concessions have been made, there re,­ mains a hard core of papal right to intervene, which Vitoria discusses in several Commentaries and Suarez mainly in his Defence of the Catholic . . . Faith, to which we must shortly Commentary on St. Matthew, chs. 1 and zo. Concerning the Power of the Church, par. 15. 3 Ibid., par. 17. 4 De Legibus, bk. iii, eh. vi, par. 6.

1

2

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return. Apostate kings, Vitoria writes (expounding the con,. clusions of St. Thomas 1 ) , can be deprived of jurisdiction by a lawful j udge, and once they are pronounced apostate their subjects are released from allegiance. This continues as long as the ruler remains apostate or excommunicate. So, if he returns to the faith or to the communion of the faithful he is as truly master of his people as before. In the meantime, however, the laws he passes have no power and his subjects are not bound by them.

But it is not enough for a ruler to lapse into apostacy or deserve excommunication: the apostacy must be public (and not merely common knowledge) or he must be formally de,­ nounced. By an ipso facto excommunication a ruler is not deprived of his office but only suspended from its functions. 2 Nor does it deprive a man of his 'property which he possesses in his own individual right, and which he may be bound to hand over through an action . . . . ' 3 Vitoria comes to the same conclusion when discussing the position of schismatics. He q uotes the saying of Panormitanus that anyone who claims to set up another head of the Church automatically cuts himself off from church unity, which implies excommunication, and this is the common opinion. But, he continues, it must be remembered that heretics and schismatics lose only the power to use their jurisdiction, and not the right to possess it. 4 In this connexion Vitoria is speaking of churchmen, but the position of lay rulers is similar, as he shows a little later, when he asks if this is also true of kings. I reply: yes. A king does not lose his royal title, he only loses the right to exercise that power and his subjects are not bound to obey him. A doubt: If a king is condemned for schism, and the pope deprives him of his kingdom as a penalty (as the King of France was deprived at the Commentaries on the Ila Ilae of St. Thomas, vol. i, qu. xii, art. r r, p. 2 3 8, Whether as a result of apostasy a king may lose jurisdiction over his s11bjects and they be no longer obliged to obey him. 1

2

4

Soto, bk. iii, qu. i, art. 2.

Ibid., bk. i, qu. iv, art. 7. Commentaries on the Ila Ilae of St. Thomas, vol. ii, qu. xxxix, art. 4, par. 2, 3

p. 275, Whether excommunication is the appropriate punishmentfor schismatics.

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Council of Pisa, and the King of Navarre), does he, on subsequent recantation, recover his kingdom : Reply: Yes, certainly. We assume that the papal power is not that of an earthly king: the pope has no civil power except such as is necessary for the exercise of his spiritual power. If the king only wrongs his country in temporal matters the pope may not deprive him of his kingdom, b,ut ifhe does harm to it in spiritual matters he may well do so. If then he persists in schism for a long time he may simply be dispossessed with no hope of return, like any other traitor or heretic; but this should onty happen so long as he remains schismatic, and certainly not if there is any hope of his recanting. 1

An important point is that the pope's right to intervene is also limited by the political rights of the community: Question: If the king loses his throne for schism, can the pope give that throne to another king or another person : It would seem that it has been done. On the other hand, the country does not automatically lose its right to choose its own ruler. If the king dies without an heir, it rests with the people to choose a successor, so why should the people be de,­ prived of this right through the sin of their king : I reply: the pope may not appoint a new king; it rests with the people, who have by natural law the right to do this, i.e. to appoint their king. The pope has only to punish the king, not the people. I would add that if the people are guilty of the same sin through encouraging the king in his heresy or schism, then in the same way as the king loses his throne, the people may lose their rights of election, and the pope be left to appoint a new king. 2

This last sentence seems to us highly academic, for it would be extremely difficult to impose a new king against the wishes of both king and people and would involve all the problems of foreign intervention, just wars and the weighing up of greater and lesser evils. We cannot say how far Vitoria genuinely believed in the possibility or whether he inserted it, in the scholastic manner, to round off the argument. 3 Commentaries on the Ila Ilae of St. Thomas, vol. ii, qu. xxxix, art 4, 2 Ibid., par. 9. par. 8. 3 We are confronted here, as also when reading Suarez's Defence of the Catholic and Apostolic Faith, with the difficulty of thinking ourselves back into 1

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In the same commentary Vitoria deals with the question of what happens ifthe pope proceeds against a civil ruler unjustly. 1 We . . have. quoted part of this before, but it is worth considering m its entirety. Suppose the pope takes proceedings against the head of a state and excommunicates him in order to give his kingdom to someone else. The ruler does not want this, because the kingdom is his. What is he then to do : If he does not obey the pope he cuts himself off from the church; but if he does obey he knows that the sentence is unjust. I reply: Firstly, if the sentence is unjust and all are agreed on this, the ruler is not bound in conscience to obey, for he is not excommunicate. He must not be afraid of censure. Secondly, avoiding scandal as far as possible he should bring pressure upon the pope to reverse the sentence. Thirdly, no evil of any sort must be done, so as to prevent further harm. He should not, for instance, withdraw his obedience from the pope, to avoid the evil of unjust excommunication. Fourthly, whatever the pope does to a man, however he intrigues against him, the man should not appeal to a council. It is heretical to appeal to councils. Whether they have greater power than the pope or not, it is no use, at any rate when the council is not sitting, because all its power is vested in the pope; and the king may not call a council, so what would be the use of appealing to a council ? If everyone appealed to a council it would only throw into confusion obedience to the church, which is not to be contemplated. Finally I would say that in such an imaginary case the king might, with as little scandal as possible, withhold obedience from the pope. For if the pope wishes unjustly to drive him from his kingdom, he may defend himself with arms as he would do against any other aggressor.

This is strong and clear speaking, and covers most of the problems. It is, however, a theory which would only work well if one assumed the existence of a strong virtuous king, with a great respect for the papal office and anxious to main, tain it at all costs! a period and a country which had not accepted the Reformation as a clean break and an irreversible event. It is as important to try and do so here as it is when considering the vacillating religious behaviour of persons living in Tudor England. 1 Commentaries on the Ila llae of St. Thomas, vol. ii, qu. xxxix, art. 4, par. 4.

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In the same way as Vitoria, when discussing Henry VIII's plea for an annulment, took the opportunity to clarify the whole question of Christian marriage, Suarez employed the occasion of James I's Oath to be administered to recusants to set out the rights and duties of church and state, especially in the case of an heretical king. He begins auspiciously 1 by saying that 'accord,, ing to Catholic doctrine the royal power of Christian princes remains intact wherever that power is in harmony with natural law. . . . Christian kings do have supreme civil power in their own field, and in that temporal or civil order they are not essentially dependent on any direct superior in the exercise of their own proper power.' But everything turns as usual on the delimitation of spheres, and firstly, one must be sure whether the pope has any coercive power over kings. 'For King James' (says Suarez gleefully2) who denies that the pope has jurisdiction over the whole church, especially over kings, is really not much concerned with directive power. But he is frightened and disquieted by the pope's coercive power, especially that part of it which extends to the forfeiture of his kingdom, as, if he continues in his error, James is not sure whether his throne will be secure if his subjects really believe that the pope has such a power.

Suarez, of course, believes that he has. God must have given the pope coercive power to back up his directive power,3 and if the King of England boasts that he is exempt from this he must either confess that he is not a Christian or prove some divine privilege and immunity granted by God's word, otherwise he has lost his case as far as justice is concerned, though he may keep his place de facto . . .. For King James believes, as he said in his Preamble (p. 12) that 'the pope has not obtained this right to depose kings lawfully. And this unjust usurpation and secular violence (so James describes it) of the popes, is greatly in excess of the power of excommunication, which is a spiritual censure .. . .

In any case it is far more important for the church to have power to coerce princes, 1

2

Suarez, A Defence, &c., bk. i, eh. v, pars. 3 and 4. Ibid., bk. iii, eh. xxiii, par. 1.

3

Ibid., par. 5.

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than to coerce subjects, firstly, because princes are more liable to fall into error and more difficult to correct once they have done so, because th ey have more indep endence, and, secondly, because the sins of princes­ especially those contrary to the faith and to religion-are more dangerous because their subjects may easily be led to imitate them. . . . Finally, arising out of this, we may at once produce another reason for the existence of this power over kings-that it exists for the defence of subjects. 1

Even when Christian kingdoms defend themselves against a tyrant, they are in a certain sense dependent upon the pope: This is so, firstly, because the pope may forbid a kingdom to rebel rashly against its king, or to depose him, without a papal investigation of the cause and reason. He has this power because of the moral dangers and loss of souls which nearly always accompany popular revolts, and also in order to prevent civil war and rebellion. . . . Secondly, a Christian kingdom is dependent on the pope not only because he has the power to advise a kingdom or consent to its deposing a king ruinous to itself, but he may even command and require that kingdom to do so ifhe decides that it is necessary for the spiritual welfare of the country, and particularly to prevent heresies and schisms. For then is the most suitable time to use indirect power in temporal affairs for a spiritual end.2

But note that if the pope issues a decree declaring a certain king to be a heretic and deposing him, but giving no further details about the execution of the sentence, other princes are not authorized to make war immediately on the deposed king, since they are not (we assume) his temporal superiors, and the pope has not in his decree endowed them with the power to make any such war.3

The pope can, however, confer this power, and then invading princes will have 'a just cause and the necessary authority' . Finally, the clause in James' s oath which calls upon the people on royal authority to condemn certain propositions as heretical 'goes beyond his authority, and so becomes coercion by violence and usurped jurisdiction. '4 It appears that the decisiveness of the Reformation and the consequent restriction 1 Ibid., par. 20. 3 Ibid., par. 19.

2

Ibid., bk. vi, eh. iv, par. 17. 4 Ibid., par. 21.

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of papal powers to the Catholic world was not fully realized by either England or Spain, for the comprehensive nature of James's oath 1 and Suarez's uncompromising, if belated, 2 reply seem to show that papal ,intervention in English affairs was still regarded by both sides as possible. It is a piece of historical irony that the first and only English king to be executed after a public trial should have been James's son, and that the execu,. tion should have been the work of the least popish element in the community. In all this talk of pope and king there is no word of the empire or emperor, although Vitoria and Soto were writing when the Emperor Charles V was Charles I of Spain. When, however, Vitoria is examining the Spanish claims to rule over the Indies,3 he retraces, step by step, the whole discussion about the em,. peror being 'lord of the world', for, he says, even if that claim was perhaps defective in the past it might now be valid under the Most Christian Emperor of the present day. Again, even if the Indians had true dominion over their lands, the emperor might still be their overlord. But by what law ? The emperor cannot be 'lord of the world' by natural law,4 for under natural law all men are free from any subjection save that of the family; domination and superiority were brought in by human law. Then, too, why should the empire belong rather to Germany than to France ? If we consider whether the empire might not have been founded by divine law, we find no mention of a world...ruler before the time of Christ, and although some have argued that Christ (as both temporal and spiritual ruler of the world) left a tern,. poral as well as a spiritual vicar to succeed Him, this is non,. sense because (as we have seen) His kingdom was not of this 2 It appeared in 16 1 3 . Quoted in appendix to Ch. III. De Indiis, pt. i, section ii, first title. 4 Soto discusses the same problem at length in his bk. iv, qu. iv, art. 2, Whether the Emperor is lord of the world. 1

3

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kind. If such an institution had been set up by divine law, surely it would not have fallen apart so easily-into the eastern and western Roman empires, and again into fragments in the west ? The papal states-the Patrimony of St. Peter-are not part of the empire, but if the emperor had his dominion from divine law he would not be able to give it away (as the pope cannot give away any part of the papal power). France and Spain are not part of the empire, and it is also generally accepted that states can obtain their freedom from it by prescription. Finally, the emperor is not lord of the world by human law, for no such law exists, and even if he were his powers would be useless, because rule implies jurisdiction, which he does not possess. Soto, too, having disposed earlier of the suggestion that the emperor might be in any sense a proprietary ruler, 1 says: if anyone is lord of the world he is appointed by the authority and concession of the body politic in the way that we have been taught civil power is ordained of God. But that he was not set up in this way, we prove: for some 'republic' to set up a king or emperor for itself, to whom it wishes to transfer its power, a public gathering is required, so that at least the greater part would agree to such an election. But the whole circuit of the world never held such a gathering. . . .

In any case, he goes on to say, absurdly, it would be a very unwieldy state-quoting Aristotle to the effect that a state is not improved by mere size. Suarez, too, devotes a chapter2 to this subject, embarking on it in a conscientious but weary tone: This is the place to deal with that question famous among jurists: whether the emperor is by right prince and lord of the whole world, and consequently whether he can bind the whole world to obey his own civil laws, although in fact he is not always obeyed and so does not actually enjoy universal jurisdiction. Bk. iv, qu. iv, art. I. 'Neither the emperor nor any prince is proprietor in this manner. For it is (only) the Turk who, so they say, rules with such tyranny that he has all the possessions ofhis subjects as his own, so that he can take over all of them for himself as he thinks fit, ifhe wishes.' The quotation is from the 2 De Legibus, bk. iii, eh. vii, section r. same question, article 2. 1

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He suggests and discards (as does Soto) various possible inter,. pretations of the sentence 'the emperor is lord of the world': that the empire is an inheritance from Rome (but the Romans were not lords of the wotld); that it was instituted by Christ (but no trace of such a donation has been found, and many separate kingdoms have continued to flourish); that it was a papal donation (but the pope has no temporal power and so cannot bestow it). Therefore, he concludes, no one exists who can make civil laws for the whole world. But what if we restrict the empire to Christendom,1 to an institution set up by the papacy and handed down by lawful election-an empire transferred to the Germans from the Greeks by the pope ? This is also unsatisfactory: the Greek Christians remained under their separate emperor; nations which are converted to Chris,. tianity do not automatically acknowledge the emperor, and many Christian kings within the boundaries of the ancient empire are supreme in their own temporal affairs. Suirez2 particularly wishes to deny that the emperor is set above all Christian kings, with superior jurisdiction: 'For at the very most he only received an especial degree of honour and dignity through his particular partnership with the Apostolic See, and by its permission.' Nor is there any reason to suppose that the empire will remain intact even in its present form, for kingdoms may become free of it by right of war, by lawful prescription, or by papal concessions 'for a just cause'. However, the emperor does seem to have acquired a certain degree of honour and dignity, which although purely and simply temporal, in.... directly participates in the excellence of the spiritual order through its similarity to the papal dignity. For he is specially ordained to be the protector and defender of the church and the papal office; and therefore he is united in a particular way to the pope; he partners him and is con.... secrated and crowned by him. And perhaps because of that end, he has some authority to summon Catholic princes or move them to action, or even some similar authority to compose or quash dissensions 1 2

Cf. Soto's discussion of the word orbis (world), bk. iv, qu. iv, art. 2. De Legibus, bk. iii, eh. vii, par. 12.

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among them, when it is necessary to avoid wars and harm to the church. 1

Soto, who expresses the same thing rather more politely, 2 con,, eludes by saying: 'But that there should be appeal to him in ordinary affairs, that is not practised except in the imperial states, nations and provinces.' All this is, in its way, an epitaph for the medieval dualist theory, although a similar partnership of church and state, with all its tensions, was to continue inside Spain itsel£ 1

Ibid. , par. I 3 .

827145

2

H

Op. cit., bk. iv, qu. iv, art. 2.

V T HE ] US G EN T I UM OR LAW OF NATIONS

T

H E ancient concept of the jus gentium received new life in Spain through the discovery and conquest of the Americas. It would be absurd to credit any of these writers with being the 'founders' of international law, 1 or even with having any clear notion of it in the modern sense. But their consciousness of living in an expanding world made them more aware of the unity of mankind and more anxious to assert it. Also the new questions posed by that expansion led them to postulate the need for, and to inquire into the nature of, the laws which controlled or should control the relationship of one country with another. Such laws had always been be,. lieved, in a general way, to exist, but their content was vague and the impetus to discussion given by the discoveries only showed up the latent difficulties. Some clarification was achieved on the theoretical side, particularly by Suarez. The first problem was where to fit the jus gentium into the hierarchy of laws on which the whole system of thought was based. In a commentary 2 on the Summa Theologica, Vitoria, The statement has usually been made with a view to refuting other, equally untenable, claims on behalf of Grotius. Modern international law has mostly dealt with the application and interpretation of treaties between sovereign states, although recently its subject,-matter has been extended to international corpora; tions, &c., and to entirely new material (e.g. under;sea resources). Larger issues have usually belonged to the reserved domain of sovereign states, but powerful international organizations are now encroaching on that domain, and certain recent developments (e.g. the sporadic growth of world public opinion) would not sort ill with the ideas of Vitoria and Suarez. 2 Commentaries on the Ila Ilae, vol. iii, qu. lvii, art. 3 . 1

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less clearly than usual, attempts to explain the distinction between the natural law and the law of nations. Following St. Thomas, he declares that the former deals only in things which are self,.evidently just, while the latter consists of human agreements, not about matters self,.evidently just in themselves, but to perform an action which will result in some good. He uses the old example of the institution of private property: it is not self,.evidently just that property should be shared out among men, but it is an arrangement made because human peace and harmony cannot be maintained unless everyone has his own possessions precisely determined. The law of nations should therefore be classified with positive human law rather than with natural law, in spite of the fact that the Jurists hold the opposite opinion. Their mistake, he thinks, is that they include in it many things such as filial piety, patriotism, and divine wor,. ship, which really belong to the natural law, while they also widen the natural law too far in the other direction to include things which are common to all living creatures and not merely to men. Soto and Molina, as we have seen, 1 both draw attention to this view of the Jurists that the natural law was common to men and animals and that thejus gentium was peculiarly human. The confusion goes back as far as the Roman lawyers and no solution commanded universal agreement. 2 Soto and Molina, however, both concluded, with Vitoria and Suarez, that the law of nations was a kind of positive human law 'common to all or almost all peoples',3 which was 'to be arrived at by a process of natural reasoning, but without any meeting of men and lengthy discussion', unlike the civil laws, which were made 'by the will Cf. Ch. I, pp. 2 1-23 above. Cf. also Molina, vol. i, treatise i, disputation 6, and vol. vi, treatise v, disputation 69; Soto, bk. i, qu. v, art. 4 and bk. iii, qu. i, art. 3 . z Cf. A. P. D 'Entreves, Natural Law, pp. 24-26, for a comparison of the views of Ulpian, Caius, and Paulus. Ulpian takes the view attributed here to 'the Jurists'. 3 Molina, vol. vi, treatise v, disputation 69; and cf. also vol. i, treatise i, disputation 5. 1

100

TH E ] US C EN TI UM OR L A W OF MA TIONS

of men gathered together in one assembly'. 1 Soto also says that the natural law deals with necessary things, while the law of nations, like civil law, is laid down by human reason. 2 The content of the law of nations was also under considerable discussion at the time. All were agreed on its traditional con,, tent: such institutions as slavery and private property belonged to it, and these, while definitely not part of the natural law, were useful extensions to it and not contrary to it. Soto says (using the word 'conclusions' rather loosely): Under the law of nations is included everything that men have drawn as conclusions from natural principles. It is easy to find examples. We may lay down the natural principle that human life must be maintained and preserved in peace and tranquillity; then, adding the other premiss that fallen men living together could neither cultivate their fields properly nor live in peace, nations decided that property must be divided. From the same principle they inferred the law of slavery as a means of sparing a man's life in wartime.3

He goes on to include the laws of sale and barter, which are also suggested, with equal imprecision, by some of the others. He further justifies private property as not being contrary to the natural law by saying that the natural law never forbade the division of things by any precept .. • but common ownership is taught to be of natural law, in the negative sense that the natural law did not prescribe the division, but allowed ownership in the one or the other way as was most suitable and expedient for the different states of men ; wherefore the natural law (itself) is not changed. . . .4

This entire question, devoted to The Division of Property, includes the following strong defence of private property: The virtue of liberality . . . which is not the meanest glory of the 1 3

4

2 Soto, bk. i, qu. v, art. 4. Ibid. Ibid. Op. cit., bk. iii, qu. iii, art. I (one only), on The Division of Prop erty.

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community, is destroyed if we grant possession in common. For he who has not property of his own cannot be liberal, and he who possesses everything has no need of another's liberality. Thus would perish the virtue of hospitality, of [supporting] pilgrims and of helping the poor, and, on the other side, gratitude for benefits received. Therefore the asser..­ tion of [the rightness of] private property is so certain that its denial would be heretical. . . . And if you argue (he continues disarmingly) that the division of property has not been adequate to remedy that kind of evil or the damage to the body politic (since because of men's sloth there are now uncultivated lands and men driven by self..-seeking and the thirst for possessions forcibly interfering in the rights of others, and other similar evils) we reply that for a law to be equitable it is not necessary for it to achieve its end perfectly. . . .

Property is a simple case since it is highly theoretical; slavery is less simple, because of variations in time and place. Soto has mentioned slavery as an advance on killing prisoners of war; in a later passage he add:. to this the act of selling oneself to pay a debt. Legal servitude he regards as a punishment for sin: For from original sin there resulted poverty and a host of wars, which drive men into servitude. Wherefore this kind of servitude is not re,. pugnant even for Christians. For Christ made us free only of the law of sin and death, as Paul says in Romans, Ch. 8. He did not exempt us from the law of nations. 1

Although he does not think either of these kinds of slavery is much in use among sixteenth.,century Christians, he still be., lieves slavery to be part of the law ofnations, binding Christians and pagans alike. Vitoria and Suarez, on the other hand, feel that it is no longer a part of the law of nations. There is general agreement that the sanctity of envoys or ambassadors (an almost universal custom among pnm1t1ve tribes) is part of the law of nations. A glimpse of some of the future problems of international law is obtained when such questions arise as rights of trade and 1 Ibid., bk. iv, gu. ii, art. 2. Can one man rule over another? Soto did not think all slavery was legitimate, as can be seen from his interesting, almost impassioned, discussion of the subject here.

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freedom of ports and rivers, &c. The picture which emerges is a very confused one. Vitoria appears to accept as an integral part of the law of nations rights of free travel, trade and settle.... ment which would seem to us chaotic or simply impractical. In the third section of his first treatise on the Indies he expresses the opinion that as long as the Spaniards leave the natives unharmed they have a right to go to America and settle there, and the natives should not hinder them. He supports this opinion by a definition of the law of nations from the Institutes (I. 2. ii): 'What has been agreed among all nations through natural reason is called the law of nations'; it is a part of this law that it is barbarous to maltreat foreigners and guests without good reason, 'but civilised and proper to treat them well'. His second proposition follows: The Spaniards may lawfully trade with the native Indians, for instance, by importing goods which the natives need and exporting gold and silver or anything else which the natives have in excess-so long as they do not injure the country.

Our reservations about all this are expressed by Vitoria himself in a later chapter (VI). His third proposition is: If the Indians have any common rights which are open to foreigners as well as themselves, they ought not to prevent the Spaniards from shar,. ing in them and using them. For example, if they allow other foreigners to dig for gold in the rivers or in their common land, or to fish for pearls . . m sea or nver. . . .

This last is a fairly cautious statement. Suarez and Molina add to these three rights that of preaching the Gospel freely, but this would obviously not be a part of the law of nations. Soto lists 1 in passing the 'many things which have remained common by the natural law, the ownership of which the law of nations was not able to portion out . . . [such as] air, water, sea,,shores and harbours, fish, wild animals, birds, &c. For by the natural law and the permission of the law of nations, fishing and hunting are common, although (he adds) later Op. cit., bk. iv, gu. iii. 1

103 these were overmuch restricted by the civil law. . . . ' But here he may only be arguing that they should in principle be open to all the citizens of a country, and not necessarily to foreigners. Molina, however, when discussing whether the refusal of'any,, thing which by the law of nations is everyman's right' may in certain cases be made a just cause for war, accuses Vitoria, in common with other writers whom he cites, of not only be,, lieving in a common right to ports, rivers, fish, &c., but of considering refusal of access a just cause for war. He sum,, marizes Vitoria's arguments and disagrees strongly with them. His reasoning, which follows, is a very clear account both of the problems created by classing such things as 'rights' under the law of nations and of the role played by the civil law: THE ] US G EN TI UM OR L A W OF NA TIONS

Granted that by the law of nations all these things are in this sense allowable to any foreigner, then so long as they are not forbidden to the native population, anybody may do them. Moreover, while a foreigner is in urgent and serious need of these things he cannot rightly be debarred from their use. The law of charity demands this, and the existing division of property cannot predetermine that anybody should be unable to use what he urgently needs, even if the owner of the thing is unwilling. On the other hand, the state or its governor can rightfully forbid to all foreigners the use of the country's possessions which are the joint property of all its citizens, provided that the foreigners have no urgent or serious need of them . . .. Following on the division oflands and of goods, the country's common possessions over which the entire community has control are iust as much its own belongings as the personal possessions of the individual citizens are their own belongings. The state can rightfully refuse any commercial

dealings with foreigners without doing them an injury which would justify war, and we do in fact see that this is the common practice of many countries. All the more may a country refuse trade, harbour facilities and residence to foreigners when it sees that such will add to their power, for it may rightly fear (human nature being what it is) that they will conquer the country or that it will suffer some other dis..­ advantage from their trade and their presence. It can therefore act pru..­ dently and cut off all opportunities, looking to its own best interests in avoiding such calamities by refusing access to its lands and goods.1 1

Op. cit. Bk. i, treatise ii, disputations 104, 105.

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Because a country grants some foreigners access to some ofits possessions it does not automatically lose its freedom to refuse similar access to other visitors, for everybody has the unimpaired right to allow the use of his possessions to whom he pleases, and refuse it to others. It is undeniable that harbours, rivers, gold and silver mines belong to the people who own the territory in which they lie. The sea bordering a land belongs to the owners of the territory, and they can therefore reserve the right of fishing there, and forbid it to others. In this way the King of Spain and Portugal can forbid foreigners (and in fact does forbid them) to catch sea,carp (turdos) along the shore of Turdetania, commonly known as the Algarve, and to fish near the shores of Spain.

This is a realistic acceptance of the restrictive practices of the modern state and much more true to life than Vitoria's earlier, more theoretical account. They are both, however, united in defence of the Indians. The next problem was a moral one, and concerned the bind.... ing power of the jus gentium. If it belonged to positive human law and not to natural law, was it a crime to break in When written down it was obviously binding in conscience, as had already been shown to be true of all human positive law. But what about unwritten law ? And what about written law to which some nations had not yet given their consent, and which therefore did not bind everyone in the world ? Vitoria, in answering this question, takes as an example the murder of an envoy, and says that although the law of nations is not part of the natural law, it is so close to it that very often the principles of the natural law (peace, for instance, as opposed to war) cannot be fulfilled without its aid. If, then, envoys sent to negotiate peace were not regarded as inviolable, wars could never be ended. Then, if one side held them sacrosanct and the other did not, injustice and inequality would follow. Again, following on his argument that a man entering into a pact of his own free will is still bound by it, and thus although a king makes a law of his own free will it does not depend on his free will whether he shall be bound by it or not, he writes:

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From all this we may infer the corollary that the law of nations not only has the force of a pact and agreement among men, but also the force of a law, for since the whole world is in some sort a single state, it has the power to make laws such as the precepts of the law of nations, which are just and suitable for everyone. Hence, clearly, those who break these laws of nations, either in peace or war, commit a mortal sin, and, indeed in really serious matters, such as the inviolability of envoys, one country cannot refuse to be bound by a law of nations which has been made by the authority of the whole world. 1

But it is, of course, the vis directiva to which he refers, and he makes no attempt here to solve the problem of coercion. If the jus gentium was part of positive human law, could it be changed as easily as the civil law ? By no means-if only because it would not be practicable. In the first place, such laws are made because of their universal suitability, so that they are unlikely to be abrogated; secondly, all those who first agreed to a law would have to agree to abolish it, which is un,. likely to happen. However, modifications which do not hurt another country may occur in one single country; this process may also bring about general improvements. At one time, it was part of the law of nations (Vitoria repeats) that men captured in a just war might be enslaved, but this is no longer a custom among Christians: a captured Frenchman is a prisoner, not a slave, and can appear in a court of law. Suarez, as we shall see later, says much the same thing. 2 In discussing these details the basis of Vitoria's theory seems to be the universality of reasonable customs; but, above and beyond that, he believes in the spiritual responsibility of human beings for one another, a responsibility extending far beyond the bounds of one country. He mentions this in passing in his treatise On the Power of the Church3 and expands it considerably when he comes to write about the duties of colonial rulers. 1

J

On Secular Power, par. 2 1 . Tawards the end o f par. IO.

z De Legibus, bk. ii, eh. xx, par. 8 .

1 06

THE ] US G EN TI UM O R L A W O F N A T I O N S

We have seen already, and shall see again when discussing the law of war, that sixteenth,-century writers make no bones about rights of intervention. Vitoria has no doubt that princes-the only possible instruments-have a right to intervene 'to prevent foreigners from committing wrong. This is part of the law of nations, and has the authority of all mankind.' 1 This moral responsibility sometimes appears a noble ideal, and sometimes dangerous and impractical nonsense, as Vitoria himselfsuspects in his commentary On War (art. 1). It is evident that the ideas of this group of writers on the content of the law of nations are by no means clear or consistent. Sometimes it is equated with widespread custom which is reasonable or just, sometimes it is a support to the natural law (a useful means of achieving some good or preventing some evil); at other times it seems to be merely common practice which has not yet been challenged. And although they speak of the 'common agreement or consent of the whole world or the greater part of it', they nowhere imply how this has been or indeed could be done. Vitoria and even Suarez are far closer to the older concept of the law of nations (as meaning wide,­ spread common custom or tacit additions to the natural law)2 than to any modern international law or jus intevgentes, with a system of pacts and covenants, although they certainly waver between the two. What is quite clear is their attitude of mind­ their belief in the moral necessity for such laws, which are grounded on reason, and for their enforcement. It is here, if anywhere, that their importance lies. If we turn finally to Suarez, we find him much simpler and clearer about the law of nations-whether because his mind is less rich or because he is writing half a century later than Vitoria. Dismissing, like Vitoria, the Jurists' classification of Cf. Ch. VII, p. 1 5 1 , for the full q uotation from De Indiis, ii, and cf. also Ch. VI, p. 128. 2 Cf. De Indiis, i, section , par. I . 3 1

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the natural law and the law of nations, he goes straight to the human origin of the latter. The precepts of the law of nations were laid down by men by their will and consent (whether ofthe whole human community or ofthe majority) and so they cannot be said to be written in the hearts of men by the Author of nature, and are therefore part of human, not of natural law.1

When Suarez uses the dubious word 'consent' he knows exactly what he means-the acceptance of a custom by usage. The law of nations is plainly the acceptance of similar customs by most countries. For him, in fact, the law of nations is custom and nothing else. The precepts of the law of nations are different from those of the civil law because they are not in written form, but are established by the custom ofall or nearly all nations and not of one or two states or provinces only. . .. Unwritten law consists of customs, and is called civil law if it is introduced by the custom of one particular nation and binds that nation alone; but if it is introduced by the customs of all nations and is binding upon all, we believe this to be the true law of nations. 2

And when he is discussing custom in general, 3 and the varieties of custom, he treats first, under universal custom, of the jus gentium. Under the first category (i.e. universal custom) I include most par..­ ticularly those universal customs which form the law of nations, as I said in bk. ii, where I proved that the law of nations is true law and binding as true law in its own sphere. It is obviously unwritten law, too, and is thus introduced by the habits and conduct not of one people or another but of the whole world.4

It is thus easier for Suarez to discuss change and abrogation in the law of nations, 5 since this will happen (only on a larger scale) in accordance with the observed rules for change and abolition of customs. 2 Ibid., eh. xix, par. 6. bk. ii, eh. xvii, par. 8. 3 Ibid., bk. vii, esp. eh. iii. The quotation is from par. 7. 4 He does not pursue further the fruitful subject of the majority. s Ibid., eh. iv, pars. 6, 7, 8. 1

De Legibus,

1 08

THE ] US G EN TI UM OR LAW OF NA TIONS

I believe that it is not impossible to imagine a part ofthe law of nations being abrogated by custom, because what is only contrary to the law of nations as such may not be 'essentially wrong if it does not oppose some fundamental obligation of the natural law . ... But we must add that, while custom might possibly detach a part of the jus gentium, it is morally impossible for the whole of that law to be abolished, because to do so all nations would have to agree on a custom contrary to the law of nations. This is morally impossible, partly because in this kind of thing one would hardly find such uniformity, but even more because the law of nations agrees so closely with nature that it is rare to find anything in opposition to it. On this point we should note the inference that a custom contrary to the law of nations can be allowed and approved in one nation if it does not prejudice or do harm to another nation.... Secondly, a prince may probably make a law contrary to the law of nations, by deviating from it in some matter which is inexpedient for his kingdom and subjects, as for example, that in his country men should not be slaves, but all should be free, or something similar. For power like this is not opposed to natural reason, nor to the proper government of a kingdom.

Nothing could be clearer than Suarez's position: 1 there are no pacts or covenants in his law of nations, only good and useful custom, which is in harmony with the general framework of natural,hw theory and with the notion of the community of mankind. On the latter point there is a single paragraph where he seems to look forward even more than Vitoria to an age of what we might call international laws.2 The foundation of this section of the law is in the fact that no matter how many diverse peoples and kingdoms the human race may be divided into, it always has a certain unity, not merely as a species but even a sort of political and moral unity, which is indicated by the natural precept Suarez subjects the law of nations to all the usual tests of custom, and in bk. ii (eh. xvii, par. 8) he gives his comprehensive definition, covering two kinds of custom. 'A particular matter can belong to the law of nations in one of two ways: either because it is the law which all different peoples and nations ought justly to use towards one another, or because it is a law which separate states or kingdoms observe within their own boundaries, but which is called the law of nations because they are similar and suitable.' In either case it is 2 De Legibus, bk. ii, eh. xix, par. 9. customary. 1

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of mutual love and mercy which extends to everyone, even to foreigners of any nation. No matter how a sovereign state, commonwealth or king,. dom may be in itself a perfect society with its own members, each one is also, in a sense, as seen from the point of view of the human race, a member of the universal community; for states standing alone are not so sel£.sufficient that they never require some mutual help, association and intercourse, sometimes for their improvement and greater utility, some... times even because of some moral need or necessity, as is seen in actual life. They therefore need some law to direct and order rightly this type of intercourse and association . .. and so certain specific laws could be introduced through the usage of the nations.

All that is new here is the idea that actual law, so often intro,. duced by custom within the national community, might be introduced in the same way into the international community. In fact, we can see the natural communities of the nations being built up in the mind of Suarez (through the same principles of 'mutual help, association and intercourse') into some kind of international community based on the common humanity of all races. 'Common humanity' was also to be the keynote when approaching colonial problems.

VI C O L O NI Z A TI O N AND THE NEW W O R LD

F

I

O R sixteenth..-century Spaniards the question of the New World was closely bound up with the spread of Christianity, with the rights of Christians over pagans and the rights of pagans against Christians. We must therefore con., sider it from their point of view. Vitoria is the central thinker in this field; Soto, a pupil and later colleague of his, follows him closely, and Molina comments on him; while Suarez, per., haps because the question was less urgent by his time, has less, but much the same kind of thing, to say. In his treatise On Faith, Suarez writes that the Church has not merely the right but also the duty to preach the Gospel to the heathen, to defend its preach,, ers and to punish those who hinder them by force and violence from preaching. This is, in another form, the familiar argument that everything necessary for the satisfactory exercise of a jurisdic., tion is given when the jurisdiction itself is granted. To prevent the Gospel being preached also falls under the heading of harm., ing the innocent. The pope alone, and not individual bishops, may send out missionaries, and he alone has the right to defend them-although he may charge secular rulers to do this for him. Suarez agrees with Major (John Mair) and Vitoria that the pope may divide pagan provinces and kingdoms among secular ki ngs and princes, not so much that they may do what they like with them, which would be tyranny . . . but so that they may arrange for preachers of the gospel to be sent to the infidels and may have power to protect the preachers, even (ifreason and a just cause demand) so far as declaring just war. . . . Some say that it is just for a Christian prince to seize a pagan kingdom simply i n order that the gospel may be preached with greater ease and security

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under a Christian prince. However, as this opinion in an extreme form is untenable . . . others have modified it by saying that Christian princes may send preachers, together with enough soldiers, not to make war, but to ensure that the preachers may continue safely. They say that a Christian prince may build castles and fortifications in pagan countries, especially on the frontiers, so that the faithful may more easily and safely have access and admission to those countries ; and, finally, they maintain that a prince may collect from the pagans living in that territory whatever expenses he has incurred because the money was spent for their benefit, and so he may use violence and even resort to war to enforce payment, ifit is refused, or even, if necessary, occupy the territory. . . . But this opinion cannot be commended... . 1

Why not � Because it is contrary to Christian teaching and to all the traditions of the Church. It is not defence, but aggres,. sion-especially the taking of soldiers, which would force the natives to defend themselves as a matter of prudence, and so give them a just cause for war. If, on the other hand, they did not defend themselves, and yielded from fear, it would be the worst form of coercion, for 'the pagans will think it is our religion which gives us the right to violate the law of nations, and even the natural law, by seizing the property of others against their will and waging unjust war, and they will, therefore, become more obstinate and less willing to accept the faith'. However, he does think that 'if the pagan princes resist and refuse admission (i.e. to the preachers) . . . they may be coerced by sending preachers with an adequate force of soldiers to escort them'. This sounds like a major concession; but Suarez adds immediately that only a king's own subjects may be compelled to listen to preaching, since Christian kings and princes have no jurisdiction over the rest. And besides, he goes on; 'the authority to preach is not really a kind of jurisdiction, but, so to say, the "virtue" of illuminating by teaching; and so its success does not depend on coercion but on the effectiveness ofthe word and on demonstrating the power of the spirit . . .'. 2 Molina 1 2

On Faith, Hope and Charity, disputation xviii, section Ibid., section 2.

I.

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is one of those who believes that a show of force and even war may be resorted to, though he advises 'discussion' if possible.

As Christians (he writes) 1 ,we have the right to preach the gospel throughout the world, to send missionaries to any infidels, to protect the missionaries, and to force the infidels, not of course to accept the Gospel, but to create no obstacles against the missionaries' preaching and against the hearing, accepting and following of the Gospel message by their subjects. If any peoples, kings or powers do create such obstacles, we may rightfully coerce them by war and punish the injury done to the faith and to the Gospel in that land. . . . Since this is so, I hold that even if the infidels are unwilling, we can for this particular purpose go with ships and stay in their harbours and in their land for as long as, and with such force as, may be necessary to accomplish this aim safely. If, however, it could conveniently be done and were advisable, we could first discuss the matter with them through envoys, and send the missionaries alone or with j ust a very few soldiers, rather than enter with such forces as would provide complete military control and safeguard the missionaries.

Yet in the same disputation he also declares with some in,­ consistency that refusal to accept the faith is no cause for war. This difficulty recurs in the discussion by Suarez and Vitoria of what should be done if pagans who had been taught Christianity refused to adopt it. Suarez begins by saying that they must not be compelled to adopt the faith. This view is certain and absolutely true . . . to attract men to religion by coercion would be unbecoming to the Church ; it would be much better for the faith to be accepted and professed with complete spontaneity. And this is primarily desirable in order that the power of the divine word and the grace of God may be displayed in the act of conversion.. . .2 r Vol. i, treatise ii, disputation 105. Other Causes of War. Faith, Hope and Charity, disputation xviii, section iii (both quotations). This attitude, liberal for the period, was not extended to apostates. It seems that St. Thomas, Vitoria, and the rest are all agreed that 'Infidels who once had the faith may be compelled by threats, penalties and torture to return to the faith which they once accepted' ( e.g. Vitoria, quoting St. Thomas, in Commentarfrs, vol. i, qu. 1 0, art. vii, p. 190, on Whether iefidels may be compelled to accept the faith). Molina, too, in discussing the killing of women and children during a war, includes heretics, saying that 'if, as in times past, when there was a war against the descendents of the Saracens in the Kingdom of Granada, one were 2

C O L O N I Z A T I O N A N D THE NEW W O R L D 1 1 3 , Even pagans who are a king s own subjects may not be forced into the faith. For the civil power derived immediately from man, can only be used towards natural ends, particularly the preservation of the state's authority, natural justice, and the virtues appropriate to such aims. But the sin of unbelief is remote from that purpose and that end, so that to punish it does not come within that sphere . . . . God has not given men power to punish all men's evil actions; some he keeps for His own tribunal. . . .

But he weakens his position later by saying, with equal logic but starting from a different premiss, that in certain cases one's own subjects may be coerced since 'Men cannot develop morality and natural virtue without true religion and the worship of one God, and so natural power and the scope of civil jurisdiction must be extended to cover this purpose.' 1 Vitoria too, for a different reason, inclines to the contemporary view of religious conformity when he writes: True, I do believe that if one whole city (such as Constantinople) were converted, and only thirty or forty men left unconverted, these men could be coerced and compelled.for they are obliged to follow the majority of the community . . . . Similarly, if the majority of a community or state wished to be baptised they could compel the hundred or so who did not. But this (he adds hastily) is only true so long as it does not lead to evil -hypocrisy, or something worse. 2 fighting heretics or apostates who had revolted and were quite evidently apostates, and if apostasy were clearly the cause ofthe rebellion, it would be without doubt right to kill grown women for the crime of heresy and apostasy'. But Molina is harsher than the rest, and he does also point out that the women of Granada practically fought with their menfolk, and could hardly be called non,combat, ants. But the kindly Vitoria, too, while believing with the rest that pagan children may not be baptized without their parents' consent, considers that the children of apostate parents may be forcibly baptized, and also that baptized children should certainly not (as he says Erasmus suggests) be left free at the age of reason to decide whether they wish to receive the faith. They should be corn, pelled to follow the faith of their fathers. (Commentary cited above.) 1 On Faith, etc., disputation xviii, section iv, par. 6. 2 Commentary. Whether infidels . . . cited above (vol. i, qu. x, art. 7, p. 190). My italics. 827145

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If we analyse these arguments we can find three different themes: the vital importance of 'true religion' to all men, the association of the religious and civic virtues, which we have discussed, and the contemporary assumption that the unity of a country demanded religious unanimity. We have long since discarded the third, and are possibly less certain of the second, but the first, and noblest, theme has been throughout and still remains a crucial difficulty of organized Christianity. Suarez and Molina are writing generally and academically: Vitoria's lectures on The Indies, Recently Discovered spring hot from the crisis of settler behaviour in the new world. It is pleasant to know that his outspokenness did not alienate Charles V. 1 Before turning to the famous lectures, however, let us first see what Vitoria makes of the rights of Christians over pagans when dealing with the question academically in his Commentaries on St. Thomas's Ila Ilae. He quotes an argu/ ment commonly used: God gave man an intellect [with whichJ to rule and plan and direct his life; therefore men can only be bound by what accords with this intellect, and if a thing cannot be reconciled with reason, no divine precept can impose it. Therefore these aborigines, half-•animal and un..­ teachable, may only be bound to obey what they can grasp by their natural reasoning powers. Now the Christian faith cannot be acquired by reason alone, nor is it so easy to produce reasons proving that the Chris..­ tian law is better than the Jewish or Saracen law. . . . So it must be In November 1 539 the Emperor wrote to De Soto, then prior of the Monastery of S. Esteban (the Dominican collrge of Salamanca), complaining that certain clerics were discussing and criticizing proceedings in the Indies without his permission. He asked for full reports of the discussions, and ordered them to cease and that no more should be printed. But this prohibition does not seem to have applied to Vitoria. Earlier in the year Charles had twice consulted him: once about suitable persons to send out as missionaries, and once about the instruction and conversion of the Indians. He wrote again on 31 Mar. 1 541 with similar requests, and both Soto and Vitoria replied. He also invited Vitoria, or ifhe were too ill to attend, Soto, to represent him at the Council of Trent. (Invitation sent by his son Philip on 15 Feb. 1 545.) Soto was an equally out., spoken, if less telling, critic of colonial affairs. (Cf. P. Getino, El Maestro Fr. Francisco de Vitoria, pp. 59, 148-53, and 222-5.) 1

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concluded that by natural law infidels cannot be forced to accept the faith. 1

But Vitoria does not agree with this since he says: 'I do not agree that human reason is incapable of showing that our law is better. And we can deny this objection because, although the Christian way could not be constructed by the power of human reason alone, we are nonetheless bound to follow the argu,­ ments of the reasons revealed by God.' And, as we shall see later, he does not think that the natives are 'half,-animal and unteachable', although he does not trouble to contest the phrase here. Theoretically, then, he is more inclined to the opinion of Scotus that 'he could not really see why grown,-up infidels should not be forced to accept the faith so long as care was taken to avoid scandal and a lapse into paganism' rather than to that of St. Thomas which seems to prohibit all coercion. One of his main reasons for doing so is that which we have already seen in Suarez: When we were enquiring whether civil law was intended only to make men peace..-loving and to keep peace between them or whether it ought to make men good, we decided that the king who makes the law wishes, and ought to wish, to make men good. And we proved it in this way: just as divine law aims at making men supernaturally happy so human law aims at making them naturally happy, and at bringing them to human happiness, just as divine law is destined to bring them to ever..­ lasting happiness. But this cannot happen unless a man is made good, for no wicked man can enjoy human happiness-so it is not beyond the power of the king to force infidels to adopt the faith in order to make them good. The argument is plain: we can by right and law compel a sick body to take medicine in order to regain health; so why may not the infidel, the spiritually sick, be compelled in the same way �

Thus in principle Vitoria also believes that there is nothing in natural law or in the Bible which actually forbids coercion. But 'many things which are lawful are not expedient' ; one r Vol. i, qu. x, art. 8, par. 3. Note that this agrees with what has been said about the civil law, which must be such as men are capable of obeying.

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would never know if a candidate for baptism were sincere; pagans would believe that all Christians are forced into the faith, and coercion often makes very bad Christians, as has been shown by experie11ce. Vitoria was doubtful whether it was a good thing to force the Moors to become Christians under threat of expulsion from Spain if they did not; for 'they used often to be converted spontaneously, but now there are many bad Christians'. 1 For all these reasons he returns to St. Thomas, and says that, absolutely speaking, his standpoint is the true one: Because in moral questions of any kind a proposition the opposite of which does not in fact occur is said to be true absolutely, for moral laws are not concerned with possibilities but with actualities. So, because in the majority of cases pagans cannot be coerced without scandal or grave spiritual danger, St. Thomas replies quite simply that they must not be coerced; and he is more correct than Scotus, for, although it is possible to compel them after taking every precaution and ensuring that there be no scandal (and, as this is lawful, it might be the best thing to do) still, in reality, it is difficult to avoid turning society upside down.

Even when it is a question of blasphemy among one's own pagan subjects, one must still consider whether it is open and broadcast or private: the Koran may contain anti,,Christian matter, but it is not a public book (cum non publicetur) and so is doing Christians no harm, whereas to burn it would do harm to the Moslems. But public blasphemies which turn people from the faith may be forbidden or punished. Note, however, says Vitoria that if pagans in good faith submit themselves willingly to the rule and authority of a Christian prince, with the proviso that he should not force them to the faith or to Christianity, then he may not lawfully compel them; he ought not, and is bound not to force them to the faith, though he might request them (sic) to be converted. The reason for this is that, though the pagan way of life is not the right one, they have willingly sub,. mitted to a king who would not otherwise have power over them, and he should not therefore break faith with them, but keep it. 2 1 Ibid., par. 2 5. Ibid., par. 1 3 .

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The question of whether pagan children could be baptized without their parents' consent was apparently a very serious one which was raised year by year in the Schools, and Vitoria goes into it thoroughly. He quotes 1 first the opinion of St. Thomas that it is 'dangerous and to be avoided'; it has never been a practice of the Church ; it would lead to the risk of apostasy and it would be an infringement of parental rights. For the children would be taken away from them: but those children have as yet no rights of their own; they live by their parents' rights, for the natural law gives parents the power to direct their children's lives.

Here again we find St. Thomas on the negative and Scotus on the positive side: the latter thinks that baptism may be permitted if no scandal follows, while Durandus holds a middle opinion-that the children of their slaves may be baptized by Christians, but if others are baptized against their parents' consent, the baptism is invalid. Vitoria is quite firm against this opinion: Even if they are slaves in body infidels are not slaves in spiritual matters, and so without the consent even of those who are slaves, it is not lawful to ensure the salvation of their children. Otherwise it would be lawful for the king even to baptize the children of free men, for in the matter of religion one man is no more a slave than another. 2

He is doubtful enough about the validity of such a baptism to feel that the child should be conditionally rebaptized later. Scotus's view is that no harm is done to the parents by baptiz..­ ing a child without their consent: children belong more to Christ than to their parents, and Christ ordered that children should be baptized, so if the father (the lesser authority) refuses, it is Christ who must be obeyed. Vitoria agrees that 'the harm done to the parents amounts to nothing; that is a metaphysical kind of argument'. Yet it would be quite impossible to avoid scandal: pagans would accuse Christians of making recruits by force, and apostasy might follow. Then, again, if the 1 2

Ibid., art. xii, par. I. Ibid., par. 1 5 . Cf. also pars. 7, 8, and 9.

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children were left with their parents, how could they grow up as Christians, and, if they were taken away, who would bring them up ? So, on the whole, Vitoria agrees with St. Thomas again, but bases himself rather on the authority of the Church than on what he calls 'that speculative argument' about their being by natural law in the charge of their parents. For, he argues-one cannot tell how seriously-that perhaps a king can make a law that all children after weaning be sent away to school for a good education. The king can also control the parents' power over their children: they may not, for instance, sell them. This used to be allowed by natural law, but the positive law forbade it. Similarly parents used to have the right to beat their children and cut off their ears for robbery. Why not � Still the law forbade it. So the king may pass a law arranging that the spiritual care of children be not entrusted to parents. 1

This seems to be the only passage where Vitoria even suggests that it might be lawful to infringe parental rights, and he does not follow it up, either here or elsewhere. He goes on im..­ mediately to suggest that, if infidels 'wished to kill their children Christians would be allowed, if it were possible, to take them away. Likewise if they wished to kill them spiritually, then, if there is no danger, Christians may baptise them. It would be strange if Christians were allowed to ensure their bodily but not their spiritual salvation.' 1 This would be a logical justifica, tion of Scotus's opinion, that in failing to attend to the spiritual salvation of their children parents deserved to lose the rights and authority they have over them by natural law-just as if they tried to kill them. But Vitoria answers that the father's rights over his child are given by God and any harm done to the father by taking the child from him is also done to God. To prove that pagan children can be baptized without their parents' consent it is not enough to show that God has greater authority over children than have parents, or that He commanded them to be baptized. We must also prove that He revoked the Both quotations are from par. 10. In the first quotation Vitoria may only be pointing out why it is not safe only to base one's arguments on the natural,. law rights of parents. 1

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natural law of parental rights, and, moreover, that it is we who are to be the executors of His law. It is, in fact, according to Vitoria, the infidel parents themselves who should execute the law, and not Christian onlookers, because Christian princes have no authority over infidels. The Church has never baptized against the parents' will and without grave precautions, nor has any good Catholic ever advised it. The lack of jurisdiction is unanswerable. Finally, If there were any validity in the argument that it is lawful to baptise children so as to save them it would follow that it would be lawful for me to tell a lie to save a whole city, for even if a thing is evil it seems that it can become good for the sake of some greater necessity. But if this is not so, neither is it lawful to baptise infidels even to save the children, for it is bad in itsel£ 1

This exhaustive examination of the subject, culminating in the reiteration of the major principle that it is never right to do evil that good may come of it, is a good example of Vitoria's rather free use of the scholastic technique. 2 He expounds his op., ponents' points of view so thoroughly that one is already half., converted to them when he declares his own contrary opinion and his reasons for holding it. II We have spent a long time on this now rather academic ques., tion, but it is from a discussion of that same question that Vitoria, in his lectures on the Indies, realizes that he must in., vestigate all the rights of the Spaniards over the New World, both secular and religious, and, more particularly, their right to be there at all. He begins gently, with a courteous apology for raising the issue at all, since the Spanish kings who under., took the original conquest must have gone into the matter thoroughly and conscientiously. However, encouraged by Par. 14. At the beginning of his treatise on Secular PoUJer, he speaks of 'imitating the scholastic manner as far as I can'. 1

2

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Aristotle's remark 1 that where there is a genuine doubt one should always reflect and take the advice of the wise 'for to make a doubtful action good, it has to be done in harmony with the enq uiry and judgment of wise men, which is in fact one of the conditions of a good action', he decides to re,. examine the question of colonization in the New World, which, while it may have been undertaken by informed and honest men, seems to · have led unaccountably to massacre, usurpation, and robbery. He begins by inquiring first whether the natives were true owners and had legitimate rulers before the Spaniards came. Perhaps if they were 'natural slaves' (if such a thing exists) they could not own property and were not fit for self,.govern,. ment; yet they were in peaceful possession, and therefore, 'un,. less we can prove the opposite we ought to treat them as owners and not interfere with their possession without good reason'. What good reason could there be ? Perhaps that they were sinners, or pagans, or half....wits ? But to say that grace alone justifies dominion is manifest heresy; God gives temporal possessions to the good and bad alike; unbelief does not pre,. vent anyone from being a rightful owner. He q uotes Aquinas as saying that 'infidelity does not destroy natural or human law, on which ownership and dominion are founded, there,. fore it cannot destroy the latter either' ,2 and goes on to say that 'it is obviously unjustifiable to seize the possessions of Saracens, Jews or any other infidels, simply because they are infidels ; it is just as much an act of theft or robbery as it would be if it were done to Christians'. We have seen that Molina and Soto agree with this conclusion, Molina saying that there is nothing to hinder infidels being masters of their own things and possessing things as private persons. For rule, jurisdiction and ownership are things common to the entire human race, being based not on faith and charity, but arising directly or indirectly from the very nature of things and their first foundations. 3 Ethics, bk. ii [ 1 1 07a; Commentary of St. Thomas, Leet. vii, 323 ] . 2 D e Indiis, i , section i. 3 Vol. vi, treatise v, disputation 73. 1

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And again, when discussing whether a nation may be sub.,. jugated 'because of its utter barbarity' he denies it, saying that if this were true there would be a good reason 'for the Brazilians and all the other inhabitants of the New World-even the Ethiopians too-to be conquered and brought into servitude like slaves, acquiring property only for their masters, deprived of their lands and of all their belongings'-and there is cer.,. tainly no truth in this. 1 Vitoria is satisfied that paganism cannot disqualify the Indians from being rightful owners. But are they disqualified by being irrational � Let our fourth proposition be: the Indians are not disqualified from exercising true dominion for this reason either. The proof is that they are not really of unsound mind at all, but have, according to their lights, the use of reason. This is evident, because there is some method in their arrangements; they have organized communities, they certainly have marriages and magistrates, overlords, laws, workshops and a system of exchange, which all demand the use of reason; they even have a religion of sorts. What is more, they are in agreement on points which are self,. evident to others, which proves that they use their reason. . . . It is not their own fault that these barbarians have been beyond the reach of salvation for many centuries-that they have been born in sin and lacked baptism and have been unable to use their reason to seek what is necessary for salvation. Therefore, on the whole, I believe that they only appear so dull...witted and stupid because of their poor, barbaric upbringing; for even among our peasants many are very like animals. 2

Therefore the Indians had as true a dominion and ownership as any Christians, for they, who have done no wrong, cannot be denied what is conceded to Jews and Saracens 'perpetual enemies of Christianity'. As for 'natural slaves' all that Aristotle meant by this phrase was that some men of weaker mentality need to be controlled and supervised by others, as children are by their parents; he did not mean that such men should be 1 Vol. i, treatise ii, disputation 105. C( also Soto, bk. iv, qu. iv, art. I and bk. i, qu. iii, art. 3 on the rightful dominion of pagan rulers. 2 De Indiis, i, pt. i, par. 20.

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enslaved or their property seized. So even unintelligent natives cannot be refused the right to their own rulers or be put into the same category as legal slaves. Soto, too, in his long dis,. cussion 1 on slavery in general, speaks energetically on a similar pomt: For if he who possesses what belongs to another, even though he has acquired it by purchase or some other just title, as soon as he finds out that it belongs to another is bound to restore it to his owner, even though he himself is at a loss for the price he has paid: how much more is he bound to restore to his liberty a free,-born man, who has been seized through injustice � And if anyone think to make this sort of excuse for himself, that they are treated handsomely, since we repay them the benefit of Christianity for their servitude, let him know that he commits an act of injustice against the faith, which is to be taught, and persuasion used, in complete liberty: so far is God from accepting their excuses.

Although he is here speaking of. men captured and sold as slaves, it represents his point of view on the Indians, and the final blow is equally telling. With these reasons eliminated, what possible justification could Spain have had for taking possession of Indian territory ? Vitoria deals first with some suggested titles to possession which he himself considers invalid and unlawful. In the first place he discusses2 the old argument as to whether, if the emperor is lord of the world, he might have some claim to the Indies, or at least to be the overlord of the Indians. Having shown the weakness of the imperial claims, he ends by saying that even if the emperor were in some sort ruler of the world nobody claims that he owns it all; the most that they claim is that he has some sort ofjurisdiction. But this would not justify his seizing territories, levying taxes, and setting up new rulers. Some say that the pope, as temporal ruler of the world, could give the Spanish kings sovereignty over the Indies-which in fact did happen-or that he could make war on the natives for refusing to recognize his overlordship. But the pope is in no sense a secular ruler, and his spiritual power is only over 1

Op. cit., bk. iv, qu. ii, art. 2.

2

Cf. Ch. IV, pp. 94 ff. above.

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Christians. Therefore the natives cannot be punished for refus,, ing to recognize a supremacy which does not in fact exist. Moreover, a refusal to accept the 'overlordship' of Christ Him,, self is not a cause for conquest or a just war. The original title to Indian lands was one of discovery. But they were not uninhabited lands; they were, as Vitoria has already proved, in the peaceful possession of rightful owners. A further argument was that refusal to accept the faith justified annexation. It was argued that if the French revolted the king of Spain could force them to obey their own king, so Christian rulers could force the Indians to obey God, their true and supreme ruler. If they could be punished for blas,, phemy, why not for unbelief, which is the greater sin � Vitoria answers, first, that the barbarians could not commit the sin of unbelief before they were instructed, for their ignorance was invincible. They might be condemned for other mortal sins, or for idolatry, but not for unbelief. Nor indeed, were they obliged to believe in Christianity as soon as it was preached to them 'unless there have been miracles or some other proof or evidence'. He continues: It would be hasty and unwise for a man to believe anything, especially where his salvation is concerned, without being sure that the speaker is a man worthy to be believed, which the Indians certainly do not know; they do not even know what sort of men they are who preach the new religion to them, or who they are. . . . No believer would believe if he did not see that the things were credible, because of some sign or other good reason. So, where there are no such signs, or anything else to per.... suade them, the natives are not bound to believe. This is obvious if we imagine the Saracens preaching their creed at the same time and in the same way as the Christians, without any further evidence; the natives would certainly not be obliged to believe them. Nor, therefore, are they obliged to believe the Christians when they preach the faith to them without anything to move or persuade them; for they cannot and need not divine which is the truer religion unless one is much more probable than the other.I 1

De Indiis, i, section ii, second proposition.

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Hence a refusal t o be converted is no reason for making war on the Indians. However, it will be a mortal sin if the Indians, after being begged to listen to peaceful missionaries, refuse to do so, or if, after having listened to them they do not accept the faith. But, that is to say, if the Christian faith is properly explained and shown to the natives by proofs and reasonable arguments, together with an upright, orderly life according to the natural law _(a strong argument on the side of truth) and this is done not once and mechanically, but persistently and with fer,, vour. . . .1

Vitoria, however, is not at all satisfied that this has been done. I have not heard (he says) of any miracles or signs, or of model religious lives, but I have heard of many scandals and acts of cruelty and impious deeds. So it does not appear to me that Christianity has been preached to them in a suitable way, and uprightly, so as to oblige them to accept it, although many friars and other clerics by the example of their lives and their industrious preaching seem to have taken great pains and worked most diligently in this matter-but alas ! they have been hampered by others who were in charge of different affairs. 2

But setting all this aside for a moment, not even the refusal to accept Christianity when properly demonstrated would justify making war. No one must be compelled to accept the faith. 3 This is the agreed opinion of the Doctors both of the canon and of the civil law. For belief is an act of the will, but fear impairs the operation of the will . . . and it is a sacrilege to approach the Christian mysteries and sacraments while enslaved by fear. . . . Again, war is not an argument for the truth of Christianity; the Indians cannot be made to believe by war, only to pretend to believe and to receive the Christian faith, which would be horrible and sacrilegious. . . .

He then passes on to the point which was very much discussed at the time: the 'crimes' of the Indians, such as cannibalism and human sacrifices. Here it is convenient to include similar material from one of the Commentaries4 which discusses this 1 2

4

De Indiis, i, section ii, fourth proposition. 3 Sixth proposition. Fifth proposition. Vol. vi, appendix ii, Fragments, 2, p. 500. Whether it is lawful to make war

on cannibals and those who practise human sacrifice.

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much more fully, and, incidentally, goes on to discuss colonial policy as a whole. The problem is stated in the opening para., graph: May Christian rulers, of their own authority and judgment, make war because of the unholy custom of eating human flesh and offering human sacrifice, which some tribes in Yucatan have been found to practise ? How far is this lawful, and may they do so on their own authority, or only at the command of the Pope ?

Some people distinguish between offences against positive divine law-the Bible-and those against the natural law. In the first case (they say) pagans cannot be convinced that they are doing wrong, and therefore they cannot be condemned by human judgement. This fits in with the saying of St. Thomas that pagans cannot be forced into the faith since faith is an act of the will, and no authority extends as far as that. They say, however, that some infidels who sin against nature, can be coerced and restrained-for instance idolators and pathics­ since in these matters they can be convinced that they are offend,, ing God. Yet surely (Vitoria argues) adultery, fornication, perjury, and theft are against nature too, and people can be convinced that they are wrong. But in matters like these Christian rulers have no more authority than pagan rulers; now Christians do not make war on one another for allowing such crimes, and so they cannot make war on infidels either: if they could, infidels could make war on them for the same reason. Others think that this whole matter is not for secular princes but for the pope; but he has no jurisdiction over non., Christians either, and so cannot command a Christian king to make war on pagans for their crimes. In this connexion Molina quotes a number of Spanish authorities who do believe that the subjection of the Indians to Spain by war is justified by their idolatry and refusal of the faith, and a further list of authorities who believe that infidels may be punished for 'unnatural vice', even by war,1 on the 1

Major and Alfonso a Castro; Innocentius, St. Anthony, and Sylvester.

1 26 C O L O N I Z A T I O N A N D THE N E W W O R L D authority of pope or emperor. But Molina, citing Vitoria, disagrees-always with the proviso that the innocent are not being harmed-and bases his opinion on the text: 'For them that are without, God will judge', 1 i.e. the lack of jurisdiction is again the main point. He also agrees with Vitoria in dis.­ tinguishing carefully between what indigenous rulers may do and what may be done by foreign kings. Their own rulers may certainly stop the pagans from committing such crimes, for, as Vitoria says, a good state cannot be made out of bad citizens, and it is therefore the (native) ruler's business to sup.­ press vice. If a pagan ruler is converted to Christianity he not only may do this but is bound to do it, and he can then make laws based not only on the natural law but on the law of the Gospels: In this matter there is no distinction between types of sin. This is a very pertinent matter, and appears to be a new view, but I think it is very likely true. The proof is as before: it is the ruler's business to make his subjects good; but they cannot be good if they infringe the divine law, even revealed supernatural law; therefore he can compel them to keep this law. The second proof: the ruler ought to make his subjects happy, but there is no happiness where men are not good, and they will not be good unless they keep all God's commands.2

So the argument that pagans cannot be clearly convinced of wrongdoing has no force. They do not have to be so far con.­ vinced that they confess to their crimes; it is enough if these are made clear to a judge by witnesses and conclusive proofs. Then a ruler may condemn and punish his subjects for offend.­ ing against all these things: A conclusive reason cannot be given for many things which a ruler orders, only a probable reason. Nor can all the precepts of the natural law be provided with conclusive arguments, at least not for everyone. This, however, does not lessen their binding power. Still more, therefore, has the ruler power to compel because he can understand what is ex... pedient when others cannot understand. 3 1 Molina, vol. i, treatise ii, disputation 106. 2 3 Ibid. De Indiis, i. 2, second conclusion.

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Therefore it would seem to be a law-,maker's business simply to see to making men good purely and simply according to the ordinance of true virtue, making no distinction between conforming to the natural law and conforming to the divine positive law. Likewise he would not be ruling in good faith if, knowing what was best for his people and on the other hand knowing what would damn them, he did not reform them when he was able. 1

If, in fact, the people chose a ruler and gave him political and religious power (as might happen among pagans) he could certainly force them into the faith-but again, if no scandal would result. However, abandoning this unlikely situation, Vitoria re., turns to the real problem, which is not what their own rulers may do, but what power Christians have over pagans who are not their subjects. And firstly, they have no more power with the pope's authority than without it, since, as we have seen, infidels are not subject to the pope in any way, and the very most he can do in the way of intervention is to commission one ruler rather than another to devote himself to the con., version of a particular group of pagans. So whatever authority Christians have must be in their own right. Vitoria summarizes the arguments of his opponents: that the pope is Christ's vicar and so inherits His power over pagans, that he may punish pagans for offences against the natural law which they profess, though not for offences against the divine law, which they do not profess. The opposition runs into difficulties by saying that the pope can only punish temporally because pagans are outside his spiritual jurisdiction: how odd, Vitoria comments, to have power to punish but not to make laws ! Pagans do not recognize the power of the pope and so cannot be expected to submit to his 'punishments'. He concludes that Christians may not make war on infidels because of unnatural sins, for they are no more guardians of the natural law than they are of the divine law; and indeed if they could do so 1

Ibid., corollary to the second conclusion.

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it should follow that infidel rulers could make war on Christian peoples who commit unnatural sins-and it is no excuse to say that Christians regard this kind of sin as an abomination, for it is worse to sin with knowledge than through ignorance . . . . Likewise it would at least follow that the king of France could make war on the Italians because they committed unnatural sins. 1 '

But he does concede, as does Molina, that Christian princes may make war on natives for cannibalism and human sacrifice, for this falls under the -heading of protection of the innocent. And it makes no difference to say that they do not demand or desire help. It is lawful to defend an innocent man even ifhe does not ask, even indeed if he refuses, especially when he is suffering some harm in which he has no power to surrender his own rights, as in the case in point. No one can give another man the right to kill him either for food or sacrifice. Besides, it is unquestionable that in most cases these people are killed against their wills-children for example-so it is lawful to protect them. There,.. fore, when it is really true that such barbarians kill the innocent, even if for sacrifice, then rulers may make war to stop them. Even supposing they kill only criminals to eat them, this is still wrong; for it is the corn,.. mon law of the nations, even of nature, that the bodies of the dead should be free from this indignity. Hence the reason why natives (barbarians) may be attacked is not because cannibalism or human sacrifice is against the natural law, but because it injures the innocent. 2

Molina3 supports the right to defend the innocent by biblical texts about 'God's command to every man concerning his neighbour' and says that the natural,faw right to defend the innocent is one particularly appropriate to a ruler. Nor is it necessary to wait till the innocent are led to their death: It is quite proper to end by force the atrocities and cruel behaviour due to wickedly unjust laws, if necessary by a declaration of war and using all the rights of war, even to deposing wicked rulers and if necessary appointing others. It does not matter if the barbarians [rulers] and their 2 Ibid., fifth conclusion. De lndiis, i. 2, fourth conclusion. 3 Vol. i, treatise ii, disputation 106, par. 5. The texts, which seem to give very slight support, are Eccles. xvii. 12 and Prov. xxiv. I I. 1

C O L O N I Z A TI O N A N D THE NEW W O R L D 129 subjects are in favour ofsuch customs and sacrifices and do not want out,, siders to attack them, for everybody has the right to save a man who is being unjustly killed, even if the victim does not want to be saved, as in the generally,agreed case of a man trying to hang himself or to commit suicide in some other way. Vitoria returns to the question of what is meant by the Indians 'professing the natural law', or 'acknowledging' it. He says that if this merely means they would be willing to obey it if they understood it, they might be just as willing to obey divine law. They do not, in fact, 'acknowledge' the natural law any more than they do Christianity,1 and so there is no better reason for forcing them to obey one law than the other. To sum up: when at the beginning Vitoria seems to argue against any intervention whatsoever, he only means that intervention cannot be based on any claim to jurisdiction or on a right to force the natives to obey the natural law. But where cannibalism and human sacrifice are practised, intervention may be justified by the universal right to defend the innocent, even against their will: 'For in matters like this they are not so legally mature that they may be allowed to deliver themselves or their children up to death.' 2 Finally, to make sure that this right is not made a pretext for further intervention, Vitoria concludes that If war may be waged on barbarians for this reason only, then it is illegal to continue once the reason is removed, and the occasion may not be used to occupy their lands or seize their possessions. • . . For, for whatever reason war is waged against barbarians it is not lawful to proceed any further wUh it than with a war against Christians. This is clear, because the war is not made lawful through their being infidels.3 And Molina agrees, although he is prepared to allow that rather dubious 'right to charge for expenses' which was part of the law of war at the time.4 De Jncliis, lecture i, section ii, fifth title. This illustrates a perennial difficulty about the universality of the 'law written in men's hearts'. 2 Ibid., section iii, fifth title. 3 Commentaries, vol. vi, appendix ii, Fragmentd Relectionum, 2, p. 500, sixth 4 Vol.i, treatise ii, disputation 106. and eighth conclusions. My italics. 1

827146

K

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One condition (he says) must be noted: this kind of war is not for the purpose of recovering one's own property nor of avenging a personal injury; it is purely to help the innocent who look to the invaders as neigh, bours. It is therefore not right for the invaders to take more of their enemies' property than will pay the cost of the war, cover any loss and damage suffered during it, and be a fair payment for the trouble and labour involved. For the invaders are not obliged to risk their lives and expend their energies without reward: the enemy who by their unjust acts gave cause for a just war are obliged to defray these expenses them, selves. Any possessions left·over are the rightful due ofthe innocent people for whose sake the fighting was started and whose cause is being upheld, for they could have justly begun a war to defend themselves and to save themselves from injury.

Here, as frequently, Molina is less liberal, and more inclined to the letter of the law, than the rest. If a Christian ruler acquires just sovereignty over pagans, and if in choosing him they do not make some stipulation which restricts his power, Vitoria believes that he may lead them to Christianity, but gently and by means of instruction, and not suddenly and violently, and great care would have to be taken to avoid mass resistance, followed by reprisals and confiscations and hatred of Christianity. He concludes this Commentary 1 with a splendid peroration about pagan crimes not being made an excuse for invasion: When they say that pagans can be punished for 'sins against nature' they either mean sins against the normal course and inclination of nature, like sodomy and cannibalism, or more loosely speaking, against the natural law. If the former, then pagans can well be convinced that murder and perjury are wrong, and even more obviously sodomy. If, however, they are attacked for sins which in a general way offend against the natural law, then this is no more than a calumny and a pretext for persecuting pagans. For there is no doubt that among the faithful there are some sins against the natural law which are even connived at-fornication, for instance, and usury. So there is no need for such great scrutinies, and it would be more honest to say that all pagans may be pursued with war. The extraordinary thing is that fornication is allowed to the faithful, but 1

Vol. vi, appendix ii, Fragments, 2, corollary to thirteenth conclusion, last par.

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when pagans fornicate their lands may be invaded ! There is no sound basis for this view. That is all.

Another thing which might justify Spanish rule over the Indians was voluntary choice on the part of the latter. When the Spaniards arrived in the New World, they told the Indians that they had been sent by the King of Spain for their good, and urged the Indians to accept him as their ruler; this they apparently did. But I deny the adequacy of this title, too, firstly because fear and ignorance, which are incompatible with choice, ought not to be present; but in the cases of decision and consent which we are studying, they played a great part, because the Indians did not know what they were doing-indeed, they probably did not understand what the Spaniards wanted. Furthermore, the Spaniards were dealing with a peaceable and timid people, while they were armed. Then, as we said before, since the natives had their own lords and princes, they should not have adopted new rulers without good reason, because of the injury to their former rulers. Similarly, those lords themselves could not choose a new ruler without the consent of the people. 1

Towards the end of his discussion, however, Vitoria concedes that genuine choice, from full knowledge of the benefits which the Spaniards could offer, would be a legitimate title, 'for every community has the right to appoint a ruler, and unanimous consent is not necessary, the consent of the majority sufficing'. Or another, similar, title might be based on friendship and alliance with a party among the Indians who had been wronged; then if they invited the Spaniards to help them and were the victors they might invite the Spaniards to share the fruits of victory. However, as things are, the procedure has been very unsatisfactory, and although Vitoria admits that he may have overlooked something among all these points which would prove them valid (since he has never attended any council or debate on the subject) if there are no better titles than these it is an ill omen for the (moral) security of our rulers-or, rather, those who are trusted to look into these things, for princes cannot investigate 1

De Indiis, i, section ii, sixth title.

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everything themselves and must follow the advice of others. 'What shall it profit a man', Jesus says, 'if he gain the whole world and lose his own soul, or be cast away ?' (St.Mathew, eh. 1 6 ; St. Mark, eh. 8 ; St. Luke, eh. 9). r

It is in this way that Vitoria leads up to his third section on the Indies, where he discusses the titles which he thinks might possibly be valid, and begins with the case which we quoted before about the Indians refusing to allow the Spaniards to trade and settle, which Vitoria considered to be their right under the jus gentium. 2 Theoretically the Spaniards would be justified (if the natives became violent after they had demon,, strated their peaceful intentions) in fortifying settlements, and, in the last resort, defending themselves by a just war (i.e. just, because it would be avenging an injury). But the Spaniards ought to remember that the Indians would naturally be afraid of them, and might react violently through fear and ignorance, so they should only defend themselves and neither kill nor plunder after victory. In fact, Vitoria points out, such a war would be one where both causes were just, since on one side there would be justice and on the other invincible ignorance. So, if nothing convinced the natives, the rights of war might be used, but still the Spaniards 'must keep a sense of proportion about the facts of the case and the injuries received . . . .'3 Another possible claim might be based on the pope's con,, fiding the conversion of the Indians (for practical reasons) to the Spaniards alone. 4 Then, if the natives obstinately refused to allow missionaries to preach, or discouraged conversion by killing converts, the defence of the latter might even lead to war. In fact, if the cause of religion could not be furthered in any other way-if, for instance, there were a large number of con,, De Jndiis, i, section ii conclusion. z Cf. Ch. V, pp. ror ff., above. De Jndiis, ii, first seven propositions. 4 Because an influx of Christians from different countries might lead to quarrels which would hinder conversions, and also because (if the work should be entrusted to one power alone) the Spaniards had the best claim because they financed and undertook the first voyages. 1

3

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verts i n danger of death-other things being equal the Spaniards might lawfully occupy the native territories, dethrone their princes, and make war on them, although with moderation and within due limits. However, Here the words of St. Paul (r Corinthians 6, xii) must be borne in mind: 'All things are lawful unto me, but not all things are expedient.' In what we have been saying the words 'Other things being equal' ought to be understood, because all these wars, massacres and pillage may well do more to prevent than to foster the conversion of the barbarians. The most important thing is that nothing should prevent the spread of the gospel, and if this method of conversion is a hindrance we must give it up and look for another. All we have been doing is to show that it is lawful in itself. I myself am sure that the Spaniards would have had to use force and arms to go on working there; but I am afraid things have gone further than human and divine law allow. 1

Vitoria finally puts forward a tentative suggestion-that of trusteeship, which can best be expressed in his own words: Although, as we have said before, the Indian aborigines are not entirely witless, they are certainly not far from it, and for that reason are not qualified to found or govern a proper state according to human and political standards. For their legislation and their magistrates are in,. adequate, and they are not even capable of ruling their families. Then, too, they lack knowledge of arts and letters-not only the liberal, but even the mechanical arts ; they lack proper agriculture and craftsmen and many other things which are not merely useful but absolutely necessary to human life. It could therefore be argued that for their own benefit the kings of Spain might take over the government of the country, nominat,. ing prefects and governors for their cities, and even giving them new rulers, if it were clearly necessary for their well....being. My opinion is that there might be something in this argument; for if they were all quite unintelli.... gent this action would certainly not only be lawful but also strongly to be recommended: one might almost say that our kings would be obliged to do it, as they would if the Indians were children.

But this would only be right on condition that everything should be done for the welfare and benefit of the natives and not merely for the profit of the Spaniards. 'For that way lies 1

De Jndiis, ii, fourth proposition.

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C O LO NI Z A T I O N A ND THE NEW W O RL D

danger t o souls and t o salvation. ' Soto, similarly, classes ex,. ploitation of another country as tyranny. In every community (he says), that is, in every separate country con., sidered as a unit, all laws that are made must be referred to the purpose of the whole. . . . When different countries are under one king, they should be governed in such a way that wealth is not distributed unequally, nor does one country exploit another; each should be governed separately to its own advantage. For exa�ple, to acquire overseas territories merely to enrich Spain, and to abolish all their laws in favour of ours as if they were slaves, would be unju�t . . . . 1

But the most lofty expression of Vitoria' s colonial ideas occurs in the Commentary2 which we quoted earlier, where he sums up the duties of a colonial ruler:

Any ruler who has acquired sovereignty over pagans must make laws suitable for their country even in temporal affairs, so that their possessions are preserved and developed and they are not despoiled of money and treasure. This is evident because he is obliged to look after the temporal good of their country. So it clearly follows that in these matters he is not supposed to keep one eye on the welfare of other subjects, but he must only consider this (particular) country. This is evident, because the pagan state is not part of the Christian, nor does it exist for the sake of the Christian state. Again, if a king does not make satisfactory laws for his own subjects he is knowingly at fault and unfaithful to his trust. And an occupying king is equally bound. Therefore . . . . In brief, a king is obliged to do for the pagans over whom he rules whatever he would be obliged to do for the good of his own people, even though those things might be services which, through ignorance or some similar cause, the barbarians did not possess beforehand. . . . It is not enough for the ruler to provide the pagans with good laws, he must also provide efficient ministers to put them into execution, and until this is effectively brought about, the king, or rather those by whose counsel affairs of state are administered, will not be absolved of all responsibility. 1 Op. cit., bk. i, qu. i, art. 2. Whether it is lawful to make war on barbarian nations who are cannibals or practise human sacrifice. ( Commentaries on St. Thomas, vol. vi, appendix ii, Fragmenta Relectionum, 2, pp. 500 ff., eleventh to thirteenth conclusions.) 2

VII WAR AND THE L AW OF WAR

T

HE law of war has a long history, and these four Spanish writers are not exceptional in the interest which they took in it. 1 But their interest, as in other questions, lay less in vague theories than in a keen concern with the de,tailed application of the law of war-responsibility for waging it, discussions of how far war might be 'total', the position of the non,-combatant, the legitimacy of reprisals. Their contribu,­ tion is a lively one, perhaps because they lived in a century peculiarly conscious of the horrors of war. They had seen the disastrous cleavages in Christendom (even in Catholic Chris,­ tendom) vis,-J,-vis the Turkish menace which touched Spain very nearly; and the Spaniards had also seen the horrifying wars of conquest in America. The whole discussion, apart from the smallness of the scale, seems very real today, beginning as it does with the dismissal of pure pacifism and ending with an assertion of the right of individual conscientious objection. The initial problem was, as it still is today, whether a Chris,­ tian might take up arms at all, even to defend himself: whether it was not always a sin for a Christian to fight. ('Now this is a subject of the utmost importance', Vitoria writes,2 'on which it is essential to know what is and what is not lawful.') Even self,-defence seemed to be forbidden in the text 'Do not avenge yourselves, beloved; allow retribution to run its course' (Rom. xii. 19 ), and also in 'All those who take up the sword will perish by the sword' (Matt. xxvi. 52). Tertullian, one of the 1 Vitoria's second Relectio on the Indies is entirely on this subject and he also deals with it in a Commentary on the Ila Ilae of St. Thomas (vol. ii, qu. xl, On War). Suarez devotes a very long disputation to it, Molina twenty,.five shorter ones, and Soto several sections. z Commentaries on the Ila Ilae, vol. ii, qu. xl. On War, par. 2.

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chief exponents of the non�violence theory, in his De Corona Militis, believed that these and similar texts were only indications of the general attitude of the New Testament, which is illus� trated by St. Paul telling' Christians that they should rather be swindled than go to law, and by Christ's command to turn the other cheek to a blow. The words of St. John the Baptist (Luke iii. 1 4) to the soldiers: 'Do not use men roughly, do not lay false information against them, be content with your pay' formed a subject of controversy. St. Augustine pointed out that St. John did not tell the soldiers to lay down their arms. Tertullian's view was that if men were already soldiers when they became Christians they might remain in the army, since they would be in danger of execution if they broke their oath to the king; but the rest of the faithful ought not to go to war, and it was noteworthy that St. John did not advise anyone to perform military service. Yet other writers instanced Christ's apparent fondness for soldiers. 1 The four Spanish writers are all agreed that Tertullian's opinion is wrong: 'All the Doctors hold the opposite opinion and the accepted usage of the church is the same.'2 Molina, after dismissing the opinion of Tertullian as a Manichean trror, with which Luther and Erasmus are also 'tainted', goes so far as to say that in certain circumstances it may even be a mortal sin to abstain from war. He throws new light on the text 'Render unto Caesar' by interpreting taxes as meaning war�taxes, points out that war was permissible in the Old Testament (under the natural law) and Christ did not abolish the natural law, and finally argues that if kings have the power and right to take up arms against wrongdoers and rebels within their kingdoms they must also be able to protect their subjects from external dangers. 3 If not there would be a sorry situation in any country molested by enemies. Failing any common superior authority which could redress wrongs, the 1

2

e.g. Molina, vol. i, treatise ii, disputation 99, par. 8 . 3 Ibid., pars. De Incliis, ii.

1 , 2,

5, 6.

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country would only be able to defend itself by driving away the enemy and could not pursue its rights in the war by remedying its injuries. It would remain permanently damaged; evildoers would become more reckless in their offences, and the state would never enjoy peace and security. Moreover, on such a theory, the world would fall into a wretched plight because the innocent would be in an unfair position if they could not obtain from their State just revenge and recompense for injuries suffered at the hands of tyrants, plunderers and thieves.

Vitoria says exactly the same, 1 while Suarez adds2 that if war were not allowable, worse things would happen, for the alternative to war is not a just but an unjust peace, and war ought to be the means to a just and secure one. Again, they all agree that self.-defence is a natural and necessary right: the repelling of force by force was always con.­ sidered to be part of the law of nature. Soto elaborates on this by saying that in moral acts the intention is what counts. 'For that which is accidental they receive no praise or blame. . . . Therefore to come to our purpose, when anyone defends him.­ self, there are two effects to be considered, namely the preserva.­ tion of one's own life and the destruction of another's, of which the former was intended, the latter was accidental. . . .' 3 As the one is a natural right and the other is accidental, no blame can accrue from either. No attempt is made to reconcile the contradiction between this natural right and the texts from the New Testament quoted above, unless by a sentence of Suarez's in his Disputation xiii (par. I): . . . War is not the opposite ofloving one's enemies, for those who make war do not hate individuals, but honourably detest the actions which they are justly punishing.

Molina, too, says that 'If war arose from hatred of the enemy it would be a mortal sin.'4 1

2 3

4

De Indiis, ii, first conclusion, proof 7. On Faith, Hope and Charity, disputation xiii, first conclusion. Book v, qu. i, art. 8. Vol. i, treatise ii, disputation 107, par.2.

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There is a distinction between what is allowable to an in,, dividual and what to a state. This distinction, which from the religious standpoint might be unexpected, follows logically from their theories of gove,rnment and war. For a state the right of selDdefence extends to the avenging of wrongs, for there is no one else to do it; for the individual it does not. The prince, St. Paul says, carries the sword for the defence ofthe community, and Vitoria continues, quoting St. Augustine: The end and purpose of war is the peace and safety of the community; but unless enemies can be prevented from wrong,,.doing by fear of war a state could have no security, and it would indeed be most unjust if all that a state could do when wrongly attacked would be to defend itsel f, without being able to follow this up by further action. 1

Here again is the recurrent theme that everything designed or instituted by God has within itself the powers necessary for its fulfilment, protection, and proper functioning. So a corn,, munity has 'full powers to avenge itself, to recover its property and to punish its enemies; this must clearly be true, because if the community had no such power, the world would be in disorder, and great inj ury be inflicted by the wicked ' . This is supported by Aristotle in the third book of his Politics, where he says that a state ought to be self,,.sufficient. Now it cannot properly protect the common weal and the state's position if it is not allowed to avenge an injury and take action against its enemies, for if the wicked could sin with impunity they would become more apt and hardy offenders. Thus it is essential for the proper functioning of human affairs that communities should have this power. 2

And if the community has it, then so has the prince, who is the representative of the community and wields its authority. 3 Reason confirms this, for the prince holds his office by the election of the people, and he is therefore its representative and wields its authority, so that where there are lawful princes in the state, all authority resides in them, and no public business may be done without them, in war or peace. 1 De lndiis, ii, qu. i, 6th proof. 2 Ibid., qu. 2. 3 Ibid., third proposition.

WAR AND THE L A W OF WAR

1 39

This is true not only of the legitimate ruler (Molina adds) 1 but also of'a ruler who has by force of arms acquired the full legal , power over any country . A private person, on the other hand, may defend himself and his property at the time when he is attacked, but has no right to avenge a wrong, nor may he take back stolen property if time has elapsed since it was seized. When the immediate necessity for defence is past, it is no longer lawful to fight. 'He may only avenge himself and reclaim his property through a judge. If he might act otherwise-if, that is to say, everyone could be judge in his own cause, all government would be.­ come impossible. It would also be contrary to natural as well as divine law.' 2 (We shall see later, however, that there are exceptions to this saying that a man may not be judge of his own cause.) Suarez comments on this problem, saying that 'it must be added that a state or commonwealth has far more latitude in its own defence than a private individual, because in the former case the good defended is a common one and of a higher level, also because the power of a community is by its very nature public and common; it is not therefore surprising that a community should have more latitude than an in.­ dividual.'3 The additional latitude allowed to a state extends not only to war but, of course, to killing individuals for the common good.4 No one may of his own private authority intentionally kill another man in order to save his own life; such a function belongs to the public power, which relates such a killing to the common good, as is plain in the case of a prince declaring war on another and in an official arresting a malefactor. The proof is that to kill another intentionally belongs only to the public power for the preservation of the common good . . . . Vol. i, treatise ii, disputation 100. 2 Commentary, vol. ii, qu. xl, On War, art. I, par. 3 . C( also Soto, bk. v, qu. i, art. 8. 3 On Faith, Hope and Charity, disputation xiii, section ii, par. 3. 4 Soto, op. cit., bk. v, qu. i, art. 8. 1

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Because of the common good, incidentally, Soto partially modifies the inalienable right of self.-defence, saying that if a man were attacked by ' a king or a general (dux, duke :) or someone else very important to the state, and the person attacked were someone of low estate, whose life had no relation to the common good, I would believe that the person attacked was bound (or perhaps only urged) in charity, rather to endure death than to inflict it on the other' . Some impression of the fluidity of the word ' state ' in this con.­ nexion-i.e. the right to make war-is given by Vitoria and Soto, who say that any independent state, even if it has a nominal overlord, or any country which has a customary right to make war without reference to anyone else, may do so. And, indeed, Vitoria says, in an emergency anyone has the right to make defensive war: In the case of defensive warfare . . . any king or community-even this very city [Salamanca]-may defend themselves. If the Toledans invaded Salamanca, the latter could defend themselves on their own authority. There is no doubt about this. 1

To defend one 's country or city against attack requires no justification at all. Finally, a state or ruler may, if asked, wage war on behalf of an ally or wronged person for exactly the same reasons that he may make war on his own behalf, ' because a man' s friends are almost the same as himself' . 2 And when subjects who are suffering grave injustice from their king have a right to wage war on him, then other princes also have a right to intervene and help them, since the people are innocent and the protection of the innocent is part of the natural law. This right, which must have been largely confined to theory even in Vitoria' s time, runs counter to the modern principle of non.-intervention 1

On War, art. i, par. 3 .

z

Ibid., par. 5.

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in domestic affairs which forms such a large part of the diffi,. culties of the United Nations Organization. Vitoria himself adds cautiously that 'if there is any doubt at all, it is not lawful to do it; because if other princes were allowed to fight in defence of anyone who complained about their king, the state would be in disorder. There is, too, the fact tbat the judge of the matter is the king himself'. 1 Suarez discusses the question of civil war ( which he calls sedition), 2 and in so doing throws some light on what Vitoria means in the last sentence above by explaining that the aggressor (against the prince) is always wrong because there is no legiti,. mate power except the prince to declare war. This would sound like a formidable argument for absolutism if we had not already seen that the people have very strong rights: against a usurper anyone may avenge himself and his country, although against a legitimate monarch who becomes a manifest tyrant only the people as a whole may act, for then they are superior to the king: for when the people granted him the power, it is assumed to have granted it on condition that he should govern in accordance with the public welfare and not as a tyrant, and that, if he governed otherwise, he might be deposed from his position of authority. However, the situation must be one in which the king is seen clearly and evidently to behave in a tyrannical way, and all the other conditions for a just war must also be present.

What was, then, a just cause for wan The formula had become more or less standardized: Commentary, On War, qu. xl. My italics. This is one of the cases where it is accepted that a man may be judge in his own cause. C( also pp. 144-5, 1 46, 1 5 1-2, 157 below. z On Faith, Hope and Charity, disputation xiii, section viii, par. I. Suarez is far from clear. He seems to be speaking of a situation where there are two factions and one declares war, and he does not explain whether the king is on either side. He also goes on at once to say that a war of the people against the king is not necessarily evil if it fulfils the conditions for a just war. He appears, therefore, to mean here the revolt of a faction which is not representative of the people as a whole. 1

.. WAR A N D THE LAW O F WAR First, the war must b e waged b y a legitimate power; secondly, the cause and reason must themselves be just; thirdly, it must be properly con..­ ducted and a sense of proportion kept at the beginning, during hostilities and after victory.. .. The reason for this general conclusion is that, while a war is not per se evil, yet, because it may bring many misfortunes, it is one of those undertakings which are often ill done, and therefore it needs a good many conditions to make it just. 1

No one was in doub( about 'a legitimate power', but a 'just cause' needed careful definition. Vitoria begins his inquiry by dismissing many of the more evidently unjust causes. Difference of religion is not a just cause for war, 2 nor is any extension of empire, nor the personal profit or triumph of the ruler. 3 'For a prince should make both peace and war subserve the common good of his country and not waste public money for his own renown and profit, much less subject his people to danger for that reason.' Molina also points out that if 'territorial gain, glory or the convenience of the aggressor' were j ust causes for war both the attacker and the attacked would be fighting j ustly 'which would be a contradiction in terms: each party to the war would be blameless and so from the nature of the situation they could not kill each other. This goes against any concep..­ tion of justice.'4 He also says that it could be a mortal sin not to stop doing something which might cause a future war, even 1

2

On Faith, Hope and Charity, disputation xiii, i, fourth conclusion. De lndiis, ii, eighth proposition. Vitoria is here thinking mainly of the

Indians, rather than of the Turks or, of course, the Protestants. Molina has a fiercer attitude towards the Moslems, and when he is discussing the right of Christians to make war at all, writes: 'If Christians are allowed to fight any other enemy of their country they are much more at liberty to fight the Turks, with whom they have so many good reasons for fighting. The Turks have unjustly annexed and still retain Christians' lands, they have often cruelly butchered Christians and done them grave injuries, and they work to uproot the Christian faith and Christian state(s). For this reason war has been declared against the Turks, and started, on the authority of several Councils and of many Supreme Pontiffs . . . .' Yet he, too, in theory at least, does not regard difference of religion as a cause for war. (Vol. i, treatise ii, disputation 99, par. 8.) 3 Ibid., fourth proposition. 4 Vol. i, treatise ii, disputation 105, section 7.

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14 3

if that were not our original reason for embarking on the action. 1 In the fourth section of his Disputation on the same subject Suarez writes na:ively: Among the gentiles there was an old and erroneous opinion that the rights of nations were founded on armed force and that war might be made for prestige and wealth alone-an absurd opinion even by the light of natural reason alone.

He agrees with the others that paganism, unnatural sins and idolatry are no cause for war. (These are sins against God, who will avenge wrongs against Himself; besides, many Christian princes have committed such offences.) He goes on to deny the right of conquest based on the 'superiority' of the invader2 in a passage which should be a classic of anti,-racialism: A fourth reason which is put forward is that pagans are savages and unable to rule themselves properly-therefore the order of nature demands that this type of man be governed by those who are wiser. . . . Any war is then naturally just which is waged against men born to be ruled but unwilling to acknowledge it . . . . But in the first place this argument cannot be applied generally, because it is obvious that many pagans are more talented than Christians and more suited to political life. Secondly, for the argument to hold water, it is not sufficient to show that a certain race has inferior natural talents; they must also be so generally wretched as to live more like animals than men, like those who are said to have no social life, but to go naked and to eat human Resh, &c. If such people do exist, they may certainly be subjugated by war, not to exterminate them, but to construct for them some human society and to see that they are justly governed . . . .

All four writers are agreed that the only just cause for war is a wrong suffered, although they do not discuss possible dis,­ putes arising from this definition. A wrong suffered justifies both a defensive and offensive war, 3 that is to say, a war to Vol. i, treatise ii, disputation 107, par. 4. Faith, Hope and Charity, disputation xiii, On War, section v, par. 5. 3 An 'offensive' war must not be confused with a war of aggression in the modern sense, which could never be considered just. 1

2

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avenge the wrong. In addition, the wrong must be a very great one, smce Every type and degree of wrong is not sufficient to j ustify waging war; this is proved by the fact that it is not lawful to punish even one's own countrymen with awful penalties like death or banishment or confiscation of property for every type of crime. But, as the evils inflicted by war (death and fire and devastation) are all so harsh and dreadful, it is clearly unlawful to punish those who commit minor injuries with war, because the punishment ought to fit the crime. 1

Molina contributes the expression 'judged by the standards of a prudent man'. 2 More theologically...minded than the rest even in his discussion of politics, he distinguishes between un,. intentional and intentional wrongs, the latter justifying sterner measures. The next conclusion is that: 'As in every state there must be some lawful power to punish crime if domestic peace is to be preserved, so in the world at large, if all countries are to live in harmony, there must exist some power to punish wrongs committed by one state against another.' 3 But this does not lead, as one might expect, to the idea of an international court, which Suarez in fact believed to be impossible, but to the interesting concept of the wronged ruler as legitimate judge in his own cause. Now this power cannot belong to any superior, for we must take it for granted that these countries do not recognise a common superior: therefore power must reside with the ruler of the injured state, to whom, because he has done wrong, the opposing prince becomes subject. This kind of war is, in fact, a substitute for a tribunal to administer just penalties. . . . The objection may be raised that, in this case, the same person is both plaintiff and j udge, which is against natural law . . . Our answer is that we cannot deny that, in a sense, the same person fills the role of plaintiff and j udge . . . . 1

2 3

Vitoria, De Indiis, ii, fifth proposition. Op. cit., vol. i, treatise ii, disputation 102. Suarez, On Faith, Hope and Charity, disputation xiii, section iv.

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But that is because it has been essential to humanity to have some means of just punishment and no better method, humanly speak;ng, could be found ;n tbe natural order. ...

This idea, which is common to all four writers, occurs again and again, as we shall see, in different contexts. Even if a prince has a just cause for war he must consider whether in making it his own country will not suffer so much harm as to make it a sin against justice to his own state. He ought, therefore, to be fairly sure of victory, for if he were sure to lose, his country would be worse off than before, and he should also weigh the chances of victory against the losses likely to be involved. We must note that when a ruler wages war he may be as unjust to his own country as to a foreign country.... In prudent opinion, a war in..­ volves grave harm to a country if it is not strong enough to conquer, or if for some trivial gain to the country and the community the war exposes the subjects to grave dangers and hardships, uses public funds for the purpose and burdens the country with fresh taxes and impositions. It will certainly be a mortal sin, and contrary to justice to one's own country, to undertake such a war if it can reasonably be avoided. For a country is not made for ;ts king, but the k;ng for his country-to dejened, administer and dfrect it, not for Ms own whims, vanWes and convenience, but for the common good; since it was therefore that people were moved to set up kings and princes for themselves, and to transfer to them their own law and authodty. 1

Defence was always necessary and right; but to proceed further was a matter of choice. 2 It was not always easy to say whether a war was just or not. There might, for instance, appear to be justice on both sides, 3 but except in cases of ignorance this cannot happen, for if right and justice is certain on both sides, it is unlawful to fight either offensively or de..­ fensively. Second proposition: Let us suppose a clear case of ignorance Molina, vol. i, treatise ii, disputation 102. z Suarez, On Faith, Hope and Charity, disputation xiii, iv. 3 Vitoria, De Indiis, ii, fourth doubt, first and second propositions. 1

827145

L

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(whether of the facts or of the law) then it can happen that on one side there is true justice, i.e. the war is really just, while on the other side the war is only just because good faith is an excuse for sin and invincible ignorance is a complete excuse. This may often happen, at any rate among su0'ects, because even if a ruler waging an unjust war knows it to be unjust, the subjects . . . may be following the prince in good faith, and so on both sides the subjects may be fighting justly.

The possibility that this ignorance might occur among rulers was not considered, partly because the first duty of a ruler was very carefully to investigate the justice of his cause. The mag.,. nates should also inquire thoroughly into the matter, since they had the task of advising the king whether to go to war or not. Arbitration should of course be sought, where possible. Princes should submit to the judgement of good men because they are bound to avoid war as far as they can by just means. So, if there is no danger of injustice, this is obviously the best way of coming to a decision, and it should hence be followed. An argument confirming this opinion is that it is impossible for the Creator of nature to have left human affairs (so often ruled by guesswork rather than by reason) in such a bad way that all disputes berween states and rulers could only be decided by war. This would be contrary to prudence and the general welfare of the human race, and thus also contrary to justice. Moreover, if this were true, the more powerful would have the stronger claim; thus might would be right, which is clearly barbarous and absurd. But here we must observe, firstly, that a sovereign prince is not bound by the decision of those whom he has not himself appointed as judges. Therefore arbitrators must be chosen with the consent of both sides. . . • 1

The italicized clause is a pointer to many modern problems connected with arbitration. Again, if after an investigation, justice is found to be equal on both sides, the ruler in possession must be left in possession, Suarez, On Faith, Hope and Charity, disputation xiii, section vi, 4 and 5. Molina, too, stresses the lack of obligation on a sovereign ruler to agree to independent arbitration where he has begun to take possession of something in good faith, 'for as he is judge in his own case against another country, so that other country in turn is judge in its own case against him'. (Presumably because both here are innocent.) (Op. cit., vol. i, treatise ii, disputation 103, viii.) 1

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as he would be in a court of law. If the same thing happens when no one is in possession, the disputed object should be divided, or lots should be cast for it, or some similar solution should be devised. 1 Next, Vitoria asks whether, if the prince believes himself to have a just cause, that is sufficient to make a war just. I answer, no, it is not always enough. Proof: Even in lesser matters it is not enough if either the prince or individuals believe they are acting justly, as is well known, because their mistake may be on purpose and not be insuperable. A person's own opinion is not enough to make an action virtuous: it must be measured by the judgment of wise men, as we read in [Aristotle's] Ethics, Book II. If this were not true, many wars would be just on both sides, for princes do not often fight in bad faith, but usually think their cause is just; and then it would be unlawful to kill any soldiers, for all would be innocent. Turks and Saracens, too, could fight justly against Christians, in the belief that they are serving God in doing so. Second proposition: For a war to be just it is essential that the cause of the war, and its justice, should be most minutely examined, and that the arguments of those who say it is unjust should be heard. . . .

He elaborates further on the duty of magnates and councillors to investigate thoroughly because anyone who can save his neighbour from risk and harm is bound to do so, the more so when the risk is one of death and other great evils, as in war. But these people can prevent an unjust war by lending their wisdom and prestige to an investigation of its causes, and so they are obliged to do it, because if an unjust war is declared on account of their negligence they are responsible parties, since they did not prevent what they could have, and ought to have, prevented. Then the prince is not himself competent to enquire into the causes of a war, and may easily make a mistake which will harm and ruin thousands; so war ought not to be decided by the prince alone, nor by a few men, but by a number of wise and virtuous men. z 1 2

Molina,' op. cit., vol. i, treatise ii, disputation 103, pars. De Indiis, ii, fourth question, fifth proposition.

1-7.

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What is the position of an ordinary soldier in all this ? He cannot be expected to investigate the causes of the war, which are not necessarily accessible to everyone. 'Ordinary men', writes Vitoria, 1 who have no place or entry into the prince's council of state are not bound to investigate the cause of a war, but may rely on their superiors and fight. The proof of this is, that it is impossible and undesirable to explain every act of state to the whole commonalty, and, secondly, even if the common people saw that a war was unjust, they would not be able to stop it, for no one would listen to them ; so that it would be useless for them to investigate the causes of a war. Then, again, the fact that the war is being waged after public counsel and by public authority is enough proof of its justice for men of this sort unless the contrary is quite certain; therefore they are not bound to enquire further. However, the proofs and signs of the war's injustice may be so strong that even such subjects could not plead ignorance and fight in it.

Molina agrees with this opinion about 'those who are not of the governing classes', and adds that 'it would be a very hard burden to impose on the subject if, when his superior had given an order, he were obliged to consult experts about the justice of the order'. He also believes that in cases of genuine doubt­ 'when there are such signs and talk of injustice in the war' any subject is bound to inquire. 'If this were not so, men who did not want to know the right thing to do could affect .ignorance. ' This view (he concludes typically) 2 is confirmed by the fact that other,.. wise the Turks and Saracens would be absolved from blame when they followed their rulers to war against Christians, and the soldiers who at the command of the Jews and of Pilate laid hold of Christ, ill.,treated and crucified him, would also be absolved from blame, and such a view is absolutely untenable.

Infidels have thus, according to Molina, true dominion and ownership, but seem to be incapable of fighting just war, except, perhaps, of defence! 1

2

De Indiis, ii, qu. iv. Cf. also Molina, vol. i, treatise ii, disputation I I 3, par. 2. Vol. i, treatise ii, disputation I I 3 � par. 4.

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The tone of some of this talk about the commonalty and those who are not members of the governing classes sometimes rings a little strangely in our ears, but it was a reasonable state,. ment of the position everywhere at the time, and is still so to a large extent at the present day, despite the growth of education and communications. If, then, the war does not appear on the face of it to be unjust, soldiers may fight. But they must not shut their eyes and from devotion to their king say 'What do I know about it :' when they really feel doubtful of the war's injustice. When there is only a slight doubt, the soldier is faced with a dilemma: if he goes to war, he is in danger of fighting unjustly; if he refuses, he runs the risk of deserting his king and country in an emergency. Of these two dangers he ought to choose the lesser evil; it is less wrong to harm enemies than one's own country. So

it is certain that subjects may follow their princes in a defensive war, even if its justice is doubtful (i.e. there is some slight doubt about its justice) ; more, they are bound to follow him, and in an offensive war, too. The first proof is that, as we said, a ruler cannot, and ought not to, always explain the reasons for a war to his subjects, and if those subjects could not fight at all until they were quite satisfied about its justice, the state would be in grave danger and many evils would follow. 1

Molina feels even more certain that soldiers must obey, and disagrees2 (rather practically) with Vitoria, who declares that a soldier who becomes conscious of the injustice of a war while fighting should at least restore his plunder. Both disapprove strongly of mercenaries, Vitoria saying that 'men who are ready to fight in any war and do not care if it is just or not, but follow the man who pays most, and who are not even his subjects, are committing mortal sin, not only when they actually fight, but whenever they are prepared to do so'. 3 De Indiis, ii, third doubt, fifth proposition. Op. cit., vol. i, treatise ii, disputation r r 3 , pars. 6, 7. 3 Commentaries, vol. ii, qu. xl. On War, art. 1, par. 8. 1

2

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Mercenaries clearly make nonsense of the whole idea of a just war. Finally, if a subject is convinced that a war is unjust he ought not to fight even if his king orders him to, and 'the corollary of this is that whether a war is just or unjust, if a subject's conscience tells him that it is wrong, he must not fight in it'. 1 Even in the late Middle Ages men were exercised about 'total war' and whether certaiq methods of warfare might impair a just cause. In the first place, no war should be begun without some attempt to settle things peacefully. We have seen that Molina mentions, without much enthusiasm, the papal right to inter,, vene. 2 Arbitration has also been suggested, and as an alterna,, tive Suarez says that before beginning a war the prince must point out the existence of a just cause of war to the opposing state and ask them for redress. If the other state offers him adequate reparations, he must accept them and refrain from making war, otherwise the war will be u njust. But if the opposing prince refuses him satisfaction, the first prince may embark on a war. 3

Next, in order to be just, a war must not only have a reason,, able beginning, but be moderate during its course and after victory. But the four writers are agreed that once war has been declared any injuries may be inflicted on the enemy which seem necessary to obtain satisfaction or achieve victory, since the aim of the war is the laudable one of (a just) peace and security. 'If the end is lawful, the necessary means to that end are also lawful, so it follows that during the whole length or duration of that war, hardly anything done to the enemy is unjust, ex,, cept killing the innocent.' Vitoria also agrees that everything is permissible which is necessary for the defence of the common good. De Indiis, ii, second doubt, first proposition. Op. cit., vol. i, treatise ii, disputation rn3 , par. 12, and c( also Ch. IV, p. 86 above. 3 On Faith, Hope and Charity, disputation xiii, section vii, pars. 3 and 6. 1

2

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The phrase 'obtaining satisfaction or achieving victory' in,. eludes some kind of punishment for the wrong committed. If the punishment inflicted by the war itself does not seem adequate in view of the greatness of the wrong done, some guilty persons among the enemy may be executed to prevent further wrong: 'those who, in the judgment of a prudent man, have committed a crime deserving death'. Molina's reason for thinking this is based on the idea of the wronged prince acting as a judge-as is the right to recoup one's losses and the cost of the war out of enemy property. 'The proof lies in the fact that a man who starts a just war is put in the position of a judge to punish his enemies', he writes, 1 and Vitoria, arguing that the ruler who has done wrong must make restitution, says If there were any authorised judge between the two opponents, he

would condemn the unjust aggressors and wrongdoers to give back what they had seized, and moreover to pay the cost of the war and all damages to the other side. But a prince waging a just war is his own judge in that war, as we shall prove below; hence he can enforce all these claims against his opponent. 2

In discussing the exaction of penalties after victory Vitoria pursues the judge,.motif still further: We must observe in support of this that rulers not only have authority over their own subjects, but also authority to prevent foreigners from committing wrongs. This is part of the law of nations, and has the authority of all mankind, but it would also appear to belong to the natural law, for society would disintegrate if there were no power and Vol. i, treatise ii, disputation 122, par. 3 ; cf. also Disputation n7, par. 2. Molina gives another example of this idea when he is discussing a case where neither party to a dispute can take possession of the bone of contention in good faith. The goods must be divided: 'Ordinary clear thinking leads to this con,. clusion, and this would be the verdict of any fair, just judge who had jurisdio tion over both the contending patties. Rulers, therefore, who have no judge over them, are bound to do the same.' 2 De Indiis, ii, qu. iv, third proposition, and cf. Molina, disputation 100. Modern parallels-the execution of war,-criminals, and reparations-spring to mind ; the difference is that we now have doubts about the wisdom of'extoning costs', even when it is possible to do so. 1

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authority to deter the wicked and stop them from harming the good and innocent. Now, everything which is necessary to govern and preserve society exists by natural law. This is the only way we can demonstrate that a state has (by natural law) power to impose pains and penalties on dangerous citizens. But if each state can do this to its own citizens, surely mankind in general can do it to all dangerous wrongdoers, and princes are the only instruments they · can use. . . .1

If we pursue the theme that 'any means may be justified to achieve victory in a just war' we come at once to the killing of innocent people. Clearly the innocent must never be killed when it is possible to distinguish or separate them from the guilty, or when it is not essential to victory. I discussed this (writes Vitoria) 2 with a member of the Royal Council who thought it expedient for the proper waging of a war that everyone should be killed. My opinion is, firstly, that everyone able to bear arms should be considered dangerous and must be assumed to be defending the enemy king; they may therefore be killed unless the opposite is clearly true, i.e. unless it is obvious that they are harmless. I believe, secondly, that when it is essential for victory it is lawful to kill the innocent. For example, a town is besieged and must be bombarded: the death of the innocent results from the bombardment, but the result is incidental: let them perish ! (There can be no doubt about this; it is the same as besieging a fortress.) But thirdly I say that if a town were captured, and innocent persons came near the scene of victory because they no longer felt in danger, it would not be lawful for the king to kill such people as, for example, children, religious and clerics who were not taking part. The reason for this limitation is evident: they are innocent, and their death is not necessary for victory. It would be heretical to say that they might be killed at such a time. Hence, one must not kill the innocent on purpose when it is possible to separate them from the guilty.

And elsewhere3 he says that the 'harmless country,.people and the rest of the peaceful non,.combatants who are presumed 1 2

3

De Indiis, ii, qu. iv, fifth proposition. Commentaries, vol. ii, qu. xl, On War, art. r, par. r r . De Indiis, ii, Slaughter of the innocent, first proposition.

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innocent unless the opposite is proved' must not be killed, and the same is true of foreigners or persons residing temporarily among the enemy, who are not themselves enemies. Molina is, as usual, rather harsher to infidels and especially to apostates. He draws his examples from the war again Granada. 'Note', he says, commenting on Vitoria's remark that women may not be slain unless they are proved guilty that if (as in times past when there was a war against the descendants of the Saracens in the Kingdom of Granada) one were fighting heretics or apostates who had revolted, and were quite evidently apostates, and if apostasy were evidently the cause of the rebellion, it would without doubt be right to kill grown women for the crime of heresy and apostasy. I may add that grown women who march with the enemy or are beside them in a besieged town are usually not free from blame, but are as a rule helping the enemy. For this reason they are not to be considered as having the same degree of innocence as children, though it is safer to leave them alive when their guilt is not established. We know that the women of Granada marched with their rebellious menfolk and gave them such help as to be virtually fighting, so it is no wonder that history also tells us that they were slain, especially when the signs oftheir apostasy were so evident. 1

And later2 he says that although it is wrong to kill the innocent when one is fighting a just war, it is not wrong, in his opinion, to enslave them. When Christians are fighting Christians, however, even the guilty may not be enslaved. There is a change of tone here from Vitoria and Suarez. Even when it is a question of storming a fortress or fortified town great care must be taken before doing so: For if the storming of a fortress or fortified town containing many innocent people would have little effect on the ultimate outcome of the war, it would be wrong to kill all those innocent people by fire, by engines of war or any other means which did not distinguish between innocent and guilty, all for the sake of wiping out a few guilty persons. 3 1

2 3

Vol. i, treatise ii, disputation I I 9, 2-3 . Ibid., disputation 120 (c f. also no. I I7) . Vitoria, De Indiis, ii, Slaughter of the Innocent, second proposition.

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Similarly with giving up a city to fire and sword: it may be necessary for victory, and it may involve the slaughter of many innocent persons. If it is not absolutely essential to victory it must never be done, and in any case it should never be done on the initiative of the soldiers alone, but only on the orders of responsible leaders who should warn the soldiers (sic) to try not to kill non...-combatants. 1 Molina, while agreeing in sub...­ stance, is once again more stern; he makes it sound as if the prohibition of looting, &c., by the generals would be merely perfunctory, to ease their own consciences. The sack of a city is, he says, usually wrong through its consequences, especially when the city is Christian, because of the slaughter and torture of innocent persons, the rape, adultery and violence used on women which soldiers usually commit in such circumstances, and because of the desecration of churches and other atrocities and injustices which generally occur. Despite this, in itself it is not unlawful. So, if it is considered necessary for the progress of the war that the soldiers should be given an incentive and the enemy struck with terror, it is lawful to hand over even a Christian city to the soldiers for a

time, even though some soldiers will probably indulge in such atrocities. It is like burning down a city, which is sometimes permissible for a good reason. On the other hand, when a city is given over for looting, the generals are bound to forbid such atrocities and injustices and prevent them as far as they reasonably can.

Then what, Vitoria asks, if there are innocent people in an enemy town who are at present doing no harm but who may well do harm later: may they be killed ? For example, Saracen children are innocent, but we have every reason to fear that when they grow up they will fight Christians and bring all the dangers of war upon them. Further, the male adults among the enemy who are civilians and not soldiers are presumed to be innocent, but they may become soldiers later and bring the same dangers: it is lawful, then, to kill these young men ? . . . 1 Vitoria, Commentaries, vol. ii, qu. xl, On War, section 12. Cf. also Molina, vol. i, treatise ii, disputation 122. None of the others shares his rather cold.­ blooded attitude; all, however, discriminate against the Saracens and are indul, gent to the newly discovered 'infidels' of America.

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My answer is that, though perhaps one could defend such murder, I believe it would be entirely wrong, since we must not do evil to avoid a greater evil, and it is intolerable that anyone should be killed for a crime which lies in the future. Also, other precautions can be taken against their future conduct, for instance captivity, exile, &c., as we shall show later. It follows, then, that if there should even be a soldier who is clearly innocent, and our soldiers are able to let him go free, they must do so, whether during the war or after the victory has been won . . . . 1

Molina, commenting on Vitoria, agrees, but thinks that the innocent enemy may be despoiled of their goods; Vitoria, too, is doubtful whether it would be possible to discriminate when the enemy is to be plundered. On the whole he feels that this is a case where individuals cannot be considered: one must think of the guilty state alone, and it will be the task of the guilty among the enemy to reimburse the innocent. This is in agreement with what he says in his treatise On Secular Power2 that if the ruler does wrong, the whole community is respon,, sible, because they chose him. The theory that the punishment must be made to fit the crime is applied to the question of whether it is lawful to depose enemy kings and appoint new ones, or to annex the kingdom. Vitoria replies that this cannot possibly be lawful in general: Even if the enemy's crime is a sufficient cause for war it may not be enough to justify overturning the enemy's government and deposing their natural and legitimate rulers, which would be most barbarous and in.­ humane actions. . . . 3

The choice of rulers, as we have seen, generally lies in the people, and this right cannot lightly be abrogated. Suarez and Molina introduce the question of whether Chris,, tians may seek help from pagan kings or help them in a just war, and declare that this is not in itself a sin, but it may easily 1 2

3

De Jndiis, ii, gu. iv. Section

12.

De Jndiis, ii, ninth doubt, first proposition.

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become a sin against charity by involving a public scandal or bringing the faithful into danger. 1 Finally, there was the question of keeping or breaking faith with the enemy. Vitoria disapproves of the killing of hostages who have been given as a guarantee of a ruler's promise, when that promise has been broken; he says that they are innocent and should not be killed for someone else's crime, which they are neither furthering nor taking part in. In fact he thinks the whole arrangement an unjust one, since they are innocent men, who may not be killed, although they may be held prisoner. Molina agrees. 2 Vitoria also thinks that it is unlawful to use deceit or fraud in war, since a lie is never justified; however, he concedes that some truths may be concealed from the enemy. Molina seems to go further and indulge in some sophistry: he says that admittedly it is wrong to lie to the enemy in a just war, but it is quite proper to use deceit, to conceal one's plans and to do what will lead the enemy to misinterpret the situation and so to suffer ea pture and defeat . . . . In all this behaviour no lie is introduced.3

Next, both are agreed that if the enemy breaks the whole or even part of an agreement, one is no longer bound to adhere to it. In every other case faith must be kept with enemies, except in the rare event of the harm being so great that one's own country would be ruined. A man captured in war must keep the promises he makes, even if they are elicited by threats, for other., wise wars would never cease. 4 Molina introduces the proviso that the promises must be under oath; but from such an oath he can only be dispensed by the man to whom he has made it. On Faith, Hope and Charity, disputation xiii, vii (end) ; Molina, op. cit. vol. i, treatise ii, disputation I I 2, par. 5. Molina also discusses what Christian captives may and may not do in the way of helping their Saracen masters (vol. i, treatise ii, disputation I I 5). 2 Vol. i, treatise ii, disputation 120. 3 Ibid., disputation I I I , par. 1 . 4 Vitoria, O n War, art. iii, par. 4 ; Molina, vol. i, treatise ii, disputation I I I , par. 4. 1

W AR AND THE L A W OF WAR

157

Vitoria concludes his second treatise on The Indies or the Law of War with a passage which deserves to be quoted in its enurety: We can summarize all this in a few canons or rules ofwar. First canon: If a ruler has authority to make war, he should in the first place not look for opportunities or causes of war, but should, as far as possible, live peaceably with all men, as St. Paul urges (Romans, eh. 12, verse 19) ; he should consider that other men are his neighbours, whom we are bound to love as ourselves, and that we all have one common Lord, at whose tribunal our accounts must be rendered. It is the acme of barbarity to look for and take pleasure in reasons for killing and destroying men whom God has created and for whom Christ died. Therefore the prince should only decide on the necessity for war reluctantly and when com..­ pelled to do so. Second canon: When war has broken out for a just cause, it must not be carried so far as to ruin the enemy, but only as far as is necessary to defend one's country, and obtain one's rights, and ultimately, as a result of the war, to ensure peace and safety. Third canon: When the war is won and finished, victory should be pursued with moderation and Christian humility; the victor ought to think of himself rather as a judge between two states (the wronged and the wrong..-doer) and to deliver the judgment through which the injured state can obtain satisfaction as judge rather than as accuser, so that the aggressor state may, as far as possible, be spared the worst calamities and misfortunes, and the offending individuals be penalized only within law..­ ful limits. Among Christians the rulers are mostly to blame, because subjects fighting for their princes act in good faith; and it is most unjust, as the poet says, that Quidquid delirant reges, plectantur Achivi.

CONCLUSION

I

The natural law T will be apparent that the fabric of natural law erected by these writers could only remain unshaken in a homo,. geneous, fairly static society with no major cleavage on moral principles, or in a primitive community which had little disturbing contact with the outside world. (Anthropologists have indeed found rudimentary ideas of natural law fairly widespread among isolated tribes.) Further, to maintain natural law as a system of ideas, there had to be some permanent body to interpret that law, in face of the doubts which were bound to arise. Again, sixteenth,.century Spanish scholastics believed natural law to be immutable only in its most general principles, and even in such secondary inferences as 'Thou shalt not kill' the circumstances of an action had to be taken into considera,. tion. Therefore, to judge rightly in more detailed matters was still more difficult, and only an informed conscience (that is, one instructed by the Church and/or by the received customs of the community) would be able to decide. Next, a view of law designed to fit a dual allegiance, which stressed the double nature of law (the element of coercion and the element of justice, with the latter predominating) and used natural law as a standard by which to measure the civil laws, was bound to become unpopular as the idea of one single allegiance developed. The tradition was undermined by a corn,. bination of factors: the shrinking of the cosmopolitan church, which separated the Reformation countries from natural...law literature and influences; the profound effect of nominalist thought, which outlasted the Aristotelian revival of the six,. teenth and seventeenth centuries; the attempts of new thinkers to declare natural law more absolute-which in fact made it less convincing and less adaptable. The combined influence of nominalism and of the Reformation, which both stressed the

CONCLUSION

159

unique importance of the individual, led gradually to a change of emphasis from natural law to natural rights. Although Hobbes clearly distinguished between the two, they continued for more than a century to be confused and the terms were em; ployed practically interchangeably until natural rights emerged v1ctonous. New methods of controlling or opposing an unjust ruler were also developed during the seventeenth and eighteenth centuries in the more settled countries. Constitutional checks, where available, proved more effective and less destructive than the armed resistance or tyrannicide which had been associated with religious, and particularly with natural...law, writings. Yet it is noteworthy that in the seventeenth century, England, and in the eighteenth century, France, had recourse to the medieval remedy of 'tyrannicide', and that a scholastic might well have described the English action in 1688/9 as 'the magnates of the realm deposing a ruler who made war on the kingdom'. 'Modern' definitions of law became less profound and more practical. The tendency to think of all law as the command of the ruler-considered dubiously just in earlier theory-spread in the new nation states and was questioned less and less as rulers became more representative and more under the control of'the people'. That sphere of legislation which the scholastics described as 'neutral' or 'indifferent', and which had always been acknowledged to become right or wrong at the behest of the ruler, expanded enormously as government activity in,, creased. Yet there still remained some dissatisfaction with the concept of law as pure command, even where it was regarded as expressing the will of the people; and it is doubtful whether any non,,totalitarian state can exist entirely without some idea of a law above the state, even if that law is not (as in these Spanish writers) explicitly made the keystone of a political system. Certainly in times of crisis-in connexion with con; scientious objection, underground movements, or 'crimes against humanity'-the notion tends to recur. J. L. Brierly,

CONCLUS ION

1 60

writing about Vitoria, 1 suggests that he is important because he reminds us that 'unless law has its roots in some ethical creed it is hardly possible to believe in the reality of legal obligation'. Any estimate of Vitoria and his contemporaries will depend on whether one agrees that politics are inseparable from ethics-and not mer�ly in the sense that every community, and hence every government, has an unacknowledged ethical code. If one does not agree, their importance will appear merely historical. It seems probable, however, that the new world into which we are moving, where loyalties transcend nation, race, and creed, may produce conflicts which will give new vigour and meaning to much of what they have to say, particularly in the field of natural law.

The political community and its laws The political community here described was not created by a pact of men, but was a natural association, exercising its inherent right to govern itself. This God,,given right or authority could not fail to be exercised; i.e. a community without a government was as inconceivable to our Spaniards as to Hobbes. Even in a state of nature those with ability to rule would be sure to organize the rest; but in a political community that power resided in the community, which might exercise its own authority, or transfer it to designated rulers. The type of government selected was the product, originally at least, of popular choice, and was a matter of mere human law; the authority, God,,given, was divine. Here are the obscure origins of 'divine right' theory: one has only to remove the single link that the king's authority came through the people. What was transferred was identical with what originally resided in the community; thus it was untrue that only direct democracy was just and valid. Because it was exactly the same God,,given authority, by natural law the ruler had to be obeyed ('The powers that be are ordained of God') ; but for the same reason 1

Dublin Review,

spring 1947 (pp. 1-17).

CONCLUS ION

16 1

a king was under the law, as were aristocrats in an aristocracy and democrats in a democracy. The grant of its authority by the community could not be revoked except in specified cases ifit was made unconditionally. But the transmission might be accompanied by a contract which limited its exercise; then, if so specified, but not other,. wise, the consent ofthe people would be necessary for legislation. If there was no recorded agreement, such a pact might be in,. ferred from the customs of the country. Otherwise, a (just) law, once promulgated by the ruler, became valid, although in most countries some element of mixed government existed and the ruler was seldom traditionally absolute. Among the criteria for a just law was that it should serve the general good: thus another possibility was that, if the majority resisted a law, it was clearly not for the common good. It is interesting that this theory assumed, as does Rousseau in some moods, that the majority knows what is for the common good, and was not content merely to say that a law opposed by the majority must necessarily fail. Suarez also declares that there may sometimes be an app earance of consent where no true consent exists, when the king and kingdom together form the legislature (or, in seventeenth,.century English parlance, when the king in parlia,. ment is sovereign). Civil law was necessary (as Locke too thought) to ensure just punishment and discipline, and also to add detail to the pre,. cepts of the natural law-which may be all that Locke meant by the need for an authoritative interpretation. Much law dealt, of course, with 'neutral' matters, which became 'bad' or 'good' at the behest of the ruler. Apart from these, laws needed to be just: not contrary to the natural law, for the common good, made by the lawful ruler, and fair 'in their distribution'. In the latter two cases, if the law did not fulfil the requirements of justice, a subject might yet decide to obey­ to prevent scandal, because worse might follow, or, where the 827145

M

1 62

CONCLUSION

throne had been usurped (as Hobbes also argued), to have peace and security. Since obedience to the ruler was part of the natural law, civil laws were declared to be binding in conscience ('Render unto Caesar the things that are Caesar's'). The law was made by the people's own (delegated) authority, which comes from God; thus the only freedom which a Christian could have from the coercive power of the law was to obey it voluntarily. Then civil as well as· religious regulations aimed at moral goodness-only to a lesser extent, since people cannot be coerced into a high degree of virtue. Disobedience to the civil law was, then, a sin as well as a crime, although with a trivial law it was only a venial sin. Yet the power of the civil law was so great that it might in grave cases even override the natural..­ law right of a man to defend and preserve his life-for instance, when the fatherland was in danger. Finally, the Christian ought to obey as an example: if he evaded his taxes, he should consider what would happen if this became general practice. All this may add up to an 'organic' community, in the sense that its citizens were closely bound up and partially fulfilled in it, but the basic assumptions seem to preclude any submer..­ gence of the individual person.

The ruler All these four writers certainly pay great respect to the royal dignity. The fact that it was of divine origin and not created by a pact of men made the prince stand out above all members of the community, while both Suarez and Vitoria say without hesitation that he is not only greater than every citizen but than all combined. Yet the divine authority vested in the king was only that authority vested by God in the natural community, and entrusted to him by the people, sometimes with reservations by a pact of government. The fact that this was the same power oflegislating which under a democracy would be obeyed by all the people, and under an aristocracy by the ruling aristocrats,

CONCLUSION

implied that the king was also bound by his own laws (in addition, of course, to the law of nature and, in a Christian state, divine revealed law). This interesting concept of an authority inherent in the political community which was trans,. ferred intact, no more and no less, avoided the two extremes of popular sovereignty and divine right. Thus the true dignity and pre,-eminence of the king was that of the just ruler obeying his own laws. Parry takes a rosy view of the effect which the free circulation of critical books-expressing horror of absolutism, and stressing the legal rights of free peoples-had on the administration. He is writing mainly of colonial policy, in particular of the New Laws of the Indies ( r 542 )-'The only radical and cornprehen,. sive attack by a conscientious monarch [ Charles VJ under the influence of humanitarian theorists' which he says 'gave a jolt to colonists about the power of theory'-but even here we must remember how strongly they were resisted and how little en,­ forceable. Still, that such books were freely circulated and read is in itself important and interesting. The period is in fact full of contradictions. The Indies, most unconstitutionally, were the private estate of the King of Castile, yet it was this unconstitutional monarch who defended their inhabitants against the settlers-on the quasi,.feudal ground that vassals of the Spanish crown could not belong to other masters. But in general all forces ran counter to any form of constitutionalism or limited monarchy in sixteenth,-century Spain. Externally, she had on her hands a huge empire and the counter,.Reformation. Internally, no monarch had much time or money to develop the country; while in Castile itself the Cortes, representing a mere handful of towns and thus open to all forms of pressure, had little idea of its own powers, and was in decline long before the historian Mariana noticed and lamented it. The nobility, like the peninsula as a whole, was too disunited to oppose the king. Montesquieu was quite right when he said that where there is no constitutional machinery, and no strong order of nobility to curb the monarch, religion

CONCLU SION

1 64

may help to ameliorate despotism. This seems to have been very much the function of the religious orders both in old and new Spain. In their writings what they say of the pre.,.eminence of the king is in harmony with the times, but the greater part of their work is an attempt to tip the scales on the side of liberty and just government. Church and State

Tension between Church and State is minimal in Great Britain today, so that speculation on the subject at first sight appears out of date. Similar problems are, however, still alive today in Spain and Portugal, Ireland and much of Central and South America, and even in such countries as France and the United States. The excommunication of rulers (if no longer of kings), with the consequent encouragement to civil dis,. obedience, is not unknown in some parts of the world. But in general, and particularly in most of western Europe, the close of the sixteenth century saw an end to the desire for and the possibility of papal intervention of this kind. Suarez himself, as we have seen, wrote in De Legibus that it is now known that the unity of the Church can be maintained perfectly well without that [papal] temporal power; and for all related matters, 1 spiritual power, through which it has indirect force in temporal affairs, is enough. . . .

But this is a statement which might mean one thing to us today in western Europe and something quite different in the six., teenth century, or even in other areas of the world today. The theory of excommunication, with its political consequences, remained intact for a considerable time, and its effects were even more lasting: seventeenth.,.century England quaked for fear of popish plots; even Locke thought of Roman Catholics mainly as subjects of a foreign prince. This was the theory; yet in practical matters these four Spanish writers were often less governed by theory than by 1

My italics, to indicate the vagueness of the phrase.

CONCLUSION

165

common sense and experience. Molina, discussing the authority which the papacy had to mediate between warring Christian princes, hastened to list all the troubles which were likely to arise if this power were actually used, and to conclude that it was nearly always undesirable; Vitoria, while conceding papal right of direct intervention in civil matters, limited that right to occasions when the civil power had completely broken down, for neither kings nor peoples could be expected to keep up a high standard of Christianity in their lives and the pope ought to be reasonable about it, 'remembering the needs of the civil administration'. In an acid comment on those who believed that Christ had left some temporal power to the papacy he added that even if He had had such temporal power it would have been most unwise to pass it on to an institution 'whose officers might use it badly, to the detriment of the Church'. Apart from the natural failure to realize the irreversibility of the Reformation, there is little that is unrealistic in their approach to this subject. Although they believed that the papal office, unlike the royal, was of divine and not popular institution, and although they treated it with the greatest reverence, the first thing that must strike us is how the same cautiously con,, stitutional attitude is used about both king and pope. Popes ought not to use their dispensing powers rashly; their unjust laws need not be obeyed; a pope who intervened in the country of an apostate or tyrannical ruler could not (except in the most unlikely circumstances) usurp the popular right to choose an,, other king; monarchs who suffered unjust excommunication, &c., might withdraw their obedience and even take up arms against the papacy. It is true that precautions are urged, but not in very different terms from those suggested in the case of rebellion against secular rulers: before acting one should reflect whether worse evils might not follow; everything should be done with the greatest care and discretion, so that respect for the office itself should not be shaken. Since appeals from the pope to the council were condemned because this would give the pope less power in the spiritual sphere than the king had

166

CON C LUSION

in temporal, the analogy seems to have been clearly in the minds of the writers. The second thing which must strike us, here, as in other fields, is the way in which the whole fabric of thought hangs together, given certain basic principles. The right of the pope not only to excommunica�e an apostate ruler but even some,. times to release subjects from their obedience was based on the recurrent theme of defence of the innocent: such a ruler was regarded as dangerous to his subjects' interests. Similarly with the right of the spiritual realm (a societas perfecta) to intervene in the temporal: for if Spain could intervene in France (as they believed she could) when the latter's ruler could not control his subjects' border,..raids, then so could the spiritual in the temporal realm. This again linked up with the strong belief in the responsibility of all mankind for one another-a theme to which Vitoria, in particular, returns again and again. In one curiously forward....looking passage he even says that if something done by the secular government of Spain should cause grave spiritual harm in Africa, the Spanish king would be under an obligation to amend his method of government. But in this instance it is probably at the same time a statement of universal solidarity and a back....handed plea for state support of his order's plans in the New World. The 'jus gentium'

The law of nations was in a state of transition at this time, and there was considerable discussion about its nature. Cer,.. tainly it had nothing to do with modern international law, which consists of the gradual accretion of recognized points of agreement or organs of collaboration-sometimes in themselves of little importance. For the sixteenth,..century Spaniard the jus gentium was in one sense normative, a reflection of the natural law, in another sense customary and improving slowly with advancing civilization. In no case was it actually written down,

C ONCLUSION

167

though there was no reason why it should not be. For Suarez it was simply universal custom; Vitoria seems to think that (if it were practical) the majority of world opinion might be used to compel the minority. Certainly it contained a good deal more of what we should call intervention in the internal affairs of other nations than we should tolerate in present,,day inter,, national law or institutions, where such affairs are largely reserved. Up to the present it has been observed that inter,, national political institutions will only find adherents if these are allowed to consider many topics as purely internal affairs. Yet this is proving in practice increasingly difficult to imple,, ment, so that while it is true that the rights of intervention, free settlement, trade, and migration advocated by Suarez and Vitoria would probably create chaos, non,,intervention in 'purely internal affairs' is also proving dangerous or impossible. In politics no activities can be purely self,,regarding, and the domestic affairs of one nation may have disastrous repercussions on another. We are forced back again on the hypothesis that morality, and not our selfish interests or those of our state, may prove the best policy in our relations with all mankind.

The New World It is in the theory of empire that one is most conscious of these writers as theologians, for the atmosphere is sometimes legalistic: one may force one's subjects to listen to Christian preaching but not to be converted-and sometimes politically na1ve, as when Vitoria says that a ruler may not compel his subjects to accept Christianity, though he may ask them to do so. Or, again, we are brought up short by the austerity with which Vitoria says it is not permissible to lie even to save a whole city. Yet this is a genuinely missionary atmosphere: our writers see the new world, if properly handled, as a great opportunity for Christianity; they do not want to see it spoiled by brutal soldiers or crooked politicians. Thus, despite the pro,, found and unanimous belief that faith must be unforced, the

I68

CONCLUSION

benefits of being a Christian are felt to be so overwhelming that they cannot really believe it would not be accepted if properly preached. They are, of course, perfectly aware that preaching without example is useless. As always, their argument is a seamless web: the 'free export' of the Christian faith is mixed up with the freedoms of the jus gentium-the right to t�avel, to trade, and to settle freely; while the right to prevent human sacrifice and cannibalism is part of the protection and defence of the innocent as neighbours, which is an important feature of the law of war, as well as of the general rights of intervention which we have noted among Christian peoples and states. The dependence upon govern,.. ment action may be due in some degree to the fact that the home government was the protector of the Indians and the patron of Dominicans and Jesuits in their work among the natives: the enemy was the settler or conquistador. Political naivete-plus a reluctance to see their men slaughtered-governs the (to us) astonishing discussion about the right to send soldiers to protect missionaries. Yet all are conscious that they are on a slippery slope which might lead to war, and set their faces, with differing degrees of firmness, against it. Molina, more theologically and less politically minded than (say) Vitoria, supposes that he can distinguish between making people listen and making them agree, or between occupying their lands with a strong force and levying war on them-since he will certainly not admit that a refusal to accept the faith is a just cause for war. Yet one must remember how liberal all this was for the time: to declare, for instance, as Vitoria does, that the forced conversion of the Moors and Jews had been a mistake. Who can be surprised, in the period of cujus regio, that when he contemplates a city with only thirty or forty 'in,.. fidels', he succumbs to the idea that they might be coerced, for they are obliged to follow the majority of the community ? It is the strong sense of community which triumphs here, for we are not yet in the individualistic age when, so long as men obey external laws for their protection, their central beliefs do not

CONCLUSION

1 69

matter. The 'thirty or forty' would be strangers in a close,.knit society. Even in the late seventeenth century Locke's wish to exclude atheists as people whose word was of no value shows that formal religion was still considered the foundation of civic virtue. Then, too, it was sincerely believed that without 'true religion' no one could be either really virtuous or really happy: how intolerable to see someone like that and not do anything for them! The analogy of bodily sickness or danger with spiritual sickness or danger constantly recurs. Salvation is a very real thing. The inflexibility towards apostates, as opposed to pagans, shows that the abandonment of a faith assumed once to have been understood was regarded somehow as an act of ill will: it could not be bona fide. Or possibly they had to be 'saved from themselves'. Yet the nai've passages are rare, and on the whole the impres,. sion which is left is one of idealism combined with shrewd common sense-as when Christian rulers are exposed as hypo,. crites, for using the 'unnatural vices' of pagans as an excuse for war, and when war itself is seen to be no argument for Chris,. tianity. Vitoria's treatises on the Indians are, of course, a classical statement of the rights of backward peoples to be treated as men. His final summary of the duties of an imperial power is both so cogent and so far,.seeing that in this century we have seen colony after colony achieving independence be,. fore it could be put into practice.

War and the law of war To any historian, or to anyone who has lived through one or more of the complex twentieth,.century wars, the theological view of a just war must seem over,.simplified. We think today of economic interests, of large coalitions, of ideological war,. fare. . . . Yet there is little doubt that the average person in Britain did regard the invasion of Belgium in the one war and of Poland in the other, not to speak of genocide, as just causes for war. The public horror at German bombing of civilian refugees developed into serious doubts about Allied bombing

1 70

CONCLUSIO N

policy, the whole culminating in the moral crisis of Hiroshima. Modern protests, significantly, take the form that they do in these writers: how far can the slaughter of the innocent be justified � Perhaps we are not so far apart as we seem at first sight. Vitoria, like Erasmus, was well aware of the tendency of Christian princes, each believing in the justice ofhis own cause, to fight one another, and 'since he does not class such wars as genuine misapprehensions, they were presumably unjust on both sides. What strikes us as most over;simplified is, in fact, not the idea that one side must be in the right, but the belief that the right would win, and most of all that the 'just' prince could take the place of a judge. Brierly, in the article already quoted, speaks of the superiority ofcollective security; but this is simply to face the same problems on a larger scale: there is no reason to suppose that one bloc will have a monopoly of justice, still less that the more just bloc will necessarily win. The discussion of when war becomes totally unjust, and therefore totally unjustifiable, because its methods involve wholesale slaughter of the innocent, is particularly alive today. It was to such topical issues-what places ought to remain unscathed (open cities), what methods were lawful (total war), and how the victor should behave (unconditional surrenden) that the Spanish writers mainly devoted themselves. The prob; lems are all with us today, on a more horrific scale; our sole contribution to the discussion might be a reassessment of the . , category 'mnocent .

S HORT B IOGRA P HI ES r. F R A N C I S C O D E V I T O RIA

VI T O RI A was a Basque, taking his name from the town of Vitoria in Alava where he was born, although by the turn of the century the family seems to have been living in Burgos. According to Beltran 1 they were a respectable and prosperous family, since Francisco's brother Diego, who also became a Dominican, was able to rebuild part of the priory of San Pablo in Burgos at his own expense. Francisco entered the order in 1504 at Burgos, and then proceeded to the University of Paris, where he was attached to the Dominican College of S. Jacques, famous for its associations with Albert the Great and St. Thomas Aquinas. 2 Here he finished his arts course and began his theology. In both of these courses he came under the in..­ fluence of nominalist teachers, pupils of the Scot John Mair (Major). These were mainly responsible for the revived study of the Summa Theologica of St. Thomas, which Crockaert was expounding from 1507, instead of, or in addition to, the Sen..­ tences of Peter Lombard, previously the standard Dominican textbook. Between 1514 and 1519 numerous editions of Aquinas with commentaries (including that of Cajetan) began to appear, and in this work Vitoria became involved. In his theology, again influenced by the nominalists, he specialized in particular moral questions. He was also deeply influenced Vicente Beltran de Heredia, O.P., whose work on Vitoria contains much recent material. (Cf. especially his Francisco de Vitoria. Editorial Labor, 1 9 3 9.) 2 This College, which had declined afier the Black Death, was reformed under the influence of the Brethren of the Common Life of Windesheim, the Carthusians, and the general urge to reform. The reformed Dutch congregation absorbed the French Dominican houses (S. Jacques in 1 502). Clareo, then head of S. Jacques, became confessor to Louis XII and later General of the Dominicans. Thus Vitoria found in Paris the same enthusiasm for reform as he had lefi behind at Burgos. 1

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SHORT BIO GRAPHIES

by Renaissance humanism, and plunged into a study of the classics and of languages, paying great attention to literary form and to accuracy of sources. It is therefore a great pity that none of his existing work is certainly in its original form, 1 though what survives is lucid, unadorned, and often very moving. In Paris he was at the heart of all the latest currents of opinion, and found himself in great sympathy with Erasmus, though he later came to think that he expressed himself with a dangerous lack of caution. By 1523 Vitoria had been in Paris as student and lecturer for nearly sixteen years, and he returned to Spain-visiting friends in Flanders en route. From the autumn of 152 3 to the summer of 1526 he lectured in theology in Valladolid at the College of San Gregorio, where men destined for university chairs used to display their talents. His many students from Castile and Andalusia, who were both lay and religious, were selected by competitive examinations. Valladolid was at that time the favourite residence of the court and the seat of the Council for the Indies. Vitoria had already begun to discuss in his lectures the colonization of the New World, and vested interests were becoming restless when he was elected (in 1526) to the Prime Chair of Theology at Salamanca, by an enthusias,. tic majority of students, over the heads of two rival candidates from Alcala. 2 He took up residence in the reformed priory of Vitoria himself published nothing. He introduced into the University of Salamanca the Paris custom of speaking slowly so that the students could take notes; later he even dictated. This system, at first used enthusiastically to spread the ideas of a popular teacher, became stultifying; students insisted on it, and it soon became the general rule. Yet it is to a student, Francisco Triger, whose notes have survived, that we owe most of our knowledge of Vitoria's work. In addition to lectures, professors gave relectiones (recapitulations) of courses given during the year. These were compulsory; heavy fines were imposed for omission, and dispensations were rarely given even for illness. That thirteen of Vitoria's relectiones survive is most unusual, and the fact that all manuscripts are identical suggests that the originals were once available, perhaps in Vitoria's hand. 2 The University of Alcala had been founded by Cisneros (Cardinal 1

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San Esteban, which was regarded as a model both of piety and learning ; his lectures were, however, held in the university itself. University statutes compelled him to lecture on the Sentences of Peter Lombard, but fresh from Paris, he was un,, willing to do this. He first rearranged the material in Aquinas's order, so that he could comment at the same time on St. Thomas; when the new statutes of 15 3 8 reaffirmed the Sentences he tried to comment on both and broke down from overwork. The university then allowed him to comment on the Summa Theologica alone, but this unofficial permission was not re,, gularized until 1550, and even after that there was some trouble with a Visitor. Finally, the new laws of 1561 made his practice the rule, enjoining a commentary on St. Thomas with reference to the relevant passages in Peter Lombard. In November of 153 2 Vitoria became the representative of his college in the university. In the same year Domingo de Soto became Vespers Professor. 1 Vitoria's lectures seem to have been very lively: they were said to be jucunditatis plena. He criticized the nominalists for giving out undigested source...material, and made a practice of still rewriting his lectures after twenty,,six years, telling the students that last year's notes would be of no use. Professors were bound to answer questions after lectures; Vitoria often did so in the course of his lectures as well. Students' notes passed into monastery libraries, where many were destroyed during the Napoleonic wars or in 1835. Today it is only thanks to the manuscript of Francisco Triger that three courses of his lectures survive. 2 Ximenes) particularly for the study of theology; nominalism flourished there long after it had died down in Paris. Its policy was to attract young professors. After Cisneros's death it became a humanist centre and a strong supporter of Erasmus. It was always on the fringes of religious orthodoxy, and its reputation gradually declined. Salamanca, on the other hand, was liberal but orthodox. 1 Prime lectures were held at the hour of prime (about 6 a.m.) and vespers lectures between 4 and 5 p.m. 2 A complete list of these lectures, chronologically arranged, can be found in Beltran, op. cit., eh. v.

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The tendency of the Salmantine school of theology was to try and incorporate Renaissance scholarship into a scholastic framework, unlike the followers of Erasmus, who wished to abolish the scholastic method altogether. Vitoria's personal tendency, already mentioned, was to turn all speculative moral matters to a practical everyday use, and this led to his being frequently consulted on topics of the day. On 7 September 1530 we already find the empress writing for his opinion on Henry VIII's matrimonial difficulties, 1 although the emperor­ possibly because of a preference for Alcala and for Erasmus­ does not appear to have been in touch with him until nine years later. When discussing Franco,-Spanish problems Vitoria did not adopt the common Spanish view that the King of France must be the guilty party because he refused to take seriously the questions of heresy and the Turkish menace. Although he may have believed that the emperor was less to blame, he declared there to be faults on both sides, and said that the feud would be the ruin of Christendom. 2 His writings on warfare, though couched in traditional terms, were a genuine discussion of the possibility of limiting the horrors of contem,. porary warfare. He often strongly condemned the behaviour of councillors, governors, and courtiers, as well as the lack of residence, pluralism, and neglect of the poor which existed among the clergy. He is, of course, best known for his attacks on the atrocities committed in the New World. In a letter of 8 November 1534 to Fr. Miguel de Arcos3 he writes that the war in Peru is 'not The outcome was the relectio De Matrimonio, of 25 Jan. 1 5 3 1 , following on the lecture course of 1 529-30. 2 Cf. his letter, late in 1 5 36, to the Constable of Castile: 'War was devised, not for the benefit of princes, but for the welfare of whole peoples. If this be true, as indeed it is, let honest men say whether our wars promote the well-,being of France, Italy or Germany, or whether such wars tend to destroy all these nations, and to swell the numbers of Moors and heretics.' (A similar passage, but based on the thesis that Christians should never fight, occurs in Erasmus's Institutes of a Christian Prince, eh. xi.) 3 Printed in Beltran, op. cit. The Dominicans 'specialized' in America, and 1

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against foreigners, but against true vassals of the Emperor, as if they had been born in Seville'. When Juan de Zumarraga, Bishop of Mexico, wrote to the Council at Mantua to ask for twelve learned and pious religious, and for a university to be founded in Mexico (as being much more necessary than in newly converted Granada) the matter was referred to Vitoria by the emperor, in a letter of 3 1 January 153 9. Another letter to the prior of San Esteban asked for Vitoria to be released from his monastic duties while he worked on the questions. (His replies have unfortunately been lost.) On 18 April of the same year, again at Zumarraga's instance, Charles wrote urging Vitoria to choose some of his pupils to go out to the New World. In May 1540 he wrote to Soto, the Vespers Professor, suggesting that he might himself go, but younger men were in fact chosen. In November 153 9 Charles wrote to Soto, then prior of San Esteban, complaining of some incautious lecturing on his (the emperor's) rights over the Indies, asking for full information, and prohibiting the printing of any lectures. This well.,known letter is not now thought to have referred to Vitoria. Certainly it did not affect Charles's friendly attitude towards him, for again in 1541 he wrote to inform Vitoria about the case pre,. sented to the Council by Las Casas, and on 3 1 March of the same year requested an opinion from the university about methods to be used in converting the Indians. The reply of 1 July is signed by Vitoria, Soto, and six others. Finally, on 15 February 1545 Prince Philip on behalf of his father invited Vitoria to attend the Council of Trent. Vitoria's influence was widespread; it swept the universities and even affected the councils. It has been estimated that 5,000 students passed through his lecture,.rooms; twenty,.four of his pupils held chairs of arts or theology at Salamanca; in 1548 two also held the chairs of St. Thomas at Alcala, which may help to explain the condemnation of Sepulveda's book on the Indians. Finally, the New Laws of the Indies (1542) received full reports about the situation. Both the laws of Burgos of 1 5 12 and the New Laws of the Indies of 1542 were largely their doing.

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follow closely on his courses of lectures De Indiis I (153 7/8) and De Indiis II or De Jure Belli (153 8/9). His health gradually broke down, until he had to be carried into his lecture,-room in a chair. He was allowed to exchange with another professor and lecture at a later hour. When he was invited to Trent, he replied that he was more likely to go to the other world, and did so on 12 August 1546 at the age of 60. He was buried in the chapel of San Esteban. No portrait exists, but his face is said to have reflected his tranquil personality. Vir erat ille natura ipsa moderatus, said Mdchor Cano, and the Bishop of Cuenca wrote of him that he never allowed wits to be sharpened unless on true doctrine. 1 In recent years there has been a great revival of interest in his ideas, both in Spain and in the English,-speaking countries. D OMING O DE S O T O S O T O was born in 1495 of respectable but not wealthy parents in Segovia. He was baptized Francisco, and only took the name Domingo in 1525, on entering religion. He learned his Latin in Segovia, and followed one of his teachers (Juan de Oteo) to Alcala, when the latter was appointed to a post in that newly founded university. Though he probably arrived in 1510, his name does not appear until the B.A. list of 1516. In 1512/13 he began his three,-year Arts course. His fourth year, studying metaphysics, he spent in Paris, at the College of S. Barbare, where he later lectured in Arts before returning to teach at Alcala. In the autumn of 1517 he began his theolo,­ gical studies under nominalist masters, but was gradually 'con,, verted' to Thomism; he was in fact reckoned as one of the first converts of Vitoria, who had begun lecturing on the Summa Theologica in the College of S. Jacques the previous year. Both Vitoria and Soto, however, learned from the nominalists fully to appreciate books like Aristotle's Ethics. After two years' study of theology Soto returned to Alcala, 2.

Don Juan Fernandez Cadillo to the Inquisitor�Ceneral, 1 5 84. (Arch. Hist. Nat. Madrid. Inquisicion, i. 280. E. 12.) 1

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either because he saw no opening in Paris, or possibly because his friend Saavedra had gone there in June of the same year. On 7 January 1520 he was admitted to the College of San Ildefonso, and in the following September he passed his first examination for Master of Theology. A year later he held a chair in Arts, as the best students often did while finishing their course in theology. But in February 1524 he became dis,­ gusted by the quarrels and riots which had been going on in the college during the past four years, and left Alcala, taking refuge in the (Benedictine) monastery of Monserrat. He thought of leading a purely religious life, but an old monk advised him to enter the Dominican order, and in July Soto applied for admission to San Pablo in Burgos, where he was professed on 23 July of the following year. From Burgos he was sent to Salamanca, then the centre ofstudies for the province of Castile, where he arrived in the autumn of 1525. Until 1532 he taught in his college (San Esteban), wrote his first book, and in the course of the academic year 1531 /2 substituted for Vitoria in the university when he was ill. On 22 November 1532 he was elected to the Vespers Chair in Theology. Although he seems to have been a retiring per,­ sonality and reluctant to hold offices, he was repeatedly involved in university business-including dealing with a famine in 1540 and with a disease which killed off all the local crayfish! He was several times prior of San Esteban. In 1545 he wrote a treatise on poor relief (Deliberacion de la Causa de los Pobres) which appeared in Latin and in Castilian. At the request of the faculty he undertook the arduous task of revising all the Arts textbooks, which had become clogged with nominalist terminology and scholastic verbiage. His work on physics has been thought by some to place him among the forerunners of Galileo. While in the middle of his work on Aristotle, he was summoned to the Council of Trent, and in his absence his book was brought out in an unfinished condition. He rectified this on his return in 1551 and the new edition was often re,, printed and used by several universities. 827145

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On 6 June 1 545 he arrived in Trent-again replacing Vitoria, who had originally been invited but proved too ill to go. From letters written in his first few days, including one of 8 June to the empero�, it is evident that he at once realized most of the difficulties ahead-the national interests, the pro,. Lutheran party, the desire of some Roman elements to soft,. pedal reform. He was given the task of censoring books for heresy and of preparing the conciliar Index. That he was un,. popular with the Italian representatives both as a subject of the emperor and as a Thomist can be seen from the Acts and Diaries of the Council. He took part in Session IV, opposing the total suppression of scholastic theology in favour of scrip,. tural study alone. On his return from a short visit to Rome he was in time to help formulate the decree that reform and dogma should be dealt with simultaneously-as opposed to the Roman desire to postpone the former, and the emperor's desire to promote it as an answer to the Lutherans. In March 1 548 he was invited to Augsburg to help with the Interim, a compromise document drawn up by a follower of Erasmus, which Charles had recourse to when he saw that the Council would be of no help in German problems. The publication of the Interim on 1 6 May 1 548 before the arrival of the papal legate, Bertano, accentuated the already strained relations between empire and papacy. On 1 5 August Soto became confessor to the emperor, confusingly succeeding another man of the same name. Very little is known of their relationship, although Soto seems to have thought highly of Charles as a Christian, a person, and a ruler; in any case he resigned the office after eighteen months, finding himself a fish out of water in political life. His resignation caused much talk, although he remained on very good terms with Charles. Soon after his return to Salamanca, in September 1 5 52, he was elected to the Prime Chair in Theology in succession to Melchor Cano. Like Vitoria, Soto had always been preoccupied with the problem of the New World. During his first period as prior of San Esteban (on 3 I May 1 540) he had suggested to Charles V

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that he might himself go out to America to clear up certain matters; when he was unable to go he made sure that good missionaries were sent. As early as 1534 he set out his ideas in a still unpublished relectio called De Dominio, which concluded that the conquest was difficult to justify. 1 Since, because of his absence in Germany, he had taken no part in the discussions about suppressing Sepulveda's book, he was thought un,. prejudiced enough to act as rapporteur at the Juntas of Valla,­ dolid (August/September 15 50 and April/May 15 5 1), being required to sum up the opposing arguments of Sepulveda and Las Casas about the Indians, without adding any of his own opinions. At the second Junta, from which Soto tried to escape because of his involvement in the defence of Dr. Egidio, he was practically the only Thomist present. Despite some Franciscan (Scotist) support for direct conquest, and the fact that the lawyers, who were in a majority, also supported it, the Junta declared all further conquest by arms unjust. They came to no definite conclusions about repartimientos2 because many Peruvian and other chiefs were in revolt at that time. The decision of the Junta may have had some influence on Philip II's attitude towards the Philippines. During the Vlth session of the Council of Trent a decree had been issued concerning the reform of cathedral chapters. The Spanish episcopacy, by now itself in good order, was He wrote a good deal on the Indies, including a treatise De Rati'one Promulgandi Evangelium which seems to have been lost-unless a fragment which remains (An lieeat civicates iefidelium seu gentium expugnare oh idolatriam) is part ofit; bk. iv of De ]ustitia et Jure; the Commentario al Cuarto de !as Sentencias (dist. 5, qu. i, art. 10) which attacks both Scotus and Sepulveda on the point of forced conversion, and says of the notorious bull of Alexander VI: 'I say, firstly, that the Pope did not grant, nor could he grant, our kings dominion over these peoples and their affairs, because he had no right to it (himself). ' This view seems to have been common among theologians, but not among lawyers. 2 In villages not 'commended ' to a local magnate, and paying direct tribute to the Spanish crown, a definite number of labourers had to be supplied every week, at a fixed wage, to work under the supervision of a magistrate. This labour assessment was called the repartimiento. 1

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asked to visit and regulate the chapters, but this led to consider,, able ill feeling, especially since the chapters had been accus,, tomed to appeal to Rome. In this, as in many other matters, Soto attempted to act as a mediator. Charles consulted him as to whether the decree came into force automatically or needed the consent of the pope-but Soto replied that it was impossible to be sure. Among his other tasks Soto (together with a Franciscan) was set to check the library at Salamanca for heretical books. It is interesting that he found most of the Bibles printed during the past twenty,,five years and in use in Spain were Protestant versions, and that after looking through thirty,-three editions he came to the conclusion that only marginal glosses and chapter headings were 'suspect'. In his last years he took up arms on the side ofjustice and liberality in various famous cases, for instance those of Dr. Egidio and of Carranza, the Archbishop of Toledo. The latter, a friend of his, was condemned despite all Soto's efforts, and this may have hastened his death, which took place in Salamanca on 15 November 1560. The entire univer,, sity attended his funeral, and the oration was preached by Luis de Leon. 3. LUIS DE MO LINA

M O L I N A was born in Cuenca, probably of a noble family, in September 1535. At the age of 12 he went to the University of Salamanca, which he left-for some unknown reason-a year later for the Renaissance University of Alcala. Here a Jesuit college had recently been founded which was acquiring a great reputation for sanctity and learning. On 10 August l 553 Molina entered the Society; but as its organization in Castile was not yet fully developed he was sent to Coimbra in Portugal, where the Colegio Real was in its infancy. Molina was to spend twenty,-nine years of his life in Portugal as student and teacher. During his theology course, as was common use, he sometimes acted as substitute for an Arts professor. In 1561/2 he was ordained. On l September 1563 he became an Arts

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professor at Evora; between that year and 1567 he composed an Arts course which he offered to the University of Coimbra when they planned to publish an official textbook. However, another was chosen, and the course still rewains unpublished. He may have been disliked as a Spaniard, and he also made an enemy of Fonseca, 'the Portuguese Aristotle', although Molina was never one of his pupils. In 1568 he became Vespers Professor of Theology at Evora, holding the chair as a bachelor until April 1571 when he took his doctorate in theology. In September 1570 he made his solemn profession as a Jesuit. From 1571 to 1574 he held the Prime Chair, and lectured on the Summa Theologica, explaining it Id tamen quod solet Societas modo, nullius in verba magistri jurans, sed libere philosophandi . . . . (Nicholas Antonio : Biblioteca Hispana Nova, vol. ii, p. 53 .)

His Six Books ofJustice and Law are the outcome of the courses of 1577/8 and 1581/2. Recently two of his relectiones-De Spe and De Bello-have been published, and there are many more manuscripts in Portuguese archives. In Evora Molina taught for fifteen years. After 1584 he devoted himself to writing. In January 1591 he returned to Spain, and in 1594 was officially released from the Portuguese province of the Society. His return was almost certainly due to the trouble over the theological ideas in his Concordia. When the Prime Chair in Coimbra, which had been held by the Dominicans for thirty,,five years, fell vacant, the university wanted a Jesuit. Philip II was con,, sulted, and chose Suarez, though apparently the university, the Council of Portugal, and even Suarez himself would have preferred Molina. Back in Spain Molina lived in Cuenca, where he defended an unknown Jesuit condemned to death by the Supreme Council-and secured his acquittal, despite his (Molina's) shabby and unimpressive appearance. In April 1600 he was summoned to Madrid to teach theology at the Imperial College. But life in what was by now the capital was beset with

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controversies and quarrels, and he died on 12 October, after only six months' sojourn there. In many ways Molina seems to have been the typical scholar. He used to write on old pieces of paper and dress poorly; when he left Cuenca for Madrid he took his papers in an old sack. He seems to have been a curious mixture of pride and humility. One of his most humane features was his attitude to slavery, about which he was extremely well informed. Although he believed in the legality of slavery based on capture in war, selling oneself, the purchase of condemned criminals to save them from death, and birth to a slave mother, he thought that the slave trade was completely unjust, and that all who took part in it sinned mortally and were eternally damned. Thus he also believed, and urged, that the ruler of Portugal was bound in conscience to stop it. He was famous both as a theologian and as a lawyer, and many who disliked his theology greatly admired his Six Books. He had great plans for a new Summa Theologica with a completely different arrange..­ ment from that of St. Thomas, also a Summa of cases of con..­ science, for the use of moralists and confessors. None of these was ever written, partly because he was so diffuse, 1 partly be..­ cause the furore over his earlier works gave him no time to complete them. Controversy followed him everywhere. His first work-a commentary on the la Ilae of St. Thomas (courses r 570 /3 at Evora) was subject to some corrections by the censors; Molina sent it to Rome, where some parts were again condemned, but on his insistence they finally passed the book, which then barely scraped through the Portuguese Inquisition. His famous Concordantia (on grace and free will), which was his next work, created the greatest stir. In this he argued that God gives man sufficient grace to act; if he does act the grace will become This was due to his scholastic thoroughness, and also to his desire to cover the very varied sources of law in Spain. 1

183 L U I S DE M O L INA effective-and God knows, through His 'middle' or mediate knowledge of the possibilities, which course man will take. The trouble started in January 1582, when a Jesuit called Montemayor sustained this thesis against the orthodox Domini,, can theory at Salamanca, and was denounced to the Inquisition. Luis de Leon defended the Jesuit, some of whose propositions were condemned. In 1584 the publication of Banez's 1 Com-­ mentaries on St. Thomas made the Thomist theory more definite, and it was this which inspired Molina to write his work on grace, disliking what he thought was determinism in any form, whether Lutheran, Calvinist, or Dominican. His book was licensed on 23 December 1588. The Governor of Portugal gave it a chilly reception, but a committee of theologians found in its favour, and it was on sale in July of the following year. By now it had gone through five censorships-that of his order, the Portuguese Inquisition, the Councils of Aragon and Castile, and the theological commission. Eight years after its publication, Pedro de Fonseca claimed that he had taught Molina's doctine thirty years previously. Banez, and with him Salamanca, remained hostile to Molina and to the new Society in general. This is not surprising, as the Dominicans had been for a long time the most brilliant theologians, preachers, and confessors of kings and bishops, and had held nearly all the university chairs, as well as key positions in the Inquisition. As in Byzantium at the time of the early councils, theolo,, gical discussions became common in the streets of Valladolid, so impassioned did people grow on the subject of grace and free will.2 On 28 June 1594 a law of silence forbade further writing or debate while the papacy considered the question. All parties obeyed, and became civil to one another: in 1595 a Jesuit, Fr. Jose de Acosta, was invited to preach in San Pedro in Valladolid on St. Thomas Aquinas' day! In Rome there was chaos: such quantities of evidence had been sent by both sides. Various commissions sat, and condemned some of 1

2

Domingo Banez de Mondragon, O.P., of Salamanca. V. Astrafn, Historia de la Compafiia de Jesus, vol. iv, p. 1 85.

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Molina's propositions; long after his death the debate was still continuing. Paul V held ten congregations about it, and con,. sulted universities and scholars, including St. Francis de Sales. In 16r r the pope finally· prohibited the publication of any works on efficient (effective) grace, and it was not until the end of the seventeenth century that the ban was removed. It was then regarded by the Jesuits as a triumph for them and for Molina, and various festivities (including a novillada­ novices' bull,.fight-at Villa Garcia) marked the occasion. 4. FRA N C I S C O S UAREZ

S U A R E Z was born in Granada on 5 January 1548. He be,. longed to an ancient family which had played a distinguished part in the Reconquest. One of his ancestors fought in the campaigns of Ferdinand I and his son at the conquest of Toledo, receiving as a reward a property in Toledo called Ajofrin. He died fighting against the Moors. The sixth owner of the property fought at Las Navas de Tolosa, and in con,. sequence was able to add a silver cross on a blue ground to the arms of his house. The family took the name of Suarez de Toledo and fought in the final wars of the Reconquest. They were throughout closely associated with the crown, and Suarez's immediate ancestors occupied positions at court. His grand,. father, Alfonso de Toledo, was Mayordomo to the Catholic Kings, and after the conquest of Granada received from them the lands of Mohammed Abenandid in La Zubia; the family thereupon sold their Toledan lands and moved to Granada, where Alfonso became treasurer,.general of the army and general superintendent of the emperor's palace in the Alham,. bra. He founded and endowed a chapel in the Franciscan church. Francisco's father, Gaspar Suarez de Toledo, married Dona Antonia Vasquez de Utiel, daughter of one of the best families in Granada. Francisco was the second of eight sons, of whom six entered religion. Francisco grew up in a peaceful, pious atmosphere, studying

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Latin at home with a tutor. In 1 56 1 he and his brother Juan went to Salamanca. While they were there, in the Lent of l 5 64, the university went through a great religious revival, partly owing to the successful conclusion of the Council of Trent, but mainly to the fervent preaching of Fr. Juan Ramirez. The Rector of the University was struck with the great im,, provement in student behaviour, their diligence in secular and religious duties, the numerous confessions and vocations. Among the fifty candidates presenting themselves to the Society of Jesus that year was Francisco Suarez, and he was the only one rejected. The Rector of the College at Salamanca was in,, formed by the examiners that, despite his excellent character, he was mentally and physically below standard. Suarez went to Valladolid to consult the Castilian Provincial, Fr. Juan Suarez,1 a man with a great reputation for sanctity. The Pro,, vincial had him re,,examined, with the same unfavourable re,, sult; nevertheless he decided to set aside the decision and admit Francisco to the Society with an inferior rank-in which he was to remain if he did not reveal more promise later. He was admitted on 1 6 June 1 5 64, spent three months in the noviciate at Medina del Campo, and in the autumn returned to Sala,, manca to attend Fr. Andres Martinez's course in philosophy. Here he was hardly able to keep up with the class and was compelled to have private coaching; he took no part in dis,, cussions and, like St. Thomas, was called the 'dumb ox'. At this point Suarez humbly told his Superior that he had no wish to serve the Society in anything but the lowest capacity, as God had clearly not called him to anything higher. This modest attitude he in fact preserved throughout his life. His Superior, Gutierrez, told him to pray for guidance and go on trying; Suarez did so, and eventually became the star pupil. After considerable success in his philosophy course, he proceeded to theology, this time not in the Jesuit College but in the university. In this subject he felt himself at once at home. He used to read all the sources before listening to the professors, and 1

Not, apparently, a relation.

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would not adopt any opinion which he had not himself thoroughly tested. The teachers themselves used to ask him for help, and acknowledged t�at they could learn a lot from him. In 157 1 (the year of Lepanto) he became professor of philosophy in the (Jesuit) College at Segovia, although it was unusual to appoint anyone who had not passed through gram,. mar and humanity. In Segovia he was ordained. In addition to lecturing he acted as a spiritual director to his students, preached and helped the poor. An illness forced him to curtail his activities-particularly preaching-and it soon became clear that his vocation lay in writing. He moved to Valladolid to teach theology, but apparently did not do so; from there he returned to Segovia, then went to Avila, and in 1576 was back in Valladolid where he stayed for four years. At that time theology was in a state of decline, with the professors not liking to commit themselves but preferring to reproduce material without much comment. Suarez, on the other hand, always spoke his mind, and had already been in trouble with the Provincial in Segovia and with the Visitor in Valladolid; that he emerged unscathed was due to the imagination shown by the Provincial, and to his own personal sanctity. As his reputation grew, he was appointed to one of the highest posts in the Society-the Chair of Theology in the Jesuit College in Rome, which was then at the height of its fame under Gregory XIII. Here he had Bellarmine as a col,. league. Suarez remained for five years, and then, apparently for reasons ofhealth, returned to Spain, exchanging chairs with Gabriel Vasquez of Alcala. This was a disastrous mistake, since Vasquez was a good mixer and a brilliant polemist, who attracted a large following, while Suarez was quiet and methodical, making a deep impression on a few people only. Also there is no doubt that he was essentially a Salmantine, and he made no mark at Alcala, where he was always re,. garded as a substitute. When Vasquez came back, Suarez was shown this clearly, and he returned to Salamanca, where he sought peace to write, but encountered further disputes. His

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rival, Fr. Miguel Marcos, was the victor, and two of Suarez's pupils had to resign their chairs, but he was supported by his superiors throughout. In Alcala he had also begun to be famous as a writer, and in this again, in the face of his own doubts, he was encouraged by the Society. In May 1 5 9 3 Philip II nominated him to the Prime Chair of Theology in Coimbra. Suarez went to see him in Toledo to try and excuse himself on grounds of ill health and pressure of work, but Philip would not take no for an answer. On 1 0 February 1 5 97 he wrote to the Visitor suggesting that if Suarez found the hour of Prime too early, he should change with another professor, and of course if his health failed he might resign the chair. Suarez's first course was interrupted by complaints that he had not yet taken his doctorate in theology, so he was obliged to go to Evora and take it. By the time he returned to Coimbra the session was over, so he retired to Salamanca, where he seems to have spent all his vacations. In his third session, at the request of the Rector of the University, he took Law as his subject; in 1 6 1 2 this course was printed as De Legibus ac de Deo Legislatore-a work more rigidly organized than the similar courses of Soto and Molina. His other main work of political interest was the Defensor Fidei, attacking James I of England for his 'oath to be admini,­ stered to recusants'. Paul V, in two briefs, and Cardinal Bel,­ larmine had already denounced the oath, and James had replied with an anonymous work called Triplici nodo, triplex cuneus, sive Apologia pro juramento fidelitatis adversus duo Brevia Pauli Papae V et Epistolam Cardinalis Bellarmini . . . . To this Bellarmine replied further, using the pseudonym Mateo Torti, which was soon unmasked. The Responsio Matthaei Torti . . .

appeared in 1 608, whereupon James abandoned his anony" mity and republished his Apologia ( 1 609), dedicated, in his capacity of Defender of the Faith, to the Holy Roman Emperor and to all Christian princes. The pope forbade Catholic princes to allow the book into their realms, and told Bellar" mine to reissue his work with a criticism of James's new

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preface. Caraffa, the papal nuncio in Madrid, was responsible for Suarez's being asked to write a definitive refutation, which appeared three years later. ln England it was discussed by the University of Oxford, and burned by the public hangman at the foot of Paul's Cross. In France, since the assassination of Henri IV, no work by a Jesuit about the authority of the Church and the limits of secular power had been able to appear peacefully. Mariana's De Rege and Bellarmine's De Potestate Summi Pont!fi,cis were among the works banned and on 26 June 1 6 1 4 Suarez's Defensor Fidei was also condemned by the Parlement of Paris. This work and De Legibus were his last publications. In 1 6 1 6 he received his cartas reales de jubi[a,, cion as professor and retired. His intervention in the affair of the Lisbon Interdict seems to have damaged his health, which was never good, and he died on 25 September 1 617, declaring that 'No creia que fuera tan duke morir' (I did not know it would be so pleasant to die). Much of his writing remained unpublished. The Paris edition of 1 8 56-6 1 is now the most complete. Most of his works are primarily theological, but several contain politico,.legal material.

B I B L IOG R A P H Y N OT E M o s r works of these writers ran into numerous editions during the sixteenth century and subsequently. Where a modern critical edition exists, this alone has been cited; where there is a modern but not critical edition, the dates of the first editions have also been given. The bibliography of secondary sources is selective. Of the many articles in Spanish periodicals, which are largely inaccessible in this country, only the most important have been included. Secondary works referring exclusively to one author have been classed under his name; other books appear in the more general lists which follow. I. FRANC I S C O D E VITORIA

Primary sources Comentarios ineditos a la Ila Ilae [of St. Thomas Aquinas]. Edited by Vicente Beltran de Heredia, O.P. In Biblioteca de Teologos Espaiioles. 6 vols. Salamanca, 1 9 3 2 ff. Latin text only. Relecciones Teologicas. Critical edition by Luis G. Alonso Getino. 3 vols. Madrid, 193 3 ff. Includes the first and second editions, with reference to

various manuscripts. Volume i consists of facsimiles, volume ii of works which have some political significance, volume iii of purely theological writings. Text in Latin and Castilian.

Secondary sources BARCIA TRELLES, CAMILO. Francisco cle Viloria, Funclaclor clel clerecho inter,, nacional moclerno. Valladolid, 1 928. BAUMEL, JEAN. Les Problemes cle la colonisation et cle la guerre clans l'a:uvre cle Francisco cle Viloria. Montpellier, 1936. BELTRAN DE HEREDIA, VICENTE, O.P. Francisco cle Viloria. Barcelona, 1939. ALONSO GETINO, LUIS G. El Maestro Fray Francisco cle Viloria. Madrid, 1930. -- Los Manuscritos clel Maestro Fray Francisco cle Viloria. Madrid, 1928. LISSARAGUE, SALVADOR. La Teoria clel pocler en Francisco cle Viloria. Madrid, 1 947.

TRUYOL SERRA, ANTONIO. Los Principios del clerecho publico en Francisco cle Vitoria. Madrid, 1 946.

190

B I B L I O G RAPH Y

WRIGHT, HERBERT FRANCIS. Vitoria and the State. Catholic University of America, 1932. BELTRAN DE HEREDIA, VICENTE, O.P. 'Las relecciones y lecturas de Fran,. cisco de Vitoria en su discipulo.Martin de Ledesma', Ciencia Tomista, vol. 49, 1934. VILLOSLADA, R. G. 'Erasmo y Vitoria', Razon y Fe, vol. 107, 1937, pp. 34050 and 506-19. Consult also, for Vitoria and for his contemporaries, the Antiario de la Asociacion Francisco de Vitoria, from 1928 onwards. 2. D O M I N G O D E S O T O

Primary sources Summulae. First edition, Burgos, 1529. Nine further editions before 1665. Commentaries on Aristotle, Salamanca, 1 543, and many later editions. De ]ustitia et Jure, Salamanca, 1 5 5 3/4; 1 556/7 a further edition with Soto's own

revisions. There were 27 further editions in the sixteenth century.

Comentario al cuarto de las Sentencias (De Sacramentis). 2 vols., Salamanca, 1 557/8.

There were 32 reprints during the sixteenth century. (Only dist. 5, qu. 1, esp. art. 10, is relevant to our purpose.) Of his eight surviving relectiones only De Dominio, 1 5 34, is relevant. A relectio which was incorporated in a book De Ratione Promulgandi Evangelii has been lost, together with the book itself. A fragment in the Vatican Library ( Cod. ottob. lat. 782) may be part of it.

Secondary sources DR. VENANCIO D. CARRO, O.P. Domingo de Soto y su doctn'naJu1fdica. Madrid, 1943 . -- Los colaboradores de Francisco de Viloria: Domingo de Soto y el derecho de gentes. Madrid, 193 0. -- 'El Maestro Domingo de Soto en la Universidad de Alcala', Ciencia Tomista, vol. 43, 193 1, pp. 357-73 , and vol. 44, pp. 28-5 1 . -- 'Domingo de Soto, Catedratico de Visperas en la Universidad de Sala... manca', ibid., vol. 57, 1938, pp. 3 8-67 and 28 1-302. -- 'Domingo de Soto en la controversia de Las Casas y Sepulveda', ibid., vol. 45, 1932, pp. 3 5-49 and 177-93.

3. L U I S D E M O L I N A

Primary sources De ]ustitia et Jure, 6 vols. Vol. i app�ared at Cuenca in 1593, vol. ii in 1597,

vol. iii in 1600. The first complete edition appeared at Mainz in 1659, where

BIBLIO GRAPHY

191

vols. i, ii, and vi had already appeared separately. Other complete editions appeared at Cologne in 175 3 and in Paris in 1 876. Further writings may be found printed in V. Stegmiiller, Geschichte des Molinismus, vol. i: Neue Molinaschriften, Munster, 1935. The text of a newly discovered relectio, De Bello, and commentary by R. S. de Lamadrid, appears in the following periodicals: Broterfa, vol. 30, 1940, pp. 87-92. Archivo teologico granadino, vol. 2, 193 9, pp. 1 5 5-23 9.

Secondary sources FRAGA IRIBARNE, MANUEL. Luis de Molina y el derecho de la guerra. Madrid, 1947. GARCIA PRIETO, LucAs, O.S.A. La Paz y la guerra. Luis de Molina y la escuela espaiiola del siglo XVI en relacion con la ciencia y el derecho internacional moderno. Saragossa, 1944. IZAGA AGUIRRE, Luis. El Padre Luis de Molina, internacionalista. Madrid, 1936. KLEINHAPPL, JOHANN. Der Staat bei Ludwig Molina. Innsbruck, 193 5. PEGIS, ANTON C. 'Molina and Human Liberty', in Jesuit Thinkers of the Renaissance, pp. 75-1 32. Milwaukee, 1939, SANCHEZ GALLEGO, LAUREANO. 'Luis de Molina como internacionalista', in Anuario de la Asociacion Francisco de Vitoria, vol. v, 1932-3 . ANSELMO, B., S.J. 'Articles on War in Molina's writings', Civilta Cattolica, 1943, pp. 270-8 1 and 354-63 . ZALBA, MARCELINO, S.J. 'Molina y las ciencias juddico,morales' Razon y Fe, ' vol. 127, 1934, pp. 5 3 0-43 . FRAGA IRIBARNE, MANUEL. 'La doctrina de la soberania en el Padre Luis de Molina', Revista de la Facultad de Derecho en Madrid, 1941, no. 4-5, pp. 10521. KLEINHAPPL, JOHANN. 'Die Eigentumslehre Ludwig Molinas', Zeitschriftfiir Katholische Theologie, vol. 56, 1932, pp. 46-66.

4.

, F R A N C I S C O S UA R E Z

Primary sources Opera omnia. Editio nova, Paris, I 8 56-61. Cf. especially vols. iii, vi, xi, xiii, xxiv. Latin text only. First editions: De Legibus ac de Deo Legislatore. Coimbra, 1612. Defensio Fidei . . • Coimbra, 1 6 1 3 . De Fide, Spe e t Charitate. Leon and Coimbra, 1621. Tratado de las Leyes y de Dios Legislador-a translation of De Legibus into Castilian by D. Jaime Torrubiano Ripoll-1 1 vols. Madrid, 1918.

1 92

.BIB LIO G RAPHY

Secondary sources BARCIA TRELLES, CAMILO. Internacionalistas espaiioles del siglo XVI: Francisco Suarez (1548-161 7). Vallad�lid, 1934. Published also by The Hague Academy of lnternational Law in Recueil des Cours, vol. 4 3 , pp. 3 89-5 5 1 . BONET, A. Doctrina de Suarez sobre la libertad. Barcelona, 1927. BOURRET, ERNEST. De l'origine du pouvoir d'apres S. Thomas et Suarez. Paris, 1 857.

CARRERAS, L. ' La doctrina del Padre Suarez sabre e1 origen del poder civil' in Comemoracion tercentenario de Suarez. Barcelona, 1923 , pp. 1 8 1-96. FICHTER, J. H., S.J. Man of Spain. New York, 1940. G6MEZ ARBOLEYA, ENRIQUE. Francisco Suarez, SJ. Granada, 1946. LASEROS, MATEO, O.S.A. La Autoridad civil en Francisco Suarez. Madrid, 1949. REcASENS SICHES, L. La.filosoffa del derecho de Francisco Suarez. Madrid, 1927. RIAZA MARTINEz.-O soRIO, ROMAN. La Interpretacion de las !eyes y la doctrina de Francisco Suarez. Madrid, 1925. ROMMEN, HEINRICH. Die Staatslehre des Franz Suarez, SJ. Miinchen.­ Gladbach, 1926-'J. DE ScoRRAILLE, RAouL, S.J. F. Suarez de la Compagnie de Jesus, d'apres ses lettres, ses autres ecrits inedits, et un grand nombre de documents nouveaux. Paris, 1912, 2 vols.; Spanish edition, Barcelona, 1917-1 8. ScoTT, JAMES BROWN. The Catholic Conception of International Law. Carnegie Endowment for International Peace, 1 9 3 4. WRIGHT, HERBERT. F. Suarez: Addresses in Commemoration of his Contribution to International Law and Politics. Washington, 193 3 . LEGAZ Y LACAMBRA, LUIS. 'Die Rechtsphilosophie des Franciscus Suarez', Zeitschrift fiir offentliches Recht, vol. xiv. Vienna, 1934.

Bibliographical McCORMICK, J. F., S.J. A Suarezian Bibliography. Jesuit Educational Associa.­ tion, Proceedings of Tenth Annual Conference, 1937. MUGICA, PLACIDO, S.J. Bibliographia Suareziana, Granada, 1948. NussBAUM, A. A Concise History of the Law of Nations. Revised ed. New York, 1954. (The Spanish edition, Barcelona, 1949, contains a bibliography.) PEREZ GOYENA, ANTONIO, S.J. 'Fuentes para el estudio de Suarez', Razon y Fe, vol. 47, 1917, pp. 442-57.

Secondary sources concerning these writers as a group, or their religious or educational background AsTRAIN, ANTONIO, S.J. Historia de la Compaiifa de Jesus de Espana, 1581-1615. Madrid, 191 3 .

B I B L I O GRAPHY

193

AuNOS Y PEREZ, EDUARDO. El Renacimiento y problemas de derecho internacional que suscita. Madrid, 1917. BELL, A. F. G. Juan Gines de Sepulveda. Oxford, 1905. BELTRAN DE HEREDIA, VICENTE, O.P. Historia de la rejorma de la provincia dominicana en Espana, 1 450-1550, Salamanca, 1930. BENEYTO PEREZ, J. Los Medio, de cultura y de centralizacion bajo Felipe II. Madrid, 1927.

-- Gines de Sepulveda, humanista y soldado.Madrid,

1944.

BONILLA Y SAN MARTIN, ADOLFO. F. Sutfrez. El escolasticismo tomista y el derecho internacional. Madrid, 1918. BRIERE, YVES DE LA. Conception du droit international chez les theologiens catholiques. Paris, 1929. -- Le Droit de juste guerre. Paris, 1938. CARRO, VENANCIO D., O.P. La Teologfa y los teologos,juristas ante la conquista de America. EHRLE, FRANZ, S.J. Los Manuscritos vaticanos de los teologos salmantinos de! sig!J XVI. Spanish edition, translated by J. March, S.J., Madrid, 1930. FABIE, A. M. Vida y escrito, de fray Bartolome de !as Casas. Madrid, 1 879. LATURIA, P. Las Grandes Bulas misionales de Alejandro VI, 1 493. Barcelona, 1930. MARCOS, TEODORO ANDRES. Los Imperialirmos de Juan Gines de Sepulveda en su 'Democrates Alter'. Madrid, 1947. NYs, E. Le Droit de guerre et le, anciensjurisconsultes espagnols. The Hague, 19 14. PARRY, J. H. The Spanish Theory of Empire in the 1 6th Century. Cambridge, 1940.

Rfos, F. DE LOS. Religion y estado en la Espana de! siglo XVI.Madrid, 1928. ROLLAND, L. Les Fondateurs du droit international.Paris, 1904. VrNAS,MEY, C. Espana y los origenes de la politica social. Las !eyes de !as fndias. Madrid, 1930. BELTRAN DE HEREDIA, VICENTE, O.P. 'La ensefianza de Santo Tomas en la Comparua de Jesus durante el primer siglo de su existencia', Ciencia Tomista, vol. I I , 1935, pp. 3 88-408, and vol. 12, 1936, pp. 3 4-45 . CATRY, J. 'La liberte du commerce international d'apres Vitoria, Suarez et les escolastiques', Revue generale de droit international public, 1932. HELLIN, J., S.J. 'Derecho internacional en Suarez y Molina', Estudios Escola,ti,­ cos, vol. 18, 1944, pp. 3 7-62. VINAS PLANAS. 'El arbitraje internacional en los escolasticos espanoles', Ciencia Tomista, vol. 62, pp. 258-73 ; vol. 63 , pp. 44-46 and 278--93 ; vol. 64, pp. 145-79, 1942- 3 . Books on political theory with special reference to Spain BENEYTO PEREZ, J. Los Origenes de la ciencia polftica en Espana. Madrid, 1 949. -- Historia de !as doctrinas polfticas.Madrid, 2nd edition, 1950. 827145

0

194

B I B L I O G R A PHY

BuLLON Y FERNANDEZ, -. El Concepto de la soberanfa en la escuela espanola de! siglo XVI.Madrid, 2nd edition, 1936. ELIAS DE TEJADA SPINOLA, FRANCISCO. Notas para una teorfa de! estado segun nuestros autores cldsicos (siglos XVI y XVII).Seville, 1937. LABROUSSE, E. La Doble Herencia polftica de Espana.Barcelona, 1942. MARAVALL, JosE A. Carlos Vy el pensamiento polftico de! Renacimiento.Madrid, 1960. MARIN Y MENDOZA, JOAQUIN. Historia del derecho natural y de gentes. Madrid, 1950. MEsNARD, PIERRE. L'Essor de la philosophie politique au xv1e siecle.Paris, 1936. SANCHEZ AGESTA, Lurs. El Concepto de! estado en el pensamiento espanol de! siglo XVI. Madrid, 1959. VELASCO, REcAREDO F. DE. Referencias y transcriptiones para una historia de la literatura polftica en Espana. Madrid, 1925.

INDEX Africa, Spanish king should consider interests of, 70. Albert, the Great, 171. Alcala, University of, Polyglot Bible of, 3 n. l ; norninalism in, Molina and Suarez at, 7; founded by Cardi, nal Ximenes, 172 n. 2 ; Vitoria's pupils at, 175 ; Soto at, 176-7; Molina at, l 80; Suarez exchanges with Vasquez at, 1 86. Arcos, Fr. Miguel de, letter from Vitoria quoted, 174-5. Aristotle, on 'the natural' , 12; shares natural law ideas, 20; jus gentium peculiar to men, 22; unjust law no law, 28 n. 1 ; origin of political community natural, 29, 3 1 ; civil law promotes individual happiness, 303 1 ; community for living well, 3 2; nature never lacks essentials, 3 3 ; on slavery, 3 5 , 121-2; on human law, 43 ; on the good man and good citizen, 56; state not improved by size, 95 ; advice of wise should be sought, 120, 147; state must be self, sufficient, 1 3 8 ; revived study of, 1 5 8 ; Soto 's work on, 177. Banez de Mondragon, Domingo, O.P., of Salamanca, Commentaries on St. Thomas, 1 8 3 . Bellarrnine, Robert, Cardinal, col, league of Suarez in Rome, 186; attacks oath of James I, 1 87; banned in France, 188. Beltran de Heredia, Vicente, O.P., Francisco de Vitoria, 171 n. I . Bihlioteca Nacional, political writings in, 2 n. 1 . Brierly, J. L., o n Vitoria, 160; on collective security, 170.

Cajetan, Thomas de Vio, Cardinal, conciliar decrees binding on pope' s conscience, 76; on resistance to papacy, 78; commentary on St. Thomas, 171. Cano, Melchor, epitaph on Vitoria, 176; Soto succeeds him at Sala, manca, 178. Cardinals, College of, represents church in papal elections, 7 1 ; elects by canon law, 72; summons coun, cil if pope is heretical, 8 I. Charles I, of England, execution, 64, 94.

Charles V, Emperor, reign of, 5 ; uni, versities criticize, 6; relations with Vitoria and Soto, 1 14 and n. l ; letters to Vitoria and Soto, 175 ; proposes The Interim, 178; Soto be, comes his confessor, 178 ; Soto offers to go to America, 178-9; consults Soto, 1 80. Church, subordination of state to, 69-70, 83-87; church and state not like two separate countries, 70; where ecclesiastical powerresides, 71. Clerics, immunity of, does not in, elude common useful laws, 82; springs from will of king, 82; only king may infringe, 8 3 . Coimbra, Suarez criticized at, 7 ; Molina at Colegio Real, 180; Molina's textbook declined, 1 8 1 ; Suarez appointed professor at, 181. Community of mankind, Vitoria on, 105 and n. 3 ; rights ofintervention, 106, 140-1, 167, 168, 169; Suarez on, 108-9. Community, political, origin of in Aristotle, 29, 3 1, 32; described by Mariana, 3 1-32; by Soto, 32; by

196

INDEX

Community, political. cont. Vitoria, 3 3 ; source in St. Thomas, 3 1 n. 4; power to govern inherent in, 3 3-3 6; right to elect ruler, 90, 155· Conciliar movement, 7 1 ; Vitoria evades issues, 73. Concordat, between Spain and the Holy See, 195 3 , 82 n. 2. Constable of Castile, letter from Vitoria to, 174 n. 2. Contract, medieval, 3 n. 2; social, traces in Suarez, 3 3 ; in Rousseau, 3 8 ; between king and people, 4043 passim. Cortes, of the Spanish kingdoms, un..­ like English parliament, 4; in Mariana and actual position, 4142; limitations of, 163 . Councils of the church, source of power, 72; popes and their decrees, 74-75. Decalogue, part of the natural law, 1 3 ; requiring reflection, 14; bind..­ ing power of, 19; Soto's confused ideas on, 16, 22-23. D'Entreves, A. P., Natural Law, 22 n. 4; 99 n. 2. Divine right of kings, see Kings, divine right o( Dominicans (Order of Preachers), in Spain, 6; traditions on church and state, 69 n. Durandus, on baptism of slaves' children, I I7. Elizabeth I, of England, excom..­ munication, 64. Emperor, Holy Roman, no claim to rule 'world', 94-97, 122; association with Holy See, 96. Erasmus, protection ofin Spain, 9 and n.; pacifist views, 1 3 6; deplores wars between Christian princes, 170; Vitoria's sympathy for, 9, 172;

support for at Alcala, 9, 172 n. 2; hostility to scholasticism, 174. Evora, University of, Molina Arts professor at, 1 80-1 ; Vespers and Prime professor at, 1 8 1 ; Suarez takes doctorate of theology at, 1 87. Fonseca, Alfonso de, Inquisitor..­ General, supports Erasmus, 9. Fonseca, Pedro de, enemy of Molina, 1 8 1 ; claims Molina's ideas, 1 8 3 . Gerson, Jean, o n natural law, 26; human laws not binding in them..­ selves, 5 3 ; and cannot impose serious obligations, 57; lawful to appeal from pope to council, 78. Gospel, right of preaching, no; coercion not justified, II 1-12, 123-4. Gregory, ofRimini, views on natural law, 25. Henry VIII, of England, consults universities on annulment, 5 ; em... press consults Vitoria on his suit, 5, 174• Hobbes, Thomas, no equivalent in Spain, 3 ; circulation in Spain, 9; on natural law, 24 and n. 3 ; society inconceivable without government, 34, 160; on position of ruler, 40; distinguishes between natural law and natural rights, 1 59; usurper owed obedience, 162. Hus, John, dominion founded on grace, 60. Expurgatorius, Spanish, of 1558, relative laxity, 9. Index Expurgatorius, papal, bans Hobbes, 9 ; Soto prepares Index for Council of Trent, 178. Individual, importance of, in Soto, 30-3 1 . Infidels, are legitimate rulers, 60, 6 1 and n., 84 and n. 1, 8 8 ; ecclesiastical Index

INDEX power in, 7 1 ; contrasted with apostates, r r2 n. 2; forced con.­ version of Moors criticized by Vitoria, 1 16; rights against Christian rulers, 1 16; children not to be baptized without parents' consent, r r7; property may not be confiscated, 120; refusal to accept faith no cause for war, 124; nor difference of religion, 142 and n. 2. Interim, The, published 1548, 178. Isidore, of Seville, definition of law, 46 n. 3 . Ja mes I of England, oath to be ad.­ ministered to recusants, 61 n. 3 ; text, 67-68; analysed by Suarez, 92-94. James II ofEngland, deposition of, 64. Jesuits (Society of Jesus), in Spain, 6-J passim; Suarez has difficulties in entering, 7; colleges at Alcala and Coimbra, 1 80. John, Duns, Scotus, c£ Scotus. ]us gentium, see Law of Nations. King, whether above the law, 28, 64; has no power over private property, 3 1 ; origins of his power in Suarez and Vitoria, 3 6-40 passim; power identical with that of the com.­ munity, 3 8 ; seldom absolute, 40; not superior to whole community in Mariana, 4 1 ; does not own sub..­ jects' lives, 57; community re, sponsible for his faults, 59; must be a good man, 60; dominion not founded on grace, 60; infidels are legitimate kings, 60, 6Iandn., 84and n. 1, 88; resistance to, when justi..­ fied, 61-64; deposition of apostate king, 89; power of pope to excom..­ municate, 92-93 ; king as judge in his own cause, 141 , 144-5, 146 n. 1 , 1 5 1 and n . 1 , 1 52, 170. Kings, divine right of, obscure origins oftheory, 16o;extremes avoided, 1 6 3 .

197

Las Casas, Bartolome de, case pre, sented to Council, 175 ; dispute with Sepulveda, 179. Law, canon, is human positive law, 8 3 ; on temporal power of pope, 87. Law, human, relationship to natural law, 44-45 ; when pure command, 45, 46; when binding, 46-50; pre..­ sumption in legislator's favour, 49; not just simply because com..­ manded, 50; obedience to just laws part of law of nature, 50; ad.­ vacates of disobedience to, 5 1 ; just man above the law, 52; binding in conscience, 52, 56; intends to make men good, 5 3-54; can impose grave obligation, 57-58. Law, international, remoteness of these writers from, 98 and n. 1, 106; some future problems of, 1012; slight hint of, 108. Law, natural, jurists' definition, 1 1, 16, 22-23 , 99 ; self..evident prin..­ ciples of, 12, 1 3-14; more remote principles of, 14-17 passim; Vitoria on certainty of, 17, 1 8 ; Molina's doubts on clarity of, 1 8 ; common to all peoples, 19-20; immutable, 202 1 ; as standard of human dignity, 2 1 ; St. Thomas on, 23 n. 2; Sepulveda on, 21 ; Suarez discusses _ two extreme opm1ons on, 24-27; promulgation of, 27; relationship to human law, 28-29; origin of bind, ing power, 74 n. 1 ; distinguished from the jus gentium, 98-100. Law, of nations, distinguished from natural law, 9 8-100; is positive human law, 99 ; slavery and private property in, 100-1 ; travel, trade, and settlement in, 102-3 ; binding power of, 104; alterations in, 105, 108; rights of intervention in, 106; confused ideas on, 106; as custom, 107. Law, two elements of, 28, 65-66; not law if unjust, 28 and n. 1.

I NDEX Laws, New, of the Indies, 1 542, praised by J. H. Parry, 163; fol,. lowed closely on Vitoria's lectures, 175-6. Leon, Luis de, preaches Soto's fu'neral oration, 1 So; defends Molina's ideas, 1 8 3 . Locke, John, n o equivalent in Spain, 3 ; on uses of civil law, 161; on Catholics as subjects of foreign prince, 1 64; on formal religion as foundation of civic virtue, 1 69. Lombard, Peter, the Sentences of, lectured on, 6; superseded in Paris, 171; in Salamanca, 173. Machiavelli, Niccolo, The Prince, 2 n., 4-5. Madrid, Molina at the Imperial Col,. lege in, 1 8 1-2. Magnates, papal electors compared to, 72 n. 2. Major (Mair), John, says pope may allocate missionary provinces, 1 10; influence in Paris, 171. Mariana, Juan de, imprisoned 1609, 9; De Rege, free circulation of, 10; on the origins of the community, 3 1-32; on the king and Cortes, 41, 42; on the education of a king, 60; on king's obligation to take counsel, 67; laments decline of Cortes, 163; De Rege banned in France, 1 88. Molina, Luis de, 1 80-4; theology, 6 n.; on slavery, 7; differences from other writers, 8 ; defines natural law, 1 3 ; doubts on its clarity, 8, 1 8 ; error a kind of sin, 19; explains two traditions of natural law, 2 3 ; on relationship of natural to human law, 45; whether obligation flows from command, 50; on the obliga,. tion of obedience, 5 1 ; on hereditary monarchy, 59 n.; on pope's right to wage war for papal states, 8 5 n. 1 ; on dangers of papal arbitration, 86; on the jus gentium, 99; realistic views

on trade and settlement, 1 03-4; on military support for missionaries, 1 12 ; jurisdiction and ownership based on natural law, 1 20; infidelity no excuse for war, 125-6; defence of innocent against cannibalism and human sacrifice, 128; king may charge for expenses of war, 1 29-30; defends necessity of war, 1 36-7; hating enemy is mortal sin, 1 37; intentional wrongs are worse than unintentional, 144; on the common soldier's duties in war, 148, 149; on guilt of women 'virtually fight,. ing', 1 12 n. 2, 1 5 3 ; on right to despoil innocent enemy, 1 5 5. Monserrat, Benedictine monastery of, Soto takes refuge in, 1 77. Natural, special use of word, 1 1-1 3 . Nominalism, in Paris and at Alcala, 7; effects on natural law theory, I 58-9; Vitoria criticizes lecturing methods of, 173 ; influence on Vitoria and Soto, 1 76. Occam, William of, view on natural law criticized by Suarez, 25-27; supports appeals from pope to council, 78. Organic state, vocabulary of, used by these writers, 3 0-3 1 , 3 3-34. Panormitanus, on schismatics, 89. Papal states, pope has direct secular power over, 8 5 n. 1 ; not part of Holy Roman Empire, 95. Paris, Vitoria and Soto in, 6, 171, 1 72; Mariana in, 7; customs of, introduced in Salamanca, 1 72 n. 1 , 1 7 3 ; Soto at S . Barbare, 1 76. Paul V, pope, holds ten congrega,. tions on Molina's theology, 1 84. Philip II, of Spain, reign of, 5 , 6; ban on foreign study, 9; invites Vitoria to Council of Trent, 175 ; nomin,. ates Suarez to chair at Coimbra, 1 8 1, 1 8 7.

IND EX

199

Plato, holds natural law principles, 20. Saint Thomas Aquinas, develop, Pope, as Vicar does not have Christ's ment of his ideas, 4, 28 n. 2 ; power, 74; can sometimes dispense custom of commenting on, 6; conciliar decrees, 74-75 ; dispenses views on the natural law and the too frequently, 75, 76-77; when he jus gentium, 8, 1 1, 12 n. 2, 99; on may be resisted, 77-78; unjust reason, 1 3 n.; on immutability of excommunications of, 79, 9 1 ; the natural law, 20; his definition guided by Holy Spirit, 79-80; of natural law quoted by Suarez, deposition or judgement of, 80-82; 24; on the two,fold nature of law, limits of power over secular matters, 28; on conditions for a just law, 84-87; as arbitrator, 86; has no 28 n. 1 ; on inequality of men in temporal lordship from Christ, state of nature, 3 5 ; on invalid juris, 87-88; his indirect power, 88; his dictions, 47; on law's intention to power to excommunicate rulers, make men good, 53-55 passim; that 92; his lack of authority over the human law may impose grave Indians, 122-3 ; his right to divide obligations, 57 ; distinguishes be, colonies for missionary purposes, tween kinds of tyrant, 62 n.I ; king willingly subject to law, 65; on 132 and n.4. Property, private, part of the jus apostates, 1 12 n.2; infidels not to be coerced, 1 1 5 ; no baptism of pagan gentium, 100-1. children without parents' consent, Rational, use of word, I 3. u7; lack of faith no bar to owner, Rees, J.S., on the task of the political ship or dominion, 120; faith an act philosopher, 1-2. of will, 125; revived study of in Reformation, Protestant, Spain largely Paris, 171 ; Summa Theologica, 173. untouched by, 3 ; thought to en, San Esteban, Dominican college in courage civil disobedience, 5 I ; not Salamanca, Vitoria at, 173, 176; accepted as permanent, 90 n. 3, Soto at, 177, 178. 9 3-94, 16 5; effect on natural law San Gregorio, College of, in Vallado, tradition, 158. lid, Vitoria at, 172. Renaissance, in Spain, 3 and n. 1. Salamanca, University of, Soto and Rome, Mariana in, 6-7; Suarez at the Vitoria at, 8 ; trends at, 174; Jesuit College in, 1 86. Vitoria's pupils at, 175 ; Vitoria Ruler, see King. dies at, 176; Soto checks library at, dies at, 180; Molina briefly at, 1 80; St. Augustine of Hippo, says truth difficulties of Suarez when at, 185; is an illumination, 1 5 ; his language Suarez spends vacations at, 1 87. used by Soto, 16; says unjust law Scotus, Duns, John, 19; on forced no law, 49; on war, 136, 1 3 8. conversions, u5; supports baptism St. Bernard of Clairvaux, quoted as of infants without parental consent, saying pope holds both spiritual and 1 17; justification of his opinion, temporal swords, 69. I I8 . St. Francis de Sales, consulted on Segovia, Soto born in and studies at, Molina's theology, 1 84. 176; Suarez professor at Jesuit Col, S. Jacques, Dominican College in lege in, I 86. Paris, 171, 176. St. Paul, quoted, 49, 101, 1 3 3, I 3 6, Sepulveda, Juan Gines de, supported by lnquisitor,General in I 5 50, 9; his 1 3 8.

200

INDEX

Sepulveda, cont. book Democrates Alter condemned, I O, 175 ; theories of natural law, 24; at the Juntas of Valladolid, 1g9. Slavery, Molina on, 7; part of the jus gentium (Soto), IO0, I O I ; no longer a part (Vitoria and Suarez), I O I ; changing position under · the jus gentium, I 05 ; Indians not legal slaves, 120-2; conversion no excuse for enslavement, 122. Societas perfecta, church is a, 82 n. 2, 166; church and state both, 86-87. Soto, Domingo de, 176-80; in Paris, 6; influence ofRenaissance human..­ ism and nominalism, 7; Augus..­ uman influences, I I, 16; uses of word 'reason', 1 5-16; confused views on natural law, 14-17; natural law needs no promulgation, 27; on the good of the individual, 3 0-3 I ; on the origin ofroyal power, 3 0-34; on necessity for human law, 43 ; laws compared with kings, 46; tyrant becomes ruler by tacit con..­ sent, 47-48; laws must not be of too high a standard, 5 5; the king must be a good man, 60 ; on resist..­ ance to tyrants, 62-63 ; on the king being bound by law, 65-67; on trial of pope by council, 80-8 1 ; on Christ's lack of temporal power, 87-88 ; that in the ordinary way pope should not hear appeals, 97; on the jus gentium, 99-IOo; on private property and slavery, I Oo-1 ; conversion is no excuse for enslave..­ ment, 1 22; denounces exploitation of subordinate kingdoms, I 34; on intention in war, l 37; at Trent, 177-8 ; becomes confessor to Charles V, succeeds to Prime chair at Sala..­ manca, 178; rapporteur at Juntas of Valladolid, 179; consulted by emperor, 1 80; checks Salamanca library for heretical books, I 80. Sovereignty, of people, in Suarez, 3 6.

Spain, development of her political theory, 3-4; hereditary monarchy in, 59 n. 2; attack on colonial policy, 6 1 ; concordat with Holy See, 82 n. 2; church and state partnership in, 97; revived interest in jus gentium in, 98 ; common rights in the Indies of, 102; claims to con..­ quest of the Indies, 94, 1 1 9-34. Suarez, Francisco, 1 84-9; systematic methods of reasoning, 5; creative theologian, 6 n. 2; most scholastic of these writers, 7-8 ; notes natural law concepts in Plato and Aristotle, 20 ; on immutability of natural law, 20-2 1 ; natural law different in men and animals, 2 1 ; discusses extreme views on natural law, 24-27; dis..­ cusses parts played by God and community in institution of king..­ ship, 3 6-3 9; on grave obligation of human law, 57; dominion is not founded on grace, 60 ; on resistance to tyrants, 61-62; on tyrannicide, 63 ; on supremacy ofspiritual power, 69-70; on the seat of ecclesiastical power, 71 n. I ; his papalism, 73 n. 3, 8 1 ; doubts if the pope may be corrected, 79; analyses position of James I of England, 91-94; dis..­ cusses whether the emperor is lord of the 'world', 9 5-96; discusses jus gentium as human customary law, I06-9, I08 n. I ; on military support for missionaries, I 1 0-1 I ; against compulsory conversion, I 12; his colonial ideals, 143 . Tertullian, views on war, I 3 5-6. Thomism, revived in Spain, 4, 173 ; its hierarchy of laws, 5, u ; its natural law theory, I I ; revived in Paris, 171. Toledo, Suarez's associations with, 1 84. Trent, Council of, Suarez writing after, 73 n. 2; Vitoria invited by

INDEX Philip II, 1 75 ; his reply, 1 76; Soto at, 177-8 ; reform of cathedral chapters urged at, 1 79. Triger, Francisco, his notes on Vitoria's lectures, 1 72 n. 1, 173. Tyrants, rule may become just through prescription, 47; when they may be resisted, 61-62; distinction between tyrant and usurper, 62-63 ; papal right to advise on resistance to, 93.

201

peoples, 105-6; possible forced con,, version of small minority, 1 1 3 ; arguments for forced conversion, II4-1 5 ; criticizes forced conversion of Moors, I I6; children not to be baptized without parents' consent, 1 17-19; on rights of Spain in the New World, 1 1 9-34; strictures on conquest, 6; possible reasons for conquest: natives unintelligent, 1 20-2; claims of pope or emperor, 1 22; discovery, 1 2 3 ; refusal to accept faith, 12 3-4; unnatural vices, 124-7; pope and Christian kings no jurisdiction, 1 26-'7; cannibalism and human sacrifices, 128-9; volun,, tary choice, 1 3 1 ; alliances, 1 3 1 ; refusal to allow trade and settle,, ment, 1 32; killing of converts, 1 32 ; genuine trusteeship, 1 3 3-4; his colonial ideals, 1 34; on killing the innocent, 1 52; ideal conduct in war, 1 5 7. Vitoria (in Aiava), birthplace of Francisco de Vitoria, 171.

Valladolid, Vitoria lectures in, 1 72 ; Suarez consults Provincial in, 1 85 ; Suarez teaches theology in, 1 86. Vitoria, Diego de, O.P., brother of Francisco, attacks Erasmus 9, n. I. Vitoria, Francisco de, 1 7 1 -6; in,, fluence on pupils, 2; consulted by empress, 5; influence of nominalism and Renaissance humanism, 7; on 'the natural', 12; on necessity, 121 3 ; on natural law, 1 7-1 8 ; on the origin of the community, 3 3 ; on royal power, 3 6-39 passim; power of government inherent in com,, munity, 34; on freedom under a War, pacifism rejected, 1 3 5-'7; dis,, monarchy, 3 8-39; on obedience to tinction between rights ofindividual usurpers, 47; on law's intention to and state, 1 3 8-9; defence requires no make men good, 5 3-55; obligation justification, 140; on civil war, 141 ; of law depends on subject.,matter, definition of just war, 142; sole 5 7; pagan princes rule legitimately, cause ofjust war, 143 ; necessity for 6 1 ; king bound by laws, 64-65 ; dis,, preliminaries, 145-6; position of cusses seats of ecclesiastical power, ordinary soldiers, 148-9; mer,, 7 1-'7 3 ; evades issues of pope v. cenaries denounced, 149; on du ty of council, 73-74; discusses papal conscientious objection, 149; on dispensations, 74-'77; on appeals to total war and reprisals, 1 50-1 , council, 78; on resistance to the 1 5 3-5 ; o n killing the innocent, papacy, 78-'79, 91 ; pope may sub,, 1 5 2-3 ; on keeping faith with the mit to human judgement, 80; dis,­ enemy, 1 56; Vitoria's summary of cusses subordination of temporal to the laws of war, 1 57. spiritual power, 8 3-87; on apostate Wyclif, John, dominion founded on kings, 89-90; on claims of Holy grace, 60. Roman Emperor, 94-9 5; jus gentium is positive human law, 99; rights Zumarraga, Juan de, Bishop of Mexico, asks for a university in of settlement under the jus gentium, Mexico, 175; asks for some of 1 02; jus gentium has force of law, Vitoria's pupils, 175. 105 ; on responsibility for other

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