r VJt "icnji a. Abuosr-Ri PAMPHLET NO. 5 Francis De Vitoria Founder o< r . ' - • International Law '’Vw. C. H. McKENNA, 0.1 A Report of the Ethics and the In- ternational Law and Organization Committees. This Report has been passed by these two committees and presented to the Executive Commit- tee of the Association. PRICE, JO CENTS * ? ! i 0 t THE CATHOLIC ASSOCIATION FOR INTERNATIONAL PEACE 1312 Massachusetts Avenue. N. W. Washington. D. C. Styr (Eatyoltr Association for Jntcrnational Pcarc ETHICS Rev. John A. Ryan, D.D., Chairman Rev. J. C. Bartley Rev. Charles Bruehl Rt. Rev. A. Deutsch, O.S.B. Rev. Joseph P. Donovan Rev. Cyprian Emanuel, O.F.M. Rev. Leo C. Gainor, O.P. Rt. Rev. Msgr. M. J. Grupa Rev. Linus A. Lilly, S.J. Rev. Donald MacLean Rt. Rev. T. H. McLaughlin, S.T.D. Rev. M. I. X. Millar, SJ. Rev. Charles C. Miltner, C.S.C. Rev. A. J. Muench Kathleen Murphy Rev. J. Elliot Ross INTERNATIONAL LAW AND ORGANIZATION Charles G. Fenwick, Chairman Frederick R. Coudert, Jr. Thomas F. Divine, S.J. John K. M. Ewing John A. Lapp Elizabeth M. Lynskey Martin T. Manton Rev. C. H. McKenna, O.P. Rev. M. I. X. Millar, S.J. William F. Roemer John Walsh Herbert F. Wright FRANCIS DE VITORIA Founder of International Law By G H. McKENNA, O.P. Permissu Superiorum Ordinis SECOND EDITION Copyright, 1930 THE CATHOLIC ASSOCIATION FOR INTERNATIONAL PEACE 1312 Massachusetts Avenue, N. W. Washington, D. C. I r FRANCIS DE VITORIA, FOUNDER OF INTERNATIONAL LAW W ITHIN the past twenty-five years and especiallysince the World War the study of international law has attained great prominence. Governments have sought to know and codify the laws which ought to regulate their relations with other nations. Congresses have convened intent upon solving great international problems. Mankind is no longer satisfied with promises of “victory/’ “national greatness/’ “revenge,” and the like. The reaction against war has resulted in the search for a means of establishing permanent universal peace. The League of Nations and a World Court, to which nations may submit their controversies and from which they may hope to obtain justice, have been established. Although these things are so modern in fact, the fundamental prin- ciples underlying them were taught in the first half of the sixteenth century by the Spanish Dominican friar, Francis de Vitoria, at the University of Salamanca. When a celebration took place in Holland two years ago to commemorate the third centennial of the publication of the great masterpiece De Jure Belli ac Pads of Grotius, those who organized the celebration realized the necessity of honoring the two eminent Spanish theologians to whom Grotius was greatly indebted for the ide^s and materials on which he built his juridical system. Accordingly a committee consisting of Mynheer Treub, formerly Dutch Minister of Commerce, and Professor Van der Mandere of the University of Leyden, travelled to Spain and with fitting ceremony placed a tablet in the famous Dominican convent where Vitoria lived and a wreath of flowers be- fore the statue of Francis Suarez in Granada. Whether it is true as Nys remarks that “no epoch in the history of humanity has been comparable in importance to the glorious years which marked the end of the fifteenth and the beginning of the sixteenth century,” 1 no one can 1 Introduction, p. 18, Victoria, “De Indis et De hire Belli Relec- tiones ” in the collection, The Classics of International Law , edited by James Brown Scott (Washington, 1917). 4 FRANCIS DE VITORIA deny, however, that its greatest event, the discovery of the New World, is of paramount importance. 'Europe was thrilled at the news that the bold expedition of Columbus had discovered lands, the existence of which were not previously known. Spain, then in the zenith of her mili- tary power, in her intellectual prime, full of the vigor of a civilization recently triumphant over the Moors, rejoiced in her new possessions. But no sooner had she obtained a secure hold upon these lands than the process of ex- ploitation began, and it was not confined merely to natural riches but extended to the very persons of the natives who were treated with great ruthlessness and deprived even of their elemental rights. The discovery of America, the claims of the Spaniards to its possession and their treatment of the natives, caused frequent discussions of the principles of law and right upon which their claims and their actions might be justi- fied. These discussions were attended by the leading men of the kingdom and often by the Spanish sovereign him- self. Some there were who maintained that the Spanish had the right to occupy these lands and to subjugate their inhabitants not only through peaceful means but even by war. Some went so far as to declare that this violent sub- jugation was, at the same time, the most efficacious means of Christianizing the Indians. Not only the excesses and abuses which crept into the New World as a consequence of this line of thought and method of procedure, but the very thought and procedure themselves, were strongly opposed by many zealous missionaries. A description of the part they played would fill most glorious pages, par- ticularly in a history of the Dominican Order : “to the sons of Saint Dominic belongs the honor of being the first pro- tectors of American liberty, and the first to raise the voice against the enslavement of the native indians .” 2 The most celebrated of these missionaries were Montesino, Cordova,, Luis Cancer de Barbastro, protomartyr of Florida, and Bartholomew de Las Casas, rightly called the “Apostle of the Indians.” 2 Rev. L. A. Dutto, The Life of Bcirtolome de Las Casas (St. Louis, 1902,) p. 48. FRANCIS DE VITORIA 5 At this crucial moment there was a real need for a man of genius to arise, capable of clarifying, crystalizing, and codifying the scattered and vague laws of the past act- ualized by the disputes arising from their current applica- tion to the American problem. In 1526 the ranking chair of theology at the University o i Salamanca became vacant by the death of Pedro de Leon. Candidates for the chair entered into competition ; and according to the prevailing custom of the period the judges were the students who cast their vote after attending lectures by each of the vari- ous competitors. Francis de Vitoria was unanimously chosen and held the chair until his death twenty years later. The Dominican was well fitted intellectually to undertake his new duties though only about forty-three years old, and “under his leadership the College of Sala- manca attained a position unique in Spain/’ 3 He taught theology in a scholarly and attractive way, enriching it with citations from the Fathers and by the facts of ecclesi- astical history. To him is attributed the revival of theo- logical activity in the Catholic universities of his time. He restored scholastic philosophy to its former prestige and educated a noteworthy group of illustrious disciples, among them Melchoir Cano, Dominic Soto, Bartholomew Medina, Martin de Ledesma. He himself did not commit his lectures to writing, that task being performed by his pupils, eager to retain in a permanent form the teaching they had received, and a few of them were published after his death in 1546. 4 Vitoria was highly esteemed and his reputation spread far beyond the boundaries of Spain. Pope Paul III in- vited him to take part in the Council of Trent, but he excused himself on the plea of old age and persistent ill- health. On numerous occasions he was consulted by Charles V who sought guidance on questions of conscience and knotty affairs of state. Vitoria was chiefly a theo- 3 D. A. Mortier, O.P., Histoire des Mciitres Generaux de VOrdre des Freres Precheurs, Vol. V (Paris, 1911), p. 379. 4 A new edition of these lectures supplemented by hitherto un- published manuscripts has been undertaken by Fr. Vincente Beltran de Heredia, O.P. (Valencia). 6 FRANCIS DE VITORIA logian and his knowledge of theology was so broad and expansive that he included within its field the elucidation of many questions pertaining to other sciences both sacred and profane. In 1530 the king asked his opinion on the validity of the arguments put forward by Henry VIII of England with a view to procuring the nullity of his mar- riage with Catherine of Aragon, the aunt of the Spanish monarch. His lectures De Matrimonio5 treated the whole question on broad lines, and his judgment that in this case the marriage was valid doubtless pleased the king. Charles V also sought his advice on questions relating to the religious instruction and conversion of the Indians and the business of their baptism, this latter subject having been brought before the Council of the Indies by Bartholomew de Las Casas. In 1532 6 were delivered the two famous lectures De Indis and De Jure Belli Hispanorum in Barbaros in which he reviews the false and true titles which the Spaniards might allege to justify their domination in the New World, either of which would have sufficed to give him a distinguished place in the history of international law. Before the time of Vitoria “the law of nations was Euro- pean in origin and restricted to a continent ; through him it crossed the ocean and in applying it to the peoples of America it dropped its continental character in order to become universal in fact as well as in theory. Evidently Vitoria looked upon his Relectio de Indis as his principle contribution, his tractate on war being in the nature of an afterthought hurriedly put together in his scant leisure to give, as he himself informs us, completeness to the earlier 5 Herbert F. Wright, “The Divorce of Henry VIII,” in Amer- ican Catholic Quarterly Review XLIV (1919) No. 176, 556-65, gives a complete digest of this relectio. 6 Father Getino, O.P., writes, in his work El Maestro Fr. Fran- cisco de Vitoria y El Renancimiento Filosofico Teologico Del Siglo XVI, “If we take the phrases of Vitoria at the end of a letter we would say that these Relectiones were delivered in 1532, forty 3'ears after the discovery ; but these phrases do not refer to the time of discovery but to the years in which the emigration began. The greatest difficulty in adopting this date of 1532 is that it does not explain how Charles V had no knowledge of the Relectiones until 1539.” Footnote, p. 100. FRANCIS DE VITORIA 7 reading.” 7 The two taken together constitute, although in summary form, the first treatise of the law of peace and war. “Professor Nys, perhaps the most learned of writers on the law of nations, stated after years of investigation, that the treatise on the Indians and the little tractate of Francis de Vitoria on War were superior to anything which had ever been written on the same subject.” 8 The title “Father of International Law” until recent years has been attributed somewhat erroneously to Hugo Grotius, because of his work De Jure Belli ac Pads. The international law of today, however, is rooted in a more remote past. Grotius himself, in the prologue to his greatest work, acknowledges that he has consulted Vitoria among other theologians and jurists, but he belittles them because of their brevity, and charges most of them with confusion of ideas. True, Vitoria's lectures are brief, but clearness of ideas is one of his striking features. “Vitoria inaugurated both in method and in doctrine, a new period of scientific treatment of international law and the writ- ings of Gentilis and Grotius, generally held as the veritable founders of this science, as such, are nothing but the development and continuation. . . . Neither in method nor fundamental doctrine do Gentilis and Grotius differ essentially from the Spanish Dominican. The difference between them consists alone in that the two* Protestant writers treated in detail, fullness and development, in their works which are the result of long years of study, and wrote ex professo, on the same matters which Francisco de Vitoria was obliged to< treat with that brevity and pre- cision required by the occasion of his two readings .” 9 Professor Nys assures us that the illustrious Dominican was the first who had an exact idea of international law, and that to him belongs the merit of giving the first definition of it. “Francis de Vitoria,” writes the same 7 James Brown Scott, The Spanish Origin of International Law (Washington, 1928), p. 89. * Ibid, p. 21. 9 Eduardo Hinojosa, Discurso leido en la academia de la historia, p. 47 ff., cited by Scott in The Spanish Origin of International Law , p. 65. 8 FRANCIS DE VITORIA author, “says that international law is, and means for him, a juridical bond which is established between nations. . . . In his system this law is a real law which is based on sociability, because there is a natural society, there is mutual intercourse, a communion and a bond among peoples : One nation has the right of enter- ing into relation with another nation to such an ex- tent that the denial of the exercise of this right justifies war. In other words, Vitoria saw clearly the interdepen- dence of nations, their reciprocal rights and duties .” 10 Frankly and independently he formulated his judg- ments, caring not whether they coincided with the opinions of any one else. Charles V in a memorable letter11 to- the Prior of the Dominican convent of Salamanca complained against “the excessive liberty taken by the theologian Vi- toria in problems of such delicacy affecting the greatness of his empire.” This protest is said to have served merely to encourage the theologian to go deeper into the matter. More than a brief outline of his juridical teachings can hardly be given here. Vitoria maintained that the Pope's authority was limited to religious matters, and to those questions which are related to religion. He stands out among the Spaniards and Portuguese as the defender of the proposition that infidels cannot be deprived of civil power or sovereignty simply because they are infidels. He makes his position strikingly clear by declaring that the Spaniards have no more right over the Indians than the latter would have over the Spaniards if they had come to Spain. It is not lawful to kill the innocent, among whom are enumerated, women, children, “harmless agricultural folk, foreigners or guests who are sojourning among the enemy,” 12 and the clergy. Slavery is not a legitimate con- sequence of war; hostages cannot rightfully be put to death because of a breach of faith by an enemy. The seizure of property is justifiable only as a means of effect- ively waging war or satisfying for an injury received. “It 10 Ernest Nys, Les Origines de Droit Internationale (Paris, 1894), p. 11. 11 Written November 10, 1539. 12 Victoria, op. cit. p. 288. FRANCIS DE VITORIA 9 is undoubtedly unjust in the extreme to deliver up a city to be sacked, without the greatest necessity and weightiest reason. ... If the principle of war require the seizure of the larger part of the enemy’s land, and the capture of numerous cities, they ought to be restored when the strife is adjusted and the war is over, only so much being re- tained as is just, in way of compensation for damages caused and expenses incurred and of vengeance for wrongs done, and with due regard for equity and human- ity, seeing that punishment ought to be proportionate to the fault .” 13 Vitoria concludes his lectures on the law of war with three canons or rules of warfare. In substance they are, first granting that a ruler has the authority to wage war, he should not seek occasions and causes of war but ought to have peace with all men. Secondly, when war has broken out for just causes, the belligerent may not aim at the destruction of the opposing nation, but the prosecution of his own rights and the defence of his country and in such a way that peace and security may eventually be obtained. Thirdly, at the end of the war, the victor should use his victory with moderation and Christian modesty and ought to consider himself as a judge between the wronged nation and the nation doing wrong and not as a prosecutor. “It is difficult to imagine how more prudent or equitable rules could be formulated than those with which Vitoria concludes his De Jure Belli .” 14 No one has surpassed the great Dominican in his field and many years will pass before the ideals of justice and international peace outlined by him are fully realized. Vitoria must have seemed to those who heard him from his chair in the University of Salamanca, to be far ahead of his time, when to us he seems modem and, in some respects, in advance of our practice, if not of our thought. “He boldly advocated opinions which some of the inter- national lawyers of today are just beginning to find cour- age to uphold. For instance, ‘if a war which if of advan- 13 Ibid., p. 295. 14 Herbert F. Wright, Francisci de Victoria De Jure Belli Re- lectio (Washington, 1916), p. 4. 10 FRANCIS DE VITORIA tag*e to one state or to one province be detrimental to the world or to Christian society, it is for that reason un- just.' " 15 Since wars in modern times are waged on a larger scale than those of the Middle Ages, and their frightful consequences are felt more easily throughout the world on account of our greater worldwide interdepen- dence, both economic and otherwise, it seems more likely that a war which in itself is just and lawful, may be un- lawful on account of the greater evils and dangers which would follow from it. The principle of that cardinal American policy pro- claimed by President Monroe in his famous message of 1823 to Congress was zealously defended three centuries earlier by Francis de Vitoria when he declared that the colonization of America as res nullius was juridically un- justifiable. It was the theories of Vitoria, likewise, which President Wilson, consciously or not, sought to apply in practice and which formed the basis of Article X to XVII of the League of Nations. In a passage taken from his De Potestate Civili Vitoria appears as an international lawyer, “perhaps not of his time, hardly of our time, but surely of a possible future time. ‘It is not to be doubted/ he says, ‘that the world is in a certain sense a single community, possesses the right to prescribe equitable and appropriate laws for its mem- bers, like those which constitute the law of nations. Hence it is/ he adds by way of illustration, ‘that the violators of international law sin mortally as well in peace as in war, and that in unimportant matters, like the inviolability of ambassadors, it is not lawful for any nation to refuse to observe the law of nations.' 16 The sense of oneness is present to the man who wrote those lines, although they were lost on his contemporaries. A community of nations already existed for Brother Francisco some four centuries before our day, which is not over-careful of finding an- cestors for its alleged discoveries." 17 The year 1932 marks the four hundredth anniversary a Ibid., p. 3. lfi Victoria, Relectio III, De Potestcite Civili , p. 93. 17 Scott, op. cit. p. 62. FRANCIS DE VITORIA 11 of the delivery of these famous lectures of Francis de Vitoria, and to commemorate this event the American Institute of International Law will convene at the Univer- sity of Salamanca. All the universities of the world in which international law is taught will be invited to send representatives to the congress. An assemblage of this kind is without precedent in international relations. It is proposed to found an Institute of International Relations bearing the name of the illustrious Dominican which will be maintained by Americans and sponsored by the Amer- ican Institute of International Law. The purpose of this Institute of International Relations would consist princi- pally in explaining the fundamental doctrines of interna- tional law, inspired by the theories of the Spanish school of the sixteenth and seventeenth centuries. The Convent of San Gregorio in Valladolid where Father Vitoria lived, now owned by the Spanish Government, will be converted into a residential club for the university students of Spain and America. A committee of six prominent persons has been formed in the United States to initiate this memorial to Francis de Vitoria and to keep alive the works of other great Catholic teachers who taught moral and juridical concepts which must be universally applied to Christianize and thus harmonize the relations between peoples. This movement in the United States to honor the dis- tinguished Dominican had its origin a little more than a decade ago at the Catholic University of America. The historical background was outlined in a lecture “Spanish Colonization in America” by Doctor J. De Siqueira Cou- tinho in March of 1916. The reasons for the unjust treat- ment of the Indians by the Spaniards were examined ; also the defence of the former made by Las Casas and other Dominicans. These Dominicans were greatly aided by their fellow-religious, Francis de Vitoria, who enthusiasti- cally proclaimed with some success the principles of inter- national right and wrong which should govern the rela- tions between the natives and the new settlers. At the same institution, a few months later, Dr. Herbert F. Wright's doctoral dissertation, Francisci de Victoria De Jure Belli Relectio , the result of two years' research, ap- 12 FRANCIS DE VITORIA pearecl ; it was the first work on the subject to be published in this country. When it is considered that Vitoria dic- tated his lectures and that no manuscripts belonging to him have been found, the difficulty of securing a true text of them becomes immediately apparent. Doctor Wright with his profound knowledge of philology has carefully examined the early editions of the Relectiones in an effort, which proved most successful, to obtain a text more con- formable to the original than any previous edition. His revised text has been incorporated into the work on “Vic- toria” in the collection Classics of International Law . . Opportunities for travel and the growing interest for international affairs have in recent years greatly increased the number of Americans privileged to visit Europe and seriously to observe its varying problems. Desirous of promoting a better understanding and a more friendly spirit between United States and Spain and Spanish Amer- ican countries, Doctor James Brown Scott, Secretary of the Carnegie Endowment for International Peace and Pro- fessor of International Law at Georgetown University, began the publication of the Classics of International Law which have secured him a world-wide reputation and rec- ognition as an eminent authority in the doctrines of Vitoria and all that relates to international law. The University of Salamanca, November 11, 1927, conferred on Doctor Scott and also Benjamin Fernandez y Medina, the diplomatic representative of Uruguay to Spain, the degree doctor honoris causa as a sign of appreciation for their admirable work in furthering the cause of the Span- ish origin of international law. The general movement for the abolition of war can only succeed if it is based upon sound fundamental principles of international right and wrong such as those expounded by the theologian Vitoria four centuries ago. Mere Utopian dreams and pious aspirations cannot eradicate the aboriginal habit of war. There must be a psychology of peace built upon justice, equality, and charity. Perhaps the greatest service to be rendered by the centenary con- vention at Valladolid will be the attention it will draw to these fundamentals so adequately expressed by Francis de Vitoria. FRANCIS DE VITORIA 13 BIBLIOGRAPHY Luis G. Alonso Getino, O.P., El Maestro Fr. Francisco de Vitoria Y El Filosofico Teologico Del Siglo XVI (Madrid, 1914). International Ethics (Preliminary Report Presented to The Cath- olic Association for International Peace by Its Committee on International Ethics 1928.) Bede Jarrett, O.P., Social Theories of the Middle Ages (Little, Brown and Company. Boston, Mass., 1926). Theodore Maynard, De Soto and The Conquistadores (Longmans, Green and Co., New York, 1930). Moorhouse I. X. Millar, S.J., International Law “The Catholic World” Vol. CVII (1918) Pp. 1, 190, 305. Ernest Nys, Les Origines de Droit Internationale (Paris, 1894). Charles Plater, S.J., A Primer of Peace and War (P. J. Kenedy and Sons, New York, 1915). Quetif-Echard, O.P., Scriptores Ordinis Praedicatorum Vol. II, Pp. 128-130 (Paris, 1721). William F. Roemer, Ph. D., The Ethical Basis of International Law (Loyola University Press, Chicago, 111. 1929). James Brown Scott, The Spanish Origin of International Law (School of Foreign Service, Georgetown University, Washing- ton, D. C. 1928). The Discovery of America and Its Influence on International Law (Washington, D. C. 1929). Margaret Shaw, The Father of International Law, “The Irish Rosary” (March 1930) Pp. 190-197. Franziskus Stratmann, O.P., The Church and War (P. J. Kenedy and Sons, New York, 1928). Joseph F. Thorning, S.J., Grotius and Others “The Commonweal” Vol. XI, No. 11 January 15, 1930). A. Touron, O.P., Histoire de Hommes Illustres de VOrdre S. Dominique Vol. IV., Pp. 55-65 (Paris, 1747). Francisco de Vitoria, O.P., De Indis et de Jure Belli Relectiones, edited by Ernest Nys, in The Classics of International Law, edited by James Brown Scott, Washington D. C. 1917). Herbert F. Wright, Ph. D., Francisci de Victoria De Jure Belli Relectio (Washington, 1916). i \ \ % ) T*HE CATHOLIC ASSOCIATION FOR INTERNA- A TIONAL PEACE came into existence as a result of a series of meetings during 1926-1927. The initial step was taken immediately following the Eucharistic Congress in Chicago, June, 1926, where representatives of a dozen nations met informally with Americans for discussion. A second meeting followed in October of the same year in Cleveland. At this meeting a temporary organization known as the Catholic Committee on International Relations was formed. In April, 1927, a two day conference in Washington the permanent name, the Catholic Association for International Peace, was adopted. Three conferences were held in the same city in 1928, 1929 and 1930. It is a membership organization. Its objects and purposes are: To study, disseminate and apply the principles of natural law and Christian charity to international problems of the day; To consider the moral and legal aspects of any action which may be proposed or advocated in the international sphere; To examine and consider issues which bear upon international good will; To encourage the formation of conferences, lectures and study circles ; To issue reports on questions of international importance; To further, in cooperation with similar Catholic organizations in other countries, in accord with the teachings of the Church, the object and purposes of world peace and happiness. The ultimate purpose is to promote, in conformity with the mind of the Church/'the Peace of Christ in the Kingdom of Christ” The present plan is to bring together in committees per- sons acquainted with a particular question. These commit- tees prepare reports. The reports are discussed in the meetings of the organization. In the light of this discussion, they are then revised. Thereafter, they are presented to the executive committee, which makes them public. The Committees on Ethics, Law and Organization, and Economic Relations serve as a guiding committee on the particular questions for all other committees. Questions in- volving moral judgments must be submitted to the Com- mittee on Ethics. Publications of the Catholic Association for International Peace Pamphlet Series— No. 1—INTERNATIONAL ETHICS. No. 2—LATIN AMERICA and the UNITED STATES. No. 3—CAUSES OF WAR, and SECURITY, OLD AND NEW. No. 4—HAITI, PAST and PRESENT. Wimeograph Series— No. 1—LEAGUE OF NATIONS IN ITS FIRST DECADE. No. 2—AMERICAN COOPERATION WITH THE LEAGUE OF NATIONS. No. 3—THE INTERNATIONAL ECONOMIC CONFERENCE. Reports in Preparation- International Law and Organization. The Church and Peace Efforts. Relations with Asia. United States Dependencies. Relations with Europe. Peace Education. International Agricultural Problems. Economic Relations. The Rosary Press, Somerset, Ohio