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FRANCIS DE VITORIA,^ THE^ FOUNDER^ OF^ INTERNA-
TIONAL LAW
BRO. HUGH McKENNA, O.P.
[I
ITHIN the past twenty-five years and especially since^ the WorldWarthe study of international law has attained great prominence. Governments have soughttoknow^ and^ codify the laws which ought to regulate their relations with other nations. Congresses have convened intent upon solving great interna- tional problems. Mankind is no longer satisfied with promises^ of "victory," "national greatness," "revenge," and the like. Thereaction against war has resulted in the search^ for^ a means of establishing permanent universal peace. A world court has been created^ to^ which nations may submit their controversies and from^ which they may hope to obtain justice. Although these things are^ so modern in fact, the fundamental principles tmderlying 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 com- memorate the third centennial of the publication of the great master- piece De Jure Belliac Pacis^ 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^ ideas^ and materials on which he built his juridical system. Accordingly a com- mittee 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 before the statue of Francis Suarez in Granada. Whether it is true as N ys 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^ six- teenth century,"^1 no^ one can deny, however,^ that^ its greatest event,
(^1) Introduction, p. 18, Victoria, "De Indis et De lure Belli Relectiones," in the collection,^ The^ Classics^ of^ b~ternational^ Law,^ edited^ by^ James^ Brown^ Scott (Washington, 1917).
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the discovery of the New World, isofparamount importance.Europe was thrilled atthenewsthatthe bold expeditionofColumbus had discovered lands, the existence of which were not previously known. Spain, then inthezenithof hermilitary power, in herintellectual prime, full (^) of the vigor of a civilization recently triumphant over the Moors, rejoiced inhernew possessions. Butno sooner had she ob- tained a secure hold upon these lands than the processofexploitation began, anditwas not confined merely to natural riches but extended tothe very personsoft he natives who were treated (^) with great ruth- lessness and deprived even of their elemental rights. Thediscovery of America, th e claims of the Spaniards to its possession and their treatmentof the natives, caused frequent dis- cussions of (^) the principles of law and rightupon which their claims and their actions might be justified. These discussions were attended by the leading men of the kingdom and often by the Spanish sov- ereign himself. Some there were who maintained that the Spanish had the right to occupy these lands andtosubjugate their inhabitants not only through peaceful means but even by war. Some went go faras to declare that this violent subjugation was,at the same time, the most efficacious means of Christianizing the Indians. Notonly the excesses and abuses which crept into the New Worldas a conse- quence 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, particularly in a history (^) of the Dominican Order: "to the sons of Saint Dominic belongs the honor of being the first protectors 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 Bar- bastro, protomartyr of Florida, and Bartholomew de Las Casas, rightly called the "Apostle of the Indians." 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 actualized by the disputes arising from their current application to the American problem. In 1526 the rank- ing chair of theology at the University of 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
' Rev. L. A. Dutto, The Life of Bartolome de Las Casas (St. Louis, 1902), p. 48.
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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 truetitles which the Spaniards might allegetojustify their dom-
ination 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 (^) Vitor ia "the law of nations was European in origin and
restrictedtoa continent ; through (^) himitcrossed the ocean and in
applyingittothepeoples of America it dropped its continental char-
acter in order tobecome universal in fact as well as in theory. Evi-
dently Vitoria looked upon his Relectio de Indis as his principle con- tribution, his tractate on war being in the nature of an afterthought hurriedly put together in his scant leisuretogive, as he himself in- forms us, completenesstothe earlier reading." 7 Thetwo taken to- gether 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 deVitoria onWarwere superior to anything which had ever been written on the same subject." 8 Thetitle "Father of International Law" (^) until recent years has been attributed somewhat erroneously (^) to Hugo Grotius, because of his work De Jure B elliac Pacis. Theinternational 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 be- cause 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 lawand the writings of Gentilis and Grotius, generally held as the veritable founders of this science, as much, are nothing but the development and continuation. (^) Neither in method nor fundamental doc-
- Father Getino, O.P., writes, in his work El Maestro Fr. Francisco de Vitoria yEl Remmcimiento 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 years 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." Foot- · note, p. 100. ']ames Brown Scott, The Spanish Origin of International Law (Washing- ton, 1928), p. 89.
- Ibid, p. 21.
Francis de Vitoria, the Founder of International Law 295
trine do Gentilis and Grotius differ essentially from the Spanish Do-
minican. 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 pro-
fesso, on the same matters which Francisco de Vitoria was obliged to
treat with that bre v it y and precision required by the occasion of
his two reading s." 9 Profes sor 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 defini- tion of it. "Francis de Vitoria," writes the sa me author, "says that internati ona l 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 sociabil it y, because there is a natur al society, there is mutual intercourse, a communion and a bond among peoples: One nation has the right of entering into relation with another nation to such an extent that the denial of the exercise of this ri ght justifies wa r. In other words, Vitoria saw clearly the interdependence of nations, their reciprocal rights and duties." 10 Frankly and independently he formu lated his judgments, caring not whether they coincided with opinions of Pope or em- peror. Charles V in a memorable letter 11 to the Prior of the Do- minican convent of Salamanca complained against "the excessive libert y taken by the theologian Vitoria in problems of such deli- cacy affecting the greatness of his empire." This protest is sa id to have served merely to encourage the theologian to go deeper into the matter. More than a brief outline of his juridical teach- ings can hardly be given here. Vitoria maintained that the Pope's authority was limited to r eligious matters, and to those questions which are related to religion. He s tand s out among the Spaniards and Portuguese as the defender of the proposition that infidels cannot be deprived of civil power or sovereignty simply because the y are infidels. He makes his position strik- ingly 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,
- Eduardo Hinojosa, Discurso leido en Ia academia de Ia historia, p. 47 ff., cited by Scott in The Spanish Origi11 of Intemational Law, p. 65. (^10) Ernest Nys, Les Origines de Droit lnternationale (Paris, 1894), p. 11. u Written November 10, 1539.
Francia deVitoria,theFounderofInternational^ Law^297
mentaltothe^ worldortoChristianize society,itisfor^ thatreason un- just.'^ "^16 Since^ wars in modern times^ are^ waged on a larger scale^ than those^ oftheMiddle Ages, and their^ frightful^ consequencesarefelt more^ easily throughout the world on account^ ofourgreater^ world- wide int erdependence, both economic^ and^ otherwise, it seems more likelythatawarwhich in itself isjustand lawful, may be unlawful on account of the greater^ evils^ and^ dangers^ which^ would^ follow from it. Theprinciple of that cardinal American policy proclaimed^ by President^ Monroe in his famous message of^1823 toCongress was zealously defended^ three^ centuries earlier by^ Francis^ de^ Vitoria when he declared^ that^ the^ colonization^ of^ America as^ res nullius^ wasjuri- dically unjustifiable.^ It^ wasthetheories^ of^ Vitoria, likewise, which President Wilson, consciously^ or^ not, soughttoapply^ in^ practice^ and which formed the basis^ of^ Articles Xto^ XVII^ of^ the^ League^ of Nations. Ina 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. 'Itis not^ to^ be doubted,' he says, 'that^ the^ world is in a certain sense a^ single community, possesses the righttoprescribe equitable^ and^ appropriate laws^ for^ its members, 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^ unimpor- tant matters, like the inviolability^ of^ ambassadors,^ it^ is^ not^ lawful^ for any^ nation^ to^ refuse^ to^ observe^ the^ law^ of^ nations.'^
1 6 Thesense 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 ancestors^ for^ its alleged^ discov·· eries."^11 The year 1932 marks the four hundredth^ anniversary^ of^ the delivery of^ these famous lectures^ of^ Francis^ de Vitoria,^ and^ to^ com-
memorate this event^ the^ Am^ erican^ Institute^ of International^ Law^ will
convene at the University 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 with-
out precedent in international relations.^ It^ is proposed to found^ an
,. Ibid.,^ p.^ 3. "Victoria, Relectio III, De Potestate^ Civili,^ p.^ 93. " Scott, op. cit. p. 62.
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Institute of International Relations bearing the nameofthe illustrious Dominican which will be maintained by Americansandsponsored by the American Instituteof International Law. Thepurposeof this Institute of International Relations would consist principally in ex- plaining the fundamental doctrines of international law, inspired by the theories of the (^) Spanish school of the sixteenth and seventeenth centuries. TheConvent of San Gregorio in Valladolid whereFather Vitoria lived, now owned by the Spanish Government, will be con- verted into a residential club foruniversity students of Spain and America. A committee of six prominent persons has been formed in the United Statestoinitiate 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 distinguished Dominican had its origin a little more than a decade ago at the Cath- olic University of America. Thehistorical background was outlined in a lecture "Spanish ColonizationIn America" by Doctor J. De Siqueira Coutinho in March of 1916. Thereasons for the unjust treatment 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,Fran- cis de Vitoria, who enthusiastically proclaimed with some success the principles of international right and wrong which should govern the relations between the natives and the new settlers. Atthe same institution, a few months later, Mr. Herbert F. Wright's doctoral dissertation, Francisci de Victoria De Jure B elli R election, the result of two years'res earch, appeared; it wa sthefir st work onthe subject tobe published in this country. When itis considered that Vitoria dictated his lecture s and that no manu s cripts be- longin g to him (^) have be en found,thedifficulty o f se curing atrue text of them (^) immediately become s apparent. Doctor Wright with his profound (^) knowledge of philology ha s carefully exam- ined the early editions of the Relectiones in an effort, which proved
most successful, to obtain a text more conformable to the original
than any previous edition. His revised text (^) has been incorporated
into the work on "Victoria" in the collection Classics of International
Law. Opportunities for travel and the growing interest for interna-
tional affairs have in recent years greatly increased the number of
Americans privileged to visit Europe and seriously to observe its
