is bound to make restitution, if afterwards he becomes convinced of its injustice.
34. Whether it is lawful in war to kill the innocent.
35. Slaughter of the innocent is never lawful in itself and intentionally.
36. Whether it is lawful to kill women and children in a war against the Turks; 414 and what, among Christians, about farmers, civilians, foreigners, strangers, and clergy.
37. The incidental killingof the innocent, even with knowledge, is sometimes lawful, sometimes not.
38. Whether it is lawful to kill the innocent from whom danger in the future is apprehended.
39. Whether it is lawful to despoil the innocent among the enemy, and what things may be taken.
40. If war can be adequately conducted without despoiling farmers or other innocent folk, it seems unlawful to despoil them; and what about foreigners and strangers on enemy territory?
41. How, if the enemy refuse to restore the things which they have wrongfully taken away, and the injured party can not recoup himself in any other way, he can seek satisfaction where he will, whether from the guilty or the innocent.
42. Whether the innocent and children, who are admittedly not to be killed, may at least be led into captivity and slavery.
43. Whether hostages, taken from the enemy in time of truce or on the termination of a war, may be put to death, if the enemy break faith and do not abide by what has been agreed on.
44. Whether it is lawful in war to kill ali the guilty. 415 45. It is lawful to kill without distinction ali who resist in the actual heat of battle either in the storming or in the defense of a city, and as long as affairs are in perii.
46. It is lawful to kill the guilty, even after victory has been won and danger has already been removed.
47. It is not always lawful to kill all the guilty, merely in order to avenge a wrong.
48. At times it is both lawful and expedient to kill all the guilty, especially in a war against unbelievers. And what in a war against Christians?
49. Whether it is lawful to kill captives and those who have surrendered, assuming them to have been guilty also.
On the Law of War.
50. Whether things captured in a just war belong to the captor and seizor; and how these things vest in the seizor up to a sufficient satisfaction for what has been wrongfully taken away and for expenses.
51. How ali movables, by the law of nations, vest in the seizor, even though their value more than compensates the wrong done.
416 52. Whether it is lawful to leave a city to the soldiery by way of booty; and how this is not unlawful, but at times even necessary.
53. Soldiers may not loot or bum without authority; otherwise they are bound to make restitution.
54. It is lawful to seize and hold the lands and fortresses and towns of the enemy, so far as this is necessary by way of compensation for damages done.
55. It is lawful to seize and hold an enemy fortress or city by way of obtaining securety and avoiding danger or as a means of defense and in order to take away from the enemy an opportunity to do harm, etc.
56. It is lawful to deprive the enemy of part of his territory on account of the wrong he has done and by way of punishment, that is, revenge; and how on this ground a fortress or town may be seized, so long as due limits are observed.
57. Whether it is lawful to impose the payment of tribute on the conquered enemy.
58. Whether it is lawful to depose the princes of the enemy and put new ones over them or retain the sovereignty for oneself; and how it is not lawful to do this indiscriminately and for every cause of just war whatsoever.
59. When the princes of the enemy may lawfully be deposed, is shown.
60. The canons or rules of belligerency are described.
417 Inasmuch as the seizure and occupation of those lands of the bar- barians whom we style Indians can best, it seems, be defended under the law of war, I propose to supplement the foregoing discussion of the tities, some just and some unjust, which the Spaniards may allege for their hold on the lands in question, by a short discussion of the law of war, so as to give more completeness to that relectio. As, however, the other claims on my time will not allow me to deal with ali the points which arise out of this topic, the scope which I can give my pen must be proportionate, not to the amplitude and dignity of the theme, but to the shortness of the time at my disposal. And so I will merely note the main propositions of this topic, together with very brief proofs, and will abstain from touching on the many doubtful matters which might otherwise be brought into this discussion. I Four principai will deal with four principai questions. First, Whether Christians may b^dfscussed make war at ali; secondly, Where does the authority to declare or wage war repose; thirdly, What may and ought to furnish causes of just war; fourthly, What and how extensive measures may be taken in a just war against the enemy?
As regards the first question, war might seem altogether prohibited to The first 418 Christians, for there is the prohibition of self-defense in the passage ( Romans, Princ‘Pal ch. 12), “Dearly beloved, avenge not yourselves, but give place unto wrath,” The ^gj. and our Lord says in the Gospel (St. Matthew, ch. 5), “ Whosoever shall smite ment <m one thee on the right cheek, turn to him the other also” and “I say unto you question!*8 not to resist evil,” and (St. Matthew, ch. 26), “All they that take the sword shall perish by the sword.” And it is no sufficient answer to say that all these matters are not of precept, but of counsel, for it would be a grave enough impropriety if every war undertaken by Christians was contrary to Franciscus de Victoria Luther’s opinion.
Tertullian, too, inclines to same opinion.
The author gives his opinion in a single propo- sition.
(a) Especially book 22.
Proof 1.
(d) It is in the Sermones De verbis Domini.
(e) Letter 205 to Count Boniface.
(f) Passage seems to be Contra Faus¬ Proof 2.
Proof 3- Proof 4 and onward deals with offensive war.
our LorcTs advice. The opinion of all the doctors is to the contrary and so is the received usage of the Church.
In development of this question be it noted that, although Catho- lics are fairly in accord on the matter, yet Luther, who left naught uncon- taminated, denies that Christians may take up arms even against theTurks, and he relies not only on the above-cited texts of Scripture, but also on the fact that if the Turks attack Christendom it is the will of God, which may not be resisted. Herein, however, he had not as much success as in his other dogmas in imposing on theGermans, who are born soldiers. Tertullian too, seems not averse from this opinion, for in his De corona militis he discusses “whether military Service is at all right for a Christian,” and in the issue he 419 inclines to hold that military Service is forbidden to a Christian, who, says he, “may not even go to law.”
1. Passing over outside opinions, however, let my answer to the question be given in the single proposition: Christians may serve in war and make war. This is the conclusion of St. Augustine in the many passages where he thoroughly considers the question, such as: (a) in his Contra Faustum, ( b ) in his Liber 83 Quaestionum, (c) in his De verbis Domini, in his Contra Secundi- num Manichaeum, (< i) in his sermon on the Centurion’s son, and ( e ) in his Letter to Boniface. And, as St. Augustine shows, this is proved by the words of John the Baptist to the soldiers (St. Luke, ch. 3), “Do violence to no man, neither accuse any falsely.” “But,” says St. Augustine, (/) “if Christian doctrine condemned war altogether, those looking for counsels of salvation in the Gospel would be told to throw away their arms and give up soldiering altogether; but what is said to them is, ‘Do violence to no man and be content with your wages.’”
Secondly, there is proof in the reason of the thing (Secunda Secundae, qu. 40, art. 1). To draw the sword and use arms against internal wrong- doers and seditious citizens is lawful according to Romans, ch. 13, “He beareth not the sword in vain, for he is the minister of God, a revenger of wrath upon him that doeth evil.” Therefore it is lawful also to use the sword and arms against external enemies. Princes, accordingly, are told in the Psalms,1 “Deliver the poor and needy, rid them out of the hand of 420 the wicked.”
Thirdly, this was also allowable by the law of nature, as appears from the case of Abraham, who fought against four kings (Genesis, ch. 14), and also by the written law, as appears from the cases of David and the Macca- bees. But the Gospel law forbids nothing which is allowed by natural law, as is well shown by St. Thomas (Prima Secundae, qu. 107, last art.), and that is why it is called the law of liberty (St. James, ch. 1 and 2). There¬ fore, what was lawful under natural law and in the written law is no less lawful under the Gospel law.
Fourthly, since there can be no doubt that in a defensive war force may be employed to repel force (Dig., i, i, 3), this is also proved with regard to an offensive war, that is, a war where we are not only defending ourselves On the Law of War.
or seeking to repossess ourselves of property, but also where we are trying to avenge ourselves for some wrong done to us. This, I say, is proved by the authority of St. Augustine ( Liber 83 Qucestionum ) in a passage also T^saj.® found in can. dominus, C. 23, qu. 2, “Those wars are described as just wars Quaestiones which are waged in order to avenge a wrong done, as where punishment super J°sue> has to be meted out to a city or state because it has itself neglected to qU’ 1 ’ exact punishment for an offense committed by its citizens or subjects or to return what has been wrongfully taken away.”
A fifth proof with regard to an offensive war is that even a defensive Proof 5. war could not be waged satisfactorily, were no vengeance taken on enemies who have done or tried to do a wrong. For they would only be embold- 421 ened to make a second attack, if the fear of retribution did not keep them from wrongdoing..
A sixth proof is that, as St. Augustine says {De verbo Domini and Ad Proof 6. Bonifacium ), the end and aim of war is the peace and security of the State, ^eady63 But there can be no security in the State unless enemies are made to desist cited. from wrong by the fear of war, for the situation with regard to war would be glaringly unfair, if all that a State could do when enemies attack it unjustly was to wardoff the attack and if they could notfollow this up by furthersteps.
A seventh proof comes from the end and aim and good of the whole Proof 7. world. For there would be no condition of happiness for the world, nay, its condition would be one of utter misery, if oppressors and robbers and plunderers could with impunity commit their crimes and oppress the good and innocent, and these latter could not in tum retaliate on them.
My eighth and last proof is one which in morals carries the utmost weight, namely, the authority and example of good and holy men. Such men have not only defended their country and their own property in defensive wars, but have also in offensive wars sought reparation for wrongs done or attempted by their enemies, as appears from the case of Jonathan and Simon (I Maccabees, ch. 9), who avenged the death of their brother John on the sons of Jambri. And in the Christian Church we have the conspicuous examples of Constantine the Great and Theodosius the 422 Elder and other renowned and most Christian Emperors, who made many wars of both kinds, although their councils included bishops of great sanc- tity and learning.
2. Second question: In whose hands lies the authority to declare and to make war?
3. Herein let my first proposition be: Any one, even a private person, Proposition 1. can accept and wage a defensive war. This is shown by the fact that force may be repelled by force {Dig., as above). Hence any one can make this kind of war, without authority from any one else, for the defense not only of his person, but also of his property and goods.
4. A doubt, however, arises in connection with this proposition, namely, Do«bt* whether one who is attacked by a robber or enemy can strike his assailant back if escape by flight is possible. The Archbishop, indeed, says, No; The this being in excess of the limits of blameless self-defense, since everyone opinion.h°P 8 Proof 8.
Second Principal nuestinn.
Franciscus de Victoria Panormi¬ tanus’ opinion.
Bartolus’ opinion.
The author adopts Bartolus’ opinion.
Proposi- tion II.
Distinction between a private person and a State.
The author’s opinion.
Proposi- tion III.
is bound in the exercise of self-defense to do as littie harm as possible to his assailant. If, then, resistance would involve the death of or grievous bodily harm to the assailant, but escape by flight is a possible thing, the latter course ought to be adopted. Panormitanus, however, writing on X, 2, 13, 12, draws a distinction. If, says he, the victim would be seriously disgraced by flight, he is not bound to fly, but may repel the wrong by striking back, whereas if flight would not smirch his reputation or honor, as when a monk 423 or rustic is attacked by a noble and powerful man, he is bound to fly instead. Bartolus, however, commenting on Dig., 48, 19, 1, and 48, 8, 9, holds with- out distinguishing that self-defense is lawful and that there is no obligation to fly, the putting to flight being itself a wrong (Dig., 47, 10, 15). If, then, armed resistance is permissible in defense of property, as appears from X, 2, 13, 12, and from c. 6, tit. 11, bk. 5 in vi, much more is it permissible in order to protect the body from hurt, such hurt being more serious than wrong to property (Dig., 48, 19, 10). This opinion can be safely held and with possibility of demonstration, especially as the civil law admits as much, as in Dig., 48, 8, 9. Now, no one sins who acts under warrant of the law, inasmuch as the law affords justification in the forum of conscience. Accord- ingly, even if natural law does not allow killing in defense of property, this is rendered lawful by the civil law and is available, so long as no scandal is caused, not only to laymen, but to clerics and professed persons.
5. Second proposition: Every State has authority to declare and to make war. In course of proof of this be it noted that the difference herein between a private person and a State is that a private person is entitled, as said above, to defend himself and what belongs to him, but has no right to avenge a wrong done to him, nay, not even to recapt property that has 424 been seized from him if time has been allowed to go by since the seizure.
But defense can only be resorted to at the very moment of the danger, or, as the jurists say, in continenti, and so when the necessity of defense has passed there is an end to the lawfulness of war. In my view, however, one who has been contumeliously assaulted can immediately strike back, even if the assaulter was not proposing to make a further attack, for in the avoidance of shame and disgrace one who (for example) has had his ears boxed might immediately use his sword, not for the purpose of vengeance, but, as has been said, in order to avoid infamy and disgrace. But a State is within its rights not only in defending itself, but also in avenging itself and its subjects and in redressing wrongs. This is proved by what Aris- totle says in the third book of his Politics, namely, that a State ought to be sufficient unto itself. But it can not adequately protect the public weal and the position of the State if it can not avenge a wrong and take measures against its enemies, for wrongdoers would become readier and bolder for wrongdoing, if they could do wrong with impunity. It is, there- fore, imperative for the due ordering of human affairs that this authority be allowed to States.
6. Third proposition: A prince has the same authority in this respect 425 as the State has. This is the opinion of St. Augustine (Contra Faustum ): On the Law” oj War.
“The natural order, best adapted to secure the peace of mankind, requires that the authority to malte war and the advisability of it should be in the hands of the sovereign prince.” Reason supports this, for the prince only holds his position by the election of the State. Therefore he is its repre- sentative and wields its authority; aye, and where there are already lawful princes in a State, ali authority is in their hands and without them nothing of a public nature can be done either in war or in peace.
7. Now, the whole difficulty is in the questions: What is a State, and who can properly be called a sovereign prince? I will briefly reply to them by saying that a State is properly called a perfect community. But the essence of the difficulty is in saying what a perfect community is. By way of solution be it noted that a thing is called perfect when it is a completed whole, for that is imperfect in which there is something wanting, and, on the other hand, that is perfect from which nothing is wanting. A perfect State or community, therefore, is one which is complete in itself, that is, which is not a part of another community, but has its own laws and its own council and its own magistrates, such as is the Kingdom of Castile and Aragon and the Republic of Venice and other the like. For there is 426 no obstacle to many principalities and perfect States being under one prince. Such a State, then, or the prince thereof, has authority to declare war, and no one else.
8. Here, however, a doubt may well arise whether, when a number of States of this kind or a number of princes have one common lord or prince, they can make war of themselves and without the authorization of their superior lord. My answer is that they can do so undoubtedly, just as the kings who are subordinate to the Emperor can make war on one another without waiting for the Emperor’s authorization, for (as has been said) a State ought to be self-sufficient, and this it would not be, if it had not the faculty in question.
9. Hence it follows and is plain that other petty rulers and princes, who are not at the head of a perfect State, but are parts of another State, can not begin to carry on a war. Such is the Duke of Alva or the Count of Benevento, for they are parts ofthe Kingdom ofCastile and consequently have not perfect States. As, however, these matters are for a great part governed by the law of nations or by human law, Custom can give power and authority to make war. And so if any State or prince has obtained by ancient custom the right to make war of itself or himself, this authority can not be gain- 427 said, even if in other respects the State be not a perfect one. So, also, necessity can confer this license and authority. For if within one and the same realm one city should take up arms against another, or one of the dukes against another duke, and the king should neglect or should lack courage to exact redress for the wrongs that have been done, the aggrieved city or duke may not only resort to self-defense, but may also commence war and take measures against the enemy and even kill the wrongdoers, there being no other adequate means of self-defense. For the enemy would not cease from outrage, if the victims thereof were content merely with self- Herein the prince has the same authority as the State.
Doubt.
The author’s answer.
Corollary.
Fr ancis cus de Victoria Third Principal question.
Proposi- tion I.
Proposi- tion II.
Proposi- tion III.
Proof 1.
Proof 2.
Proof 3- Proposi- tion IV.
*Rather in Quaestiones super Josue, Proof 1. Proof 2.
defense. On this principle a private person also may begin an attack on his foe, if there is no other way of safeguarding himself from wrong. This is enough on the present question.
10. Third question: What may be a reason and cause of just war? It is particularly necessary to ask this in connection with the case of the Indian aborigines, which is now before us. Here my first proposition is: Differenee of religion is not a cause of just war. This was shown at length in the preceding Relectio, when we demolished the fourth alleged title for taking possession of the Indians, namely, their refusal to accept Christianity. And it is the opinion of St. Thomas ( Secunda Secundae, qu. 66, art. 8), and the common opinion of the doctors — indeed, I know of no one of the opposite way of thinking.
11. Second proposition: Extension of empire is not a just cause of war. 428 This is too well known to need proof, for otherwise each of the two belliger- ents might have an equally just cause and so both would be innocent. This in its turn would involve the consequence that it would not be lawful to kill them and so imply a contradiction, because it would be a just war.
12. Third proposition: Neither the personal glory of the prince nor any other advantage to him is a just cause of war. This, too, is notori- ous. For a prince ought to subordinate both peace and war to the common weal of his State and not spend public revenues in quest of his own glory or gain, much less expose his subjects to danger on that account. Herein, indeed, is the differenee between a lawful king and a tyrant, that the latter directs his government towards his individual profit and advantage, but a king to the public welfare, as Aristotle says ( Politics, bk. 4, ch. 10). Also, the prince derives his authority from the State. Therefore he ought to use it for the good of the State. Also, laws ought “not to be enacted for the private good of any individual, but in the common interest of ali the citizens,” as is ruled in can. 2, Dist. 4, a citation from Isadore. Therefore the rules relating to war ought to be for the common good of ali and not for the private good of the prince. Again, this is the differenee between freemen and slaves, as Aristotle says ( Politics, bk. 1, ch. 3 and 4) that masters exploit slaves for 429 their own good and not for the good of the slaves, while freemen do not exist in the interest of others, but in their own interest. And so, were a prince to misuse his subjects by compelling them to go soldiering and to contribute money for his campaigns, not for the public good, but for his own private gain, this would be to make slaves of them.
13. Fourth proposition: There is a single and onlyjust cause for com- mencing a war, namely, a wrong received. The proof of this rests in the first place on the authority of St. Augustine ( Liber 83 Quaestionum,* “Those wars are described as just wars,” etc., as above), and it is the conclusion arrived at by St. Thomas ( Secunda Secundae, qu. 40, art. 1) and the opinion of all the doctors. Also, an offensive war is for the purpose of avenging a wrong and of taking measures against an enemy, as said above. But there can be no vengeance where there is no preceding fault and wrong. Therefore. Also, a prince has no greater authority over foreigners than Proof 3.
On the Law of War.
over his own subjects. But he may not draw his sword against his own subjects, unless they have done some wrong. Therefore not against for- eigners either. This is confirmed by the text already cited from St. Paul ( Romans, ch. 13) about a prince: “He beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.” Hence it is ciear that we may not turn our sword against those who do us no harm, the killing of the innocent being forbidden by natural 430 law. I omit here any injunctions inconsistent herewith which God has given in special cases, for He is the Lord of life and death and it is within His competence to vary His dispositions.
14. Fifth propositioni Not every kind and degree of wrong can suffice p™Py®‘" for commencing a war. The proof of this is that not even upon one s own fellow-countrymen is it lawful for every offense to exact atrocious punish- ments, such as death or banishment or confiscation of property. As, then, the evils inflicted in war are ali of a severe and atrocious character, such as slaughter and fire and devastation, it is not lawful for slight wrongs to pursue the authors of the wrongs with war, seeing that the degree of the punishment ought to correspond to the measure of the offence (Deuteronom y, 15. The fourth question is about the law of war, namely, what kind p£“gipal and degree of stress is lawful in a just war. Here let my first proposition question. be: In war everything is lawful which the defense of the common weal P™P°S1' requires. This is notorious, for the end and aim of war is the defense and preservation of the State. Also, a private person may do this in self-defense, as has been proved. Therefore much more may a State and a prince.
16. Second proposition: It is permissible to recapt everything that has been lost and any part of the same. This is too notorious to need proof. For war is begun or undertaken with this object.
431 17. Third proposition: It is lawful to make good out of enemy prop- p™PjIsIl_ erty the expenses of the war and all damages wrongfully caused by the enemy. This is ciear, for the enemy who has done the wrong is bound to Proof T* give all this redress. Therefore the prince can claim it all and exact it all by war. Also, as before, there is the argument that, when no other way Proof 2- lies open, a private creditor can seize the amount of his debt from the debtor.
Also, if there were any competent judge over the two belligerents, he would P™°f 3- have to condemn the unjust aggressors and authors of wrong, not only to make restitution of what they have carried off, but also to make good the expenses of the war to the other side, and also all damages. But a prince who is carrying on a just war is as it were his own judge in matters touch- ing the war, as we shall forthwith show. Therefore he can enforce all these claims upon his enemy.
18. Fourth proposition: Not only are the things just named allow- p™p°£' able, but a prince may go even further in a just war and do whatever is necessary in order to obtain peace and security from the enemy; for example, destroy an enemy’s fortress and even build one on enemy soil, if this be necessary in order to avert a dangerous attack of the enemy. This Proo£ x* Franciscus de Victoria Proof 2.
Proof 3.
Corollary.
Proposi- tion V.
Power which, inthe author’s opinion, princes have not only over their own subjects, but also over for- eigners by the law of na- tions, and by natural law too.
is proved by the fact that, as said above, the end and aim of war is peace and security. Therefore a belligerent may do everything requisite to obtain peace and security. Further, tranquillity and peace are reckoned 432 among the desirable things of mankind and so the utmost material pros- perity does not produce a state of happiness if there be no security there. Therefore it is lawful to employ all appropriate measures against enemies who are plundering and disturbing the tranquillity of the State. Also, all measures of this kind may be taken against internal foes, that is, against bad citizens. Therefore they are lawful against external foes. The ante¬ cedent is ciear, for if one citizen does a wrong to a fellow citizen, the magistrate not only compels the wrongdoer to make amends to the injured party, but, if the former is a source of fear to the latter, he is compelled to give bond or quit the city, so as to remove the danger of which he is the cause. This shows that even when victory has been won and redress obtained, the enemy may be made to give hostages, ships, arms, and other things, when this is genuinely necessary for keeping the enemy in his duty and preventing him from becoming dangerous again.
19. Fifth proposition: Not only is all this permissible, but even after victory has been won and redress obtained and peace and safety been secured, it is lawful to avenge thewrong received from the enemy and to take measures against him and exact punishment from him for the wrongs he has done.