39. The second doubtful point is whether in a just war it is lawful to despoil innocent enemy-subjects. Let my first proposition be: It is cer- tainly lawful to despoil the innocent of goods and things which the enemy 451 would use against us, such as arms, ships, and engines of war. This is ciear, because otherwise we could not gain the victory, which is the aim of war. Nay, it is also lawful to take the money of the innocent and to burn and destroy their grain and kill their horses, if this is requisite in order to sap the enemy’s strength. Hence follows the corollary that if the war goes on for an indefinitely long time it is lawful utterly to despoil all enemy- subjects, guilty and guiltless alike, for it is from their resources that the enemy is feeding an unjust war, and, on the other hand, his strength is sapped by this spoliation of his citizens.
40. Second proposition: If a war can be carried on effectively enough without the spoliation of the agricultural population and other innocent folk, they ought not to be despoiled. Sylvester maintains this (under the word bellum, I, § 10) on the ground that war is founded on a wrong done, and therefore the rights of war may not be enforced against the innocent if the wrong can be redressed in another quarter. Aye, and Sylvester adds that, even if there were good reason to despoil the innocent, yet when the war is over the victor is bound to restore to them whatever is left. This, however, I do not think necessary, because, as said above, pious one, but whatever is done in right of war receives the construction most favorable does not seem to claims Qf those engaged in a just war. Hence, whatever has been 452 to the author. r n...,...necessary. lawlully seized is not in my opinion subject to restitution. All the same, Proposi¬ tion II.
Sylvester.
On the Law of War.
Sylvester’s remark is a pious one and not indefensible. But the spoliation of foreigners and travelers on enemy soil, unless they are obviously at fault, is in no wise lawful, they not being enemies.
41. Third proposition: If the enemy refuse to restore things wrong- fully seized by them and the injured party can not otherwise properly recoup himself, he may do so wherever satisfaction is obtainable, whether from guilty or from innocent. For instance, if French brigands made a raid into Spanish territory and the French King would not, though able, compel them to restore their booty, the Spanish might, on the authonzation of their sovereign, despoil French merchants or farmers, however innocent these might be. This is because, although the French State or Sovereign might initially be blameless, yet it is a breach of duty, as St. Augustine says, for them to neglect to vindicate the right against the wrongdoing of their subjects, and the injured sovereign can take satisfaction from every member Letters of re- and portion of their State. There is, accordingly, no inherent injustice in?”staJnnot un' the letters of marque and reprisals which princes often issue in such cases, themseives, because it is on account of the neglect and breach of duty of the other prince J|°^aerj®rus 453 that the prince of the injured party grants him this right to recoup himself even from innocent folk. These letters are, however, hazardous and open the way to plunder.
42. The third doubtful point is: Assuming the unlawfulness of the Doubt m. slaughter of children and other innocent parties, is it permissible, at any rate, to carry them off into capitivity and slavery? This can be cleared up in a single proposition, namely: It is in precisely the same way permis- Answer con- sible to carry the innocent off into captivity as to despoil them, liberty and tained ina^ slavery being included among the good things of Fortune. And so when sition.Pr°P° a war is at that pass that the indiscriminate spoliation of ali enemy-subjects alike and the seizure of ali their goods are justifiable, then it is also justi- fiable to carry ali enemy-subjects off into captivity, whether they be guilty or guiltless. And inasmuch as war with pagans is of this type, seeing that it is perpetual and that they can never make amends for the wrongs and damages they have wrought, it is indubitably lawful to carry off both the children and the women of the Saracens into captivity and slavery. But inasmuch as, by the law of nations, it is a received rule of Christendom that ^hns^oatn®n Christians do not become slaves in right of war, this enslaving is not lawful in slave Christ- a war between Christians; but if it is necessary having regard to the end and aim of war, it would be lawful to carry away even innocent captives, such waer.aw ° as children and women, not indeed into slavery, but so that we may receive 454 a money-ransom for them. This, however, must not be pushed beyond what the necessity of the war may demand and what the custom of lawful belligerents has allowed.
43. The fourth doubtful point is: Whether it is lawful at any rate to Doubtiv. kill hostages who have been taken from the enemy, either in time of truce or on the conclusion of a war, if the enemy break faith and do not abide by their undertakings. My answer is in a single proposition: If the hostages Answer^ in are in other respects among the guilty, as, for instance, because they have proposition.
Franciscus de Victoria Doubt V. Four points to be noted.
Proposition I.
Wherein con- sists the diffi- culty of this doubt.
Argument for the affirmative Proposi¬ tion II.
Proposi¬ tion III.
borne arms, they may rightfully be killed in that case; if, however, they are innocent, as, for instance, if they be children or women or other innocent folk, it is obvious from what has been said above that they can not be killed.
44. The fifth doubt is: Whether in a just war it is lawful to kill, at any rate, all the guilty. Prefatory to an answer be it noted that, as is shown by what has been said above, war is waged: Firstly, in defense of ourselves and what belongs to us; secondly, to recover things taken from us; thirdly, to avenge a wrong suffered by us; fourthly, to secure peace and security.
45. This premised, let my first proposition be: In the actual heat of battle, either in the storming or in the defense of a city, all who resist may be killed indiscriminately; and, briefly, this is so as long as affairs are in perii. This is manifest, because combatants could not properly effect their purpose 455 save by removing all who hinder and resist them. All the doubt and diffi- culty, however, is to know whether, when we have won our victory and the enemy is no longer any danger to us, we may kill all who have borne arms against us. Manifestly, yes. For, as shown above, one of the military precepts given by the Lord ( Deuteronomy, ch. 20) was that when a city of the enemy had been taken all dwellers in it were to be killed. The words of the passage are: “When thou comest nigh unto a place to fight against it, then proclaim peace unto it. And it shall be if it make thee answer of peace, and open unto thee, that all the people that is found therein shall be saved and shall be tributaries unto thee and shall serve thee. But if it will make no peace with thee, but will make war against thee, then thou shalt besiege it. And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword, but not the women and the little ones.”
46. Second proposition: Even when victory has been won and no danger remains, it is lawful to kill the guilty. The proof is that, as said above, war is ordained not only for the recovery of property, but also for the avenging of wrongs. Therefore the authors of a past wrong may be killed therefor. Again, this is permissible against our own wrongdoing citizens. Therefore also against foreigners; for, as said above, a prince 456 when at war has by right of war the same authority over the enemy as if he were their lawful judge and prince. And a further reason is that, although there be no present danger from the enemy, yet security for the future can not be had, unless the enemy be restrained by the fear of punishment.
47. Third proposition: Merely by way of avenging a wrong it is not always lawful to kill all the guilty. The proof is that even among citizens it would not be lawful, not even where the wrong was done by the whole city or district, to kill all the delinquents; nor in a common rebellion would it be permissible to slay and destroy the whole population. Accordingly, for such a deed, St. Ambrose interdicted Theodosius from the church. For such conduct would not be for the public good, which is nevertheless the end and aim of both war and peace. Therefore, it is not right to kill all the guilty among the enemy. We ought, then, to take into account the nature of the wrong done by the enemy and of the damage they have caused and On the Law of War.
of their other offenses, and from that standpoint to move to our revenge and punishment, without any cruelty and inhumanity. In this connection Cicero says ( Offices, bk. 2) that the punishment which we inflict on the guilty must be such as equity and humanity allow. And Sallust says: “Our ancestors, the most religious of men, took naught from those they conquered save what was authorized by the nature of their offenses.
457 48. Fourth propositioni Sometimes it is lawful and expedient to kill all the guilty. The proof is that war is waged in order to get peace 10n and security. But there are times when security can not be got save by destroying all one’s enemies: and this is especially the case against unbe- lievers, from whom it is useless ever to hope for a just peace on any terms.
And as the only remedy is to destroy all of them who can bear arms against us, yrovided they have already been in fault. That is how the injunction in Deuteronomy, ch. 20, is to be interpreted. Otherwise, however, in a war with Christians, where I do not think this would be allowable. For, as it needs must be that scandals come {St. Matthew, ch. 18) and also wars between princes, it would involve the ruin of mankind and of Christianity if the victor always slew all his enemies, and the world would soon be reduced to solitude, and wars would not be waged for the public good, but to the utter ruin of the public. The measure of the punishment, then, must be proportionate to the offense, and vengeance ought to go no further, and herein account must be taken of the consideration that, as said above, subjects are not bound, and ought not, to scrutinize the causes of a war, but can followT their prince to it in reliance on his authority and on public 458 counsels. Hence in the majority of cases, although the war be unjust on the other side, yet the troops engaged in it and who defend or attack cities are innocent on both sides. And therefore after their defeat, when no further danger is present, I think that they may not be killed, not only not all of them, but not even one of them, if the presumption is that they entered on the strife in good faith.
49. Sixth doubt: Whether it is lawful to slay those who have surren- Doubt vi. dered or been captured, supposing them also to have been guilty. My The author’s answer is that, speaking absolutely, there is nothing to prevent the killing answer' of those who have surrendered or been captured in a just war so long as abstract equity is observed. Many of the rules of war have, however, been fashioned by the law of nations, and it seems to be received in the use and custom of war that captives, after victory has been won (unless perchance they have been routed) and all danger is over, are not to be killed, and the law of nations must be respected, as is the wont among good people. But I do not read or hear of any such custom with regard to those who have surrendered; nay, on the capitulation of a fortress or city it is usual for those who surrender to try and provide for themselves in the conditions of the capitulation, as that their heads shall be safe and that they shall be let go in safety; that is, theyfear that an unconditional surrender would mean 459 their deaths. We read of this being several times done. Accordingly, it does not seem unjust that, if a city capitulates without taking any such Here an incidental answer is given to the principle ad- vanced, in favor of Proposition I.
Franciscus de Victoria Doubt VII. Proposi- tion I.
Proposi- tion II.
Corollary.
Incidental doubt.
Answer thereto.
Proposition III.
Sylvester.
precautions, the more notorious offenders should be put to death on the order of the prince or a judge.
50. Seventh doubt: Whether everything that is captured in a just war becomes the property of the captor and seizor. My first proposition hereon is: There is no doubt that everything captured in a just war vests in the seizor up to the amount which provides satisfaction for the things that have been wrongfully seized and which covers expenses also. This needs no proof, for that is the end and aim of war. But, apart from ali considera- tion both of restitution and satisfaction, and looking at the matter from the standpoint of the law of war, we must distinguish according as the things captured in war are movables (like money, garments, silver, and gold), or are immovables (like lands, cities, and fortresses).
51. This being assumed, let my second proposition be: All movables vest in the seizor by the law of nations, even if in amount they exceed what will compensate for damages sustained. This is ciear from Dig., 49, 15, 28 and 24, and from can. 9, Dist. 1, and it is more expressly laid down in Inst., 2, 1, 17, where it is said that “by the law of nations whatever is taken from the enemy immediately becomes ours, even so far as that free persons may be made our slaves.” And St. Ambrose says ( Liber de Patriarchis) that when Abraham slew the four kings their spoil belonged to 460 him as the conqueror, although he refused to take it ( Genesis, ch. 14, and can. 25, C. 23, qu. 5). And this is confirmed by the authority of the Lord ( Deuteronomy, ch. 20), where He says concerning the storming of a town: “All the spoil thereof thou shalt divide with the army and thou shalt eat of the spoil of thine enemies.” Adrian holds this opinion in his quaestio on restitution, in the special quaestio on war. So, also, Sylvester, under the word bellum, § 1 and § 9, where he says that he who fights a just cause is not bound to give back his booty (can. 2, C. 23, qu. 7). “Hence it follows that what is taken in war is not used as a set-off against the principal debt, as the Archdeacon also holds (can. 2, C. 23, qu. 2).” And Bartolus is of the same opinion, in his comment on Dig., 49, 15, 28. And this is understood to be so even if the enemy be ready to make amends in other ways for the damages and wrongs suffered. Sylvester, however, limits this, and rightly, allowing it only until a satisfaction sufficient in equity has been taken for the damages and wrongs suffered. For it is not to be imagined that, if the French have ravaged some one district or insignificant town in Spain, the Spanish might also, if they could, ravage the whole of France; they can only retort in a manner proportionate in kind and degree to the wrong done, according to the estimate of a good man.
52. But on this conclusion a doubt arises, namely, whether it is right to give a city up to the soldiery to sack. My answer is, and let this be my third proposition: This is not unlawful in itself, if necessary for the conduct 461 of the war or as a deterrent to the enemy or as a spur to the courage of the troops. So Sylvester, under the word bellum, § 10. It is on the same principle as that which justifies the burning of a city for reasonable cause. Nevertheless, inasmuch as such authorization to sack results in many On the Law of War.
horrors and cruelties, enacted beyond all humane limits by a barbarous soldiery, such as slaughter and torture of the innocent, rape of virgins, dishonor of matrons, and looting of temples, it is undoubtedly unjust in the extreme to deliver up a city, especially a Christian city, to be sacked, without the greatest necessity and weightiest reason. If, however, the necessities of war require it, it is not unlawful, even if it be likely that the troops will perpetrate foul misdeeds of this kind, which their generals are none the less bound to forbid and, as far as they can, to prevent.
53. Fourth propositioni Despite all this, soldiers may not, without Proposi- the authority of their prince or general, go looting or burning, because they on are themselves not judges, but executive officers; and those who do otherwise are bound to make restitution.
54. Now, with regard to immovable property and things, the difficulty Proposi- is greater, and let my fifth proposition be: There is no doubt about the l0n lawfulness of seizing and holding the land and fortresses and towns of the 462 enemy, so far as is necessary to obtain compensation for the damages he has caused. For instance, if the enemy has destroyed a fortress of ours, or has burnt a city or vineyards or olive gardens, we may in turn seize his land or fortress or city and hold it. For if it is lawful to exact compensa¬ tion from the enemy for the things of ours which he has taken, it is cer- tain that by the divine law and natural law it is not more lawful to take recompense therefore in movables than in immovables.
55. Sixth proposition: In order to obtain security and avoid danger Proposi- from our enemy it is also lawful to seize and hold a fortress or city belonging tl0n VL to him which is necessary for our defense or for taking away from him an opportunity of hurting us.
56. Seventh proposition: It is also lawful, in return for a wrong Proposi- received and by way of punishment, that is, in revenge, to mulct the enemy tion VIL of a part of his territory in proportion to the character of the wrong, or even on this ground to seize a fortress or town. This, however, must be done within due limits, as already said, and not as utterly far as our strength and armed force enable us to go in seizing and storming. And if necessity and 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 463 strife is adjusted and the war is over, only so much being retained 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 humanity, seeing that punishment ought to be proportionate to the fault. Thus it would be intolerable that, if the French raided the flocks of the Spanish or burnt a single district, the latter should be allowed to seize the whole Kingdom of France. Now, the lawfulness of seizing on this score either a part of enemy territory or an enemy city appears from Deuteronomy, ch. 20, where permission is granted in war to seize a city that has refused to accept terms of peace. Again, internal wrongdoers may be punished in this way, that is, they may be deprived of house or land or a fortress, in proportion to the character of the circumstances. Therefore foreigner wrongdoers also.
Franciscus de Victoria Doubt VIII.
Answer.
Doubt IX.
Proposi- tion I.
Proposi- tion II.
Note!
Again, a superior judge has competence to mulct the author of a wrong by taking away from him a city (for instance) or a fortress. Therefore a prince who has suffered wrong can do this too, because by the law of war he is put in the position of a judge. Again, it was in this way and by this title that the Roman Empire grew and developed, that is, by occupation, in right of war, of cities and provinces belonging to enemies who had injured them, and yet the Roman Empire is defended as just and lawful by St. Augustine, St. Jerome, St. Ambrose, St. Thomas, and other reverend doctors. Nay, it might be held approved by God in the passage, “Render unto Caesar the 464 things that are Caesar’s,” and by St. Paul, who appealed unto Caesar and who in Romans, ch. 13, gave an admonition to be subject to the higher powers and to princes and to pay tribute to those who at that time, ali of them, derived their authority from the Roman Empire.
57. Eighth doubt: Whether it is lawful to impose a tribute on con- quered enemies. My answer is that it is undoubtedly lawful, not only in order to recoup damages, but also as a punishment and by way of revenge. This is ciear enough from what has been said above and from the passage in Deuteronomy, ch. 20, which says that when the Jews have approached a city with good cause in order to attack it, if the city receives them and opens its gates, ali the people therin shall be saved and shall serve the Jews with payment of tribute. And this law and usage of war has prevailed.
58. Ninth doubt: Whether it is lawful to depose the princes of the enemy and appoint new ones or keep the princedom for oneself. First proposition: This is not unqualifiedly permissible, nor for any and every cause of just war, as appears from what has been said. For punishment should not exceed the degree and nature of the offense. Nay, punishments should be awarded restrictively, and rewards extensively. This is not a rule of human law only, but also of natural and divine law. Therefore, even assuming that the enemy’s offense is a sufficient cause of war, it will 465 not always suffice to justify the overthrow of the enemy’s sovereignty and the deposition of lawful and natural princes; for these would be utterly savage and inhumane measures.
59. Second proposition: It is undeniable that there may sometimes arise sufficient and lawful causes for effecting a change of princes or for seizing a sovereignty; and this may be either because of the number and aggravated quality of the damages and wrongs which have been wrought or, especially, when security and peace can not otherwise be had of the enemy and grave danger from them would threaten the State if this were not done. This is obvious, for if the seizure of a city is lawful for good cause, as has been said, it follows that the removal of its prince is also lawful. And the same holds good of a province and the prince of a province, if propor- tionately graver cause arise.
Note, however, with regard to Doubts VI to IX, that sometimes, nay, frequently, not only subjects, but princes, too, who in reality have no just cause of war, may nevertheless be waging war in good faith, with such good faith, I say, as to free them from fault; as, for instance, if the war is On the Law of War.
On the Law of War.
made after a careful examination and in accordance with the opinion of learned and upright men. And since no one who has not committed a 466 fault should be punished, in that case, although the victor may recoup himself for things that have been taken from him and for any expenses of the war, yet, just as it is unlawful to go on killing after victory in the war has been won, so the victor ought not to make seizures or exactions in temporal matters beyond the limits of just satisfaction, seeing that any- thing beyond these limits could only be justified as a punishment, such as could not be visited on the innocent.
60. Ali this can be summarized in a few canons or rules of warfare. ^{h^reaerfra“1ees First canon: Assuming that a prince has authority to make war, he should L first of all not go seeking occasions and causes of war, but should, if possible, live in peace with all men, as St. Paul enjoins on us ( Rovnans, ch. 12). Moreover, he should reflect that others are his neighbors, whom we are bound to love as ourselves, and that we all have one common Lord, before whose tribunal we shall have to render our account. For it is the extreme of savagery to seek for and rejoice in grounds for killing and destroying men whom God has created and for whom Christ died. But only under com- pulsion and reluctantly should he come to the necessity of war.
Second canon: When war for a just cause has broken out, it must not n. be waged so as to ruin the people against whom it is directed, but only so 467 as to obtain one’s rights and the defense of one’s country and in order that from that war peace and security may in time resuit.
Third canon: When victory has been won and the war is over, the ni. victory should be utihzed with moderation and Chnstian humihty, and the victor ought to deem that he is sitting as judge between two States, the one which has been wronged and the one which has done the wrong, so that it will be as judge and not as accuser that he will deliver the judgment whereby the injured state can obtain satisfaction, and this, so far as possible should involve the offending state in the least degree of calamity and mis- fortune, the offending individuals being chastised within lawful limits; and an especial reason for this is that in general among Christians all the fault is to be laid at the door of their princes, for subjects when fighting for their princes act in good faith and it is thoroughly unjust, in the woids of the poet, that — Quidquid delirant reges, plectantur Achivi.
(For every folly their Kings commit the punishment should fall upon the Greeks.)
.
I DE INDIS ET DE IVRE BELLI RELECTIONES BEING PARTS OF RELECTIONES THEOLOGICAE XII Bv Franciscus de Victoria Primary Professor of Sacred Theology in the University of Salamanca THE REVISED TEXT By Herbert Francis Wright of the Catholic University of America - ■ ' PREFATORY REMARKS CONCERNING THE TEXT.
TITLE.
The lectures, De Indis and De iure belli, were delivered by Franciscus de Victoria in 1532, as is ciear from the opening paragraph of the De Indis. They were not intended for publication by their author and consequently it is probable that he did not give them tities, but simply recited the Scrip- tural text upon which he intended to base his lecture. When, however, after the author’s death, these two lectures on the Indians of the New World, together with ten other lectures by the same author, were being pre- pared for publication under the general title, “ Relectiones Theologicae XII,” the editors perhaps felt the necessity of giving a title to each relectio. Con¬ sequently, the first of the two studies on the Indians is entitled “ De Indis insulanis ” in the first edition, “De Indis recenter inventis” in the second edition, and “De Indis noviter inventis” in the third and subsequent editions. The title of this study as given in the second edition has been retained in the present text in preference to that given in the first edition, because it is the more correct of the two furnished by contemporaries. The second of the two studies on the Indians is entitled “De Indis, sive de iure belli Hispanorum in barbaros” in ali editions and by subsequent writers is quoted simply as De iure belli.