Francisco de Vitoria’s justification for the occupation of the New World (Carl Schmitt)

Revista Española de Derecho Internacional - Vol. 2. n.º 1, 1949

For four hundred years, from the 16th to the 20th century, the structure of European public international law has been determined by a fundamental event: the conquest of the New World. It was to be expected, of course, that many related legal and moral questions would be discussed sooner or later. There are also numerous individual positions on the justice or injustice of the conquest. However, it can be said that the problem itself, with its fundamental implications, i.e. the general problem of the justification of the European occupation of those lands, has rarely been the subject of systematic and express moral or legal consideration. As such, there is only one systematic study in this domain, and at the same time a monographic one, which fully confronts the aforementioned international-legal problem, directly raises the fundamental question of the corresponding legal titles of the conquest, and resolves it according to the strictest rules of the scholastic method. This examination dates back to the early days of the conquest. It is found in the famous relectiones, De Indis insulanis, by Francisco de Vitoria (1532). Because of their soundness in their approach and the perfection of their scholastic method, these relectiones have influenced all subsequent discussions of the problem, pointing the way forward. But they have also often been misunderstood and misused.

Vitoria's theses are immersed in a scholastic-theological study and already belong to late Spanish scholasticism. A comprehensive exposition of this great moment of European thought, which corresponds to the time of Charles V and Philip II, is still lacking. As a German theologian, Karl Eschweiler¹, a connoisseur of late scholasticism, rightly said, an exposition of this kind “can only be written in Spain and by Spaniards.” I am only going to deal here, from the perspective of the current science of international law, with Vitoria's place in the history of legal doctrines and the scientific legal applications of his famous relectiones, the interpretation of which has its history.

The first impression that today's reader receives from these choices is one of objectivity, neutrality, and a lack of preconceived ideas, truly uncommon. The argumentation does not seem properly medieval, but “modern.” Seven tituli non idonei nec legitimi and as many tituli legitimi are the subject of more or less extensive, but equally serious, consideration². All titles which the Pope and the Emperor could claim on the basis of an aspiration to world government are rejected in all fairness as unsuitable and illegitimate. This impression of complete objectivity and neutrality is also maintained in the other points of the argument. In particular, it is emphasized that the indigenous people, though barbarians, are men like the European conquerors. They are men and not beasts. In this way, although without expressly referring to it, a certain line of argumentation is rejected, which was already brought up at the time, especially in various justifications of the conquest by the historian of Charles V and tutor to Philip II, Juan Ginés de Sepúlveda (1490-1573), for whom Las Casas was an “enemy” and a “sower of discord.” Sepúlveda presented the Indians as “savages” and “barbarians” and thus, with the support of Aristotle, made them and their lands the object of free conquest. Even then, when the conquest had just begun, it was claimed that the Indians were idol-worshippers and cannibals, that they made human sacrifices and committed all kinds of crimes. The quote by Aristotle in his Politics (I, 2, 13), according to which barbarian peoples are “slaves by nature,” was much quoted, and Sepúlveda is even attributed with the assertion that the Spaniards surpass the barbarians as man surpasses the monkey³. To deprive the Indians of the quality of men for these reasons meant, therefore, practically finding a legal title in favor of the great conquest and the submission of the Indians, and it’s worth noting that Sepúlveda himself does not regard this as slavery, but as servitude.

This Aristotelian argument, inhuman in its conclusion, is nevertheless deduced from a certain idea of humanity, namely, the superior humanity of the conquerors. It has an interesting history, which deserves our attention. It was only later that it was formulated by the English philosopher Francis Bacon, whose principles were taken up by Barbeyrac in his commentary on Pufendorf's Natural Law. Bacon says that Indians, being cannibals, are outlawed by nature itself. They are “hors de l'humanité,” outside humanity, and have no rights. It is not a paradox that humanist and humanitarian minds use such arguments. For the idea of humanity has two sides. It is not without a flip side, and is capable of an often astonishing dialectic. For the important link it has with this duplicity of the idea of humanity, let us recall that Bacon himself opposed the phrase “homo homini lupus” with the phrase “homo homini Deus.” In the humanitarian 18th century in Germany, the word “non-man” (Unmensch) would undoubtedly have been applied to this other aspect of humanity. With this word, the discriminating power of humanitarian ideology came to an end. The distinction between man and non-man had, of course, a political meaning and could, not without a political sense and could, not without foundation, be based on Aristotle's Politics. For this formula was no longer Christian, and only came into its own with the triumph of a philosophy of absolute humanity in the 17th century. Only with “man,” in the sense of absolute humanity, does “non-man” appear as the other side of the same concept, its new specific enemy. The separation of man from the non-man was followed later, in the history of man in the 19th century, by an even sharper separation: that of the super-man and the sub-man. As man brings with him the non-man, the super-man brings with him by dialectical necessity the sub-man as an enemy twin in the history of mankind.

In the time of Francisco de Vitoria, the argument that the Indians were nothing but cannibals and barbarians was practically widespread, and in some cases not without foundation; but it did not yet have, in spite of Sepúlveda, the inhuman discriminating force that the humanitarianism of the following centuries would give it. The 16th century was still too profoundly Christian for that, and it was especially so among the Spanish, with their Marian piety and devotion to the Virgin, Mother of God. In the general legal argumentation of the 11th and 17th centuries, the inhuman humanitarian discrimination did not occupy a central place, even if the justification of colonisation by the superior civilisation of the Europeans was commonplace. Discrimination based on biological considerations was far from the minds of that time. It is, however, interesting to note that Hugo Grotius claimed, in his treatise De origine Gentium Americanarum (1642), that the Indians of North America were of Nordic race and descended from the Scandinavians. This situation has not saved them from destruction.

For the Christian theologian, it is self-evident that the indigenous people are men, beings endowed with an immortal soul. “Gentes licet barbarae tamen humanae,” wrote St. Augustine (De civitate Dei, I, 14). The aforementioned formula “homo homini lupus” and the Aristotelian principle that some peoples are “slaves by nature” are considered as pagan by Vitoria, and thus, rejected. To both he expressly opposes his “homo homini homo”⁴. This triple “homo” sounds somewhat tautological and has a neutralizing accent; it is already Erasmian in a sense, but it still has a Christian meaning. It is not strange, therefore, that Vitoria, starting from the Christian truth, emphasizes that the non Christian Indians cannot be stripped of their rights in favor of Christian Europeans. But the general quality of man does not have to level out the social, legal, and political distinctions that have arisen in the course of human history. Vitoria admits that barbarian peoples need tutelage as the basis of a legitimate title. It is evident in many important passages that, for him, war with non Christians is something other than war between Christians. All Christian theologians knew that also infidels, Moors and Jews, are men, and yet the law of nations of the respublica christiana, with its profound distinctions between different kinds of enemies (and therefore also of wars), presupposed both deep differences between men and a great range on the status of the former.

It is true that Vitoria, by rejecting divergent opinions of other theologians, equates Christians and non-Christians in the juridical aspect, at least in the juridical-international aspect. Neither the Pope, whose power is purely spiritual; nor the Emperor, who is not the lord of the Earth; nor any Christian prince, can utilize non-Christian peoples and their territory. The princes of those barbarous, non-Christian countries have the same sovereignty (jurisdictio), and the natives the same ownership of the soil (dominium), as the princes and peoples of Christian countries. This idea is common to Spanish and non-Spanish authors of the 16th century. The fact that Spaniards were Christians did not, therefore, confer on them an immediate right to conquer the territory of non-Christian princes and peoples. The right to this conquest, according to Vitoria, is a mediate right, arrived at through the argument of just war.

The non-discrimination of non-Christians is by no means strange, as we have said, for a Christian moral theologian. But the issues Vitoria was discussing at the time were political topics, the consequences of which were far-reaching, for it was a question of nothing less than the conquest of a new world. That is why his theoretical conclusions, even if they only refer to argumentation and avoid any practical decisions, could nevertheless astound the reader and be misinterpreted, especially if they were isolated from the particular situation and the mental unity of a carefully balanced argumentation, generalizing these conclusions into abstract principles of the law of nations, in the logic of a modern, completely secularized and neutralized thinking. So Vitoria's seemingly unlimited objectivity and neutrality, which rested on his broad generalizations, had to suggest, and even provoke, even greater generalizations. We shall examine Vitoria's neutralizing argumentation on the basis of an example which particularly highlights its abstract nature for us: when he deals with the question of whether the discovery as such constitutes a sufficient legal title for the acquisition of the discovered country.

For the prevailing mentality from the 16th to the 17th century, discovery was the legal title itself. For Vitoria, it was not a legitimate title, even if it was the discovery of a new world. Nor, it seems, does he consider it sufficient to justify a special aspiration or even what in the international legal terminology of the 19th and 20th centuries would be called an inchoate title⁵. An event that today we consider to be a huge historical event did not seem to have made a great impression on Vitoria, who was a contemporary of this event, at least in the moral aspect. Nor does Vitoria mention that the religiosity of the Spanish discoverers and conquerors carried with it, in the image of the Virgin Mary, Mother of God, the sacred image of their historical feats. The scholastic's historical objectivity goes so far here that he totally ignores not only this Christian and Marian image, but also the humanitarian concept of “discovery,” so full of history in the eyes of the moderns. For Vitoria, the New World is not new in the moral aspect, and the moral problems it contains are approached with the concepts and guidelines of his scholastic ideology without modifying them. On the historical reality, the subsequent development of the struggle for America was determined by global lines, especially by the “lines of friendship,” the amity-lines. Vitoria would certainly have considered it a sin and a terrible crime to admit, or even to agree to establish such lines, behind which the distinction between just and unjust disappears.

The profound distinctions in the concept of the “enemy,” the consequent elementary distinctions between regulated and unregulated wars, the specific limitations of war that are constituted within a spatial-international juridical order, and which were so intensely manifested in the law of nations of the Christian Middle Ages, all seem to vanish in Vitoria, absorbed in general human equality. The Spaniards are and remain neighbors to the barbarians; therefore, the Christian duty of charity subsists here: every man is our “neighbor.” From this follows in concreto the moral and legal consequence that all the rights of Spaniards vis-à-vis the barbarians are also valid in the opposite sense, that they are reversible as a jura contraria, as rights of the barbarians against the Spaniards, in unconditional reciprocity and reversibility. If between Christians and non-Christians, between Europeans and non-Europeans, between civilized and barbarians there is equality of rights, all concepts must become reversible. Hence, when dealing with the title of discovery and occupation, Vitoria affirms that such a title is no more useful to the Spaniards than it would be to the barbarians if they had discovered us: “non plus quam si illi invenissent nos.”⁶

Even if it only refers to the title of the occupatio, this statement nevertheless feels to us today like an exaggeration that is already too abstractly neutral, indifferent and, therefore, ahistorical. In another passage it is said that the barbarians can no more forbid the Spaniards from trading with them than the Spaniards can forbid the French from trading with them⁷. From all this it seems to follow that Europe is no longer for Vitoria the centre and the measure of the world, and that he no longer recognizes the spatial organisation of the medieval respublica christiana, with its distinction between countries populated by Christians and those populated by pagans or infidels. It is understandable, even today, that someone should be indignant at the cruelty of a Pizarro and write like Vitoria (with a clear allusion to Sepúlveda): “The Indians are men, not monkeys.” But what will the representatives of modern civilization say to the fact that Vitoria does not even speak of the right resulting from a superior civilization; nor of a right of dominion or guardianship of the civilized or semi-civilized or savages; nor even of “civilization,” a concept which nevertheless dominates, from the 17th to the 20th century, a whole epoch of European international law. The profound contrast between the historical mindset in general (and the humanitarian philosophy of history typical of the 19th century in particular) and the historical argumentation of the scholastic can be seen here. In Hegel's lectures on the philosophy of history, we find the assertion that the culture of the Mexicans and Peruvians “had to perish as soon as the spirit approached it.” This sentence expresses the conscious pride of an idealistic metaphysics of history. But even a historian of the 19th century as critical and pessimistic as Jacob Burckhardt mentions the “real right of culture to the conquest and submission of the barbarians,” of which he says that “most people admit to this.” Vitoria's attitude is quite different. Not even the appearance of a new continent and a new world pushes him to the slightest historical argumentation, either on the basis of a Christian vision of history or on that of a humanitarian and civilizing philosophy of history. The lack of any historical vision in the face of such a great historical moment had to lead to a suppression and degeneration of the European centric conception of the world and of history, proper to the medieval respublica christiana.

But it would be a serious misrepresentation of Vitoria’s thought to believe that he considered the great Spanish conquest to be unjust. It is, of course, a widespread error to assert this. With some ancient authors, this misrepresentation is explained by political enmity towards Spain. Today, it is simply a matter of superficiality. Teodoro Andrés Marcos, professor of the Faculty of Law of Salamanca, has the great merit of having repeatedly re-established the truth of the facts in the face of the false interpretation, commonly accepted and uncritically examined⁸. Today, such an interpretation is mainly rooted in the modern belief in progress and civilization. Since the destruction of the Christian view of history by the 18th century Enlightenment, this belief has become so evident that many no longer understand, or even perceive, the distance that separates Vitoria from concepts such as progress and civilization. Further difficulties result from the fact that Vitoria only examines legal titles and arguments as such, without applying them to the specific situation and arriving at conclusions on its basis. When a superficial reader or listener notices today that certain titles used to justify the conquest are rejected as inadequate, he thinks he sees a general repudiation of the Spanish conquest. When he hears Vitoria's criticism of the injustices and cruelties that are a consequence of the conquest, he understands it in the style of a Rousseauan critique or even of modern propaganda, as a humanitarian condemnation of the conquest in general. In reality, Vitoria's non-acceptance of seven juridical titles (including those based on the Emperor's or the Pope's right to the whole world, and on the supposed moral inferiority of the Indians) does not prevent him from arriving at a fully positive result in relation to the Spanish conquest. Above all, the accomplished fact of the Christianization of the country, already well under way, was not irrelevant to him.

In any case, this exposition is entirely historical, and the positive result is obtained only in general concepts and with the help of hypothetical argumentations by means of the dialectical device of a just war. The general neutral, and at the same time hypothetical, character of the argumentation is particularly striking on this occasion. If the barbarians oppose hospitality and the free religious mission, liberum commercium and free propaganda, then they violate the rights of the Spaniards under jus gentium, and if the peaceful admonitions of the Spaniards are not effective, then the Spaniards have a reason for a just war. The just war, in turn, provides the international legal title for the occupation and annexation of American land and the subjugation of American peoples. In addition to this, there are other grounds for a just war by the Spaniards against the Americans, grounds which in modern terminology would be described as typical “humanitarian interventions,” and which lead to rights of occupation and intervention by the Spaniards when they act on behalf of people unjustly oppressed by barbarians in their own country. This right of the Spanish to intervene applies especially to the protection of Indians who have already converted to Catholicism. With the help of general principles and possible arguments of this kind, the Spanish conquest as a whole is fully legitimized. But this is above all a question of fact and situation, which the scholastic leaves open and to which he does not provide an answer. A concrete discussion would have to lead to a case-by-case enquiry. For example, the situation could be very different with regard to Mexico and Cortés than with regard to Peru and Pizarro, so that the war in Mexico might be just and the war in Peru unjust. But the scholastic exposition keeps a general normative distance from the factual situation. Its theses only concern the competing arguments, and its conclusions do not point directly to the concrete historical case, resolving it for example in the manner of a judicial sentence.

How, therefore, can we explain this truly astonishing objectivity and neutrality? We must be clear about its existential situation and not confuse it with a lack of modern-style assumptions or the uprooting of a free intelligence. Hence the need, above all, not to forget that the choices of the great Dominican are not a juridical treatise in the manner of the treatises on the law of nations of the following centuries. Vitoria is a theologian, he does not want to be a jurist, and still less does he want to provide arguments for governments in their rivalries. He speaks of jurists with a certain contempt⁹. His practical intention is in no way that of a court advisor or a lawyer. Still less can he be equated spiritually with consciously theological jurists of modern inter-state law of nations such as Baltasar De Ayala, Alberico Gentili, or Ricardo Zouch.

The Spanish Dominican speaks as a spiritual director and as a teacher who trains future theologians, and above all future spiritual directors of people in political positions of responsibility. The relationship of a confessor to the concrete situation of the penitent is different from that of a lawyer and his client, or a public judge and a criminal. But the questions can also mean something like questions of conscience for active men, a fine example of this being the will that Hernán Cortés left to his son when he died (1537), as in it, the conquistador gives him extensive instructions for the reparation of the damage done to the Indians. A soldier like Cortés also had problems of conscience. He, too, was bound by spiritual directors. But it would not have occurred to him to let the good right of his conquest be called into question and even less to hand it over to the lawyers of a political enemy.

As a theologian, Vitoria examines the question of the “right” of conquest and the justa causa belli from entirely theological-moral points of view, with an objectivity and neutrality that, at least at first sight, are entirely apolitical. Hence, the general observation that Vitoria was an ecclesiastical theologian and not a civil jurist is not sufficient. It is not enough for us to refrain ourselves from inserting the great theologian into the empty space of a neutral objectivity in the modern sense of the word. We must also consider the Spanish Dominican in his historical situation and in his entire existence, in his concrete thought as a member of the Roman Catholic Church, that is, as a member of the concrete juridical-international authority from which the Crown of Castile had received the mission to evangelize the New World, that is, the juridical title of the great conquest. The apparently general and neutral argumentation about the just war only acquires its decisive concrete meaning in terms of the missionary enterprise, and the abstract generality of the argumentation does not shatter the existential reality of a specific historical situation.

As a matter of fact, the evangelizing function entrusted by the Pope was the juridical basis for the conquest. Do not think that it was only the Pope who proclaimed this. The Catholic Monarchs of Spain themselves always recognized the juridical obligatory nature of this papal mandate. In many of their instructions given to Christopher Columbus and his governors and officials, they emphasize the duty of the mission in the first place, and the oft-quoted clause in the will of Queen Isabella (1501) has emphasized this even more. In the bull Piae devotionis of December 1501, the Pope ceded to the Catholic Monarchs the ecclesiastical tithe, imposing on them in return the support of priests and churches; in another bull of the same title, of 1510, he established that they were not obliged to pay tithe on the gold and silver coming from the Indies, and in another one, of August 1508, he regulated the patronage of the kings of Spain over the churches of America.

All these measures, which we mention by way of example, can only be properly judged according to the jus gentium of the medieval respublica christiana; they cannot be judged according to the current international law, of an inter-state character, which sharply distinguishes a domaine exclusif in the internal sphere, and an extra-state international law. Under current inter-state law, the relationship between the Crown of Castile and the Roman Church cannot be properly constructed at all, since current international law, which is totally secularized, is based on the territorial sovereignty of states which may conclude individual concordats with the Holy See, but no longer recognise a common international legal authority of a spiritual nature and treat ecclesiastical matters as purely internal affairs. These sovereign states have divided the entire surface of the Earth among themselves; the maritime surface is considered free, i.e. free from state dominion, and not subject to occupation. For the rest, discovery and occupation are for them the only titles which, in the matter at hand, are of interest in terms of conquest. Vitoria, on the other hand, expressly rejects discovery as a legal title of conquest. As for occupation, he does not admit it as a title for the simple reason that, according to him, the American territory is not res nullius nor does it have an owner.

In this way, the Pope's missionary task becomes (albeit in an intermediate way, i.e. by means of the construction of a just war) the actual legal title of the conquest. But this is precisely why Vitoria's argument still moves squarely within the framework of the spatial organisation of the respublica christiana. This presupposed the distinction between Christian princes and peoples, and non-Christian princes and peoples. Throughout the Christian Middle Ages, this distinction was fundamental for the spatial organisation of the respublica christiana and remained alive in its consciousness. The consequence is that, for this jus gentium, the war of Christian princes against each other is a specially regulated war and naturally something quite different from a war between Christians and non-Christians. For territories whose prince or whose people were not Christian, the Pope could confer mission or crusade mandates, which were the basis for the justice of the war, and thus for a legitimate territorial acquisition. And so, as early as the 10th century, in the time of the Ottomans, the German emperors received mission mandates from the Pope against the still pagan Slavic peoples, thus extending their territory eastwards. In the same way, the papal call to crusade against the infidels became an international-legal title of great political importance, as it formed the international-legal basis for the acquisition of Islamic territories. The conquest of America by the Crown of Castile in its first phase, which is the starting point of Vitoria's argument, still fully corresponds to the law of nations of the Christian Middle Ages based on this spatial organisation. We could even say that it is both its culmination and its end.

The Dominican Order, to which Vitoria belonged, and the other religious Orders that were active in the missions of America, were the bodies in charge of carrying out and supervising the missionary enterprise from which jure gentium could derive the legitimate title for a conquest of a temporal order. Hence, these Orders were organs of the Papacy and of the Church as the juridical international authority of the respublica christiana. And they took their spiritual task seriously vis-à-vis the temporal authorities of Spain. All the missionary orders — Dominicans, Franciscans, Augustinians, Hieronymites, and Jesuits — had, therefore, constant friction with the Spanish colonial authorities. But these frictions should not be judged in terms of modern struggles between the State and the Church. They are neither a Bismarckian Kulturkampf nor an expression of French-style secularism. On the contrary, one can say of them what one can say of the medieval rivalry between the Priesthood and the Empire: that the Emperor and the Pope, the Empire and the Church, constituted an indissoluble unity, and that those disagreements did not constitute the conflict between two distinct political entities, the struggle between two distinct societates, but only the tension between two sets of ordinations of the same undisputed unity, two diversi ordines. In this regard, too, the Spanish conquest is a continuation of the spatial planning concepts of the medieval respublica christiana. This medieval jus gentium was not displaced in all the specific legal international concepts of the Middle Ages, and above all in the doctrines of just war and legitimate territorial acquisition, until the territorial, sovereign, and hermetic state of jus publicum Europaeum was imposed.

It is well known that it was precisely the Dominicans who won the most important merits in the evangelization of the American Indians. It will suffice to mention here Las Casas, who in 1530 came to Spain in the habit of St. Dominic to defend for the first time the Indians of Peru against the abuses of the conquistadors. On the other hand, the Dominican Order's attachment to the scholastic tradition of St. Thomas Aquinas predisposed it to discuss and resolve systematically, and with the methods of scholastic theology and philosophy, the questions resulting from the new situation created by the conquest of a new world. Thus arose, from a very concrete historical circumstance — the conquest of a new world — in the relectiones of Francisco de Vitoria, a system which, with its weighted analysis of the pros and cons, of argument and counter-argument, with its distinctions and conclusions, constitutes a coherent mental unity, an indivisible totality, which only affects the value of the arguments and not the factual situation and its practical conclusions.

We have already said that in no way can it be maintained that Vitoria considered the conquest of America by the Spaniards to be “unjust.” It is of no interest here to examine each and every one of the “legitimate titles” of the Spaniards that Vitoria puts forward because, in the end, it results in a justification of the Spanish conquest. And that being so is due precisely to the fact that Vitoria's lack of assumptions, objectivity, and neutrality ultimately have their limits, and he does not go so far as to actually ignore and consider the distinction between Christians and non-Christians to be nonexistent. On the contrary, the practical result fully corresponds to Vitoria's Christian convictions, which find in the preaching of the Gospel the very justification for the conquest. Indeed, that non-Christians could claim the same right of free propaganda and intervention for their idolatry and religious errors as the Christian Spaniards did for their Christian mission is something that the Spanish monk could not really understand. Here, then, lies the limit, not only of his absolute neutrality, but also of his general reciprocity and reversibility of concepts. Vitoria may be an Erasmist¹⁰, but he is not a follower of absolute humanity in the style of the 18th and 19th centuries; he is not a Voltairian or Rousseauan, a freethinker or a socialist. Liberum commercium does not mean for him the liberal principle of world free trade and free economy in the sense of the “open door” of the 20th century; it is a simple means of the period before the rise of technology. The freedom of mission, on the other hand, is a libertas of the Christian Church, whereas in the thought and language of the Middle Ages libertas was synonymous with “right.” In this order of ideas, therefore, Christian Europe remains for Vitoria the centre of the world, historically based, in a very concrete way, in Jerusalem and Rome.

Vitoria was not, therefore, one of those spirits who, in questions concerning the existence of Christianity, adopted a point of view of internal neutrality, based purely and simply on the formal pro and con, and of whom a particularly critical Hegelian of the 19th century said that they were “the forerunners of the modern advocates of constitutional formulas”¹¹. But we should also not overlook the fact that his historical method, which abstracts from spatial points of view, deprives certain concepts of such significance for European culture, such as those of the “people”, the “prince,” and “war,” which were specific to the jus gentium of the Christian Middle Ages, of their historical location, and therefore of their historical peculiarity. Thus a general moral doctrine can emerge from this theology, and from this in turn — with the help of a jus gentium that also generalizes — a moral doctrine that is already “natural” in the modern sense, and a purely rational law. Consequently developing this germ hidden in late scholasticism, later philosophers and jurists, following in the footsteps of Vitoria and Suárez, will develop in the 17th and 18th centuries, from Grotius to Wolff, an even more general and more neutral, purely human jus naturae et gentium.

These philosophers and jurists disregarded the distinction between Christians and infidels, which for the Spanish Dominican is still essential. Thus it was possible for their arguments to be used in the service of different, even opposing, political aims and intentions. For the purest reasons of theological-moral objectivity, Vitoria had rejected any discrimination between Christians and non-Christians, civilized and barbarians, Europeans and non-Europeans. But it was precisely this that predestined his theses and formulations to an abusive application, opening a crack through which extremely heterogeneous intentions could penetrate and seize, for their own benefit, the concepts and formulas from the scholastics. Particular formulas conceived in the abstract can very easily be isolated, not only from the concrete unity of the complex mental structure, but also from the connection with the historical situation, in order to be applied, as single theses, to radically different situations. A very widespread, but in my opinion abusive use of loose phrases and concepts by Vitoria lied in the fact that his theological-moral principles were inserted into the framework of the differently structured, atheological (i.e. purely moral or purely juridical) expositions of later centuries, in which it was no longer the theologians of the Roman Church, but the jurists of confessionally neutral powers, who put forward their international-legal arguments, deriving them from a radically different situation and a radically different spiritual existence.

Of course, there is nothing extraordinary about the application of arguments and concepts to other situations, and they occur frequently in history. The English historian John Neville Figgis, well acquainted with the struggle between the Papacy and the Councils in the 15th century, had found, for example, that in the long struggle in favor of contemporary parliamentarism throughout the 19th century, no argument was put forward by governments and parliaments that had not already been used in the 15th century in the rivalry between the Pope and conciliarism. Similarly, in the conflicts opposing the Pope and the Emperor, spiritual authority and temporal power, the same ideas and the same points of view are constantly reiterated. So too, many Vitorian arguments can be isolated from the concrete historical problem that motivated them, namely the conquest of a new non-European world by virtue of missions commissioned by the Pope, and applied to different situations. In fact, there are few authors whose arguments have been transplanted to such an extent as those of Vitoria, and there are few names that have become as famous as that of the Spanish friar as a result. In this regard, Vitoria's fame has its own peculiar history, and deserves to be specially dwelt upon. Indeed, the almost mythical celebrity to which, for some decades past, he has been raised by a certain atmosphere, is an interesting historical phenomenon of a most peculiar nature, highly instructive for the science of international law, for which, for the sake of historical accuracy, we feel obliged to illustrate briefly at least two or three examples of such applications.

In this connection, I am not referring first of all to authentic jurists such as Alberico Gentili, who often mentions Vitoria without actually systematically appropriating his argumentation. For this, Gentili is too conscious of being a secular jurist in a position antagonistic to that of theologians. The same is true of Hugo Grotius. He too, of course, differs from the theologians, but he nevertheless likes to use their arguments. Especially in his Mare liberum (1609, Carnegie Foundation edition, 1916), he fully adopted the Vitorian arguments of liberum commercium and freedom of mission. Of course, the “freedom” claimed by the Spanish Dominican for the Christian Spaniards against the pagan Indians is now claimed by Grotius for the Protestant Dutch and English against the Catholic Portuguese and Spaniards. Thus, an argument that a Spanish theologian had put forward as a completely internal, Spanish-Catholic matter, within the firm framework of his order and the political unity of the Spanish Catholic empire, was used a few decades later by the jurist of a foreign country, for polemical purposes, in favour of the propagandistic struggle aroused in the wake of the European commercial wars. Grotius goes so far as to say that he also brings the question of free trade before the tribunal of conscience, invoking those Spanish jurists who are as familiar with divine as with human law.

It is common knowledge to what extent Grotius basically appropriated the arguments of earlier authors¹². But it is not sufficiently taken into account that these arguments, in a radically different era, meant something radically different as well. Land distribution had reached a new stage. The use of the arguments by Protestants neutralized the specifically Catholic character of Vitoria's intentions. The European states became mercantilist, and no longer gave value to the arguments in favor of liberum commercium. Already Molina ultimately recognised the right of each state to reject unwelcome foreigners, and Pufendorf is avowedly mercantilist¹³. This change of argumentation is of great significance for the history of modern international law and the problem of just war. But I need not dwell any further on the subject. Anyone familiar with the history of international law is familiar with this process, and what it means in relation to my subject, i.e. for the various uses of the Vitorian thesis and the intentional transformation of his doctrine.

Some three hundred years later, the Vitorian arguments were even more surprisingly inserted into a strange doctrinal system. After the First World War from 1914 to 1918 there was a “renaissance” of Vitoria and late Spanish scholasticism. This renaissance is a particularly interesting phenomenon in the history of international law. Do not think that the great Spanish theologians had fallen into total oblivion. In Spain and in the Catholic tradition, their name lived on, as was only natural. It had never been forgotten to what a truly remarkable extent Suárez prevailed throughout the 17th century in German universities, not excluding the Protestant ones, even if it was Karl Eschweiler who reminded us of it again, in 1928. On the history of international law, Spanish theologians were well known, as “precursors of Grotius,” of the good authors of the 19th century such as Kaltenborn and Rivier. In the collective work Les fondateurs du Droit international (1904), edited by Pillet, Vitoria was the subject of an elegant study by Joseph Barthélémy. But it was after 1919 that the name of Vitoria reached the public at large and became universally famous. I do not wish on this occasion to refer to the many superficial misinterpretations, to which I have already alluded, and which have turned the great Dominican into a journalistic myth. This abuse has been opportunely pointed out and rectified by T. Andrés Marcos. But there is something else, something peculiar, which deserves our attention.

A notable Belgian internationalist of the 19th century, Ernest Nys, inspired and stimulated no doubt by the example of the great James Lorimer¹⁴, had repeatedly come across Vitoria in his historical studies on the international law of the Middle Ages and the 16th century, delving into this interesting subject from the juridical-international point of view. In many praiseworthy works, especially in an article in the “Revue de Droit International et de Législation Comparée” (volume XXI) of 1889, on “Spanish publicists and the rights of the Indians,” he referred many times to Vitoria, finally publishing in 1917 a good edition of the elections De indis and De jure belli in the collection “Classics of International Law,” edited by James Brown Scott¹⁵, Nys paved the way, with his research, giving his foundation to that Vitorian renaissance which emerged vigorously after the First World War and has given rise to a literature which is now immense¹⁶.

The fundamental intention of Ernest Nys' scientific work stems from his faith in humane civilization and progress. We can say so here without beating around the bush, because Nys himself made a public and express profession of faith in his convictions, and certainly not in occasional manifestations or in commemorative or jubilee speeches, but in a scientific work of 1908, very important for the history of international law”¹⁷. Like everything written by the erudite author, this work is extraordinarily rich in content, and as far as the idea of criminalizing the war of aggression (“le crime de l'attaque”) goes, a document of universal dimensions¹⁸.

The most recent chapter in the history of the use of the Vitorian theses is directly linked to the work of Ernest Nys. James Brown Scott, the world-renowned internationalist who died in 1943, founder and president of the American Institute of International Law and the American Society of International Law, secretary of the Carnegie Endowment for International Peace, became a particularly enthusiastic herald of Vitorian fame, putting his great influence at the service of this enterprise. Andrew Carnegie himself, in his founding letter of 14 December 1910, had described war as “essentially criminal,” without, of course, distinguishing between wars of aggression and defensive wars and without citing theologians. For James Brown Scott, on the other hand, the Spanish theologians were a mine of arguments. He gave a large number of lectures on Vitoria and Suárez as founders of modern international law and disseminated their theses on many occasions¹⁹.

The intense activity of James Brown Scott has made Vitoria's name known far beyond the circles of specialists in the history of international law, and can be said to have popularized it. But this marks the beginning of a new phase in the use of Vitoria's theses, which now culminates in turning Vitoria into a political myth. Even in official or unofficial statements of the US government, a “return to older and saner conceptions of war” has been proclaimed, words which refer above all to Vitoria's doctrine of freedom of trade, freedom of propaganda and just war. War must cease to be a legally admissible or simply indifferent procedure; it must become a just war again, the aggressor being declared a criminal in the full criminal sense of the word as such. Consequently, the present law of neutrality, which is based on the jus publicum Europaeum and rests on the non-distinction between just and unjust wars, should also be abolished.

We will not dwell here on the general difference between medieval Christian and modern humanitarian ideas on this problem. The medieval just war theory admits the possibility of a just offensive war. The fact is that the concepts of justice that are used in both cases have a completely different formal structure. As far as the substance of medieval justice is concerned, let us recall once again that it is precisely in his theory of just war that Vitoria, at the decisive moment, argues on the basis of the mission conferred by a firm, institutionally stabilized potestas spiritualis, the recognition of which is beyond doubt. The right of liberum commercium and jus peregrinandi are also for Vitoria a means at the service of the free propagation of Christianity and the execution of a mission conferred by the Pope. Neither are these rights comparable to the open-door principle at the service of industrial penetration, nor can the demand for free propaganda based on the Gospel of St. Matthew (XXVIII, 19) be confused with a relativistic or agnostic denial of truth. The only thing that interests us here is the justification of this conquest, a question that Vitoria reduces to the general problem of just war. Ultimately, all the great questions of an international order converge in the concept of just war. Hence the heterogeneity of intentions is at its most intense at this point.

The medieval just war theory, in spite of many internal deviations, was of course within the framework of a respublica christiana. From this point of view, it distinguished various kinds of struggles and wars. On the other hand, he fully accepted not only the feudal right of self-rule, but also the class-based right of resistance. He had to distinguish those wars which were waged between Christians, i.e. between enemies subject to the authority of the Church, from other kinds of wars. Crusades and missionary wars authorized by the Church were eo ipso just wars, regardless of whether they were defensive or offensive. Those princes and those peoples who stubbornly evaded the authority of the Church, such as the Jews and the Moors, were eo ipso perpetual enemies, hostes perpetui. All this presupposed the juridical-international authority of a potestas spiritualis. At no time can this international-legal authority of the Church be disregarded in the theories of the Christian Middle Ages, and even less so when a Christian prince takes part in the war.

From the formal point of view, therefore, the centre of support and reference for a determination of the justice of war is to be found in the authority of the Church. From a material point of view, a just war is one that is waged ex just causa, i.e. to satisfy legal requirements, regardless of whether it is tactically or strategically an offensive or defensive war. The regulatory principle of just cause excludes the possibility that the merely juridical protection of the possessor (on which the Geneva Protocol of 1924, for example, is based) can be the sole criterion of the justice or injustice of a war of conquest, a question which Vitoria reduces to the general problem of just war. Definitions of the aggressor, such as those contained in the 1924 Geneva Protocol or the 1932-34 Conference on Disarmament, are doomed precisely to prevent reference to the just or unjust causes of war, in order to avoid an endless discussion without any prospect of agreement on questions of culpability in foreign policy.

Post-medieval European international law, too, from the 11th to the 20th century, tries to postpone just cause. The formal point of reference for determining the justice of war is no longer the international legal authority of the Church, but the sovereignty of legally equal states. Instead of starting from just cause, modern inter-state law starts from justus hostis, declaring legitimate every war that takes place between legally sovereign states. By means of this legal formalization, a rationalization and humanization of war, or in other words its regularization, has been achieved for two centuries. Let us leave for another occasion the examination of this great attempt, of such political, moral, and spiritual significance, carried out by eliminating the question of just cause. In order to re-establish the authentic Vitorian doctrine, it is sufficient, but at the same time necessary, to bear in mind that in international law the historical turn leading from the Middle Ages to modern times takes place in a double dissociation of two previously inseparable ideas: the definitive replacement of the theological-ecclesiastical argumentation by the legal-state one, and the no less important replacement of the natural law and moral question of just cause by the typically legal formal question of justus hostis, which is distinguished from the offender, i.e. the one who is the object of punitive action.

In these two points the decisive step is taken which separates medieval international law from modern international law, a theological-ecclesiastical system of ideas from a legal-state system. Such a step does not only concern theoretical questions of definition, but expresses the profound opposition between two orders and fundamentally different authorities in institutional terms. It is the sociological opposition of the ruling minorities, and not only of the politically active groups, but also of their advisors, i.e. of the methods and procedures on which the political convictions and opinions of the ruling groups are constituted. A true jurist of that time of transition was able to find the battle cry that from the perspective of a sociology of knowledge can be considered representative of the time: “Silete theologi in munere alieno!”

On both points, concerning the relationship between the theological and juridical mentality and concerning the non-exclusion of the just cause, Francisco de Vitoria, with all his neutrality, objectivity and humanity, belongs to the Christian Middle Ages and not to modern international law of an inter-state character. We have already alluded to the fact that in the existential order he did not want to be a jurist, that he was and always remained a theologian. And he did not remain a theologian only because, for example, he considered the Jews and the Moors as hostes perpetui, or because in his lecture De potestate civili he emphasized that a war waged to the detriment of Christianity is eo ipso unjust. What is decisive is that he does not move from the problem of just cause to a detailed discussion of the question of justus hostis. He certainly seems to be moving in this direction, because he is interested in showing that the Indians, even if they are not Christians and perhaps commit certain crimes, should be treated as enemies of war and not as criminals, and that Christian Europeans should behave towards them as they behave towards Christian European enemies. His conclusion, the possible justification of the conquest of the Indies by Spain, is deduced by Vitoria from his general arguments concerning the law of war, without any discrimination against barbarians or non-Christians as such. In this sense, he comes close to the non-discriminatory concept of war, which is characteristic of the new inter-state law of nations. But he does not draw from this position the construction of a new legal theory of justus hostis, as for example Alberico Gentili does, but limits himself to basing non-discrimination on the general considerations of the Christian moral theology of the Middle Ages concerning just war.

On the contrary, the current just war theory pursues precisely the discrimination of the adversary waging the just war. War itself becomes a felony in the criminal sense of the word. The aggressor is declared a criminal in the crudest sense of the word: he is placed outside the law, like a pirate. However, the injustice of the aggression and of the aggressor must not lie in a materially verifiable guilt in the sense of the cause of war, but in the “crime de l'attaque,” in the aggression as such. The one who fires the first shot, or whoever carries out any of the corresponding acts, is the offender of this new crime. The problem of just cause is left out of the definition. For this reason alone, the modern distinction between just and unjust wars has no intimate connection with the medieval scholastic doctrine and Vitoria. With all medieval doctrine, Vitoria admits the possibility of an offensive just war, a bellum justum offensivum. He is also fully aware of all the complexity of the doctrine, and it is enough to consider carefully the five dubia circa justum bellum or simply the nine dubia “quantum liceat in bello justo,” in De jure belli, to understand that the great progress of European inter-state law of nations consisted in replacing the theory of justa causa by that of the legal equality of equally just enemies. Should this progress be abandoned today plainly and simply? It is not so easy, after the many times secular process of rationalization of inter-state thinking, to return to a pre-state doctrine. And it is even more difficult to transfer international-legal concepts, which presuppose an institutionally established ordo spiritualis, to a mental system lacking such an ordo.

If the formulas of this just war theory, which is rooted in the institutional ordo of the medieval respublica christiana, are today put at the service of modern, global concepts, this does not mean a return to the concepts of enemy, war, concrete order, and justice assumed in medieval doctrine, but a radical transformation of these concepts. For scholastic theologians, unjust war itself is still war. According to them, the fact that one of the belligerents conducts a just war, and the other an unjust war, does not abolish the very concept of war. Of course, when the justice of war is established on the basis of just cause, this always implies a tendency to discriminate against the unjust enemy, and thus to abolish war as a legal institution. War is soon transformed into mere punitive action, the many serious “dubia” of just war theory are quickly forgotten, the enemy becomes a mere criminal, and the rest, the deprivation of rights and the dispossession of the adversary, i.e. the destruction of the concept of the enemy, which formally still presupposes a justus hostis, arises practically spontaneously. “Princeps qui habet bellum justum fit judex hostium,” writes Vitoria. In Cayetano we even read these words: “Habens bellum justum gerit personam judicis criminaliter precedentis.” However, even when we speak of this kind of “punitive” character of a just war, we must not understand by these expressions modern legal-penal ideas proper to modern criminal justice, or even to criminal police in the sense, for example, of a modern criminal law reduced to a fight against the socially dangerous individuals. In other words, the just war theory in the sense of the justa causa belli had not yet led to a pure and simple suppression of the concept of war and to the transformation of warfare into a purely police action in the modern style. This was not possible for the simple reason that in the era of feudal struggles and the class-based right of resistance there was not even a centralized state justice and police in today's sense. For the medieval legal system, the feudal right of self-guardianship and the right of resistance are good titles, and the justice and police of the modern state have eliminated precisely this kind of self-help, transforming it into a series of crimes such as high treason, sedition, and others²⁰.

But as soon as the institutional foundations of the medieval just war theory are set aside, the dissolution of the concept of war is very close at hand. A Lutheran contemporary of Vitoria, the jurist Johann Oldendorf (1480-1567), openly and plainly proclaims that just war is not war as such, but judicial action, and that unjust war is not war either, but rebellion; without realising that this destruction of the concept of war only posed a new and difficult problem for Europe: that of the confessional civil war. On the contrary, the legal founders of modern international (i.e. inter-state) law, such as Ayala, Gentili, and Zouch, under the impression precisely of these civil wars, separated the question of the formal bellum justum from the problem of the just causa belli, making war an equal relationship between sovereign states, in which justi et aequales hostes are confronted without international-legal discrimination.

But in Vitoria, as well as in medieval doctrine in general, war is still war on both sides despite its “punitive” character. Even to a just war waged by Christians against non-Christians, Vitoria does not deny the character of true war, and considers the enemy in material terms as justus hostis. In the modern discriminating concept of war, the distinction between the justice and injustice of war serves to make the enemy no longer justus hostis, but a criminal. As a result, war ceases to be a concept of international law, but the killing, destruction, and pillage do not cease, and can even be increased by new means of destruction. If, on one hand, war becomes a criminal action in the sense of modern criminal law, on the other hand, the enemy can no longer be a justus hostis. What is done to him is no longer a war, as is the case with the pirate, who is an enemy in a very different sense from the war adversary in the sense of European international law: he has committed a crime, the crime of attack, “le crime de l'attaque.”²¹ The action against him is therefore not a war, any more than the action taken by the State police against a gangster; it is a mere execution, and ultimately — as a result of the transformation of modern criminal law into social defence — a simple measure against a troublemaker who must be reduced to impotence with all the means at one's disposal, for example, by the use of a “police bombing.” War is abolished, but only because the adversaries no longer consider each other to be on the same moral and legal plane. This may be a return to an ancient point of view; in some respects it is also the abandonment of the juridically conceived concept of justus hostis and the return to an almost theological concept of the enemy; but it is therefore precisely the opposite of the attitude (taken to the extreme) of non-discriminatory reciprocity which in Vitoria is as manifest as its Christian roots. This brings to an end, for the time being, the history of the use of Vitorian theses in international law. This history begins at the very beginning, in the 16th century itself, and has continued up to the present day, offering surprising examples of unexpected changes and misinterpretations. But no human thought is preserved from misinterpretation, and any argument sustained by a human being is exposed to vicissitudes that may be even more surprising than the famous expression “fata libellorum” implies. In the case of Vitoria, a monk who was firmly established in his ordo, he conscientiously considered its pros and cons, as the profound moral theologian and prudent teacher that he was. He expounded his ideas before companions of the Order, inserting his conclusions into the indivisible systematic unity of his propositions and distinctions. From the mental unity of this controversy, which was an internal controversy both for the Church and for Spain, other authors, non-ecclesiastical and enemies of Spain, later drew the arguments and formulas that suited them as political triumphs. The vigor of a thinker of scholastic depth and sincerity was harnessed to the cart of a cause that was alien and often even hostile to him. To the melody composed for a pious and Catholic text, a profane lyric of a very different character was added. But this too is part of the heterogeneity of intentions, which is so often felt in the history of the human spirit.

We are not going to be surprised by this, nor are we going to polemicize. But in our scientific judgements we should bear in mind the legal-historical circumstances that have been described. If in these pages we have pointed out, with regard to Vitoria's admirable choices, these tragic possibilities of heterogeneous applications, we have not done so in order to lower his fame and diminish the veneration he deserves. On the contrary, our intention was precisely to purify his image from distorting tweaks and to give back to his words the meaning they had. The name of Vitoria will lose nothing in this way. It will retain a tone that is perhaps less noisy, but all the more crystalline.

1. Karl Eschweiler: Die Philosophie der Spätscholastik, in “Spanische Forschungen der Görresgesellschaft,” vol. I, p. 264.

2. The seven tituli non idonei nec legitimi are: the universal lordship of the Emperor, the universal temporal lordship of the Pope, the jus inventionis (discovery), the refusal to accept Christianity, the crimes of the barbarians, the alleged consent of the Indians and a special divine concession. The seven tituli idonei ac legitimi for a just war are: jus commerci, jus propagandae fidei, jus protectionis (applied to the Indians who had converted to Christianity), jus mandati (papal mission), jus interventionis contra tyrannos, jus liberae electionis and jus protectionis sociorum.

3. In his book Democrates alter (or secundus), which was written in 1547, but was not authorized to be printed (mainly due to the opposition of Las Casas). It was not printed until it was published by Menéndez y Pelayo under the title Democrates alter, sive Dialogus de justis belli causis adversus indos, in the “Boletín de la Real Academia de la Historia” volume XXI. The first dialogue Democrates, by Sepúlveda (De convenientia militaris disciplinae cum Christiana Religione dialogus qui inscribitur Democrates), was printed in Rome in 1535. Cf. T. Andrés Marcos: Vitoria y Carlos V en la soberanía hispanoamericana, 1937, p. 178 f., and E. Nys: Les publicistes espagnols du XVIe siècle et les droits des Indiens, in the “Revue de Droit International et de Législation Comparée,” XXI (1899), p. 550. The subsequent controversy between Sepúlveda and Las Casas does not provide any new arguments of substance. The argumentation of Las Casas essentially follows in the footsteps of Vitoria, but using specific material and placing the Pope's missionary task at its centre.

4. “Non enim homo homini lupus est, ut ait Ovidius, sed homo,” he says in the discussion of the first legitimate title, at the end of the second proposition (in ed. Getino, I, p. 384).

5. This concept of inchoate title has been developed in the 19th century especially by English jurists (Travers Twiss, Hall, Phillimore, Westlake, Oppenheim). From the most recent literature, see the work of M. F. Lindley: The Acquisition and Government of Backward Territory in International Law, London, 1926, p. 126 ff. where the general principle “Discovery gives only an inchoate title” is formulated. From the practice of the international courts, the arbitration decision of President Max Huber of 28 April 1928 in the American-Dutch dispute over the Isle of Palmas and the pleadings in the Greenland proceedings before the Permanent Court of International Justice in The Hague (judgment of 5 April 1933) are particularly worthy of mention. On this cf. Fuglsang: Der Standpunkt der Parteien im Grönland-Ronflikt, in “Zeitschrift für Politik”, vol. 33 (1933), p. 748, and E. Wolgast: Das Grönland-Urteil des Ständigen Internationalen Gerichtshofs vom 5. April 1933, en “Zeitsch. f. öffentliches Recht”, XIII (1933), p. 573; F. Bleiber: Die Entdeckung im Völkerrecht, 1933, p. 63 s.

6. The phrase can be found in the edition of the Relecciones teológicas del maestro fray Francisco de Vitoria, by the Master Father Fray Luis G. Alonso Getino, vol. II, Madrid, 1934, p. 333. However, I have not found it in the facsimile reproductions of the original which appear in volume I of the said edition. It is known, moreover, that all quotations from Vitoria are subject to the reservation of the difficulty resulting from the fact that no authentic edition directly written by the author exists.

7. Ed. Getino, I, p. 387; II, p. 361.

8. Vitoria y Carlos V en la soberanía hispanoamericana. Salamanca, 1937. Más sobre Vitoria y Carlos V en la soberanía hispanoamericana. Salamanca, 1942. Final de Vitoria y Carlos V en la soberanía hispano-americana. Salamanca, 1943.

9. Contempt for jurists was not uncommon at that time. The great Cisneros founded the University of Alcalá in 1510 without a Faculty of Law. “Nam a civilibus et forensibus studiis adeo natura sua abhorrebat, ut multi serio affirmantem audiverint, quidquid illius disciplinae pectore concepisset, se, si feri posset, libenter evomiturum.” Cf. M. Bataillon: Erasme et l'Espagne. Paris, 1937, p. 14.

10. According to Marcel Bataillon, in the work cited in the previous note, p. 260 ff., Vitoria cannot be described as an Erasmist, but neither can he be described as an anti-erasmist. At the Valladolid meeting of 1527, Vitoria strongly emphasised many dogmatic errors of Erasmus (Bataillon, p. 273 f.). But what interests us here is rather the general attitude of Erasmus, especially towards war.

11. Bruno Bauer, in volume IV of his critique of the Gospels, 1852, p. 36.

12. W. S. M. Knight: The Life and Work of Hugo Grotius, London 1925, points especially to his dependence on Alberico Gentili and scholastic systematics.

13. For the second half of the 17th century, the theses formulated in Strasbourg by J. P. Silberrad in 1689, under the presidency of J. J. Zentgrav, are particularly eloquent on this point. The idea of just war was retained, but the right of non-Christian princes to prevent access to their lands if they did not consider it desirable was now recognized, with the express invocation of Pufendorf (Silberrad: De Europaeorum ad Indorum regionem jure, p. 15)

14. In his Institutes of International Law (1883-84), translated into French by Nys. Lorimer had dealt with Vitoria, Soto and Suarez as founders of international law.

15. Among the works of Ernest Nys, we mention here: The Papacy considered in relation to International Law, trans. into English by Rev. Ponsonby. London, 1879; Le droit de la guerre et les précurseurs de Grotius. Brussels, 1882; Les droits des Indiens et les publicistes espagnols. Brussels, 1890; Les initiateurs du droit public moderne. Brussels, 1890; Les origines du droit international, 1894.

16. The courses of Camilo Barcia Trelles at the Hague Academy of International Law (“Recueil des Cours,” 17, 1927) are the most widely known in international circles. Already in a lecture given in Salamanca in 1925, Barcia Trelles had hailed Vitoria as a precursor of the Monroe doctrine. Alejandro Álvarez has exalted Monroe's doctrine as “the true Gospel of the New World” (Le droit international américain, 1910, p. 133). Of course, this modern Gospel will not be entirely identical to the Gospel whose preaching Vitoria advocated. In 1928, a book was published in Valladolid which brought together lectures by J. B. Scott on The Spanish origin of modern international law, and another by Barcia Trelles: Francisco de Vitoria, founder of modern international law. The former professor in Madrid, Fernandez Prida, published in 1930 a book on the influence of Spanish authors on modern international law. For further details, cf. R. Octavio in the “Recueil des Cours” of the Hague Academy, vol. 31 (1930), p. 218 f. In Utrecht, an association integrated in the University proclaimed Vitoria as the north and guide in the field of colonisation (Van Der Molen: Albericus Gentilis. Amsterdam, 1937, p. 270, note 14). On this, A. H. Boehm: Het recht van kolonisatie, Francisco de Vitoria's lessen over het recht van kolonisieren in verband met de Spaansche kolonisatie, Utrecht, 1936, and J. Baumel: Les problèmes de la colonisation et de la guerre dans l'oeuvre de Francisco de Vitoria. Montpellier, 1936. These references will suffice for our purpose here. Further bibliographic news can be found at Fr. A. Von Der Heydte: Franciscus de Vitoria und sein Völkerrecht, in “Zeitschrift für öffentliches Recht,” XIII (1933) pp. 239-40, and in the excellent work of the Hungarian L. Von Gajzago on the origin of international law in the Spanish school (Budapest, 1942). On the foundation of the Vitoria-Suárez Association, see Von Der Heydte, loc. cit., p. 268, footnote.

17. Idées modernes, Droit International et Franc-Maçonnerie. Brussels, 1908.

18. His disquisitions culminate in a phrase formulated by Josef Schauberg as early as 1861 and with which Nys identifies himself in the most emphatic manner: “En son essence, l'histoire du droit des gens doit coïncider avec l'histoire de la franc-maçonnerie; le droit des gens et la franc-maçonnerie ont la même histoire.”

19. The Spanish Origin of International Law, the first part of which (Francisco de Vitoria and his Law of Nations) was published in Oxford in 1933 and is an introduction to an edition of texts by Vitoria. Lectures have appeared in the Georgetown Law Journal (Washington, 1934) under the title The Catholic Conception of International Law; they were also published under the title The Spanish Conception of International Law and of Sanctions, constituting number 54 of the publications of the Carnegie Endowment for International Peace, Section of International Law, Washington, 1934. For further bibliographical references, see the above-mentioned works by Von Der Heydte and Von Gajzago.

20. Otto Brunner: Land und Herrschaft, 2nd ed. Viena, 1942.

21. On the origin of this important concept, cf. the motion of the “Amis Philanthropiques” of Brussels of 17 September 1870, to which Nys refers in his above-mentioned work, Idées modernes, Droit International et Franc-Maçonnerie. Brussels, 1908, p. 108.