Francis a Victoria. 87. Before we come to works strictly belonging to this land of jurisprudence, one may be mentioned which connects it with theological casuistry. The Relectiones Theologicæ of Francis a Victoria, a professor in Salamanca, and one on whom Nicolas Antonio and many other Spanish writers bestow the highest eulogy, as the restorer of theological studies in their country, is a book of remarkable scarcity, though it has been published at least in four editions. Grotius has been supposed to have made use of it in his own great work; but some of those who since his time have mentioned Victoria’s writings on this subject, lament that they are not to be met with. Dupin, however, has given a short account of the Relectiones,; and there are at least two copies in England—one in the Bodleian Library, and another in that of Dr. Williams in Redcross Street. The edition I have used is of Venice, 1626, being probably the latest; it was published first at Lyons in 1557, at Salamanca in 1565, and again at Lyons in 1587; but had become scarce before its republication at Venice.[1136] It consists of thirteen relections, as Victoria calls them, or dissertations on different subjects, related in some measure to theology, at least by the mode in which he treats them. The fifth, entitled De Indis, and the sixth, De Jure Belli, are the most important.

[1136] This is said on the authority of the Venetian edition. But Nicolas Antonio mentions an edition at Ingoldstadt in 1580, and another at Antwerp in 1604. He is silent about those of 1587 and 1626. He also says that the Relectiones are twelve in number. Perhaps he had never seen the book, but he does not advert to its scarcity. Morhof, who calls it Prælectiones names the two editions of Lyons, and those of Ingoldstadt and Antwerp. Brunet, Watts, and the Biographie Universelle do not mention Victoria at all.

His opinions on public law. 88. The third is entitled, De Potestate Civili. In this he derives government and monarchy from divine institution, and holds that, as the majority of a state may choose a king whom the minority are bound to obey, so the majority of Christians may bind the minority by the choice of an universal monarch. In the chapter concerning the Indians, he strongly asserts the natural right of those nations to dominion over their own property and to sovereignty, denying the allegations founded on their infidelity or vices. He treats this question methodically, in a scholastic manner, giving the arguments on both sides. He denies that the emperor, or the pope, is lord of the whole world, or that the pope has any power over the barbarian Indians or other infidels. The right of sovereignty in the king of Spain over these people he rests on such grounds as he can find; namely, the refusal of permission to trade, which he holds to be a just cause of war, and the cessions made to him by allies among the native powers. In the sixth relection, on the right of war, he goes over most of the leading questions, discussed afterwards by Albericus Gentilis and Grotius. His dissertation is exceedingly condensed, comprising sixty sections in twenty-eight pages; wherein he treats of the general right of war, the difference between public war and reprisal, the just and unjust causes of war, its proper ends, the right of subjects to examine its grounds, and many more of a similar kind. He determines that a war cannot be just on both sides, except through ignorance; and also that subjects ought not to serve their prince in a war which they reckon unjust. Grotius has adopted both these tenets. The whole relection, as well as that on the Indians, displays an intrepid spirit of justice and humanity, which seems to have been rather a general characteristic of the Spanish theologians. Dominic Soto, always inflexibly on the side of right, had already sustained by his authority the noble enthusiasm of Las Casas.

Ayala, on the rights of war. 89. But the first book, so far as I am aware, that systematically reduced the practice of nations in the conduct of war to legitimate rules, is a treatise by Balthazar Ayala, judge-advocate (as we use the word), to the Spanish army in the Netherlands, under the Prince of Parma, to whom it is dedicated. The dedication bears date 1581, and the first edition is said to have appeared the next year. I have only seen that of 1597, and I apprehend every edition to be very scarce. For this reason, and because it is the opening of a great subject, I shall give the titles of his chapters in a note.[1137] It will appear, that the second book of Ayala relates more to politics and to strategy than to international jurisprudence; and that in the third he treats entirely of what we call martial law. But in the first he aspires to lay down great principles of public ethics; and Grotius, who refers to Ayala with commendation, is surely mistaken in saying that he has not touched the grounds of justice and injustice in war.[1138] His second chapter is on this subject, in thirty-four pages; and though he neither sifts the matter so exactly, nor limits the right of hostility so much as Grotius, he deserves the praise of laying down the general principle without subtlety or chicanery. Ayala positively denies, with Victoria, the right of levying war against infidels, even by authority of the pope, on the mere ground of their religion; for their infidelity does not deprive them of right of dominion; nor was that sovereignty over the earth given originally to the faithful alone, but to every reasonable creature. And this, he says, has been shown by Covarruvias to be the sentiment of the majority of doctors.[1139] Ayala deals abundantly in examples from ancient history, and in authorities from the jurists.

[1137] Balth. Ayalæ, J. C. et exercitus regii apud Belgas supremi juridici, de jure et officiis bellicis et disciplina militari, libri tres. Antw. 1597. 12mo. pp. 405.

Lib. i.
c. 1. De Ratione Belli Indicendi, Aliisque Cæremoniis Bellicis.
2. De Bello Justo.
3. De Duello, sive Singulari Certamine.
4. De Pignerationibus, quas vulgo Represalias vocant.
5. De Bello Captis et Jure Postliminii.
6. De Fide Hosti Servanda.
7. De Fœderibus et Induciis.
8. De Insidiis et Fraude Hostili.
9. De Jure Legatorum.

Lib. ii.
c. 1. De Officiis Bellicis.
2. De Imperatore vel Duce Exercitus.
3. Unum non Plures Exercitui Præfici debere.
4. Utrum Lenitate et Benevolentia, an Severitate et Sævitia plus proficiet Imperator.
5. Temporum Rationem præcipue in Bello Habendam.
6. Contentiosas et Lentas de Rebus Bellicis Deliberationes admodum Noxias esse.
7. Dum Res sunt Integræ ne minimum quidem Regi vel Reipublicæ de Majestate sua Concedendum esse; et errare eos qui Arrogantiam Hostium Modestia et Patientia vinci posse existimant.
8. An præstet Bellum Domi excipere, an vero in Hostilem Agrum inferre.
9. An præstet Initio Prœlii Magno Clamore et Concitato Cursu in Hostes pergere, an vero Loco manere.
10. Non esse Consilii invicem Infensos Civilibus Dissensionibus Hostes Sola Discordia Fretum invadere.
11. Necessitatem Pugnandi Magno Studio Imponendam esse Militibus et Hostibus Remittendam.
12. In Victoria potissimum de Pace Cogitandum.
13. Devictis Hostibus qua potissimum Ratione Perpetua Pace Quieti obtineri possint [sic].

Lib. iii.
c. 1. De Disciplina Militari.
2. De Officio Legati et Aliorum qui Militibus præsunt.
3. De Metatoribus sive Mensoribus.
4. De Militibus, et qui Militare possunt.
5. De Sacramento Militari.
6. De Missione.
7. De Privilegiis Militum.
8. De Judiciis Militaribus.
9. De Pœnis Militum.
10. De Contumacibus et Ducum Dicto non Parentibus.
11. De Emansoribus.
12. De Desertoribus.
13. De Transfugis et Proditoribus.
14. De Seditiosis.
15. De Iis qui in Acie Loco cedunt aut Victi Se dedunt.
16. De Iis qui Arma alienant vel amittunt.
17. De Iis qui Excubias deserunt vel minus recte agunt.
18. De Eo qui Arcem vel Oppidum cujus Præsidio impositus est, amittit vel Hostibus dedit.
19. De Furtis et Aliis Delictis Militaribus.
20. De Præmiis Militum.

[1138] Causas unde bellum justum aut injustum dicitur Ayala non tetigit. De Jure B. and P. Prolegom. § 38.

[1139] Bellum adversus infideles ex eo solum quod infideles sunt, ne quidem auctoritate imperatoris vel summi pontificis indici potest; infidelitas enim non privat infideles dominio quod habent jure gentium; nam non fidelibus tantum rerum dominia, sed omni rationabili creaturæ data sunt.... Et hæc sententia plerisque probatur, ut ostendit Covarruvias.