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tain nothing is unjust which is useful. And to the same effect is the saying that, for those who have supreme power, the equity is where the strength is; and that other, that State affairs cannot be carried on without doing some wrong. To this we must add that the controversies which arise between peoples and kings have commonly war for their arbiter. And that war is far from having anything to do with rights is not only the opinion of the vulgar, but even learned and prudent men often let fall expressions which favor such an opinion. It is very usual to put rights and arms in opposition to each other. And, accordingly, Ennius says:
They have recourse to arms, and not to rights.
Rights he spurns
As things not made for him, claims all by arms.
And another poet introduces a warrior, who, when he enters on war, says:
Now, Peace and Law, I bid you both farewell.
Antigonus laughed at a man who, when he was besieging his enemies' cities, brought to him a dissertation on Justice. And Marius said that the din of arms prevented his hearing the laws. Even Pompey, who was so modest that he blushed when he had to speak in public, had the face to say, "Am I who am in arms to think of the laws?
4. In Christian writers many passages of a like sense occur. Let that one of Tertullian suffice for all: "Deceit, cruelty, injustice, are the proper business of battles." They who hold this opinion will undoubtedly meet our purpose [of establishing the rights of war] with the expressions in Terence :
You that attempt to fix by certain rules
5. But, since our discussion of rights is worthless if there are no rights, it will serve both to recommend our work and to protect it from objections if we refute briefly this very grave error. And, that we may not have to deal with a mob of opponents, let us appoint them an advocate to speak for them. And whom can we select for this office fitter than Carneades,
who had made such wonderful progress in his suspension of opinion, the supreme aim of his academical philosophy, that he could work the machinery of his eloquence for falsehood as easily as for truth? He, then, undertook to argue against justice, and especially the kind of justice of which we here treat; and, in doing so, he found no argument stronger than this: that men had, as utility prompted, established rights, different as their manners differed, and even in the same society often changed with the change of times. But natural law there is none; for all creatures, men and animals alike, are impelled by nature to seek their own gratification, and thus either there is no such thing as justice or, if it exist, it is the height of folly, since it does harm to itself in aiming at the good of others.
6. But what the philosopher here says, and what the poet) (Horace) follows,
By naked nature ne'er was understood
must by no means be admitted; for man is an animal indeed, but an animal of an excellent kind, differing much more from all other tribes of animals than they differ from one another, which appears by the evidence of many actions peculiar to the human species. And among these properties which are peculiar to man is a desire for society; that is, a desire for a life spent in common with fellow-men, and not merely spent somehow, but spent tranquilly and in a manner corresponding to the character of his intellect. This desire the Stoics called oikeiwors, the domestic instinct or feeling of kindred. And, therefore, the assertion that by nature every animal is impelled only to seek its own advantage or good, if stated so generally as to include man, cannot be conceded.
7. And, indeed, even in other animals as well as in man, their desire of their own individual good is tempered by a regard partly for their offspring, partly for others of their own species, which in them, indeed, we perceive to proceed from some extrinsic intelligent principle,* because, with regard to other acts not at all more difficult than those [thus directed toward the offspring and the like], an equal degree of intelligence does not appear. The same is to be said of infants, in
* In his treatise De Veritate Rel. Christ., lib. 1. 7, Grotius notices the acts of animals (as ants and bees), which appear to proceed from some extrinsic reason,- quæ quidem ratio non aliud est quam quod Deus vocatur.- Whewell.
whom, previous to all teaching, we see a certain disposition to do good to others, as is sagaciously remarked by Plutarch; as, for example, compassion breaks out spontaneously at that age. But, inasmuch as a man of full age has the knowledge which enables him to act similarly in similar cases, and along with that a peculiar and admirable appetite for society, and has also language, an instrument of this desire given to him alone of all animals, it is reasonable to assume that he has a faculty of knowing and acting according to general principles; and such tendencies as agree with this faculty do not belong to all animals, but are peculiar attributes of human nature.
8. And this tendency to the conservation of society, which we have now expressed in a rude manner, and which tendency is in agreement with the nature of the human intellect, is the source of jus, or natural law, properly so called. To this jus belong the rule of abstaining from that which belongs to other persons, and, if we have in our possession anything of another's, the restitution of it, or of any gain which we have made from it; the fulfilling of promises and the reparation of damage done by fault; and the recognition of certain things as meriting punishment among men.
9. From this signification has flowed another, larger sense of jus. For, inasmuch as man is superior to other animals, not only in the social impulse of which we have spoken, but in his judgment and power of estimating advantages and disadvantages, and in these, not only present good and ill, but also future good and ill, and what may lead to each, we may understand that it is congruous to human nature to follow, in such matters also [the estimate of future good and ill and of the consequences of actions], a judgment rightly framed, not to be misled by fear or by the temptation of present pleasure nor to be carried away by blind and thoughtless impulse; and that what is plainly repugnant to such judgment is also contrary to jus, that is, to natural human law.
10. And to this exercise of judgment pertains a reasonable and thoughtful assignment, to each individual and each body of men, of the things which peculiarly belong to them, by which exercise of judgment, in some cases, the wiser man is preferred to the less wise; in others, our neighbor to a stranger; in others, a poor man to a rich man, according as the nature of each act and each thing requires. And this some persons have treated as a part of jus, properly and strictly so called,
although jus, properly so called, is really very different in its nature and has this for its special office,— to leave to another what is his, to give to him what we owe.
II. And what we have said would still have great weight, even if we were to grant what we cannot grant without wickedness,— that there is no God, or that he bestows no regard on human affairs. But, inasmuch as we are assured of the contrary of this, partly by reason, partly by constant tradition, confirmed by many arguments and by miracles attested by all ages, it follows that God, as the Author of our being, to whom we owe ourselves and all that we have, is to be obeyed by us without exception, especially since he has, in many ways, shown himself both supremely good and supremely powerful. Wherefore he is able to bestow upon those who obey him the highest rewards, even eternal ones, as being himself eternal; and he must be supposed to be willing as well as able to do this, and the more so if he have promised such rewards in plain language, which we Christians believe, resting our belief on the indubitable faith of testimonies.
12. And here we are brought to another origin of jus, besides that natural source; namely, the free will of God, to which, as our reason irresistibly tells us, we are bound to submit ourselves. But even that natural law of which we have spoken, whether it be that which binds together communities or that looser kind [which enjoins duties], although it do proceed from the internal principles of man, may yet be rightly ascribed to God, because it was by his will that such principles came to exist in us. And, in this sense, Chrysippus and the Stoics said that the origin of jus, or natural law, was not to be sought in any other quarter than in Jove himself; and it may be probably conjectured that the Latins took the word. jus from the name Jove.
13. To this we must add that these principles God has made more manifest by the laws which he has given, so that they may be understood by those whose minds have a feebler power of drawing inferences; and he has prohibited the perverse aberrations of our affections, which draw us this way and that contrary to our own interest and the good of others, putting a bridle upon our more vehement passions, controlling and restraining them within due limits.
14. Further, the Sacred History, besides that part which consists in precepts, offers another view which, in no small
degree, excites the social affection of which we have spoken, in that it teaches us that all men are sprung from the same parents. And thus we may rightly say, in this sense also, what Florentinus says in another sense,—that there is a kindred established among us by nature, and, in virtue of this relation, it is wrong for man to intend mischief toward man.
Among men [all are not on the same footing towards us, as for instance] our parents are a sort of gods to us, to whom obedience is due, not infinite indeed, but an obedience of its own proper kind.
15. In the next place, since it is conformable to natural law to observe compacts (for some mode of obliging themselves was necessary among men, and no other natural mode could be imagined), civil rights were derived from this source, mutual compact. For those who had joined any community or put themselves in subjection to any man or men, those either expressly promised, or from the nature of the case must have been understood to promise tacitly, that they would conform to that which either the majority of the community or those to whom the power was assigned should determine.
16. And, therefore, what Carneades said (as above) and what others also have said, as Horace,
Utility, mother of just and right,
if we are to speak accurately, is not true. For the mother of right- that is, of natural law- is human nature; for this would lead us to desire mutual society, even if it were not required for the supply of other wants. And the mother of civil laws is obligation by mutual compact; and, since mutual compact derives its force from natural law, nature may be said to be the grandmother of civil laws. [The genealogy is human nature, natural law, civil laws.] But natural law [which impels us to society] is re-enforced by utility. For the Author of nature ordained that we should, as individuals, be weak, and in need of many things to make life comfortable, in order that we might be the more impelled to cling to society. But utility is the occasion of civil laws; for the association or subjection by mutual compact, of which we have just spoken (15), was at the first instituted for the sake of some utility. And, accordingly, they who prescribe laws for others, in doing this, aim, or ought to aim, at some utility to be produced to them for whom they legislate.