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1. The civil law, both that of Rome and that of each nation in particular, has been treated of, with a view either to illustrate it or to present it in a compendious form, by many. But international law, – that which regards the mutual relations of several peoples or rulers of peoples,— whether it proceed from nature or be instituted by divine command or introduced by custom and tacit compact, has been touched on by few, and has been by no one treated as a whole in an orderly manner. And yet that this be done concerns the human race.
2. For rightly did Cicero call that an excellent science which includes the alliances, treaties, and covenants of peoples, kings, and nations, and all the rights of war and peace. And Euripides prefers this science to the knowledge of things human and divine; for he makes Helen address Theonoe thus:
'Twould be a base reproach
3. And such a work is the more necessary on this account, that there are not wanting persons in our own time, and there have been also in former times persons, who have despised what has been done, in this province of jurisprudence, so far as to hold that no such thing existed except as a mere name. Every one can quote the saying of Euphemius in Thucydides, — that for a king or a city which has an empire to maintain nộthing is injust which is useful. And to the same effect is the, saying that, for those who have supreme power, the equity: is where the strëngth 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. And Horace describes Achilles thus :
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
Contrive a way of going mad by reason. 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
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
What's just and right,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 oikeiwols, 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, for 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,