“On Civil Law and Natural Law”
[Gaius. “De Iure Civile et Naturali” [On Civile Law and Natural Law]. Gai Institutiones or Institutes of Roman Law by Gaius. With a Translation and Commentary by the late Edward Poste, M.A. Fourth edition, revised and enlarged by E.A. Whittuck, M.A. B.C.L., with an historical introduction by A.H.J. Greenidge, D.Litt. Oxford: Clarendon Press. 1904. Accessed 7/22/2016. http://oll.libertyfund.org/titles/1154. Used with the permission of the Online Library of Liberty.]
§ 1. The laws of every people governed by statutes and customs are partly peculiar to itself, partly common to all mankind. The rules established by a given state for its own members are peculiar to itself, and are called jus civile; the rules constituted by natural reason for all are observed by all nations alike, and are called jus gentium. So the laws of the people of Rome are partly peculiar to itself, partly common to all nations; and this distinction shall be explained in detail in each place as it occurs.
§ 2. Roman law consists of statutes, plebiscites, senatusconsults, constitutions of the emperors, edicts of magistrates authorized to issue them, and opinions of jurists.
§ 3. A statute is a command and ordinance of the people: a plebiscite is a command and ordinance of the commonalty. The commonalty and the people are thus distinguished: the people are all the citizens, including the patricians; the commonalty are all the citizens, except the patricians. Whence in former times the patricians maintained that they were not bound by the plebiscites, as passed without their authority; but afterwards a statute called the lex Hortensia was enacted, which provided that the plebiscites should bind the people, and thus plebiscites were made co-ordinate with statutes.
§ 4. A senatusconsult is a command and ordinance of the senate, and has the force of a statute, a point which was formerly controverted.
§ 5. A constitution is law established by the emperor either by decree, edict, or letter; and was always recognized as having the force of a statute, since it is by a statute that the emperor himself acquires supreme executive power.
§ 6. Power to issue edicts is vested in magistrates of the people of Rome, the amplest authority belonging to the edicts of the two praetors, the home praetor and the foreign praetor, whose provincial jurisdiction is vested in the presidents of the provinces, and to the edicts of the curule aediles, whose jurisdiction in the provinces of the people of Rome is vested in quaestors: in the provinces of the emperor no quaestors are appointed, and in these provinces, accordingly, the edict of the aediles is not published.
§ 7. The answers of jurists are the decisions and opinions of persons authorized to lay down the law. If they are unanimous their decision has the force of law; if they disagree, the judge may follow whichever opinion he chooses, as is ruled by a rescript of the late emperor Hadrian.
Etymologies, or Origins
By Isidore, Bishop of Seville
ca. A.D. 615–635
[Isidore, Bishop of Seville. “On Laws and Times.” Etymologiarum libri viginti [The Twenty Books of the Etymologies]. Translated by Kevin Gallagher. Princeton, N.J.: The Witherspoon Institute. 2010. Book 5, chapters 1–10. For full Latin text, see The Latin Library.]
DE LEGIBVS ET TEMPORIBVS
Of Laws and times.
I. DE AVCTORIBVS LEGVM.  Moyses gentis Hebraicae primus omnium divinas leges sacris litteris explicavit. Phoroneus rex Graecis primus leges iudiciaque constituit.  Mercurius Trimegistus primus leges Aegyptiis tradidit. Solon primus leges Atheniensibus dedit. Lycurgus primus Lacedaemoniis iura ex Apollinis auctoritate confinxit.  Numa Pompilius, qui Romulo successit in regno, primus leges Romanis edidit; deinde cum populus seditiosos magistratus ferre non posset, Decemviros legibus scribendis creavit, qui leges ex libris Solonis in Latinum sermonem translatas duodecim tabulis exposuerunt.  Fuerunt autem hi: Appius Claudius, Genucius, Veterius, Iulius, Manlius, Sulpicius, Sextius, Curatius, Romilius, Postumius. Hi Decemviri legum conscribendarum electi sunt.  Leges autem redigere in libris primus consul Pompeius instituere voluit, sed non perseveravit obtrectatorum metu. Deinde Caesar coepit [id] facere, sed ante interfectus est.  Paulatim autem antiquae leges vetustate atque incuria exoleverunt, quarum etsi nullus iam usus est, notitia tamen necessaria videtur.  Novae a Constantino Caesare coeperunt et reliquis succedentibus, erantque per mixtae et inordinatae. Postea Theodosius minor Augustus ad similitudinem Gregoriani et Hermogeniani codicem factum constitutionum a Constantini temporibus sub proprio cuiusque imperatoris titulo disposuit, quem a suo nomine Theodosianum vocavit.
I. OF THE AUTHORS OF LAWS. 1. Moses of the Hebrew race first explained the divine laws in the sacred writings. King Phoroneus first established laws and judgments for the Greeks. 2. Mercury Trismegistus first passed down laws to the Egyptians. Solon first gave laws to the Athenians. Lycurgus first devised laws [iura] for the Spartans, on the authority of Apollo. 3. Numa Pompilius, who succeeded Romulus as ruler, first gave laws to the Romans; afterwards, when the people could not bear the quarrelsome magistrates, they appointed the decemvirs to write laws. In the Twelve Tables, the decemvirs laid out the laws from the books of Solon, translated into Latin speech. 4. And they were these: Appius Claudius, Genucius, Veterius, Julius, Manlius, Sulpicius, Sestius, Curatius, Romilius, and Postumius. These were the decemvirs chosen to compose the laws. 5. Now Pompey the Consul first wished to establish the laws in books, but he did not persevere, out of fear of his critics. Later Caesar began to do it, but he was killed before he could. 6. And little by little, the old laws fell out of use through of age and neglect; even if these laws were no longer in effect, it still seemed necessary to be familiar with them. 7. New laws began with Emperor Constantine and his successors, but they were confused and disorderly. Afterwards, Emperor Theodosius the Younger arranged for a book to be made, in the likeness of the Gregorian and Hermogenian Codes, containing the ordinances from the time of Constantine, organized under the names of each emperor. This book was called the Theodosian Code, after his own name.
II. DE LEGIBVS DIVINIS ET HVMANIS.  Omnes autem leges aut divinae sunt, aut humanae. Divinae natura, humanae moribus constant; ideoque haec discrepant, quoniam aliae aliis gentibus placent.  Fas lex divina est, ius lex humana. Transire per alienum fas est, ius non est.
II. OF DIVINE AND HUMAN LAWS. 1. All laws are either divine or human. Divine laws depend on nature. Human laws depend on mores, and therefore differ from each other, since different laws please different peoples. 2. Fas is divine law; ius is human law. To pass through a stranger’s land is fas, but not ius.
III. QVID DIFFERVNT INTER SE IVS, LEGES ET MORES.  Ius generale nomen est, lex autem iuris est species. Ius autem dictum, quia iustum [est]. Omne autem ius legibus et moribus constat.  Lex est constitutio scripta. Mos est vetustate probata consuetudo, sive lex non scripta. Nam lex a legendo vocata, quia scripta est.  Mos autem longa consuetudo est de moribus tracta tantundem. Consuetudo autem est ius quoddam moribus institutum, quod pro lege suscipitur, cum deficit lex: nec differt scriptura an ratione consistat, quando et legem ratio commendet.  Porro si ratione lex constat, lex erit omne iam quod ratione constiterit, dumtaxat quod religioni congruat, quod disciplinae conveniat, quod saluti proficiat. Vocata autem consuetudo, quia in communi est usu.
III. HOW LAWS [ius], LAWS [leges], AND MORES DIFFER AMONG THEMSELVES. 1. Ius is a general name, and law is a kind of ius. Now it is called ius, because it is just [iustum]. And all ius has to do with laws and customs. 2. Law is a written ordinance. Mos is custom tested by age, or unwritten law. For law [lex] is named from reading [legendo], because it is written. 3. Mos is a long lasting custom, taken only from mores. Custom is a certain ius instituted by mores, which is taken in place of the law, when the law is lacking. And it does not matter whether it is established by something written or by reason, since reason commends even the law. 4. Now if law depends on reason, law will be everything that is established by reason, as long as it is consistent with religion, compatible with discipline, and conducive of salvation [saluti]. And it is called custom [consuetudo] because it is in common use [in communi usu].
IV. QVID SIT IVS NATVRALE.  Ius autem naturale [est], aut civile, aut gentium. Ius naturale [est] commune omnium nationum, et quod ubique instinctu naturae, non constitutione aliqua habetur; ut viri et feminae coniunctio, liberorum successio et educatio, communis omnium possessio, et omnium una libertas, adquisitio eorum quae caelo, terra marique capiuntur.  Item depositae rei vel commendatae pecuniae restitutio, violentiae per vim repulsio. Nam hoc, aut si quid huic simile est, numquam iniustum [est], sed naturale aequumque habetur.
IV. WHAT IS THE NATURAL LAW [ius naturale]? 1. Law [ius] is either natural law [ius naturale], civil law [ius civile], or the law of nations [ius gentium]. The natural law is common to all nations, and because it is recognized everywhere by an instinct of nature, and not by any ordinance: such as the union of man and woman, the inheritance and education of children, the common possession of all things, the liberty of all, and the acquisition of those things that are taken from the sky, the earth, and the sea. 2. Likewise, the return of entrusted things or lent money, and the resistance of violence by force. For this, or whatever is similar to this, is never unjust, but is recognized as natural and fair.
V. QVID SIT IVS CIVILE.  Ius civile est quod quisque populus vel civitas sibi proprium humana divinaque causa constituit.
V. WHAT IS CIVIL LAW [ius civile]? 1. Civil law is what each people or city establishes as proper to itself, for human and divine reasons.
VI. QVID SIT IVS GENTIVM.  Ius gentium est sedium occupatio, aedificatio, munitio, bella, captivitates, servitutes, postliminia, foedera pacis, indutiae, legatorum non violandorum religio, conubia inter alienigenas prohibita. Et inde ius gentium, quia eo iure omnes fere gentes utuntur.
VI. WHAT IS THE LAW OF NATIONS [ius gentium]? 1. The law of nations has to do with occupying land, erecting buildings, raising fortifications, making war, taking captives and slaves, postliminium, pacts of peace, truces, not attacking diplomats, and the prohibition of marriage among those of different races. This is called the law of nations, because almost all nations observe this law.
VII. QVID SIT IVS MILITARE.  Ius militare est belli inferendi sollemnitas, foederis faciendi nexus, signo data egressio in hostem vel commissio. Item signo dato receptio; item flagitii militaris disciplina, si locus deseratur; item stipendiorum modus, dignitatum gradus, praemiorum honor, veluti cum corona vel torques donantur.  Item praedae decisio, et [pro] personarum qualitatibus et labori iusta divisio; item principis portio.
VII. WHAT IS MILITARY LAW [ius militare]? 1. Military law has to do with the formalities of making war, with making pacts, and with signals commanding troops to march against the enemy or begin battle. Also the reception of signals given; also the military discipline of punishments, if a place is deserted; also the amount of wages, the degrees of dignities, the honor of awards, as when crowns or torques are given. 2. Also the distribution of war booty, and the just division according to the qualities and labor of persons; also the prince’s portion.
VIII. QVID SIT IVS PVBLICVM.  Ius publicum est in sacris et sacerdotibus, in magistratibus.
VIII. WHAT IS PUBLIC LAW [ius publicum]? 1. Public law has to do with sacred things and priests, and with magistrates.
IX. QVID SIT IVS QVIRITVM.  Ius Quiritum est proprie Romanorum, quo nulli tenentur nisi Quirites, id est Romani, tamquam de legitimis hereditatibus, de cretionibus, de tutelis, de usucapionibus; quae iura apud alium nullum populum reperiuntur, sed propria sunt, Romanorum et in eosdem solos a constituta.  Constat autem ius Quiritum ex legibus et plebiscitis, constitutionibus principum et edictis; sive prudentium responsis.
IX. WHAT IS THE LAW OF THE QUIRITES [ius Quiritum]? 1. The law of the Quirites is law proper to the Romans, by which no one is bound unless he is a Quiris, that is, a Roman. It has to do with legitimate heirs, with inheritances, with guardianships, with usucaption. These laws are found among no other people, but are proper to the Romans, and are established only among them. 2. The law of the Quirites is established by laws and by plebiscites, by ordinances of the rulers and by edicts; or by the answers of the prudent.
X. QVID SIT LEX.  Lex est constitutio populi, qua maiores natu simul cum plebibus aliquid sanxerunt.
X. WHAT IS LAW [lex]? 1. Law is an ordinance of the people, by which the elders have enacted something together with the plebs.
By Thomas Aquinas
[Aquinas, Thomas. “Human Law.” The Summa Theologica. Translated by the Fathers of the English Dominican Province. Second and Revised Edition. 1920. First Part of the Second Part, Question 95. http://www.newadvent.org/summa/2095.htm. Used with the permission of Kevin Knight and New Advent.
Objection 1. It would seem that it was not useful for laws to be framed by men. Because the purpose of every law is that man be made good thereby, as stated above (Question 92, Article 1). But men are more to be induced to be good willingly by means of admonitions, than against their will, by means of laws. Therefore there was no need to frame laws.
Objection 2. Further, As the Philosopher [Aristotle] says (Nicomachean Ethics, 5.4), “men have recourse to a judge as to animate justice.” But animate justice is better than inanimate justice, which contained in laws. Therefore it would have been better for the execution of justice to be entrusted to the decision of judges, than to frame laws in addition.
Objection 3. Further, every law is framed for the direction of human actions, as is evident from what has been stated above (Question 90, Articles 1 and 2). But since human actions are about singulars, which are infinite in number, matter pertaining to the direction of human actions cannot be taken into sufficient consideration except by a wise man, who looks into each one of them. Therefore it would have been better for human acts to be directed by the judgment of wise men, than by the framing of laws. Therefore there was no need of human laws.
On the contrary, Isidore [of Seville] says (Etymologies, 5.XX): “Laws were made that in fear thereof human audacity might be held in check, that innocence might be safeguarded in the midst of wickedness, and that the dread of punishment might prevent the wicked from doing harm.” But these things are most necessary to mankind. Therefore it was necessary that human laws should be made.
I answer that, As stated above (Part I-II, Question 63, Article 1; Question 94, Article 3), man has a natural aptitude for virtue; but the perfection of virtue must be acquired by man by means of some kind of training. Thus we observe that man is helped by industry in his necessities, for instance, in food and clothing. Certain beginnings of these he has from nature, viz. his reason and his hands; but he has not the full complement, as other animals have, to whom nature has given sufficiency of clothing and food. Now it is difficult to see how man could suffice for himself in the matter of this training: since the perfection of virtue consists chiefly in withdrawing man from undue pleasures, to which above all man is inclined, and especially the young, who are more capable of being trained. Consequently a man needs to receive this training from another, whereby to arrive at the perfection of virtue. And as to those young people who are inclined to acts of virtue, by their good natural disposition, or by custom, or rather by the gift of God, paternal training suffices, which is by admonitions. But since some are found to be depraved, and prone to vice, and not easily amenable to words, it was necessary for such to be restrained from evil by force and fear, in order that, at least, they might desist from evil-doing, and leave others in peace, and that they themselves, by being habituated in this way, might be brought to do willingly what hitherto they did from fear, and thus become virtuous. Now this kind of training, which compels through fear of punishment, is the discipline of laws. Therefore in order that man might have peace and virtue, it was necessary for laws to be framed: for, as the Philosopher [Aristotle] says (Politics, 1.2), “as man is the most noble of animals if he be perfect in virtue, so is he the lowest of all, if he be severed from law and righteousness”; because man can use his reason to devise means of satisfying his lusts and evil passions, which other animals are unable to do.
Reply to Objection 1. Men who are well disposed are led willingly to virtue by being admonished better than by coercion: but men who are evilly disposed are not led to virtue unless they are compelled.
Reply to Objection 2. As the Philosopher [Aristotle] says (Rhetoric, 1.1), “it is better that all things be regulated by law, than left to be decided by judges”: and this for three reasons. First, because it is easier to find a few wise men competent to frame right laws, than to find the many who would be necessary to judge aright of each single case. Secondly, because those who make laws consider long beforehand what laws to make; whereas judgment on each single case has to be pronounced as soon as it arises: and it is easier for man to see what is right, by taking many instances into consideration, than by considering one solitary fact. Thirdly, because lawgivers judge in the abstract and of future events; whereas those who sit in judgment of things present, towards which they are affected by love, hatred, or some kind of cupidity; wherefore their judgment is perverted.
Since then the animated justice of the judge is not found in every man, and since it can be deflected, therefore it was necessary, whenever possible, for the law to determine how to judge, and for very few matters to be left to the decision of men.
Reply to Objection 3. Certain individual facts which cannot be covered by the law “have necessarily to be committed to judges,” as the Philosopher [Aristotle] says in the same passage: for instance, “concerning something that has happened or not happened,” and the like.
Objection 1. It would seem that not every human law is derived from the natural law. For the Philosopher [Aristotle] says (Nicomachean Ethics, 5.7) that “the legal just is that which originally was a matter of indifference.” But those things which arise from the natural law are not matters of indifference. Therefore the enactments of human laws are not derived from the natural law.
Objection 2. Further, positive law is contrasted with natural law, as stated by Isidore [of Seville] (Etymologies, 5.IV) and the Philosopher [Aristotle] (Nicomachean Ethics, 5.7). But those things which flow as conclusions from the general principles of the natural law belong to the natural law, as stated above (Question 94, Article 4). Therefore that which is established by human law does not belong to the natural law.
Objection 3. Further, the law of nature is the same for all; since the Philosopher [Aristotle] says (Nicomachean Ethics, 5.7) that “the natural just is that which is equally valid everywhere.” If therefore human laws were derived from the natural law, it would follow that they too are the same for all: which is clearly false.
Objection 4. Further, it is possible to give a reason for things which are derived from the natural law. But “it is not possible to give the reason for all the legal enactments of the lawgivers,” as the jurist says [Pandectarum Justiniani, Pandects of Justinian, 1.3.20–21]. Therefore not all human laws are derived from the natural law.
On the contrary, Tully [Cicero] says (De Inventione, 2.160): “Things which emanated from nature and were approved by custom, were sanctioned by fear and reverence for the laws.”
I answer that, As Augustine says (De Libero Arbitrio [On the Free Choice of the Will], 1.5) “that which is not just seems to be no law at all”: wherefore the force of a law depends on the extent of its justice. Now in human affairs a thing is said to be just, from being right, according to the rule of reason. But the first rule of reason is the law of nature, as is clear from what has been stated above (Question 91, Article 2, Reply 2). Consequently every human law has just so much of the nature of law, as it is derived from the law of nature. But if in any point it deflects from the law of nature, it is no longer a law but a perversion of law.
But it must be noted that something may be derived from the natural law in two ways: first, as a conclusion from premises, secondly, by way of determination of certain generalities. The first way is like to that by which, in sciences, demonstrated conclusions are drawn from the principles: while the second mode is likened to that whereby, in the arts, general forms are particularized as to details: thus the craftsman needs to determine the general form of a house to some particular shape. Some things are therefore derived from the general principles of the natural law, by way of conclusions; e.g. that “one must not kill” may be derived as a conclusion from the principle that “one should do harm to no man”: while some are derived therefrom by way of determination; e.g. the law of nature has it that the evil-doer should be punished; but that he be punished in this or that way, is a determination of the law of nature.
Accordingly both modes of derivation are found in the human law. But those things which are derived in the first way, are contained in human law not as emanating therefrom exclusively, but have some force from the natural law also. But those things which are derived in the second way, have no other force than that of human law.
Reply to Objection 1. The Philosopher [Aristotle] is speaking of those enactments which are by way of determination or specification of the precepts of the natural law.
Reply to Objection 2. This argument avails for those things that are derived from the natural law, by way of conclusions.
Reply to Objection 3. The general principles of the natural law cannot be applied to all men in the same way on account of the great variety of human affairs: and hence arises the diversity of positive laws among various people.
Reply to Objection 4. These words of the Jurist are to be understood as referring to decisions of rulers in determining particular points of the natural law: on which determinations the judgment of expert and prudent men is based as on its principles; in so far, to wit, as they see at once what is the best thing to decide.
Hence the Philosopher [Aristotle] says (Nicomachean Ethics, 6.11) that in such matters, “we ought to pay as much attention to the undemonstrated sayings and opinions of persons who surpass us in experience, age and prudence, as to their demonstrations.”
Objection 1. It would seem that Isidore [of Seville]’s description of the quality of positive law is not appropriate, when he says (Etymologies, 5.XXI): “Law shall be virtuous, just, possible to nature, according to the custom of the country, suitable to place and time, necessary, useful; clearly expressed, lest by its obscurity it lead to misunderstanding; framed for no private benefit, but for the common good.” Because he had previously expressed the quality of law in three conditions, saying that “law is anything founded on reason, provided that it foster religion, be helpful to discipline, and further the common weal.” Therefore it was needless to add any further conditions to these.
Objection 2. Further, Justice is included in honesty, as Tully [Cicero] says (De Officiis, 1.62). Therefore after saying “honest” it was superfluous to add “just.”
Objection 3. Further, written law is condivided with custom, according to Isidore [of Seville] (Etymologies, 2.X). Therefore it should not be stated in the definition of law that it is “according to the custom of the country.”
Objection 4. Further, a thing may be necessary in two ways. It may be necessary simply, because it cannot be otherwise: and that which is necessary in this way, is not subject to human judgment, wherefore human law is not concerned with necessity of this kind. Again a thing may be necessary for an end: and this necessity is the same as usefulness. Therefore it is superfluous to say both “necessary” and “useful.”
On the contrary, stands the authority of Isidore [of Seville].
I answer that, Whenever a thing is for an end, its form must be determined proportionately to that end; as the form of a saw is such as to be suitable for cutting (Physics, 2.9). Again, everything that is ruled and measured must have a form proportionate to its rule and measure. Now both these conditions are verified of human law: since it is both something ordained to an end; and is a rule or measure ruled or measured by a higher measure. And this higher measure is twofold, viz. the Divine law and the natural law, as explained above (Article 2; Question 93, Article 3). Now the end of human law is to be useful to man, as the jurist states [Pandectarum Justiniani, Pandects of Justinian, 1.1.11]. Wherefore Isidore [of Seville] in determining the nature of law, lays down, at first, three conditions; viz. that it “foster religion,” inasmuch as it is proportionate to the Divine law; that it be “helpful to discipline,” inasmuch as it is proportionate to the nature law; and that it “further the common weal,” inasmuch as it is proportionate to the utility of mankind [Isidore of Seville, Etymologies, 5.III].
All the other conditions mentioned by him are reduced to these three. For it is called virtuous because it fosters religion. And when he goes on to say that it should be “just, possible to nature, according to the customs of the country, adapted to place and time,” [Isidore of Seville, Etymologies, 5.XXI] he implies that it should be helpful to discipline. For human discipline depends first on the order of reason, to which he refers by saying “just”: secondly, it depends on the ability of the agent; because discipline should be adapted to each one according to his ability, taking also into account the ability of nature (for the same burdens should be not laid on children as adults); and should be according to human customs; since man cannot live alone in society, paying no heed to others: thirdly, it depends on certain circumstances, in respect of which he says, “adapted to place and time.” The remaining words, “necessary, useful,” etc. mean that law should further the common weal: so that “necessity” refers to the removal of evils; “usefulness” to the attainment of good; “clearness of expression,” to the need of preventing any harm ensuing from the law itself. And since, as stated above (Question 90, Article 2), law is ordained to the common good, this is expressed in the last part of the description.
This suffices for the Replies to the Objections.
Objection 1. It would seem that Isidore [of Seville] wrongly divided human statutes or human law (Etymologies, 5.IVff). For under this law he includes the “law of nations,” so called, because, as he says, “nearly all nations use it.” But as he says, “natural law is that which is common to all nations.” Therefore the law of nations is not contained under positive human law, but rather under natural law.
Objection 2. Further, those laws which have the same force, seem to differ not formally but only materially. But “statutes, decrees of the commonalty, senatorial decrees,” and the like which he mentions (Etymologies, 5.IX), all have the same force. Therefore they do not differ, except materially. But art takes no notice of such a distinction: since it may go on to infinity. Therefore this division of human laws is not appropriate.
Objection 3. Further, just as, in the state, there are princes, priests and soldiers, so are there other human offices. Therefore it seems that, as this division includes “military law,” and “public law,” referring to priests and magistrates; so also it should include other laws pertaining to other offices of the state.
Objection 4. Further, those things that are accidental should be passed over. But it is accidental to law that it be framed by this or that man. Therefore it is unreasonable to divide laws according to the names of lawgivers, so that one be called the “Cornelian” law, another the “Falcidian” law, etc.
On the contrary, The authority of Isidore [of Seville] (Objection 1) suffices.
I answer that, A thing can of itself be divided in respect of something contained in the notion of that thing. Thus a soul either rational or irrational is contained in the notion of animal: and therefore animal is divided properly and of itself in respect of its being rational or irrational; but not in the point of its being white or black, which are entirely beside the notion of animal. Now, in the notion of human law, many things are contained, in respect of any of which human law can be divided properly and of itself. For in the first place it belongs to the notion of human law, to be derived from the law of nature, as explained above (Article 2). In this respect positive law is divided into the “law of nations” and “civil law”, according to the two ways in which something may be derived from the law of nature, as stated above (Article 2). Because, to the law of nations belong those things which are derived from the law of nature, as conclusions from premises, e.g. just buyings and sellings, and the like, without which men cannot live together, which is a point of the law of nature, since man is by nature a social animal, as is proved in [Aristotle’s] Politics, 1.2. But those things which are derived from the law of nature by way of particular determination, belong to the civil law, according as each state decides on what is best for itself.
Secondly, it belongs to the notion of human law, to be ordained to the common good of the state. In this respect human law may be divided according to the different kinds of men who work in a special way for the common good: e.g. priests, by praying to God for the people; princes, by governing the people; soldiers, by fighting for the safety of the people. Wherefore certain special kinds of law are adapted to these men.
Thirdly, it belongs to the notion of human law, to be framed by that one who governs the community of the state, as shown above (Question 90, Article 3). In this respect, there are various human laws according to the various forms of government. Of these, according to the Philosopher [Aristotle] (Politics, 3.10) one is “monarchy,” i.e. when the state is governed by one; and then we have “Royal Ordinances.” Another form is “aristocracy,” i.e. government by the best men or men of highest rank; and then we have the “Authoritative legal opinions” [Responsa Prudentum] and “Decrees of the Senate” [Senatus consulta]. Another form is “oligarchy,” i.e. government by a few rich and powerful men; and then we have “Praetorian,” also called “Honorary,” law. Another form of government is that of the people, which is called “democracy,” and there we have “Decrees of the commonalty” [Plebiscita]. There is also tyrannical government, which is altogether corrupt, which, therefore, has no corresponding law. Finally, there is a form of government made up of all these, and which is the best: and in this respect we have law sanctioned by the “Lords and Commons,” as stated by Isidore [of Seville] (Etymologies, 5.IVff.).
Fourthly, it belongs to the notion of human law to direct human actions. In this respect, according to the various matters of which the law treats, there are various kinds of laws, which are sometimes named after their authors: thus we have the “Lex Julia” about adultery, the “Lex Cornelia” concerning assassins, and so on, differentiated in this way, not on account of the authors, but on account of the matters to which they refer.
Reply to Objection 1. The law of nations is indeed, in some way, natural to man, in so far as he is a reasonable being, because it is derived from the natural law by way of a conclusion that is not very remote from its premises. Wherefore men easily agreed thereto. Nevertheless it is distinct from the natural law, especially it is distinct from the natural law which is common to all animals.
The Replies to the other Objections are evident from what has been said.
On the Laws, Excerpts
By Francisco Suarez
[Suarez, Francisco. On the Laws. In Corpus Hispanorum de Pace. Volume 12. Madrid: Consejo Superior de Investigaciones Científicas. 1972. 2.17.1, 2.19.9. Translated from the Latin by Peter Blair for the Witherspoon Institute. 2011.]
Whether there are other effects of the law outside of those four
1. Let us inquire into the sufficiency of the previously given enumeration; and the reason for doubt is, whether law customarily produces many other effects. Firstly, the laws tax the prices of many things. Secondly, they appoint the mean in the matter of virtue. Thirdly they give the form of contracts, wills, etc. And as they determine essential things, just so acts done differently are not valid. To these effects pertain also the abrogation of contracts, the disqualification of people from certain contracts and offices. The fourth is to change the ownership of things. The fifth is to revoke the laws. The sixth is to give benefits and bestow a profit; for truly punishment does not pertain less to the law. For human life is governed by reward and punishment, as Isidore [of Seville] formerly said.
Explication of some scriptural testimony which the heretics abuse
9. Whence in the first example that law was given in order for men to practice obedience, submission, humility, and other virtues, just as Augustine rightly noted (On Genesis) of the precept imposed on our first fathers: it is fitting, he said, that man is restrained by something, that being virtuous he merits obedience. To which he added, however, that the threat was not because man in his state of the power of perfection needed it, but on account of other reasons, such as to emphasize the gravity of the precept on the observation of which the good of all nature hung and to check the inconstancy of free will that can abandon the whole of the perfection of grace and depart from it, as was done; and therefore it is not unjust to make threats and make use of them, but the authors cited before say only that it was not laid down principally for them nor is it the chief motive for them to behave justly. The same can be applied to the law of circumcision, and with less difficulty, because it was given on the occasion of sin and for its cure.
“Concerning the Certainty of Right in General”
By Hugo Grotius
[Grotius, Hugo. “Preliminary Discourse: Concerning the Certainty of Right in General.” The Rights of War and Peace: Book 1. 1625. Edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac. Indianapolis, Ind.: Liberty Fund, 2005. Vol. 1. Sections 17–18, 39–42. http://oll.libertyfund.org/titles/grotius-the-rights-of-war-and-peace-2005-ed-vol-1-book-i. Used with the permission of the Online Library of Liberty.]
XVII. Therefore the Saying, not of Carneades only, but of others,
Interest, that Spring of Just and Right. [Translation by] Creech
if we speak accurately, is not true; for the Mother of Natural Law is human Nature itself, which, though even the Necessity of our Circumstances should not require it, would of itself create in us a mutual Desire of Society: And the Mother of Civil Law is that very Obligation which arises from Consent, which deriving its Force from the Law of Nature, Nature may be called as it were, the Great Grandmother of this Law also. But to the Law of Nature Profit is annexed: For the Author of Nature was pleased, that every Man in particular should be weak of himself, and in Want of many Things necessary for living commodiously, to the End we might more eagerly affect Society: Whereas of the Civil Law Profit was the Occasion; for that entering into Society, or that Subjection which we spoke of, began first for the Sake of some Advantage. And besides, those who prescribe Laws to others, usually have, or ought to have, Regard to some Profit therein.
XVIII. But as the Laws of each State respect the Benefit of that State; so amongst all or most States there might be, and in Fact there are, some Laws agreed on by common Consent, which respect the Advantage not of one Body in particular, but of all in general. And this is what is called the Law of Nations, when used in Distinction to the Law of Nature. This Part of Law Carneades omitted, in the Division he made of all Law into Natural and Civil of each People or State; when notwithstanding, since he was to treat of the Law which is between Nations (for he added a Discourse concerning Wars and Things got by War) he ought by all means to have mentioned this Law.
. . .
XXXIX. What was most wanting in all those, viz. Illustrations from History, the most Learned Faber has undertaken to supply in some Chapters of his Semestria, but no farther than served his Purpose, and only by alleging some Authorities. The same has been done more largely, and that by applying a Multitude of Examples to some general Maxims laid down, by Balthazar Ayala, and still more largely by Albericus Gentilis, whose Labour, as I know it may be serviceable to others, and confess it has been to me, so what may be faulty in his Stile, in Method, in distinguishing of Questions, and the several Kinds of Right, I leave to the Reader’s Judgment. I shall only say this, that in the Decision of Controversies, he is often wont to follow either a few Examples that are not always to be approved of, or even the Authority of modern Lawyers in their Answers, not a few of which are accommodated to the Interest of those that consult them, and not formed by the invariable Rules of Equity and Justice. The Causes, from whence a War is denominated just or unjust, Ayala has not so much as touched upon: Gentilis has indeed described after his Manner some of the general Heads; but neither has he touched upon many famous Questions, which turn upon Cases that are very common.
XL. We have been careful that nothing of this Kind be passed over in Silence, having likewise shewn the very Foundations upon which we build our Decisions, so that it might be easy to determine any Question that may happen to be omitted by us. It remains now, that I briefly declare with what Assistance, and with what Care I undertook this Work: My first Care was, to refer the Proofs of those Things that belong to the Law of Nature to some such certain Notions, as none can deny, without doing Violence to his Judgment. For the Principles of that Law, if you rightly consider, are manifest and self-evident, almost after the same Manner as those Things are that we perceive with our outward Senses, which do not deceive us, if the Organs are rightly disposed, and if other Things necessary are not wanting. Therefore Euripides in his Phoenissae makes Polynices, whose Cause he would have to be represented manifestly just, deliver himself thus:
I speak not Things hard to be understood,
But such as, founded on the Rules of Good
And Just, are known alike to Learn’d and Rude.
And he immediately adds the Judgment of the Chorus, (which consisted of Women and those too Barbarians) approving what he said.
XLI. I have likewise, towards the Proof of this Law, made Use of the Testimonies of Philosophers, Historians, Poets, and in the last Place, Orators; not as if they were to be implicitly believed; for it is usual with them to accommodate themselves to the Prejudices of their Sect, the Nature of their Subject, and the Interest of their Cause: But that when many Men of different Times and Places unanimously affirm the same Thing for Truth, this ought to be ascribed to a general Cause; which in the Questions treated of by us, can be no other than either a just Inference drawn from the Principles of Nature, or an universal Consent. The former shews the Law of Nature, the other the Law of Nations. The Difference between which is not to be understood from the Testimonies themselves (for the Law of Nature and of Nations are Words used every where promiscuously by Writers) but from the Quality of the Subject. For that which cannot be deduced from certain Principles by just Consequences, and yet appears to be everywhere observed, must owe its rise to a free and arbitrary Will.
XLII. Therefore these two I have very carefully endeavoured always to distinguish no less from one another, than from the Civil Law: And even in the Law of Nations, I have made a Distinction between that which is truly and in every Respect lawful and that which only produces a certain external Effect after the Manner of that primitive Law; so that, for Instance, it may be lawful to resist it, or that it even ought to be everywhere defended with the public Force, for the Sake of some Advantage that attends it, or that some great Inconveniences may be avoided. Which Observation, how necessary it is in many Respects, will appear in the following Treatise. We have been no less careful in distinguishing Things belonging to Right properly and strictly so called, whence arises the Obligation of making Restitution, from those which are only said to belong to it, because that the acting otherwise is repugnant to some other Dictate of right Reason: Which Distinction we have already touched upon.
 “Atque ipsa Utilitas Justi propè mater, et Aequi.” (Horace, Book 1,. Satire [or Sermon] 3, Verse 98). Upon which Place, an ancient Commentator on Horace, whether Acron or any other Grammarian, makes the following Remark. “The Poet here opposes the Tenets of the Stoicks; for his Design is to prove that Justice is not Natural, but derived from Interest.” See what St. Augustin says against this Opinion, De Doctrina Christiana, Book 3, chapter 14. [Grotius’s footnote.]
 Peter du Faur of St. Jori, Counsellor in the Grand Council, afterwards Master of Requests, and at last First President of the Parliament of Toulouse. He was Scholar to Cujas. . . . [Footnote of editor Jean Barbeyrac.]
 He was a Native of Antwerp of Spanish Extraction. His Treatise, De Jure & Officiis Bellicis [The Law and Duties of War], was printed in that City in 1597, in 8 volumes. . . . [Footnote of editor Jean Barbeyrac.]
 This Author has written De Jure Belli [The Law of War]. [Footnote of editor Jean Barbeyrac.]
 Ταῦτ’ ἀνθέκαστα, μᾶτερ, οὐχὶ περιπλοκὰς / Λόγων ἀθροίσας εἶπον, ἀλλὰ καὶ σοϕοῖς / Καὶ τοῖσι ϕαύλοις ἔνδιχ’, ὡς ἐμοὶ δοκεῖ. (Vv. 497–99).
 The same Poet introduces Hermione speaking thus to Andromache. “Οὐ βαρβάρων νόμοισιν οἰκοῦμεν πόλιν” (“We do not govern our State by the Laws of Barbarians.”) To which Andromache replies: “Κᾀκεῖ τά γ’ αἰσχρὰ κᾀνθάδ’ αἰσχύνην ϕέρει” (“What is dishonourable or dishonest among them, bears the same Character also among us”). (Andromache, Vv. 242, 243). [Grotius’s footnote.]
 Why should they not be thus employed? The Emperor Alexander Severus read every Day Cicero’s Books De Republica, and his Treatise Of Offices [De Officiis]. [Grotius’s footnote.]
The Law of Nature and Nations, Excerpt
By Samuel von Pufendorf
[Pufendorf, Samuel Baron. Of the Law of Nature and Nations. 1672. Translated by Basil Kennett. 1703. Second Edition. Oxford: L. Lichfield for A. and J. Churchil. 1710. Book 2, Chapter 3, Section 23. In the Public Domain.]
Chapter 3: Of the Law of Nature in General
. . .
There is still one question behind which requires our determination. Whether or no there be any such thing as a particular and positive Law of Nations, contradistinct to the Law of Nature. Learned men are not come to any good Agreement in this Point. Many assert the Law of Nature and of Nations to be the very same thing, differing no otherwise than in external denomination. Thus Hobbes (De Cive, chapter 14, sections 4, 5.) divides Natural law, into the Natural Law of Men, and the Natural Law of States commonly called the Law of Nations. He observes, that “the precepts of both are the same”: But that “for as much as states when they are once instituted assume the personal properties of men, hence it comes to pass, that what, speaking of the duty of particular men, we call the Law of Nature, the same we term the Law of Nations, when we apply to whole states, nations or people.” This opinion we for our part readily subscribe to: Nor do we conceive, that there is any other voluntary or positive law of nations, properly invested with a true and legal force and obliging as the ordinance of a superior power (Add. John Henry Boecler, [Commentary] on Grotius, I, Book 1, chapter 1, section 14 and on I.2, chapter 4, section 9). And thus we do not really differ in judgment from those who are more inclined to call that the law of nature which consists in a conformity to rational nature, and that the law of nations, which flows from the consideration of human indigence, the relief of which seems to be the main end and design of society. For we as well as they, deny that there is any positive law of nations proceeding from a superior. And whatever is deducible from reflections on the indigence of human nature, we refer immediately to natural law: only we were unwilling to define and explain this natural law by a conformity to rational nature; because this means we should establish reason for the rule and measure of itself; and so this way of demonstrating nature’s laws would run round in a circle.
Most of those matters which by the Civilians and others are referred to the law of nations, as the ways of acquiring things, the business of contracts, etc. do indeed belong either to the law of nature or to the civil laws of those countries where they are observed: Many people and sates agreeing in such points, which otherwise do not depend on the universal reason of mankind. Now it is not proper or fair to constitute these as a peculiar and distinct species of Law; in as much as the reason why such constitutions are common to many nations doth not arise from any mutual covenant or obligation, but it is wholly to be attributed to the particular pleasure of the several legislators, who by accident agreed in these ordinances, without the least regard to one another. And therefore this kind of customs and decrees, may be and frequently are, altered by one people, or kingdom, without advising with their neighbors.
Nor is Feldenius’s distinction to be despised, who in his observations on Grotius (Book 2, chapter 2, section 20 and chapter 8, section 1), tells us, that the Roman lawyers by the Law of Nations, understood the power and liberty which strangers and foreigners were allowed to transact matters in the Roman state; and by the Civil Law, that which was proper to the citizens only, all foreigners being excluded from its benefit. That on account Wills and marriages were said to be of the Civil Law, and contracts or bargains, of the Law of Nations, because the former were restrained to the citizens, whereas strangers were admitted to a share and right in the latter.
Many authors do farther rank under the title of the Law of Nations, several customs mutually observed by tacit consent, amongst most people pretending to civility; especially in the affairs and transactions of war. For after that the most polite parts of the world came to esteem martial glory as the greatest of human honors, and to think that a man had no such fair way of showing his excellency beyond others, as by being able by his boldness and his sagacity to destroy many of his fellows; upon which account there perpetually arose either unnecessary or unjust contentions; for fear great captains, if they used the full liberty of a just war, should bring to much envy on their power, and expose themselves to general hatred; many nations found it convenient to temper the vigorous fierceness of hostile proceedings, by a show of clemency and of magnanimity. Hence arose customs of exempting certain things and person from martial violence; the particular manners of hurting enemies to such degrees, of treating captives, and the like. Machiavelli in his Prince (chapter 12) relates one practice of this nature, which I question whether it were worthy of the name and profession of soldiers. He says it was first introduced by Aberigio da Como of Romagna, and kept up in the Italian Wars of the last age, chiefly by the foreign and mercenary troops. The opposite generals endeavored with all possible industry to rid themselves and their soldiers of all trouble and fear. And their way was, by killing no one in fight; only taking one another prisoners, whom they afterwards dismissed without ransom. When they were in leaguer before a town, they shot not rudely amongst them in the night; nor did the besieged disturb their camp with the like incivilities. They made no entrenchments for their security whilst encamped; and when winter came on, never lay at all in the field. And to behave themselves in this manner was part of their discipline and institution. An agreement something like this Strabo (Geography, Book 10) tells us of, between the Eretrians and the Chalcidians, forbidding the use of missive weapons against each other. To which we may add the custom observed by the ancient Indians, of letting the husbandmen remain safe from all injury and molestation, even in civil wars (Arrian, Indica).
But although these customs seem to include some kind of obligation arising from tacit consent; yet if one who is engaged in a lawful war, shall neglect them, and profess that he will not be bound by such restraints; provided what is contrary to them may be rightly done according to the law of nature; he is guilty of no other sin, but a sort of unskillfulness, in not adjusting his proceedings to the nice models of those who reckon war in the number of the liberal studies. As a gladiator who is accused of inexpertness, when he wounds his antagonist otherwise than by the rules of art. Whoever therefore wages war in a just cause, may slight these formalities at pleasure, and govern himself purely by the law of nature: Unless he thinks it more for his interest to observe them, as a means to render the enemies less severe towards himself and his men. On the other hand, he who prosecutes and unjust quarrel, if he punctually fulfills these niceties, is so far in the right, as to appear wicked with some kind of temper and moderation. However these reasons not being general, cannot constitute any law of an universal obligation. Especially since as to any restraints which depend on tacit agreement, it seems reasonable that either party should have the liberty of absolving themselves from them; by making express declaration that they will be holden by them no longer, and that they do not expect or require the observance of them from others. Hence we find many such practices to be worn out by time, or overcome by the prevalence of contrary custom. Neither have those men any good reason of complaint, who censure this doctrine as a notion by which the security, the interest, and the safety of nations are robbed of their surest guards and defense. For the insurance of these advantages and blessings doth not consist in the practice of such mutual favors, but in the due observance of the law of nature; a much more sacred support; and which whilst they enjoy, they have little need of inferior methods of protection. And sure it shows much more excellency and worth in any custom, to derive it from the law of nature, than to establish it only on the consent of different people.
Amongst the chief heads of that Voluntary Law of Nations which Grotius maintains, he reckons the law of embassies. Now as to this point it is our opinion, that the persons of ambassadors are sacred and inviolable, even amongst enemies by the mere law of nature; provided they do not come purely as spies, nor enter any hostile design against the person to whom they are sent; although in the ordinary course of business, and of treaties, they prefer their master’s interest to all others. For in as much as such persons are necessary for the procuring the preserving, or the strengthening of peace by leagues and covenants; and since the law of nature enjoins us to embrace peace by all honest ways: it must at the same time be supposed to have provided for the security of those men, without whose intervention this good end cannot be obtained (Add. Frederick de Marselaer, Legatus, I, Book 2, chapter 13). To this right of personal safety is joined another of being exempted from the jurisdiction of the sovereign to whom they are sent; at least in all matters relating to their office. Since otherwise they would not have full power and liberty to promote their master’s interest, with due application and vigor, were they obliged to give an account of their management to any authority besides that which they represent. Other privileges commonly attributed to ambassadors, especially to those who reside in courts, not for the settling or the securing of peace, but chiefly for the diving into the secrets and policies of a state, these depend absolutely on the indulgence of the prince who entertains them; and therefore, if he sees convenient, he may deprive them of these favors without the breach of any law, provided he will suffer his own ministers abroad to be treated in the same manner.
The right of burial, which according to Grotius seems likewise to make a particular head of the Law of Nations, may be well referred to the common duties of kindness and humanity (Add. Antonius Matthaeus, De Criminibus, Prolegomena, chapter 3, section 5). Nor are the other instances which he offers, of consequence enough to establish a new species of law, since they may with convenience enough be allowed a place in the system of the law of nature. As for those persons who rank under the Law of Nations, the particular compacts of two or more states, concluded by Leagues and Treaties of Peace, to us as their Notion appears very incongruous. For although the Law of Nature in that part of it concerning the keeping of Faith, doth oblige us to stand to such agreements; yet the agreements themselves cannot be called Laws, in any propriety of speech or of sense. Besides they are almost infinite in number, and commonly are settled only for a time. Nor do they any more constitute a part of Law in general, than the covenants and bargains of particular subjects with each other, do belong to the body of the civil law of the kingdom: but they are rather to be esteemed the subject and the concern of History (Add. Selden, de Mari Clauso, I.1, chapter 2, concerning Unwritten Laws, or Custom, besides others. See John Henry Boecler on Grotius, I, Book 2, chapter 4, section 5).
The Law of Nations, “Preface” and “Preliminaries”
By Emer de Vattel
[de Vattel, Emer. “Preface” and “Preliminaries.” In The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury. Edited and with an Introduction by Béla Kapossy and Richard Whitmore. Indianapolis: Liberty Fund. 2008. The Online Library of Liberty. Accessed 22 June 2010. http://oll.libertyfund.org/titles/2246. Used with permission of the Online Library of Liberty.]
Text in single-brackets ([ ]) are insertions of this website’s editors. Text in double-brackets ([[ ]]) are insertions of earlier editors. All footnotes are those of Vattel except where otherwise indicated by brackets.
The Law of Nations, though so noble and important a subject, has not hitherto been treated of with all the care it deserves. The greater part of mankind have therefore only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors, almost exclusively confine the name of the Law of Nations to certain maxims and customs which have been adopted by different nations, and which the mutual consent of the parties has alone rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is at the same time a degradation of that law, in consequence of a misconception of its real origin.
There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various subjects can no otherwise be made than in a manner agreeable to the nature of each subject. Hence it follows that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns. All those treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature, are incapable of conveying a distinct idea or a substantial knowledge of the sacred law of nations.
The Romans often confounded the law of nations with the law of nature, giving the name of “the law of nations” (Jus Gentium) to the law of nature, as being generally acknowledged and adopted by all civilised nations. The definitions given by the emperor Justinian, of the law of nature, the law of nations, and the civil law, are well known. “The law of nature” says he, “is that which nature teaches to all animals”: thus he defines the natural law in its most extensive sense, not that natural law which is peculiar to man, and which is derived as well from his rational as from his animal nature. “The civil law,” that emperor adds, “is that which each nation has established for herself, and which peculiarly belongs to each state or civil society. And that law, which natural reason has established among all mankind, and which is equally observed by all people, is called the law of nations, as being a law which all nations follow.” In the succeeding paragraph the emperor seems to approach nearer to the sense we at present give to that term. “The law of nations,” says he, “is common to the whole human race. The exigencies and necessities of mankind have induced all nations to lay down and adopt certain rules of right. For wars have arisen, and produced captivity and servitude, which are contrary to the law of nature; since, by the law of nature, all men were originally born free.” But, from what he adds—that almost all kinds of contracts, those of buying and selling, of hire, partnership, trust, and an infinite number of others, owe their origin to that law of nations,—it plainly appears to have been Justinian’s idea, that, according to the situations and circumstances in which men were placed, right reason has dictated to them certain maxims of equity, so founded on the nature of things, that they have been universally acknowledged and adopted. Still this is nothing more than the law of nature which is equally applicable to all mankind.
The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith.
The moderns are generally agreed in restricting the appellation of “the law of nations” to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations; and he thus distinguishes it from the law of nature: “When several persons, at different times and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two—either a just consequence drawn from natural principles, or a universal consent. The former discovers to us the law of nature, and the latter, the law of nations.”
That great man, as appears from many passages in his excellent work, had a glimpse of the truth: but as he had the task of extracting from the rude ore, as it were, and reducing into regular shape and form, a new and important subject which had been much neglected before his time, it is not surprising, that,—having his mind burthened with an immense variety of objects, and with a numberless train of quotations which formed a part of his plan,—he could not always acquire those distinct ideas so necessary in the sciences. Persuaded that nations or sovereign powers are subject to the authority of the law of nature, the observance of which he so frequently recommends to them,—that learned man, in fact, acknowledged a natural law of nations, which he somewhere calls the internal law of nations: and perhaps it will appear that the only difference between him and us lies in the terms. But we have already observed, that, in order to form this natural law of nations, it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals. And besides, Grotius, by his very distinction, and by exclusively appropriating the name of “the law of nations” to those maxims which have been established by the common consent of mankind, seems to intimate, that sovereigns, in their transactions with each other, cannot insist on the observance of any but those last-mentioned maxims,—reserving the internal law for the direction of their own consciences. If—setting out with the idea that political societies or nations live, with respect to each other, in a reciprocal independence, in the state of nature, and that, as political bodies, they are subject to the natural law—Grotius had moreover considered that the law must be applied to these new subjects in a manner suitable to their nature,—that judicious author would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will; and that the common consent of mankind is only the foundation and source of a particular kind of law called the Arbitrary Law of Nations.
Hobbes, in whose work we discover the hand of a master, notwithstanding his paradoxes and detestable maxims,—Hobbes was, I believe, the first who gave a distinct though imperfect idea of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations. “The maxims,” he adds, “of each of these laws are precisely the same: but as states once established assume personal properties, that which is termed the natural law when we speak of the duties of individuals, is called the law of nations when applied to whole nations or states.” This author has well observed, that the law of nations is the law of nature applied to states or nations. But we shall see in the course of this work, that he was mistaken in the idea that the law of nature does not suffer any necessary change in that application,—an idea from which he concluded that the maxims of the law of nature and those of the law of nations are precisely the same.
Puffendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes. He has not therefore separately treated of the law of nations, but has every-where blended it with the law of nature properly so called.
Barbeyrac, who performed the office of translator and commentator to Grotius and Puffendorf, has approached much nearer to the true idea of the law of nations. Though the work is in every body’s hands, I shall here, for the reader’s convenience, transcribe one of that learned translator’s notes on Grotius’s Law of War and Peace. “I acknowledge,” says he, “that there are laws common to all nations,—things which all nations ought to practise towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instance,—the principles and the rules of such a law are in fact the same as those of the law of nature, properly so called; the only difference consisting in the mode of their application, which may be somewhat varied, on account of the difference that sometimes happens in the manner in which nations settle their affairs with each other.”
It did not escape the notice of the author we have just quoted, that the rules and decisions of the law of nature cannot be purely and simply applied to sovereign states, and that they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they are applied. But it does not appear that he discovered the full extent of this idea, since he seems not to approve of the mode of treating the law of nations separately from the law of nature as relating to individuals. He only commends Budaeus’s method, saying, “it was right in that author to point out, after each article of the law of nature, the application which may be made of it to nations in their mutual relations to each other,—so far at least as his plan permitted or required that he should do this.” Here Barbeyrac made one step at least in the right track: but it required more profound reflection and more extensive views in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns,—to perceive the utility of such a work, and especially to be the first to execute it.
This glory was reserved for the baron de Wolf. That great philosopher saw that the law of nature could not, with such modifications as the nature of the subjects required, and with sufficient precision, clearness, and solidity, be applied to incorporated nations or states, without the assistance of those general principles and leading ideas by which the application is to be directed;—that it is by those principles alone we are enabled evidently to demonstrate that the decisions of the law of nature respecting individuals must, pursuant to the intentions of that very law, be changed and modified in their application to states and political societies,—and thus to form a natural and necessary law of nations: whence he concluded, that it was proper to form a distinct system of the law of nations,—a task which he has happily executed. But it is just that we should hear what Wolf himself says in his Preface.
“Nations,” says he, “do not, in their mutual relations to each other, acknowledge any other law than that which nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man; and thus the law of nations certainly belongs to the law of nature: it is therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others.
“But nations or sovereign states being moral persons, and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body,—the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to enable him to fulfil his duties,—since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus we see that the law of nations does not in every particular remain the same as the law of nature, regulating the actions of individuals. Why may it not therefore be separately treated of, as a law peculiar to nations?”
Being myself convinced of the utility of such a work, I impatiently waited for Monsieur Wolf’s production, and, as soon as it appeared, formed the design of facilitating, for the advantage of a greater number of readers, the knowledge of the luminous ideas which it contains. The treatise of the philosopher of Hall[[e]] on the law of nations is dependent on all those of the same author on philosophy and the law of nature. In order to read and understand it, it is necessary to have previously studied sixteen or seventeen quarto volumes which precede it. Besides, it is written in the manner and even in the formal method of geometrical works. These circumstances present obstacles which render it nearly useless to those very persons in whom the knowledge and taste of the true principles of the law of nations are most important and most desirable. At first I thought that I should have had nothing farther to do, than to detach this treatise from the entire system by rendering it independent of every thing Monsieur Wolf had said before, and to give it a new form, more agreeable, and better calculated to ensure it a reception in the polite world. With that view, I made some attempts; but I soon found, that if I indulged the expectation of procuring readers among that class of persons for whom I intended to write, and of rendering my efforts beneficial to man-kind, it was necessary that I should form a very different work from that which lay before me, and undertake to furnish an original production. The method followed by Monsieur Wolf has had the effect of rendering his work dry, and in many respects incomplete. The different subjects are scattered through it in a manner that is extremely fatiguing to the attention: and as the author had, in his “Law of Nature,” treated of universal public law, he frequently contents himself with a bare reference to his former production, when, in handling the law of nations, he speaks of the duties of a nation towards herself.
From Monsieur Wolf’s treatise, therefore, I have only borrowed whatever appeared most worthy of attention, especially the definitions and general principles; but I have been careful in selecting what I drew from that source, and have accommodated to my own plan the materials with which he furnished me. Those who have read Monsieur Wolf’s treatises on the law of nature and the law of nations, will see what advantage I have made of them. Had I every-where pointed out what I have borrowed, my pages would be crowded with quotations equally useless and disagreeable to the reader. It is better to acknowledge here, once for all, the obligations I am under to that great master. Although my work be very different from his (as will appear to those who are willing to take the trouble of making the comparison), I confess that I should never have had the courage to launch into so extensive a field, if the celebrated philosopher of Hall[[e]] had not preceded my steps, and held forth a torch to guide me on my way.
Sometimes, however, I have ventured to deviate from the path which he had pointed out, and have adopted sentiments opposite to his. I will here quote a few instances. Monsieur Wolf, influenced perhaps by the example of numerous other writers, has devoted several sections to the express purpose of treating of the nature of patrimonial kingdoms, without rejecting or rectifying that idea so degrading to human kind. I do not even admit of such a denomination, which I think equally shocking, improper, and dangerous, both in its effects, and in the impressions it may give to sovereigns: and in this, I flatter myself I shall obtain the suffrage of every man who possesses the smallest spark of reason and sentiment,—in short, of every true citizen.
Monsieur Wolf determines (Jus Gentium, §878) that it is naturally lawful to make use of poisoned weapons in war. I am shocked at such a decision, and sorry to find it in the work of so great a man. Happily for the human race, it is not difficult to prove the contrary, even from Monsieur Wolf’s own principles. What I have said on this subject may be seen in Book III, §156.
In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations which we call voluntary. Monsieur Wolf deduces it from the idea of a great republic (civitatis maximae) instituted by nature herself, and of which all the nations of the world are members. According to him, the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations which shall necessarily claim the obedient acquiescence of sovereign states. I acknowledge no other natural society between nations than that which nature has established between mankind in general. It is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey. Nothing of this kind can be conceived or supposed to subsist between nations. Each sovereign state claims and actually possesses an absolute independence on all the others. They are all, according to Monsieur Wolf himself, to be considered as so many individuals who live together in the state of nature, and who acknowledge no other laws but those of nature, or of her Great Author. Now, although nature has indeed established a general society between mankind, by creating them subject to such wants as render the assistance of their fellow-creatures indispensably necessary to enable them to live in a manner suitable to men,—yet she has not imposed on them any particular obligation to unite in civil society, properly so called: and if they all obeyed the injunctions of that good parent, their subjection to the restraints of civil society would be unnecessary. It is true, that, as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had recourse to a political association, as the only adequate remedy against the depravity of the majority,—the only means of securing the condition of the good, and repressing the wicked: and the law of nature itself approves of this establishment. But it is easy to perceive that the civic association is very far from being equally necessary between nations, as it was between individuals. We cannot therefore say that nature equally recommends it, much less that she has prescribed it. Individuals are so constituted, and are capable of doing so little by themselves, that they can scarcely subsist without the aid and the laws of civil society. But as soon as a considerable number of them have united under the same government, they become able to supply most of their wants; and the assistance of other political societies is not so necessary to them as that of individuals is to an individual. These societies have still, it is true, powerful motives for carrying on a communication and commerce with each other; and it is even their duty to do it; since no man can, without good reasons, refuse assistance to another man. But the law of nature may suffice to regulate this commerce, and this correspondence. States conduct themselves in a different manner from individuals. It is not usually the caprice or blind impetuosity of a single person that forms the resolutions and determines the measures of the public: they are carried on with more deliberation and circumspection: and, on difficult or important occasions, arrangements are made and regulations established by means of treaties. To this we may add, that independence is even necessary to each state, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances. It is therefore sufficient (as I have already said) that nations should conform to what is required of them by the natural and general society established between all mankind.
But, says Monsieur Wolf, a rigid adherence to the law of nature cannot always prevail in that commerce and society of nations; it must undergo various modifications, which can only be deduced from this idea of a kind of great republic of nations, whose laws, dictated by sound reason and founded on necessity, shall regulate the alterations to be made in the natural and necessary law of nations, as the civil laws of a particular state determine what modifications shall take place in the natural law of individuals. I do not perceive the necessity of this consequence; and I flatter myself that I shall, in the course of this work, be able to prove, that all the modifications, all the restrictions,—in a word, all the alterations which the rigour of the natural law must be made to undergo in the affairs of nations, and from which the voluntary law of nations is formed,—to prove, I say, that all these alterations are deducible from the natural liberty of nations, from the attention due to their common safety, from the nature of their mutual correspondence, their reciprocal duties, and the distinctions of their various rights, internal and external, perfect and imperfect,—by a mode of reasoning nearly similar to that which Mon-sieur Wolf has pursued, with respect to individuals, in his treatise on the law of nature.
In that treatise it is made to appear that the rules, which, in consequence of the natural liberty of mankind, must be admitted in questions of external right do not cancel the obligation which the internal right imposes on the conscience of each individual. It is easy to apply this doctrine to nations, and—by carefully drawing the line of distinction between the internal and the external right—between the necessary and the voluntary law of nations—to teach them not to indulge themselves in the commission of every act which they may do with impunity, unless it be approved by the immutable laws of justice, and the voice of conscience.
Since nations, in their transactions with each other, are equally bound to admit those exceptions to, and those modifications of, the rigour of the necessary law, whether they be deduced from the idea of a great republic of which all nations are supposed to be the members, or derived from the sources whence I propose to draw them,—there can be no reason why the system which thence results, should not be called the Voluntary Law of nations, in contradistinction to the necessary, internal, and consciential law. Names are of very little consequence: but it is of considerable importance carefully to distinguish these two kinds of law, in order that we may never confound what is just and good in itself, with what is only tolerated through necessity.
The necessary and the voluntary law of nations are therefore both established by nature, but each in a different manner; the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other. The necessary law immediately proceeds from nature; and that common mother of mankind recommends the observance of the voluntary law of nations, in consideration of the state in which nations stand with respect to each other, and for the advantage of their affairs. This double law, founded on certain and invariable principles, is susceptible of demonstration, and will constitute the principal subject of this work.
There is another kind of law of nations, which authors call arbitrary, because it proceeds from the will or consent of nations. States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compacts and treaties: hence results a conventional law of nations, peculiar to the contracting powers. Nations may also bind themselves by their tacit consent: upon this ground rest all those regulations which custom has introduced between different states, and which constitute the usage of nations, or the law of nations founded on custom. It is evident that this law cannot impose any obligation except on those particular nations who have, by long use, given their sanction to its maxims: it is a peculiar law, and limited in its operation, as the conventional law: both the one and the other derive all their obligatory force from that maxim of the natural law which makes it the duty of nations to fulfil their engagements, whether express or tacit. The same maxim ought to regulate the conduct of states with regard to the treaties they conclude, and the customs they adopt. I must content myself with simply laying down the general rules and principles which the law of nature furnishes for the direction of sovereigns in this respect. A particular detail of the various treaties and customs of different states belongs to history, and not to a systematic treatise on the law of nations.
Such a treatise ought, as we have already observed, principally to consist in a judicious and rational application of the principles of the law of nature to the affairs and conduct of nations and sovereigns. The study of the law of nations supposes therefore a previous knowledge of the ordinary law of nature: and in fact I proceed on the supposition that my readers are already, to a certain degree at least, possessed of that knowledge. Nevertheless, as it is not agreeable to readers in general to be obliged to recur to other authorities for proofs of what an author advances, I have taken care to establish, in a few words, the most important of those principles of the law of nature which I intended to apply to nations. But I have not always thought it necessary to trace them to their primary foundations for the purpose of demonstration, but have sometimes contented myself with supporting them by common truths which are acknowledged by every candid reader, without carrying the analysis any farther. It is sufficient for me to persuade, and for this purpose to advance nothing as a principle, that will not readily be admitted by every sensible man.
The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen: but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures. If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations! We every day feel the advantages of a good body of laws in civil society:—the law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons.
But fatal experience too plainly proves, how little regard those who are at the head of affairs pay to the dictates of justice, in conjunctures where they hope to find their advantage. Satisfied with bestowing their attention on a system of politics which is often false since often unjust, the generality of them think they have done enough when they have thoroughly studied that. Nevertheless we may truly apply to states a maxim which has long been acknowledged as true with respect to individuals,—that the best and safest policy is that which is founded on virtue. Cicero, as great a master in the art of government as in eloquence and philosophy, does not content himself with rejecting the vulgar maxim, that “a state cannot be happily governed without committing injustice”; he even proceeds so far as to lay down the very reverse of the proposition as an invariable truth, and maintains, that, “without a strict attention to the most rigid justice, public affairs cannot be advantageously administered.”
Providence occasionally bestows on the world kings and ministers whose minds are impressed with this great truth. Let us not renounce the pleasing hope that the number of those wise conductors of nations will one day be multiplied; and in the interim let us, each in his own sphere, exert our best efforts to accelerate the happy period.
It is principally with a view of rendering my work palatable to those by whom it is of the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friends of the human race, and who alone ought to be admitted into the councils of kings. But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader’s mind, or to render the doctrine more impressive by an example, and sometimes to shew that the practice of nations is conformable to the principles laid down: and whenever I found a convenient opportunity, I have, above all things, endeavoured to inspire a love of virtue, by shewing, from some striking passage of history, how amiable it is, how worthy of our homage in some truly great men, and even productive of solid advantage. I have quoted the chief part of my examples from modern history, as well because these are more interesting, as to avoid a repetition of those which have been already accumulated by Grotius, Puffendorf, and their commentators.
As to the rest, I have, both in these examples and in my reasonings, studiously endeavoured to avoid giving offence; it being my intention religiously to observe the respect due to nations and sovereign powers: but I have made it a still more sacred rule to respect the truth, and the interests of the human race. If, among the base flatterers of despotic power, my principles meet with opponents, I shall have on my side the virtuous man, the friend of the laws, the man of probity, and the true citizen.
I should prefer the alternative of total silence, were I not at liberty in my writings to obey the dictates of my conscience. But my pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations. These favourable circumstances have encouraged me in the attempt to render myself useful to mankind by this work. I felt conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task: but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labours the traces of the honest man and the good citizen.
Idea and general Principles of the Law of Nations.
§1. What is meant by a nation or state. Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.
§2. It is a moral person. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.
§3. Definition of the law of nations. To establish on a solid foundation the obligations and rights of nations, is the design of this work. The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.
In this treatise it will appear, in what manner states, as such, ought to regulate all their actions. We shall examine the obligations of a people, as well towards themselves as towards other nations; and by that means we shall discover the rights which result from those obligations. For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty,—it is evident that right is derived from duty, or passive obligation,—the obligation we lie under to act in such or such manner. It is therefore necessary that a nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations.
§4. In what light nations or states are to be considered. Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature,—nations or sovereign states are to be considered as so many free persons living together in the state of nature.
It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a state, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the state, remains absolutely free and independent with respect to all other men, all other nations, as long as it has not voluntarily submitted to them.
§5. To what laws nations are subject. As men are subject to the laws of nature,—and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men,—the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties.
§6. In what the law of nations originally consists. We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently the law of nations is originally no other than the law of nature applied to nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race: from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights; since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of nations a distinct science.
§7. Definition of the necessary law of nations. We call that the necessary law of nations which consists in the application of the law of nature to nations. It is necessary, because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the internal law of nations, on account of its being obligatory on nations in point of conscience. Several writers term it the natural law of nations.
§8. It is immutable. Since therefore the necessary law of nations consists in the application of the law of nature to states,—which law is immutable, as being founded on the nature of things, and particularly on the nature of man,—it follows, that the necessary law of nations is immutable.
§9. Nations can make no change in it, nor dispense with the obligations arising from it. Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.
This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.
There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others, of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the necessary law of nations, is unlawful. It will appear, however, in the sequel, that it is only by the internal law, by the law of conscience, such conventions or treaties are always condemned as unlawful,—and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent,—though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions;—an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.
§10. Society established by nature between all mankind . . . ; Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow-creatures, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. We have instances of persons, who, having grown up to manhood among the bears of the forest, enjoyed not the use of speech or of reason, but were, like the brute beasts, possessed only of sensitive faculties. We see moreover that nature has refused to bestow on men the same strength and natural weapons of defence with which she has furnished other animals,—having, in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge; and having thus become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover, is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since, therefore, na-ture has thus formed mankind, it is a convincing proof of her intention that they should communicate with and mutually aid and assist each other.
Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself: a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common creator,—a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the general obligation that binds us to the observance of our duties: let us fulfil them with care, if we would wisely endeavour to promote our own advantage.
It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that we have just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. Let us therefore endeavour to promote the general happiness of mankind: all mankind, in return, will endeavour to promote ours; and thus we shall establish our felicity on the most solid foundations.
§11. . . . and between nations. The universal society of the human race being an institution of nature herself, that is to say, a necessary consequence of the nature of man,—all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties. They cannot liberate themselves from the obligation by any convention, by any private association. When, therefore, they unite in civil society for the purpose of forming a separate state or nation, they may indeed enter into particular engagements towards those with whom they associate themselves; but they remain still bound to the performance of their duties towards the rest of mankind. All the difference consists in this, that, having agreed to act in common, and having resigned their rights and submitted their will to the body of the society, in every thing that concerns their common welfare,—it thenceforward belongs to that body, that state, and its rulers, to fulfil the duties of humanity towards strangers, in every thing that no longer depends on the liberty of individuals; and it is the state more particularly that is to perform those duties towards other states. We have already seen (§5) that men united in society remain subject to the obligations imposed upon them by human nature. That society, considered as a moral person, since possessed of an understanding, volition, and strength peculiar to itself, is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men, that is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects.
§12. The object of this society of nations. Since the object of the natural society established between all mankind is that they should lend each other mutual assistance in order to attain perfection themselves and to render their condition as perfect as possible,—and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other,—the object of the great society established by nature between all nations is also the interchange of mutual assistance for their own improvement and that of their condition.
§13. General obligation imposed by it. The first general law that we discover in the very object of the society of nations, is that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others.
§14. Explanation of this observation. But the duties that we owe to ourselves being unquestionably paramount to those we owe to others,—a nation owes herself in the first instance, and in preference to all other nations, to do every thing she can to promote her own happiness and perfection. (I say every thing she can, not only in a physical but in a moral sense,—that is, every thing that she can do lawfully, and consistently with justice and honour.) When therefore she cannot contribute to the welfare of another nation without doing an es-sential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under disability to perform the office in question.
§15. The second general law is the liberty and independence of nations. Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected. No nation is willing to renounce her liberty: she will rather break off all commerce with those states that should attempt to infringe upon it.
§16. Effect of that liberty. As a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes to her,—of what she can or cannot do,—of what it is proper or improper for her to do: and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty which she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such particular manner: for any attempt at such compulsion would be an infringement on the liberty of nations. We have no right to use constraint against a free person except in those cases where such person is bound to perform some particular thing for us, and for some particular reason which does not depend on his judgment,—in those cases, in short, where we have a perfect right against him.
§17. Distinctions between internal and external, perfect and imperfect obligations and rights. In order perfectly to understand this, it is necessary to observe, that the obligation, and the right which corresponds to or is derived from it, are distinguished into external and internal. The obligation is internal, as it binds the conscience, and is deduced from the rules of our duty: it is external, as it is considered relatively to other men, and produces some right between them. The internal obligation is always the same in its nature, though it varies in degree: but the external obligation is divided into perfect and imperfect; and the right that results from it is also perfect or imperfect. The perfect right is that which is accompanied by the right of compelling those who refuse to fulfil the correspondent obligation; the imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion; the imperfect gives him only a right to ask.
It is now easy to conceive why the right is always imperfect, when the correspondent obligation depends on the judgment of the party in whose breast it exists: for if, in such a case, we had a right to compel him, he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. Our obligation is always imperfect with respect to other people, while we possess the liberty of judging how we are to act: and we retain that liberty on all occasions where we ought to be free.
§18. Equality of nations. Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature,—nations composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.
§19. Effect of that equality. By a necessary consequence of that equality, whatever is lawful for one nation, is equally lawful for any other; and whatever is unjustifiable in the one, is equally so in the other.
§20. Each nation is mistress of her own actions when they do not affect the perfect rights of others. A nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation,—so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her.
§21. Foundation of the voluntary law of nations. Since nations are free, independent, and equal,—and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties,—the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation, may be done by any other; and they ought, in human society, to be considered as possessing equal rights.
Each nation in fact maintains that she has justice on her side in every dispute that happens to arise: and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience: but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society.
It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable; because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it, constitute what Monsieur Wolf calls “the voluntary law of nations”; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law.
§22. Right of nations against the infractors of the law of nations. The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquillity, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation. Now all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which nature has established between them, or who directly attacks the welfare and safety of that society.
§23. Measure of that right. But care must be taken not to extend that right to the prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which nature has established between them; and so far bound, that, when any one of them violates those laws, the others have a right to repress her. The conduct of each nation, therefore, is no farther subject to the controul of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.
§24. Conventional law of nations, or law of treaties. The several engagements into which nations may enter, produce a new kind of law of nations, called conventional, or of treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject in a treatise on the law of nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history.
§25. Customary law of nations. Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the customary law of nations, or the custom of nations. This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it,—that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance: and, with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful.
§26. General rule respecting that law. When a custom or usage is generally established, either between all the civilised nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other,—if that custom is in its own nature in-different, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains any thing unjust or unlawful, it is not obligatory: on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorise her to violate the law of nature.
§27. Positive law of nations. These three kinds of law of nations, the voluntary, the conventional, and the customary, together constitute the positive law of nations. For they all proceed from the will of nations,—the voluntary from their presumed consent, the conventional from an express consent, and the customary from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of positive law of nations.
We shall be careful to distinguish them from the natural or necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law, which they are to observe towards each other, differs in certain instances from the maxims of the internal law, which nevertheless remain always obligatory in point of conscience. As to the rights introduced by treaties or by custom, there is no room to apprehend that any one will confound them with the natural law of nations. They form that species of law of nations which authors have distinguished by the name of arbitrary.
§28. General maxim respecting the use of the necessary and the voluntary law. To furnish the reader beforehand with a general direction respecting the distinction between the necessary and the voluntary law, let us here observe, that, as the necessary law is always obligatory on the conscience, a nation ought never to lose sight of it in deliberating on the line of conduct she is to pursue in order to fulfil her duty: but when there is question of examining what she may demand of other states, she must consult the voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind.
 “Neque vero hoc solum natura, id est, jure gentium, etc.” [“And neither is this only by nature, that is, by the law of nations, etc.”] (Cicero, De Officiis, Book 3, chapter 5).
 “Jus naturale est, quod natura omnia animalia docuit.” (Institutes of Justinian, book 1, title 2).
 “Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utantur.” (Ibid., §1.)
 “Jus autem gentium omni humano generi commune est: nam usu exigente et humanis necessitatibus, gentes humanae jura quaedam sibi constituerunt. Bella etenim orta sunt, et captivitates secutae et servitutes, quae sunt naturali juri contrariae. Jure enim naturali omnes homines ab initio liberi nascebantur.” (Ibid. §2).
 “Feciales, quod fidei publicae inter populos praeerant: nam per hos fiebat ut justum conciperetur bellum (et inde desitum), et ut foedere fides pacis constitueretur. Ex his mittebant, antequam conciperetur, qui res repeterent: et per hos etiam nunc fit foedus. [[“The Fetiales [herald-priests] because they were in charge of the state’s word of honor in matters between peoples; for by them it was brought about that a war that was declared should be a just war, and by them the war was stopped, that by a foedus [treaty], the fides [honesty] of the peace might be established. Some of them were sent before war should be declared, to demand restitution of the stolen property, and by them even now is made the foedus.”]] (Varro, De Lingua Latina, 5.15).
 De Jure Belli et Pacis, translated by Barbeyrac: Preliminary Discourse, §41.
 Rursus (lex) naturalis dividi potest in naturalem hominum, quae sola obtinuit dici Lex Naturae, et naturalem civitatum, quae dici potest Lex Gentium, vulgo autem Jus Gentium appellatur. Praecepta utriusque eadem sunt: sed quia civitates semel institutae induunt proprietates hominum personales, lex quam, loquentes de hominum singulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus, sive gentibus, vocatur Jus Gentium. [[“Again, the Natural Law may be divided into that of men, which alone hath obtained the title of the Law of Nature, and that of cities, which may be called Law of Nations, but vulgarly it is termed the Right of Nations. (The precepts of both are alike, but because cities once instituted do put on the personal proprieties of men, that law, which speaking of the duty of single men, we call natural, being applied to whole cities, and nations, is called the Right of Nations. And the same Elements of natural law, and right, which have hitherto been spoken of, being transferred to whole cities and nations, may be taken for the Elements of the laws, and Right of Nations.”]] (Thomas Hobbes, De Cive, chapter 14, §4).
 Samuel Puffendorf, Law of Nature and Nations, book 2, chapter 3, §23.
 Hugo Grotius, Law of War and Peace, book 1, chapter 1, §14, note 3.
 In [Budaeus’s] Elementa Philosophiae Practicae.
 [Jean Barbeyrac,] note 2 [of his commentary] on Samuel Puffendorf’s Law of Nature and Nations, book 2. chap. 3, §23. I have not been able to procure Budaeus’s work, from which I suspect that Barbeyrac derived this idea of the Law of Nations.
 If it were not more advisable, for the sake of brevity, of avoiding repetitions, and taking advantage of the ideas already formed and established in the minds of men,—if, for all these reasons, it were not more convenient to presuppose in this instance a knowledge of the ordinary law of nature, and on that ground to undertake the task of applying it to sovereign states,—it would, instead of speaking of such application, be more accurate to say, that, as the law of nature, properly so called, is the natural law of individuals and founded on the nature of man, so the natural law of nations is the natural law of political societies, and founded on the nature of those societies. But as the result of either mode is ultimately the same, I have in preference adopted the more compendious one. As the law of nature has already been treated of in an ample and satisfactory manner, the shortest way is simply to make a rational application of it to nations.
 [[Christian Wolff, Ius naturae et ius gentium (Halle, 1740–46).]]
 A nation here means a sovereign state, an independent political society.
 In the VIIIth Part of his Law of Nature, and in his Law of Nations.
 Nihil est quod adhuc de republicâ putem dictum, et quo possim longius progredi, nisi sit confirmatum, non modo falsum esse istud, sine injuria non posse, sed hoc verissimum, sine summa justitia rempublicant regi non posse. (Cicero, Fragment from the book De Republica).
 [[Vattel is probably referring to his so-called protector Count Brühl. As Vattel considered Brühl to be the very opposite of his idea of a good minister, the remark is one of pure flattery.]]
 The study of this science presupposes an acquaintance with the ordinary law of nature, of which human individuals are the objects. Nevertheless, for the sake of those who have not systematically studied that law, it will not be amiss to give in this place a general idea of it. The natural law is the science of the laws of nature, of those laws which nature imposes on mankind, or to which they are subject by the very circumstance of their being men; a science, whose first principle is this axiom of incontestable truth—“The great end of every being endowed with intellect and sentiment, is happiness.” It is by the desire alone of that happiness that we can bind a creature possessed of the faculty of thought, and form the ties of that obligation which shall make him submit to any rule. Now, by studying the nature of things, and that of man in particular, we may thence deduce the rules which man must follow in order to attain his great end,—to obtain the most perfect happiness of which he is susceptible. We call those rules the natural laws, or the laws of nature. They are certain, they are sacred, and obligatory on every man possessed of reason, independently of every other consideration than that of his nature, and even though we should suppose him totally ignorant of the existence of a God. But the sublime consideration of an eternal, necessary, infinite Being, the author of the universe, adds the most lively energy to the law of nature, and carries it to the highest degree of perfection. That necessary Being necessarily unites in himself all perfection: he is therefore superlatively good, and displays his goodness by forming creatures susceptible of happiness. It is then his wish that his creatures should be as happy as is consistent with their nature: consequently it is his will that they should, in their whole conduct, follow the rules which that same nature lays down for them, as the most certain road to happiness. Thus the will of the creator perfectly coincides with the simple indications of nature: and those two sources producing the same law, unite in forming the same obligation. The whole reverts to the first great end of man, which is happiness. It was to conduct him to that great end that the laws of nature were ordained: it is from the desire of happiness that his obligation to observe those laws arises. There is, therefore, no man,—whatever may be his ideas respecting the origin of the universe,—even if he had the misfortune to be an atheist,—who is not bound to obey the laws of nature. They are necessary to the general happiness of mankind; and whoever should reject them, whoever should openly despise them, would by such conduct alone declare himself an enemy to the human race, and deserve to be treated as such. Now, one of the first truths which the study of man reveals to us, and which is a necessary consequence of his nature, is, that, in a state of lonely separation from the rest of his species, he cannot attain his great end—happiness: and the reason is, that he was intended to live in society with his fellow-creatures. Nature herself, therefore, has established that society, whose great end is the common advantage of all its members: and the means of attaining that end constitute the rules that each individual is bound to observe in his whole conduct. Such are the natural laws of human society. Having thus given a general idea of them, which is sufficient for any intelligent reader, and is developed at large in several valuable works, let us return to the particular object of this treatise. [[Note added in 1773/1797 editions.]]
 Xenophon points out the true reason of this first of all duties, and establishes its necessity, in the following words. “If we see a man who is uniformly eager to pursue his own private advantage, without regard to the rules of honour or the duties of friendship, why should we in any emergency think of sparing him?” [[Note added in 1773/1797 editions.]]
 Etenim si haec perturbare omnia et permiscere volumus, totam vitam periculosam, insidiosam, infestamque reddemus. (Cicero, In Verrem, 2.15). [[“The fact is that if we are prepared to reduce all these principles to chaos and confusion, we shall fill life with danger and resentment and hostility at every turn.”]]