Commentary on the Law of Prize and Booty. Hugo Grotius

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СКАЧАТЬ natural precepts, based as they are upon a constant cause, remain constant in themselves; or that the former should vary in different localities, since the various communities differ, of course, in their conception of what is good.

      A Judgement [or Judicial Pronouncement]

      The will of the whole, when applied to particular individuals with the public good in view, becomes a “judgement.” For, owing to the fact that men (repeatedly carried away not by true self-love but by a false and inordinate form of that sentiment, the root of every evil) were mistaking for equality that which was in point of fact disproportionate ownership, and because this false conception was giving rise to dissension and tumult, evils which it was important to avoid for the sake of concord and public tranquillity, the state intervened in the role of arbiter among the contending parties, and divided the various portions equitably. [11′ a] This is the point made by Democritus^b when he says: οὐκ ἂν ἐκώλυον οἱ νόμοι τὴν ἕκαστον κατ’ ἰδίην ἐξουσίαν, εἰ μὴ ἕτερος ἕτερον ἐλυμαίνετο. φθόνος γὰρ στάσιος ἀρχὴν ἀπεργάζεται. “Assuredly, the laws would not have prohibited that each person should live in accordance with his own free will, had there been no tendency on the part of any man to injure his fellow. For it is ill will that paves the way for civil discord.” The origin of judgements, then, is the same as the origin of laws. For those persons are called “princes,”^c

      δικάσπολοι οἵ κε θἑμιστας

       ἐκ Διὸς εἰρύαται.

      Who to the nations of the world hand down The sacred laws of Jove. . . .

      In like vein, the poet above quoted wrote:^a

      εἱ̑ς βασιλεὺς ᾡ̂ ἔδωκε Κρόνου παι̑ς ἀγκυλομήτεω

       σκη̑πτρόν τ’ ἠδὲ θἑμιστας.

      Let one king rule, he to whom Saturn gives The golden sceptre and the judge’s robe!

      Yet another author has said:^b

      μεσταὶ δὲ Διὸς πα̑σαι μὲν ἀγυι̑αι,

       πα̑σαι δ’ ἀνθρώπων ἀγοραί.

      For Jove’s divinity fills all the towns And forums of mankind. [11]

      Rule V

      Accordingly, even though the precepts of nature permitted every individual to pronounce judgement for himself and of himself, it is clear that all nations deemed it necessary to institute some orderly judicial system, and that individual citizens gave general consent to this project. For the latter, moved by the realization that otherwise their own weakness would prevent them from obtaining their due, bound themselves to abide by the verdict of the state. Indeed, as is quite commonly acknowledged, the very nature of jurisdiction renders it absolutely impossible for any jurisdiction to be established save by general consent.^c This fact is brought out by the following rule: Whatever the commonwealth has indicated to be its will, that is law for the individual citizens in their mutual relations.

      A Judgement

      Law IX

      The Fifth Rule differs from the Fourth, in that a judicial pronouncement differs from a precept of municipal law. For such a pronouncement is law made applicable to a particular case. Therefore, in so far as municipal law is concerned, the precept of prime importance for the preservation of human society is the one that makes judicial procedure a [12] requisite. This precept runs as follows: No citizen shall seek to enforce his own right against a fellow citizen, save by judicial procedure.^a

      Now, the Ninth Law is applicable even to the state itself; for the state is obliged to proceed in accordance with judicial usage when involved in any contention with individuals.^b Nevertheless, since the state has no superior, it is necessarily the judge even of its own cause. Thus the assertion made by Tacitus^c was true, namely, that by a provision emanating from the Divine Will, the people were to brook no other judge than themselves.

      Magistrates

      In the light of the foregoing observations, it is clear that the civil power which manifests itself in laws and judgements^d resides primarily and essentially within the state itself; for just as power over individuals and their possessions pertains in the nature of things to those individuals, even so there can be no power over all persons and over their goods unless it be a power pertaining to all. On the other hand, just as in private matters we contract obligations or acquire benefits not through our own actions alone but also through the agency of those whom we have placed in charge of our affairs (for it makes no difference whether we perform directly or by proxy^e any act that we are permitted to perform), so by a similar process it came to pass, as customarily occurs even now in the case of the larger social units, that society, exercising its lawful power over individuals, delegated these functions in whole or in part to specific persons from among its own members. For not every individual in the various nations was free to devote his time to the administration of civil affairs; and furthermore, certain situations were wont to arise which were more satisfactorily handled by a few representatives. Those who are entrusted with such a commission are called, in Greek, ἄρχοντες [archons]; in Latin, magistratus [magistrates].

      At this point, it is opportune to note that some contracts look to the advantage of both contracting parties in an equal degree, whereas others are drawn up for the benefit of one party only, with the implication that the omission in regard to the party not specifically benefited will be repaired by the supplementary factor of his willingness, inasmuch as this factor connotes a disposition to be content with simple esteem in exchange for the costs or labour involved. Thus a lease differs from a commodate, barter from donation and a partnership from a mandate gratuitously undertaken. Both of the latter two items are included in the above-mentioned concept of magistracies, each from a different standpoint. For magistrates, in so far as they themselves are citizens, reap on their own behalf the harvest of their administrative labours, namely, the public good;^a on the other hand, in so far as they are stewards of the state, they have been appointed to their posts not for their own but for the public welfare,^b very much as if they were the pilots of a ship.

      Law X

      Law XI

      Consequently, in this connexion also two laws exist, laws inherent in the contract of [magisterial] mandate by its very nature: first, The magistrate shall act in all matters for the good of the state; secondly, The [12′] state shall uphold as valid every act of the magistrate. Seneca^c rightly maintains, with reference to the prince and the state, that we cannot dispense with either one, save to the destruction of both: “for just as the former needs supporting strength, so does the latter need a head.” If we turn back here in order to trace the foregoing assertions to the basic principles on which they rest, it will readily become apparent, in the light of the general consent given by the state and the sanctity with which all peoples invest the title of magistrate, that the author of this arrangement, [i.e. this relationship between prince and state,] is none other than God Himself. Such is the purport of the saying,^d ἐκ δὲ Διὸς βασιλη̑ες, “Kings are from Jove.”

      Rule VI

      Rule СКАЧАТЬ