Commentary on the Law of Prize and Booty. Hugo Grotius
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But there is a difference between tacit indication of will and express indication thereof. Tacit indication is effected by giving any kind of sign; express indication, by the means which God granted to man alone for this very purpose, namely, the medium of speech.k This gift is [10′] regarded as so sacred and inviolable an instrument for the interchange of blessings and the reciprocal intimation of human will that, in the eyes of all men, there is no more grievous disgrace than that attached to lying.a Herein lies the origin of pacts, which is necessarily bound up with the Sixth Law, as has been indicated above. It was this law that Simonides had in mind when he proposed the following definition of justice: “To speak the truth, and to pay back what has been received.”b The Platonists, moreover, frequently refer to justice as ἀλήθειαν, a term translated by Apuleiusc as “trustworthiness” [ fidelitas].
The commonwealth and citizens
When it came to pass, after these principles had been established, that many persons (such is the evil growing out of the corrupt nature of some men!) either failed to meet their obligations or even assailed the fortunes and the very lives of others, for the most part without suffering punishment—since the unforeseeing were attacked by those who were prepared, or single individuals by large groups—there arose the need for a new remedy, lest the laws of human society be cast aside as invalid.d This need was especially urgent in view of the increasing number of human beings, swollen to such a multitude that men were scattered about with vast distances separating them and were being deprived of opportunities for mutual benefaction. Therefore, the lesser social units began to gather individuals together into one locality, not with the intention of abolishing the society which links all men as a whole, but rather in order to fortify that universal society by a more dependable means of protection, and at the same time, with the purpose of bringing together under a more convenient arrangement the numerous different products of many persons’ labour which are required for the uses of human life. For it is a fact (as Plinye so graphically points out) that when universal goods are separately distributed, each man’s ills pertain to him individually, whereas, when those goods are brought together and intermingled, individual ills cease to be the concern of any one person and the goods of all pertain to all. In this matter, too, as in every other, human diligence has imitated nature, which has ensured the preservation of the universe by a species of covenant binding upon all of its parts. Accordingly, this smaller social unit, formed by a general agreement for the sake of the common gooda—in other words, this considerable group sufficing for self-protection through mutual aid, and for equal acquisition of the necessities of life—is called a commonwealth [Respublica]; and the individuals making up the commonwealth are called citizens [cives].
This system of organization has its origin in God the King, who rules the whole universe and to whom, indeed (so the philosophersb declare) nothing achieved on earth is more acceptable than those associations and assemblies of men which are known as states [civitates]. According to Cicero,c Jupiter himself sanctioned the following precept, or law: All things salutary to the commonwealth are to be regarded as legitimate and just.
There is agreement on this point, moreover, among almost all peoples, for in every part of the world we find a division into just such united groups, with the result that persons who hold themselves aloof from this established practice seem hardly worthy to be called human beings. Thus one might almost say that the ultimate infamy is the condition described in the wordsd ἀφρήτωρ, ἀθἑμιστος, ἀνἑστιος, “a lawless man, without tribe or hearth.”
In addition to the common opinion of mankind, another factor has played a part: the will of individuals, manifested either in the formal acceptance of pacts, as was originally the case, or in tacit indication of consent, as in later times, when each individual attached himself to the body of a commonwealth that had already been established.e For a commonwealth, even though it is composed of different parts, [11] constitutes by virtue of its underlying purpose a unified and permanent body, and therefore the commonwealth as a whole should be regarded as subject to a single law.a 11 a]
Now, within this corporate whole, which is in a sense a condensed version of that larger entity, [the universal society established by nature,] the functions of the two forms of justice above mentioned, [i.e. distributive and compensatory justice,] are revealed in a much clearer light. For distributive justice allots public possessions to various owners on a comparative basis of individual merit, and assigns duties and burdens to the various citizens in accordance with the strength of each. Compensatory justice, on the other hand, is concerned not only with the preservation of equality among individuals, but also with the bestowal of appropriate honours and rewards upon deserving patriots, and with the punishment of persons who are injuring the community. Furthermore, this same form of justice shows us how acts directed to individuals are of interest to the whole, for it confers civic crowns as well as triumphal honours, and does not confine its public judgements to cases of high treason, but on the contrary demands punishment also for homicides, forgers, and similar malefactors. Such functions, of course, are in quite close accord with the law of the society founded by nature.
Law VII
Law VIII
It seems, however, that there are laws peculiar to the civil covenant, which are derived from the three rules above stated and which extend beyond the laws already set forth, as follows: first, Individual citizens [11] should not only refrain from injuring other citizens, but should furthermore protect them, both as a whole and as individuals;b secondly, Citizens should not only refrain from seizing one another’s possessions, whether these be held privately or in common, but should furthermore contribute individually both that which is necessary to other individuals and that which is necessary to the whole. In relation to the former precept, Platoc calls citizens βοηθούς, and in relation to the latter, he calls them κοινωνούς, that is to say, “auxiliaries” of one another, and “partners.”
These two laws, then, are directed in a certain sense to the common good, though not to that phase of the concept with which the laws of the third order [Laws V and VI] are concerned, namely, the good of the different individuals composing the community. Laws VII and VIII relate rather to the common good interpreted as the good of the unit and therefore [in a subordinate sense] as one’s own. Accordingly, although the order of presentation of the first set of laws and of those following immediately thereafter has indicated that one’s own good takes precedence over the good of another persona—or, let us say, it indicates that by nature’s ordinance each individual should be desirous of his own good fortune in preference to that of another, which is the purport of the proverbs, “I myself am my own closest neighbour,” γόνυ κνήμης ἔγγιον [My knee is closer than my shin], “My tunic is closer than my cloak”—nevertheless, in questions involving a comparison between the good of single individuals and the good of all (both of which can correctly be described as “one’s own,”b since the term “all” does in fact refer to a species of unit), the more general concept should take precedence on the ground that it includes the good of individuals as well.c In other words, the cargo cannot be saved unless the ship is preserved. Hieroclesd says: χρὴ τὸ κοινὸν του̑ κατ’ ἰδίαν μὴ χωρίζειν, ἀλλ’ ἒν ἔγει̑σθαι καὶ ταὐτόν, τό τε γὰρ τῃ̑ πατρίδι συμφἑρον κοινόν ἐστι καὶ τω̑ν κατὰ μἑρος ἑκάστῳ. “That which is public should not be separated from that which is private [. . .].9 For whatever is beneficial for one’s country [as a whole] is likewise of common [advantage] to the various parts thereof.” The speech of Pericles, as recorded by Thucydides,e clarifies this very problem of why and to what extent private well-being is subordinate to public well-being. Pericles is represented as speaking thus:
ἐγὼ γὰρ ἔγου̑μαι πόλιν πλείω ξύμπασαν ὀρθουμἑνην ὠφελει̑ν τοὺς ἰδιώτας,