Commentary on the Law of Prize and Booty. Hugo Grotius
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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 proxye 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. Senecac 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 VII
The power thus inherent in the [magisterial] mandate is the basis, moreover, of two rules which are connected with the Fourth and Fifth Rules, and which serve to confirm, in the first instance, the authority of legislators, and in the second instance, the authority of judges. I refer to the following precepts: first, What the magistrate has indicated to be his will, that is law in regard to the whole body of citizens; and secondly, What the magistrate has indicated to be his will, that is law in regard to the citizens as individuals.a
The Secondary law of nations
Rule VIII
A supplementary observation should be introduced at this point, namely: that there exists a species of mixed law, compounded of the [primary] law of nations and municipal law, and designated in correct and precise terminology as “the secondary law of nations.”b For just as the common good of private persons gave rise to the precepts above set forth, so also, owing to the existence of a common good of an international nature, the various peoples who had established states for themselves entered into agreements concerning that international good. From this circumstance another rule arose, a rule modelled on the fourth, which in turn had derived its basic principle from the second and third and, consequently, from the first. According to this Eighth Rule, Whatever all states have indicated to be their will, that is law in regard to all of them.
As illustrations of this precept, one might mention the inviolability of ambassadorsc (to whom all peoples organized in the form of a state accord equal sanctity), various matters relating to the burial of the deadd and other institutions of a similar kind. [12′ a]
New explanation
Such institutions, indeed, are divided into two classes. For some have the force of an international pact, as in the cases just mentioned; others lack that force, and these I should prefer to classify under the head of accepted custom rather than under the head of law.
Nevertheless, even these consuetudinary institutions are frequently described as forming a part of the [secondary] law of nations. This occurs, for example, in connexion with the provisions relative to servitude, to certain kinds of contract, and to order of succession, provisions which have been adopted in identical form—either imitatively or as a coincidence—by all or at least by a majority of nations, in accordance with their separate and individual interests. It is permissible for individual states to renounce such institutions, because of the very fact that the latter were established not by common [international] agreement but by the respective states, acting singly; just as, in the case of a given political community, not everything customary among the majority of persons will forthwith constitute law, but only that which concerns the mutual relations of the citizens. For there are many customary practices of a private rather than a public character (such as the vast number of customs recorded in the compilations of antiquarians, connected with clothing, banquets, or funerals) which the head of any household is free to discard at will even though they have been generally accepted.
Law XII
Among the other precepts of the law of nations—those binding upon the various peoples as if by force of contract—the most important [12′] is the one which resembles the first precept of municipal law [Law IX], and which may be worded thus: Neither the state nor any citizen thereof shall seek to enforce his own right against another state or its citizen, [13] save by judicial procedure. The necessity for this precept is indeed self-evident, and can be deduced from the observations already set forth.
New explanation
But a new difficulty presents itself at this point, one which did not appear in connexion with municipal law. For citizens ὑποτάσσονται [are subject] to their respective states, and therefore, both in disputes with one another and in disputes with the state, they rightly submit to the judgement of the latter; whereas one state [οὐχ] ὑποτάσσεται, but rather, ἀντιτάσσεται—that is to say, it is not in subjection but in contraposition—to another state, and citizens of the one are likewise contraposed to citizens of the other. While it was readily agreed, of course, that the judicial function should be exercised by a state, there was a possibility of disagreement as to which of two states should be the one to discharge this function; for each of them, indeed, could refer to those famous lines:a
δίκαιοι δ’ ἐσμὲν οἰκου̑ντες πόλιν
αὐτοὶ καθ’ αὑτοὺς κυρίας κραίνειν δίκας.
All we who dwell within these city walls, Have power to execute our courts’ decrees.
Truly, there is no greater sovereign power set over the power of the state and superior to it, since the state is a self-sufficient aggregation. Nor was it possible for all of the nations not involved in a dispute to reach an agreement providing for an inquiry by them into the case of each disputant.
Rule IX
Thus it was necessary to settle any controversy of