Front Page Titles (by Subject) APPENDIX Prolegomena to the First Edition of De Jure Belli ac Pacis - The Rights of War and Peace (2005 ed.) vol. 3 (Book III)
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APPENDIX Prolegomena to the First Edition of De Jure Belli ac Pacis - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 3 (Book III) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 3.
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A NOTE ON THE TRANSLATION
This is a translation of the Prolegomena to the first edition of De Iure Belli ac Pacis (1625). As will be seen by a comparison of it with the Barbeyrac text, a number of passages in the later editions are not present in it, and others have been rewritten (I have discussed some of the more important differences in the Introduction, p. ix). The division of the Prolegomena into numbered paragraphs was introduced for the first time in the edition of 1667 (along with subdivisions to the paragraphs in the main body of the text); and in an attempt to convey what Grotius himself intended, and what readers such as Hobbes, Locke, or Pufendorf saw when they read the book, I have omitted the divisions. The result looks strange to a modern eye, but it captures Grotius’s prose style and avoids some of the clumsy interruptions to his argument which the 1667 editor introduced. I have translated the key term ius sometimes as “law” and sometimes as “right.” As is well known, there is no adequate translation of this term into English, unlike other European languages (where for example droit captures the ambiguity of the word). In general, however, Grotius tends to use it to mean what we would call “law,” as in ius naturale, natural law (not natural right in the sense, e.g., of Hobbes). I have tried to indicate what the original Latin term is in other difficult cases, such as utilitas (“utility,” “interest,” or “advantage”). Utilitas in the Roman and later tradition was consistently contrasted with honestas or aequitas (“integrity” or “fairness”) (see, for example, Cicero’s De Officiis), and Grotius uses the term with this in mind.
PROLEGOMENA TO THE FIRST EDITION OF DE JURE BELLI AC PACIS
Many people have undertaken commentaries and digests of civil laws, both the Roman law and that of other nations; but few people have tackled the law which mediates between different countries, or between their rulers (whether that law stems from nature itself or from custom and tacit agreement), and so far no one at all has dealt with it comprehensively and methodically, though such a thing would benefit the human race. As Cicero truly said, the master science is the one which deals with alliances, agreements and bargains between peoples, kings, and foreign nations; that is, with all the rights of war and peace. Euripides too ranked this study above the knowledge of all divine and human matters: he had Theoclymenes addressed in this way:
Work on this subject is all the more necessary because plenty of people, both in our own time and in earlier ages, have condemned this kind of law as nothing more than an empty name. Euthydemus’s remarkin Thucydides is on almost everyone’s lips, that for a king or state with sovereign power, nothing which is in their interest is unjust. Much the same are the sayings that when the stakes are high, success is the only justice, or that a state cannot be ruled without injustice. We can add to these the claim that the controversies which arise between nations or rulers generally have Mars as their arbiter. It is not only ordinary people who think there is a great gulf between war and law, but even learned and sensible people often make pronouncements which foster this belief. Nothing is more common than to oppose law and arms to one another. So Ennius said
And Horace described the ferocity of Achilles as follows:
Lucan1 represented a character embarking on a war as saying
Even such a modest person as Pompey could dare to say, “Why should I think of laws, with weapons in my hand?” Among Christian writers there are many passages to the same effect; one in Tertullian will stand for the others. “Deceit, savagery and injustice are the proper business of war.” No doubt those who think like this will quote to me that passage in Terence,2
It would clearly be useless to undertake a discussion of law if there is no such thing; so if I am to win acceptance for my project, I need in its defence briefly to refute this crucial error. And so that I do not have to deal with the whole crowd of my opponents, let me assign them a spokesman. Who better than Carneades, who reached what to the Academy was the summit of achievement, in that he could use his rhetorical powers just as effectively on behalf of falsehood as on behalf of truth? When he undertook the critique of justice (which is my particular subject at the moment), he found no argument more powerful than this: men have established iura according to their own interests [proutilitate], which vary with different customs, and often at different times with the same people. So there is no natural ius: all men and the other animals are impelled by nature to seek their own interests. Consequently, either there is no justice, or if there is such a thing, it is completely irrational, since pursuing the good of others harms oneself. We should not by any means accept the truth of what this philosopher says, nor of what Horace3 said in imitation,
For though man is an animal, he is one of a special kind, further removed from the rest than each of the other species is from one another—for which there is testimony from many actions unique to the human species. Among the things which are unique to man is the desire for society [appetitus societatis], that is, for community with those who belong to his species—though not a community of any kind, but one at peace, and with a rational order [pro sui intellectus modo ordinatae]. Therefore, when it is said that nature drives each animal to seek its own interests [utilitates], we can say that this is true of the other animals, and of man before he came to the use of that which is special to man [antequam ad usum eius quod homini proprium est, pervenerit]; though we should also make this exception in the case of the other animals, that their pursuit of their own interests is tempered by a regard partly for their own offspring, and partly for the other members of their species. We believe that this proceeds in their case from some extrinsic principle of intelligence, since a similar intelligence does not appear in other actions of theirs which are equally difficult. In the case of men, however, when they perform such actions, it is reasonable to suppose that they stem from some internal principle, which is associated with qualities belonging not to all animals but to human nature alone. This care for society in accordance with the human intellect, which we have roughly sketched, is the source of ius, properly so called, to which belong abstaining from another’s possessions, restoring anything which belongs to another (or the profit from it), being obliged to keep promises, giving compensation for culpable damage, and incurring human punishment. From this concept of ius arises another and more extensive one. Since men not only have this social instinct [vim socialem] more than other animals, but also possess the capacity to assess pleasures or pains [quae delectant aut nocent], both immediately and in the future, and to make judgments about what will conduce to them; we should understand that it is appropriate to human nature rationally [pro humani intellectus modo] to follow good judgment in these matters, and not be disturbed by fear or the lure of immediate pleasure, and that whatever is plainly contrary to good judgment is also contrary to the law of nature (that is, of human nature). As a result it behooves us when distributing resources responsibly to individuals or groups to ensure that we give more weight to the intelligent [sapiens] than to the less intelligent, more to a neighbor than to a stranger, and more to the poor than to the rich, as their conduct and the nature of the case requires. In the past many people took this to be part of ius properly and strictly so called, whereas ius accurately understood is very different in its character, as it consists in refraining from taking what belongs to another person, or in fulfilling some obligation to them. What I have just said would be relevant even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to him: the contrary of which on the one hand is borne in upon us (however unwilling we may be) by an innate light in our soul, and on the other is confirmed by many arguments and by miracles witnessed down the ages. It follows that without exception we should obey God as our creator to whom we owe everything, especially as he has revealed himself repeatedly as the best and most powerful being, who can give his followers great and eternal rewards; and we ought to believe that he wishes to do so all the more if he has promised it in so many words: which we Christians, following the ancient Hebrews, believe on the basis of unquestionable trust in the testimonies of his will. The free will of God gives rise to another ius in addition to that of nature, and our reason [intellectus] irrefutably tells us that we should submit to it. Moreover, despite the fact that natural ius, with which I am concerned, whether we think of it as the basis of society or take it more loosely [sive illud sociale, sive quod laxius ita dicitur], necessarily derives from intrinsic principles of a human being [ex principiis homini internis necessario profluit], it can also justly be attributed to God, since he willed that there should be such principles in us. It was in this sense that Chrysippus and the Stoics said that one should simply seek the origin of ius in Jove himself. The word ius in Latin indeed probably comes from the name Iovis. Among men our parents are like Gods of a kind, to whom not infinite but appropriate honor is due. Now, since it is part of the ius naturae that we keep our promises (for it was necessary that men should have some way of obliging themselves, and no other natural means can be conceived), civil laws [iura civilia] stem from the same source. For when people form themselves into a society [coetus] or subject themselves to some man or men, they have either expressly promised, or should be presumed from the nature of the arrangement to have tacitly promised, that they will agree with whatever the majority of the society, or the bearers of authority in it, have decided upon. Accordingly, what not Carneades alone but others as well have said,
is not true, if we speak accurately: for human nature itself is the mother of natural law, as it drives us to seek a common society [societatem mutuam] even if there is no shortage of resources: the mother of civil law is the obligation which arises from agreement, and since that gets its force from natural law, nature can be termed the grandmother of civil law. But utility is annexed to the natural law: the author of nature willed that as individuals we should be weak and in need of many things if we are to lead a good life, in order that we should be all the more impelled into living in society; and utility is the occasion of civil law [iuri autem civili occasionem dedit utilitas], since what I have termed association or subjection originally came into existence for the sake of some interest [utilitatis]. It is also the case that anyone who prescribes laws for other people usually does so with a view to increasing utility, or at least ought to do so. But just as the laws of each state [civitas] consult the utility of that state, so there could be (and indeed there seem actually to be) laws between states—either between all states or between a number of them— which consult the utility not of the individual societies but of their totality. This is what is termed “the law of nations,” insofar as we distinguish that law from the law of nature. Carneades omitted this kind of law when he categorized all laws as either the laws of nature or those of particular nations, though since he was dealing with the law which governs international relations (for the subject of his lecture was “war and its consequences”), he ought to have dealt with it above all. So Carneades was wrong when he stigmatized justice with the name of irrationality: for just as on his own account a citizen is not irrational who obeys the civil law of his state, even though doing so may require the citizen to forgo some personal benefit, so a nation is not irrational if it does not pursue its own interest at the expense of the common laws of nations. The reasoning is the same in each case: a citizen who breaks the civil law for the sake of some immediate interest will thereby undermine his own and his descendants’ permanent interests, and a nation which violates the laws of nature and nations will have renounced its right [rescindit munimenta] subsequently to live in peace. So even if no benefit is to be expected from obedience to a law, it is wise and not irrational to do what we feel we are led to by our nature. By the same token, it is not invariably true that
or, as Plato puts the same thought, laws were invented from a fear of suffering injury, and it was violence which got men to cultivate justice. Strictly speaking, this applies only to those practices [instituta] and laws which were devised to help with instituting relationships of justice: many people who were individually weak got together to found and maintain with their collective strength a legal system [iudicia], so that they would not be oppressed by the more powerful, and that what they could not achieve separately would be within their power as a community. It is in this sense that it can reasonably be said that what is right is what benefits the most powerful, when we understand that a system of right can secure its external objective only with the help of force. Moreover, laws can still have an effect even without any violence annexed to them. For justice leads to a secure conscience, while injustice leads to the torment and laceration which Plato depicts in the hearts of tyrants; the common consent of upright people approves of justice and condemns injustice; and, most importantly of all, God is hostile to injustice and a friend to justice. Though he keeps his judgments for when we are dead, he nevertheless often represents their power to us in this life, as history tells us with many instances. Many people require the practice of justice from citizens but do not bother about it from nations or the rulers of nations. The principal cause of their mistake is that they are looking only to the utility which arises from laws, which is obvious in the case of citizens who cannot enjoy security as separate individuals, while great states which seem to possess all the resources needed for a properly secure existence apparently have no use for the virtue which involves other people, namely justice. But without repeating what I have already said, laws are not instituted for the sake purely of utility, and there is no state so powerful that it might not need some help from people outside it, whether for trade, or for protecting itself from the strength of many foreign nations united in opposition to it. This is why we see even the most powerful nations and kings seek alliances, the whole force of which is undermined by those who restrict laws to the internal affairs of states. The great truth is that everything is insecure as soon as we abandon laws. If no community can preserve itself without law (as Aristotle showed with his famous example of the brigands), so the community which all human beings, or a multiplicity of nations, construct among themselves certainly requires laws. Cicero4 recognized this when he said that evil actions should not be committed even for the sake of our country. Pompey too, whom we mentioned just now as taking the opposite view, when a Spartan king said to him that the happiest state was one whose boundaries spread as far as the spear and sword could take them, denied it, asserting that the happiest state made justice its frontier. He might also have used the authority of another Spartanking, who ranked justice above military valor, on the grounds that bravery should be governed by some kind of justice, and that if all men were just, they would not need courage. Themistius in his speech to Valens said persuasively that kings who are governed by the rule of wisdom are concerned not merely with the one nation assigned to them, but with the whole human race, and are (as he termed them) not solely “Macedonophiles” or “Romanophiles” but “Philanthropists.” What some people say, that in war all laws cease, is completely unacceptable: rather, war should only be undertaken in the pursuit of rights, and once under way should be conducted according to the measure of law and honesty [fides]. Demosthenes was right when he said that war was to be used against those who could not be constrained by judicial processes. Those processes have force only against people who think of themselves as subject to them, while war should be mounted against people who make themselves out to be the equals of their judges—though it should definitely be conducted with no less scrupulousness [religio] than we are accustomed to in courts. If “laws are silent among arms,” this is true only of civil laws and of laws relating to the judiciary and the practices of peacetime, and not of the other laws which are perpetual and appropriate to all circumstances. Dio Prusaeensis put it well: between enemies no notice is to be taken of written, that is, civil, laws, but notice must be taken of the unwritten laws which nature dictates, or the agreement of nations has established. The old Roman formula illustrates this: “I believe that these things are to be sought through a pure and holy [pius] war.” Those ancient Romans, as Varro observed, undertook their wars cautiously and in a disciplined fashion, since they thought that no war should be waged unless it was holy. Camillus said that war ought to be waged with no less justice than courage; and in Livy5 we read, “There are laws [iura] of war just as there are of peace.” Seneca6 admired Fabricius as a great man because he succeeded in the most difficult task of preserving his innocence in a war, and because he believed that some acts were utterly wrong even when committed against an enemy. Historians constantly demonstrate how much influence a conviction of justice carries in warfare, and often ascribe victory to this cause above all. It is proverbial that the strength of a soldier waxes and wanes with his cause; that he who takes up unjust arms rarely comes home intact; that hope is the companion of a good cause; and so on. The fortunate success of unjust projects should not influence us: it is sufficient that the fairness of a cause has a determinate—and great—motive force, even though that force (as happens in human affairs) is often impeded in its effects by some other countervailing causes. The belief that we do not go to war casually or unjustly, but conscientiously [pie], plays a major part in sustaining friendships, which are as advantageous in all sorts of ways to nations as they are to individuals. For no one will readily ally with anyone who thinks that law, morality, and honesty [ius, fas, fidem] are worthless. Because of the reasons I have given, I am in no doubt that there is some common law [ius commune] among nations which applies to war and its conduct; so there are many urgent issues leading me to take up my pen. I have seen a wantonness in wafare among Christians which would be shameful even among barbarians; I have seen men run to arms for frivolous or non existent reasons, and having taken them up, show no reverence for divine or human law, as if at a word their fury had been unleashed and they were capable of any crime. Many highly decent men have been led by this spectacle of inhumanity to suppose that all weapons should be forbidden for the Christian, whose way of life commits him to love all men; these include at times both Johannes Ferus and Erasmus, our countrymen, each of them dedicated to peace in the Church and the State. But I think they have followed the familiar practice of going from one extreme to the other in the pursuit of truth. This attempt to go too far in the other direction often causes more harm than good, since their extremism in one area loses them respect as far as their more reasonable claims are concerned. We should therefore remedy their arguments, so that people are not encouraged to believe either nothing or everything that they say. In addition, I wanted to advance the study of jurisprudence: something which I used to practice in public affairs with as much integrity as I could, but which I now have to pursue as a private citizen, since I have undeservedly been exiled from the land which I worked so hard to serve. Many people have already tried to put it into a systematic form [artis formam], but no one has succeeded; nor will they, until there is a proper distinction made between what is conventional and what is natural, to which no one yet has paid full attention. For natural principles, being always the same, are easily put into a systematic form, whereas conventional principles, which often change and which vary from place to place, like other collections of particulars cannot be handled systematically. So if the experts [sacerdotes] on true justice were to undertake to deal with the different parts of natural and perpetual jurisprudence, they should first set to one side everything which derives from the free will. Then one of them should deal with laws, one with tributes, one with the role of judges, one with the estimating of intentions [voluntatum coniectura], and one with the establishing of belief about facts; having done all this, a body of knowledge could be put together out of the discrete parts. For my part, I will show what approach I want to take not in words now, but by the material itself in this work, which contains what is by far the most significant part of jurisprudence. In the first book of the work I examined the general question of the origin of law, and whether any war can be just. Next, in order to understand the distinction between public and private war, I had to analyze the powers of sovereignty: which peoples and which kings have it undivided [solidam], which hold part of it, which have the right to alienate it, and which do not. Then I had to discuss the duties of subjects toward their superiors. In the second book I discussed all the causes which give rise to war. I went into detail about which things are common and which private property; what rights people can have over other people; what obligation stems from ownership; what are the rules for royal succession; what rights arise from agreements or contracts; what is the force of treaties and oaths (both public and private), and how we interpret them; what compensation is due for offences; what protection is accorded to ambassadors; what right we have to bury our dead; and what is the nature of punishments. The subject matter of the third book is, firstly, what is lawful in the course of a war. Secondly, it distinguishes between actions which in practice go unpunished or are even treated by exotic nations as legitimate, and those which are genuinely not wrong; while lastly it deals with the types of peace agreement, and all the conventions admitted in wartime. The value of this work seems all the greater because, as I have said, no one has handled the whole of this argument, and those who have handled parts of it have done so in such a way that much is left to the industry of others. Nothing survives of this kind from the Ancient Philosophers: neither from the Greeks (among whom Aristotle wrote a book called The Justifications of War), nor from the Latin authors, and not even from the early adherents of Christianity, whose works we would welcome above all. Nothing has even descended to us of the ancient Roman books of the fetial law, other than the name. Those who wrote summae of so-called cases of conscience included in their range of topics chapters on war, on promises, on oaths, and on reprisals. I have also looked at the specialized works on the laws of war, some of which are composed by theologians such as Franciscus Victoria, Henricus Gorichemus, or Wilhelmus Matthaei and others by jurists such as Ioannes Lupus, Franciscus Arius, Ioannes de Lignanus, or Martinus Laudensis; but all of them say very little about such a rich subject, and they are mostly very muddled and confused about which laws are natural, which divine, which are part of the law of nations, which are civil laws, and which belong to canon law. The great deficiency in all of these writers was that they lacked the illumination provided by History. Attempts to supply the deficit were made, first, by the most learned Faber in some chapters of his Semestria, but in his own fashion, and with an excessive citation of sources; then in a more extensive manner, and with their masses of examples organized in accordance with some definitions, by Balthazar Ayala and, especially, Albericus Gentilis. I know that others may be helped by his diligence, and I admit that it has helped me; so I leave it to his readers to judge what is lacking in the way he distinguishes between questions and between different types of law. But I will say this, that when he discusses a controversy he tends to follow either a few ill founded examples, or the authority of recent Jurisconsults in their answers; and many of those were written on behalf of clients, and not with a view to what is right or good. Ayala did not deal with the reasons why a war might be called just or unjust; and while Gentilis outlined the principal topics in his distinctive fashion, he did not deal at all with many aspects of the most important and persistent controversies. I have taken pains to consult anything relevant which is in print, and have given the sources for my judgments in order to make it easy to determine even the matters which I have left out. It remains for me briefly to set out the resources I have used and what my concerns have been in the project. My prime concern has been to base my examination of what belongs to the law of nature on ideas which are so certain that nobody can deny them without doing violence to their fundamental being [nisi sibi vim inferat]. The principles of natural law are clear and self-evident, to a much higher degree than the things which we perceive with our outward senses—even though our senses do not fail us if their organs are working properly and other necessary conditions are met. So Euripides in his Phoenissae made Polynices, whose cause he wanted to be obviously just, say that
The judgment of the chorus promptly confirmed this view (and it consisted of women, and barbarian women at that). In investigating this law, I have benefited from the testimony of philosophers, historians, poets, and, lastly, orators. One should not naively believe whatever they say, since they are often loyal to a particular party, program, or cause; but what is affirmed by many people at different times and places to be obvious must be presumed to rest on some universal reason. In the issues we are considering, this reason can only be either a correct deduction from the principles of our nature, or some general agreement. The former means that it is a law of nature, the latter that it is a law of nations. The distinction between these two categories is not to be gathered from their writings (for the authors continuously confound the terms “law of nature” and “law of nations”), but from the character of the material. For whatever cannot be deduced by sure reasoning from definite principles, but is nevertheless found everywhere, must have arisen from some voluntary act. Accordingly, I have constantly put special effort into distinguishing between these two laws, as much as into distinguishing both of them from the civil law. In the case of the law of nations I have discriminated between genuine law, found everywhere, and that which strictly speaking produces some external effect in imitation of the fundamental law—for example, it is most definitely and clearly legitimate to resist violence, but everywhere people are obliged to use the public powers to defend themselves, for the sake of some advantage or to avoid serious inconveniences. It will be clear as I develop the argument of this work how relevant this observation is to many issues. I have also been anxious to distinguish rights properly and strictly so called, which give rise to some obligation of restitution, from actions which we call right because it would be against the dictate of right reason to behave in some other way; I have already touched on this distinction. Among philosophers Aristotle is reckoned the king, whether you take into account the structure of his arguments, his sharpness in making distinctions, or the weight of his reasons. But I wish that his rule had not been transformed into tyranny, so that there is now nothing which oppresses truth, on whose behalf Aristotle was such a zealous and loyal worker, more than the name of Aristotle himself. Here and elsewhere I copy the freedom of the early Christians, who forswore loyalty to any school of philosophers; not because they agreed with those who say that nothing can be known (that is the most ridiculous thing to say), but because they thought that no school was right about everything, and each school had some merit. So they believed that to put together the truths distributed among different individuals and schools was equivalent to setting out the authentic teachings of Christianity. Among other things, I would say in passing, as it is relevant to my discussion, that I think some Platonists and the early Christians were quite right to dissent from Aristotle’s doctrine that virtue lies in a mean of emotions or actions. His commitment to this view led him to treat quite disparate virtues as if they were identical, such as generosity and thrift; and to posit that truthfulness had as its opposite two vices of greatly differing significance, boastfulness and dissimulation. He also labeled a number of things as vices which are either nonexistent or are not wrong in themselves, such as contempt for pleasure or honors, and the failure to feel anger at other men. The error of such a sweeping definition is clear from the case of justice: when his inspection of emotions and their corresponding actions failed to locate the opposing extremes between which justice was supposed to lie, he turned to the objects themselves with which justice deals. First, this was to switch between categories, which he himself rightly condemned in others; and second, to take less than one is owed (though it might contingently be a vice, if one had responsibility for the welfare of oneself or others) cannot be antagonistic to justice, since justice simply consists in respecting someone else’s rights [tota in alieni abstinentia posita est]. A similar delusion led him to say that if adultery was the consequence of lust, or murder the consequence of anger, then they could not properly be called acts of injustice. In fact, injustice simply consists of taking what belongs to someone else, and it does not matter whether it stems from greed, or lust, or anger, or an improvident benevolence; or from the desire to excel, which is the source of the greatest injustices. As long as our reason for resisting an incentive to behave in some way is solely that doing so would undermine human association, then that is what it is to be just. To return to my earlier theme: while it is true of some virtues that they involve the moderation of our emotions, this is not because it is an intrinsic and universal feature of every virtue, but because right reason (which virtue follows everywhere) in some things prescribes moderation, and in others urges excess. Thus it is not possible to revere God too much (what is wrong with superstition is not that God is excessively worshiped, but that it is a perverse kind of reverence); nor can we have an immoderate desire for eternal blessings and an excessive fear of damnation; nor can we hate sin too much. So I intend to set great value on Aristotle, but to treat him with the same freedom with which he treated his teachers in his zeal for truth. Works of history are useful for my argument in two ways, for they provide both examples of conduct, and moral judgments upon them. Examples from the best periods and cultures [populi] carry the most authority, so I have selected those from the Ancient Greeks and Romans in preference to any others. Nor have I rejected their judgments, especially where everyone was in agreement: for while the law of nature (as I have said) may be determined in other ways, the law of nations is established solely by general agreement. The remarks of the poets and orators have less weight, and I have used them not so much to bolster my case as to add some elegance to what I want to say. I have often deferred to the authority of the books which men wrote (or received) under the inspiration of God, but I have differentiated between the old and the new law. Some people say that the old law is the law of nature itself, but there is no doubt that this is false: much in the old law comes from the free will of God, though it is compatible with the true law of nature. To that extent we can use it as a basis for our discussion, provided that we distinguish carefully between a law of God enforced upon men by God on some limited occasion, and a law men have constituted for themselves [dummodo distinguamus accurate ius Dei quod Deus per homines interdum exsequitur, et ius hominum inter se]. I have tried as far as I could to avoid this error, as well as its opposite, that of supposing that once the new covenant came in, nothing of the old covenant mattered any more. I dissent from this view partly because of what I have just said, and partly because the character of the new covenant is such that whatever is prescribed in the old covenant about moral virtues is prescribed in the same terms, or more fully, in the new. We find the early Christian writers using examples from the old covenant in this way. And the Hebrew commentators can give us not a little assistance in interpreting the books of the old covenant, especially those who had good knowledge of the language and customs of their people. I use the new covenant to demonstrate what Christians are permitted to do, since there is no other way to determine it. But (in opposition to what many claim) I distinguish the new covenant from the law of nature, as I am sure that a much greater holiness is enjoined upon us by the most sacred law of the new covenant, than is required of us by the law of nature in itself. But I have not failed to note that where things are commended to us rather than commanded, then, just as we understand that to refuse commands is a sin and leaves us liable to punishment, so someone with a generous mind will follow the counsels of perfection, and will not fail to reap a reward. The canons of the authoritative Councils are selections from the general pronouncements of the divine law, adjusted to particular circumstances; they too illustrate what the divine law requires, or encourage us to do what God urges. And this is indeed the role of the Christian Church: to hand down what God transmitted to it, in the form in which it was transmitted. But the customs which the early Christians (at least, those who deserved to bear such a great name) accepted and praised are rightly treated as of equal value to the canons. Next in authority are those who enjoyed a great reputation among Christians in their own time (whenever it may have been) for their piety and doctrine, and were not reckoned to have made any grave errors. For what they say with great assurance, as if they were certain of it, ought to carry no small weight in the interpretation of obscure passages in the scriptures, especially when many of them seem to agree, or when they are close in time to the period of early purity, before power and intrigue had corrupted the original truth. The Scholastics, who followed them, often show how much they are to be admired for their cleverness. But they happened to live in an unfortunate age, ignorant of proper liberal arts [artium bonarum]; so we should not be surprised that, while there is much to be praised in their work, some of it at the same time has to be excused. However, when they agreed about some moral matter, they were seldom in error; for they were exceedingly quick at seeing the faults in other people’s arguments. And even in their enthusiasm for contradicting one another, they set an admirable example of modesty: for they fought among themselves with reasons and not with the insults which defile contemporary literature, and are the shameful products of impotent minds. There are three kinds of professors of Roman law. The first are those whose works are to be found in the Pandects, the Codes of Theodosius and Justinian, and the Novellae. The second are those who came after Irnerius, such as Accursius, Bartolus, and all the rest, who ruled in the courts for a long time. The third comprises those who joined the humanities [humaniores literas] to the study of law. I defer on many matters to the first group, for they provide an excellent and copious set of arguments to show that something is part of the law of nature, and often supply examples of the law of nations as well as the law of nature—though they are as prone as everyone else to confuse the two terms, and indeed frequently use the term “law of nations” to describe a practice which is strictly speaking of only limited extent, and is not based on agreement but on one nation imitating another, or on some chance similarity. And they often carelessly merge what genuinely belongs to the law of nations into their discussion of Roman law, as in the title “Captives and Postliminium. ” So I have worked hard to make the appropriate distinctions. The second group of professors were uninterested in divine law and ancient history: they tried to decide all the controversies of kings and peoples by reference to the Roman law, with the occasional admixture of canon law. They too were precluded by the mis-fortune of their period from properly understanding Roman law, but in other respects they were fairly sharp at discerning what is good or fair. As a result they are often the best authors to rely on for legislation, even if they are bad interpreters of preexisting laws. We should pay them most attention when they give an example of some custom which is now taken to be the law of nations. The third group of teachers, who restricted themselves to the Roman law, and who either neglected the common law of mankind [ius illud commune] or discussed it in a superficial fashion, have nothing useful to add to my argument. Two Spaniards, Covarruvia and Vasquius, have linked scholastic subtlety to knowledge of civil and canon law, and have not held aloof from the controversies of peoples and kings. Vasquius has handled the issues with great boldness [libertate], while Covarruvia has approached them more cautiously, and with a fairly good judgment. The French have tried to incorporate history into the study of law. The most distinguished of them have been Bodinus and Hottomanus; the former produced a connected work while the latter gave us a scattered set of questions. Their assertions and arguments will often prove useful in this inquiry. In the whole work I have made three fundamental commitments. One is to make the reasons for my propositions as obvious as possible; the second is to set out the material of my discussion in a systematic order; and the third is clearly to distinguish like cases from unlike.7 I have abstained from discussing questions of utility [quid ex usu sit facere], which are appropriate to some other work; those questions belong to a special political science [artem], which Aristotle rightly handled by itself, without any extraneous material—unlike Bodin, who confused this science with the kind of legal analysis [arte] which I have undertaken. I have on some occasions mentioned what is in people’s interests [quod utile est], but in passing, and in order to distinguish it from what is just. If anyone accuses me of being concerned with the controversies of our own time (whether current or about to break out), they will do me an injustice: I affirm that, just as mathematicians treat geometrical figures as abstracted from material objects, so I have conceived of law in the absence of all particular circumstances. As for my prose style, I did not want my readers (whose interests I did consider) to feel overwhelmed by a verbose treatment of so many different issues, so I have tried wherever possible to be concise and to convey my meaning clearly, with the hope that people engaged in public affairs will take in at a single glance both the kinds of disputes which arise in this field, and the principles for deciding them. Once they have absorbed the principles they will easily find their own way of expressing them, and can develop them as much as they like. I have periodically given quotations from ancient writers, where they seemed to carry particular weight or lend a special elegance to what I was saying; sometimes I have left a quotation in Greek, where it was short or where I could not hope to match its charm in a Latin translation, but I have always added a Latin version for the benefit of those who know no Greek. I sincerely pray that anyone who picks up this work will treat me with the same lack of deference [libertatem] which I have shown to the ideas and writings of other people; I will correct any error as soon as it has been brought to my attention. Lastly, if I have said anything contrary to piety, or morality, or Scripture, or the common agreement of the Christian Church, consider it unsaid.
[1. ]Grotius does not mention Lucan by name, but clearly assumed that his readers would know the passage. I have inserted the name to convey his meaning to a modern audience. He does the same in a number of other places (see footnotes 2–6, below).
[2. ]See footnote 1.
[3. ]See footnote 1.
[4. ]See footnote 1 above.
[5. ]See footnote 1.
[6. ]See footnote 1.
[7. ]Literally, “that I might clearly distinguish what can be seen as the same as each other and what are not” (ut quae eadem inter se videri poterant nec erant, perspicue distinguerem).