§. 183. Let the conqueror have as much justice on his side as could be
supposed, he has no right to seize more than the vanquished could forfeit; his
life is at the victor's mercy, and his service and goods he may appropriate to
make himself reparation; but he cannot take the goods of his wife and children,
they too had a title to the goods he enjoyed, and their shares in the estate he
possessed. For example, I in the state of Nature (and all commonwealths are in
the state of Nature one with another) have injured another man, and refusing to
give satisfaction, it is come to a state of war wherein my defending by force
what I had gotten unjustly makes me the aggressor. I am conquered; my life, it
is true, as forfeit, is at mercy, but not my wife's and children's. They made
not the war, nor assisted in it. I could not forfeit their lives, they were not
mine to forfeit. My wife had a share in my estate, that neither could I
forfeit. And my children also, being born of me, had a right to be maintained
out of my labour or substance. Here then is the case: The conqueror has a title
to reparation for damages received, and the children have a title to their
father's estate for their subsistence. For as to the wife's share, whether her
own labour or compact gave her a title to it, it is plain her husband could not
forfeit what was hers. What must be done in the case? I answer: The fundamental
law of Nature being that all, as much as may be, should be preserved, it
follows that if there be not enough fully to satisfy both — viz., for the
conqueror's losses and children's maintenance, he that hath and to spare must
remit something of his full satisfaction, and give way to the pressing and
preferable title of those who are in danger to perish without it.
